The Union Government has announced that the census will be conducted in 2026-2027. Statements by the Home Minister have implicitly acknowledge that the Union Government is working on a proposal for delimitation which likely involves both constitutional amendments and a statutory framework for delimitation. The most likely outcome appears to be an increase in the size of the Lok Sabha to grant additional seats to States with larger populations without taking away seats from States with smaller populations.
Previous posts on this topic (here, here, here, and here) have laid out the constitutional arguments and solutions concerning delimitation, including why simply increasing the size of the Lok Sabha is insufficient to address the larger federal imbalance between States and the Union. This post will focus on how the integrity of the delimitation exercise can be secured. Specifically, it will address issues concerning the timing of the census and the delimitation process, the need for a robust statutory framework which secures the delimitation commission’s independence and principled operation, and the role courts ought to play.
A brief note on the normative standard applied here. Unlike a judicial decision, which can be assessed against standards of doctrinal consistency or higher norms such as equal respect or autonomy, the goal of a democratic exercise such as the delimitation process is legitimacy or acceptance. Democratic theory stipulates that one way to achieve this is through public reason, where the process is open and transparent, involves deliberation and voting by elected representatives, and the actions of representatives are based on justifications which can be repeatedly scrutinised by the people to ensure they are done in public, not private interest. This is the standard this blogpost applies.
Timing and Timelines
Article 82 of the Constitution states that ordinarily delimitation shall take place “Upon the completion of each census…” The third proviso of the Article, which refers to the upcoming delimitation exercise, states that the exercise shall not take place “until the relevant figures for the first census taken after the year 2026 have been published.” Thus, a preliminary requirement for delimitation to be undertaken is that figures of the census be published.
This requirement was added to the Constitution during the Constituent Assembly Debates following an amendment proposed by Naziruddin Ahmad. He highlighted the dangers of merely relying on the latest census figures as opposed to officially published ones, noting,
“If we are to hold an election, almost immediately after a census is held, the figures will not be available. It takes about a year to make the figures available. We have to do a lot of things depending upon census figures before an election. In these circumstances one has to depend upon the previous census of which figures are available.” (CAD Naziruddin Ahmad, 4 Jan 1949)
The same logic was relied on by then Minister for Law and Justice Arun Jaitley. When introducing the Delimitation Bill 2002 in Parliament, concerns were raised that the Bill relied on 1991 census numbers, and Jaitley cited the lack of published figures for the 2001 census as justification for relying on older numbers. (Eventually the Delimitation 2002 Act was amended to refer to the 2001 census.) Thus, while the Union Government has stated that the census will “conclude” in March 2027, to avoid any confusion, delimitation ought only to be undertaken once census figures are officially published.
This brings us to the question of timelines. The quickest delimitation ever conducted in Indian history was by the 1972 Commission, and it took 2 years and 9 months. The process under the 2002 Act took the better part of seven years and it did not even address the allocation of Parliamentary seats amongst the States. Even under an extremely efficient process, it would be astonishing if the delimitation exercise can be completed between 2027 and the next general elections in 2029. The next delimitation commission will have to deal with the re-distribution of Parliamentary seats among States, the question of women’s reservation, and the rotation of reserved seats. Further, delimitation acts have historically had a requirement that draft delimitation orders be published and public consultations take place. This is a feature which we would undoubtedly want to include for the next delimitation process to ensure transparency and public scrutiny, but it is one which will add to the length of the exercise. There is nothing in either Articles 82, 170, 327, or 334A which necessitates that the delimitation be completed prior to an upcoming election. Given the magnitude, complexity, and centrality to India’s system of democratic representation, it is better to get it right than rush to complete the process prior to 2029.
Statutory framework
Another question concerning delimitation is whether a new delimitation act is needed. The only reason this question arises is due to the Union Government’s reliance on the Delimitation Act, 2002 to conduct delimitation of constituencies in 2023 in Jammu and Kashmir; reliance which was upheld by the Supreme Court. However, a perusal of the Court’s ruling makes it clear that the outcome rested on the fact that the Delimitation Act 2002 was never made applicable to J&K prior to 2019. Hence, in the Court’s view, the delimitation in 2023 was simply an extension of the 2002-2008 delimitation exercise due to the delayed application of the 2002 statute to J&K (Haji Abdul Gani Khan v Union ¶¶33-34). Even this reading of the 2002 Act, which was very kind to the Union, does not open the door to using the 2002 Act for a new delimitation exercise for States where delimitation has already taken place under the 2002 Act. A plain reading of the Delimitation Act, 2002 makes it clear that it contemplated a single commission and s.10(6) of the Act requires the Commission to complete delimitation by 2008. Further, Section 4 of the Act explicitly excludes redistribution of Lok Sabha seats among States from the Commission’s mandate. Thus, a new delimitation exercise cannot take place without either new legislation or large-scale amendments to the Delimitation Act, 2002.
