Unpacking the Supreme Court’s Order Regarding Delimitation in the North-East [Guest Post] – Constitutional Law and Philosophy

[This is a guest post by Anshul Dalmia.]

Recently, the Supreme Court (‘Court’) in the case of Delimitation Demand Committee for the State of Arunachal Pradesh, Assam, Manipur and Nagaland in North v. Union of India granted three months for carrying out the delimitation exercise in Arunachal Pradesh, Nagaland, and Manipur. The plea sought the immediate implementation of delimitation in these states.

The case arose from the alleged violation of a 2020 Presidential Order (‘2020 Order’) which had rescinded the deferment of the delimitation process in these States. The 2020 Order was passed under Section 8-A of the Representation of People’s Act 1950 (‘1950 Act’) which allows the President to rescind deferment orders, specifically with reference to the States of Arunachal Pradesh, Assam, Manipur or Nagaland. The deferment orders are generally passed under Section 10A of the Delimitation Act 2002 (‘2002 Act’) which allows the President to defer State delimitation exercises. The order can be passed if she is satisfied that a situation has arisen, whereby the unity and integrity of India is threatened or there could be a serious threat to the peace and public order within that State.

I argue that first, this order of the Court does not consider the fact that Section 8-A of the 1950 Act rests on a questionable premise. Section 8-A has been previously questioned and is currently under a constitutional challenge. I seek to showcase that not examining the vires of Section 8-A allows the prevalence of unfair processes and destroys the petitioner’s opportunity of securing timely remedies. Secondly, I contend that the order to conduct delimitation within 3 months is practically difficult and might lead to a rushed process, creating further unsolvable issues.

UNCOVERING THE BURIED TRUTHS (AND CASES)

In the case of Hirendranath Gohain v. Union of India, the process of delimitation which was being used in Assam was challenged before a three-judge bench of the Court. The Assam delimitation process was conducted as a result of the 2020 Order which rescinded the earlier deferment order. Several imperative issues were brought to the attention of the Court regarding both Section 8-A and the 2020 Order. I argue that these issues continue to remain extremely relevant and prominent with our case at hand. These issues indicate the problems which exist with allowing delimitation to happen in the North-eastern states.

First, Section 8-A of the 1950 Act mandates the Election Commission of India (‘ECI’), and not the Delimitation Commission (‘DC’), to undertake the delimitation process. With qualms about the independence of the ECI as raised in Anoop Baranwal, it becomes imperative to question the legitimacy of the ECI to conduct the constitutionally-mandated delimitation process. Second, since ECI is tasked with conducting delimitation, the inherent safeguards placed within the 2002 Act do not become available to the ECI, since they are solely applicable to the DC. For instance, Associate Members, who ensure that delimitation remains a politically inclusive process, won’t be present to assist the ECI. Third, the standards of what may constitute a ‘serious threat to the peace and public order’ under Section 10A of the 2002 Act remain extremely discretionary and are solely decided by the executive (i.e., the President after consultation with the Council of Ministers). Lastly, the 2020 Order itself mentions that the delimitation has to be carried out in accordance with the 2002 Act i.e., the DC has to conduct delimitation. Since the ECI has been entrusted with this task, it has acted contrary to the terms on which the deferment of the delimitation exercise was rescinded.

Hence, I argue that the non-consideration of these issues while deciding the current case make the proceedings in Hirendranath Gohain infructuous. Since the Court had realised that these issues warranted close scrutiny, it should have examined the arguments in detail and evaluated the legality of Section 8-A and the 2020 Order on which the current delimitation process in the above States was premised. However, the Court did not delve into the substantive issues but procedurally instructed that delimitation be conducted within 3 months. Additionally, the impending non-adjudication of the above issues has ensured that a prima facie unfair and questionable process of delimitation (Section 8-A read with Section 10A) has received the implicit imprimatur of the Court.

WHERE THERE IS A RIGHT, IS THERE A REMEDY?

Further, I argue that the pendency of the Hirendranath Gohain case and the non-consideration of these issues in similar cases such as the current case at hand, the Court is ensuring that those remedies received after challenging the delimitation process have become meaningless.

In the Hirendranath Gohain case, though the Court understood that the Assam delimitation process was tainted and merited scrutiny, it refused to grant the petitioners any effective remedy. The Court said that since the Assam delimitation process had commenced following the 2020 Order and the draft proposal was already published on 20 June 2023, it would not be appropriate to interdict the process at this stage. Hence, while reserving the constitutional challenge which was raised before the Court for further deliberation, the ECI was directed to not stop any of its processes. Thus, the remedy was ineffective since the Court believed that it would be too late for intervention.