This is a good thing as it means that today’s Parliament can improve on the Delimitation Act, 2002. The key areas for improvement are: (1) the independence and impartiality of the Delimitation Commission; and (2) the procedural integrity of the Commission’s operations.
Independence of the Delimitation Commission
Historically, Delimitation Commissions in India have consisted of a retired Supreme Court Judge, the Chief Election Commission (CEC) or an Election Commissioner appointed by the CEC, and the State Electoral Commissioner (SEC) for the concerned State. This composition raises three problems; (1) insufficient independence; (2) over-centralisation of power; and (3) limited human resources.
The Election Commission’s independence is not what it used to be, most starkly demonstrated by the fact that the Union Government insisted on maintaining a monopoly over the appointment of Election Commissioners and decisions taken by the Commission and the Union Government jointly to limit citizens’ scrutiny of information about the integrity of voting procedures. Thus, having the CEC or an EC on the Commission cannot be viewed as securing the Commission’s independence. While the independence of retired Supreme Court Judges as a class cannot be questioned without making over-broad generalisations, the perceived independence of individual judges has certainly been taken a battering in recent years. Thus, appointing a single judge, particularly one who is perceived as being lenient to the Union’s point of view, would further undermine the credibility of the Delimitation Commission. Even assuming a judge of impeccable character and credentials, the framework would be entrusting one individual with securing the integrity of politically fraught exercise, creating the risk of a single point of failure. Finally, given the magnitude of the task, a three-member commission is laughably small, particularly where two members will have concurrent duties to organise state and local elections.
What could be done to realistically remedy the situation? First, the Delimitation Commission can be enlarged to at least nine members. Seven members could be a mixture of retired Supreme Court judges and senior bureaucrats such as Census Officers with public administration expertise, and the remaining two would be the CEC and SEC. This solves both the over-centralisation problem and human resources problem. While the independence of a single judge could be questioned, it is less likely that three or four are all contentious. Second, the Delimitation Act could allow the Government to pick the Commissioners but require that they be approved by a majority in the Rajya Sabha. This could be achieved by either naming the Commissioners in the Act or, more flexibly, requiring Commissioners be identified in delegated legislation that will not have legal effect until approved by the Rajya Sabha. This solution has several advantages. As delimitation will overwhelmingly affect the interests of the States, it allows the Commission to have federal and democratic legitimacy. It also ensures that the Commissioners are confirmed in a manner that is open, transparent, and deliberative. Finally, it should in theory compel the Union Government to pick Commissioners that pass the smell test as they must be publicly and politically justifiable – at the very least to their own coalition partners.
A final point concerns previous delimitation statutes reliance on non-voting Associate Members to assist the Delimitation Commission, typically MLAs and MPs from the concerned State. Under earlier statutes, these Members were chosen by the Speakers of their respective legislatures. Given the partisan nature of Speakers and the risk of parties not being represented, it might be beneficial for the enlarged Delimitation Commission to dispense with Associate Members and simply meet all-party delegations in each State to receive their inputs.
Procedural integrity of the delimitation process
The actual process of re-drawing constituency boundaries involves applying a mathematical formula (based on the methodology adopted for determining equally sized constituencies) to varied circumstances on the ground. Previous delimitation statutes have been silent on both the methodology to be adopted by the Commission and what variations in population are acceptable and what are not. Perfectly equal populations across constituencies are unrealistic but is a 5% variation permissible, is 10% or 15%? Historically, this has been left to individual commissions, which have promulgated guidelines, with the 2002 Commission finding that a 10% deviation was acceptable.
The real fear here is gerrymandering, i.e., the redrawing of constituencies to benefit one political party. This can be done in several ways, for example by concentrating large numbers of opposition voters in a few constituencies (packing) or splitting opposition voters across multiple constituencies to ensure they are a perpetual minority in those constituencies (cracking). There is already troubling anecdotal evidence from the recent delimitation exercises in J&K and Assam that constituencies are being gerrymandered along communal lines. For example, Hindu majority constituencies with as few as 50,000 voters and Muslim majority constituencies with populations ranging from 170,000-190,000 voters.
How can this risk be countered? Previous delimitation acts have laid out several factors beyond population which must be taken into consideration when redrawing constituencies. For example, s.9 of the 2002 Act requires the commission to ensure that constituencies are geographically compact, that State legislative assembly constituencies do not stretch over multiple parliamentary constituencies, and that reserved constituencies should be located where the population of SC/STs is comparatively large. On the one hand, these factors should limit potential for gerrymandering because it imposes apolitical criteria that take priority over partisan concerns. However, these criteria also increases the commission’s discretion and potentially give it numerous reasons to justify perverse constituencies. Further, the criteria still allow for politicking, for example, State Governments can modify districts within States, which affects the drawing of electoral constituencies as it is desirable for administrative and electoral boundaries to align.
One useful step may be to set out the permissible population deviation in the delimitation act itself and require the commission to publicly justify in writing all deviations beyond the permissible limit. For example, if the permissible deviation in population was 10% and constituency populations diverged by more than 10% (as they did in Kashmir), the Commission should be compelled by statute to justify it. Public consultations could also be mandated for all constituencies that breach permitted deviations. An even more rigorous step would be to make deviations beyond statutory limits approvable by both Houses of Parliament, which would have many of the advantages outlined when discussion the Commission’s independence.
Judicial Review
The last consideration is what the role of the judiciary is in ensuring the integrity of the delimitation process. Article 329 of the Constitution bars courts from interrogating the validity of a law made under Article 327 (which includes laws on delimitation). Further, in its 1966 decision in Meghraj Kothari, the Supreme Court found that a delimitation order has the force of law under Article 327, and thus Courts are prohibited from examining the validity of the delimitation order. The Court observed that the constitutional bar on judicial review was necessary to avoid legal disputes delaying elections being conducted based on published delimitation orders.
Subsequent decisions concerning local elections, however, have been less restrained. In its 2020 decision in DMK v Governor of Tamil Nadu the Supreme Court stayed local elections in Tamil Nadu on the grounds that Tamil Nadu had created nine new districts in 2019 but had failed to carry out any delimitation for these districts for the purposes of upcoming local elections. The Court found this to be a violation of the constitutional requirement in Article 243C to ensure panchayats have similar populations sizes and for seats to be reserved basis population data. Similarly, in Goa v Fouziya Imtiaz Shaikh, the Supreme Court upheld a challenge to local elections in Goa in part on the grounds that the State Election Commissioner, who had previously been the Law Secretary to the State Government, had acted in bad faith when notifying reserved constituencies. Most interestingly perhaps is the 2024 decision in Kishorchandra Rathod where the Supreme Court held that Article 329 does not entirely restrict judicial review of delimitation orders. The Court found that judicial intervention may be possible in cases of arbitrary exercise of power and that barring judicial intervention would be to deprive citizens of any forum to challenge delimitation. It distinguished Meghraj Kothari on the grounds that intervention may only be barred where it may lead to unnecessary delays in elections.
At the outset, it must be stated that judicial intervention into a delimitation order could be a minefield. The constitutional bar in Article 329 is arguably less concerned with the timings of elections that it is with suitability of the court as a forum to air grievances with a delimitation order. If the Court were to entertain a claim for redrawing a particular constituency, it would likely be inundated with claims from every constituency in India and the judicial process and legal standards is ill-equipped to handle such claims.
However, the judiciary may still have an important role in preserving the integrity of the process. The decisions referred to above suggests that court intervention may be a suitable remedy to the unjustified or arbitrary exercise of power, especially one that is contrary to law. For example, if the delimitation act were to include an obligation to publish certain records and the commission failed to do so, a challenge to such a decision on administrative law grounds should be entertained. This further highlights the need for a robust statutory framework for the upcoming delimitation exercise.
Conclusion
The upcoming delimitation exercise will alter the federal balance in the country for decades to come. It is imperative that the process be viewed as legitimate across the country and not just by the immediate political gainers of the process. The goal should be to ensure that even those who disagree with specific outcomes, nonetheless agree to abide by the outcomes because they view the process as legitimate. Realistically, this can only happen through the process of involving the States in a meaningful manner and ensuring that the Commission conducts itself in an open and transparent manner that is subject to constant public scrutiny and justification. The suggestions outlined here are some ways in which we can achieve these goals.