I contend that in the current case, the pendency has not been created by the petitioners since they have filed the case at an appropriate stage. This case was first admitted by the Supreme Court on 19 May 2022 and was directed to be listed on 25 May 2022. After this, the matter was heard on 25 November 2022 wherein the Union of India, the Chief Election Commissioner, and the State of Nagaland were instructed to file responses and counter-affidavits. On 21 February 2023, the State of Manipur and on 23 February 2023, the Chief Election Commissioner were given two weeks to file counter-affidavits in this matter. On 10 April and 11 April 2023, the Court instructed tagging similar cases which had been filed in front of two different benches. After which, the case was adjourned for no specific reason which has been recorded, on 2 May 2023, 11 July 2023, 18 September 2023, 9 October 2023, and then directly on 19 November 2024. As seen above, the lateness here is due to the vagaries of adversarial judicial proceedings, under the supervision of the Court itself, which have delayed the hearing of this case to such an extent that now that very Court, irrespective of the substantive challenge to Section 8-A, will be unable to provide an equally effective and timely remedy.

It may be objected that as far as election cases go, the Courts have always been focussed on ensuring that elections happen on time rather than ensuring that elections take place through fair means and mechanisms. In the cases of Ashok Kumar and Meghraj Kothari, where challenges were made to certain delimitation processes, the Court emphasized that judicial intervention must not lead to  interrupting, obstructing, or delaying the progress of the election proceedings. Additionally, Courts could only correct or smoothen the progress of the election proceedings, remove the obstacles therein, or preserve a vital piece of evidence which would be lost or destroyed or rendered irretrievable by the time the results were declared.

Against this backdrop, I contend that first, Courts must not be given such a limited jurisdiction when it comes to election matters. While status quo may lead to elections happening on time, the results of the elections and the selected candidates could potentially be tainted by illegality, irregularity, and unfair behaviour. This would lead to a loss of confidence in the supposed democratic election process and in the political parties which win these elections. Second, such limited jurisdiction of the Courts vis-à-vis election proceedings might not be applicable to delimitation processes. While it is true that delimitation processes and election proceedings are intuitively connected to each other, I argue that delimitation may be considered to be independent of elections. While elections make use of the constituencies which are identified after delimitation, that is not the sole purpose of the delimitation process. Delimitation is also used for governance and planning since it ensures administrative convenience and enables the smooth allocation of development funds.

Thus, overall in the current case, it is contended that since the Court failed to consider the substantive challenge to Section 8-A, it ensured that no remedy could ever be granted. Moreover, the trend within election cases to prioritise timely elections over fair elections warrants reconsideration.

LACK OF AWARENESS ABOUT PRACTICAL CONCERNS

I argue that the Court’s order in instructing that delimitation be conducted within 3 months leads to several practical issues which have conveniently been ignored:

First, that delimitation is an extremely technical process and involves a lot of stakeholders and thus, inherently takes a lot of time to be completed. Upon examination of the timelines of the national delimitation process in previous years (as seen in Table 1), it can be seen that around 5 years are needed to conduct delimitation in India.

Table 1

While it may be reasonable to argue that 5 years would not be required for the North-eastern states which are small in size, I argue that the three month time limit is unreasonable. A long span of time i.e., 53 years [1972-2025], has passed since delimitation has happened in these states. This would mean that there may be several deep-rooted issues warranting closer consideration and investigation from the ECI. Additionally, the ECI in 2025 will be tasked with overseeing elections in larger states such as Bihar which would also need supervision and attention. Finally, in a similarly placed north-eastern state, i.e., Assam, the delimitation exercise approximately took almost 2 years to be completed [2022-2023].

Second, that if delimitation is to be conducted within such a short time-frame, it could lead to an inefficient result. Since the ECI is mandated to complete the task of delimitation of three states within three months, this could lead to several errors being present – such as seepage of political bias or unintentional gerrymandering, as can be seen from the Assam example.

It becomes imperative to clarify that I am not advocating for delayed or length delimitation exercises. However, the time period for delimitation must consider the following factors: (i) the time period must be reasonable; (ii) it should take into account the complex technical process of delimitation; (iii) and should be dependent on the place (i.e., the State) and the context in which delimitation is being undertaken.

With the Court’s recent order, it can be seen that several dangers persist i.e., the non-consideration of similar earlier cases, the improbability of providing an efficacious remedy, and the presence of practical concerns which might hamper and impede the delimitation process to be completed in three states within three months. Delimitation has always been talked about in the context of the North versus South; however it becomes imperative to investigate the divergence and the difference caused by not undertaking the delimitation presses in the East. Orders of the Court like these do not necessarily alleviate the problem but rather make it even more complicated.