Legal challenge to the delimitation notification

It may be recalled that the Delimitation exercise of all states and UTs except Jharkhand, Arunachal Pradesh, Assam, Manipur, and Nagaland have been completed in 2008 under the Delimitation Commission Act, 2002. The exercise was deferred in respect for Manipur and other three NE States until further orders on the ground of law and order vide Government of India in Ministry of Law and Justice S. O. No. 286(E) dated February 8, 2008.

SK Mendiratta, a former legal advisor to the Election Commission of India and an old hand, had reportedly red-flagged the Centre’s notification dated March 6, 2020 setting up of a Delimitation Commission for four northeastern states to the ECI. His letter has reportedly been referred to the Law Ministry. His reason is simple and points to the fact that the said notification violates section 8A of the Representation of the People Act, 1950.

It may be recalled that the Delimitation exercise of all states and UTs except Jharkhand, Arunachal Pradesh, Assam, Manipur, and Nagaland have been completed in 2008 under the Delimitation Commission Act, 2002.

The exercise was deferred in respect for Manipur and other three NE States until further orders on the ground of law and order vide Government of India in Ministry of Law and Justice S. O. No. 286(E) dated February 8, 2008.

To enable issue of notification for deferment of the delimitation exercise in the five states, the Delimitation Commission Act 2002 was amended in 2008 and two new sections being 10A and 10 B was inserted.

The Section 10A which is relevant to Manipur and other NE states is reproduced as follows: “10A. Deferment of delimitation in certain cases(1) Notwithstanding anything contained in sections 4,8 and 9, if the President is satisfied that a situation has arisen whereby the unity and integrity of India is threatened or there is serious threat to the peace and public, he may, by order, defer the delimitation exercise in a state. (2) Every order made under this section shall be laid before each House of Parliament....” As per the Principal Act, under Section 10 (6) the Commission was to complete and publish the final delimitation orders within two years of its constitution but by the 2008 amendment it was extended till 31st July, 2008.

To enable if need be, that the delimitation exercise can be conducted later on after the condition is conducive the Representation of People Act 1950 was amended in 2008 by inserting section 8A, besides others. The above mentioned section was incorporated to task the ECI with the delimitation work of the four NE states, if need arises. Section 8A reads as follows:

“8A. Delimitation of Parliamentary and Assembly Constituencies in the States of Arunachal Pradesh. Assam, Manipur or Nagaland- (1) If the President is satisfied that the situation in the States of Arunachal Pradesh. Assam, Manipur or Nagaland are conducive for the conduct of delimitation exercise, he may, by order, rescind the deferment order issued under the provisions of section 10A of the Delimitation Act, 2002 in relation to that State , and provide for the conduct of the delimitation exercise in the State by the Election Commission.

(2) As soon as may be after the deferment order in respect of a State is rescinded under sub-section (1) the Election Commission may, by order, determine:
(a) the parliamentary constituencies into which such State to which more than one seat is allotted in the First Schedule shall be divided;
(b) the extent of each constituencies; and
(c) the number of seats, if any, reserved for the Scheduled Castes or the Scheduled Tribes.

(3) As soon as may be after the deferment order is respect of a State is rescinded under sub-section (1), the Election Commission may, by order, determine:
(a) the assembly constituencies into which such State shall be divided for the purpose of elections to the Legislative Assembly of that State;
(b) the extent of each constituency; and
(c) the number of seats, if any, reserved for the Scheduled Castes or the Scheduled Tribes.

(4) Subject to the provisions of sub-section (1), the Election Commission shall, having regard to the provisions of the Constitution and the principles specified in clauses (c) and (d) of sub-section (1) of section 9 of the Delimitation Act, 2002 determine the parliamentary and assembly constituencies in the States of Arunachal Pradesh, Assam, Manipur or Nagaland in which seats shall be reserved, if any, for the Scheduled Castes and the Scheduled Tribes.

(5) The Election Commission shall:
(a) publish its proposals under sub-sections (2), (3) and (4) with respect to any State in the official Gazette and also in such other manners as it thinks fit;
(b) specify a date on or after which the proposals will be further considered by it;
(c) consider all objections and suggestions which may have been received by it before the date so specified;
(d) hold, for the purpose of such consideration, if it thinks fit so to do, one or more public sittings at such place or places in such State as it thinks fit;
(e) after considering all objections and suggestions which may have been received by it before the date so specified, determine, by order, the delimitation of parliamentary and assembly constituencies in the State and also the constituency or constituencies in which seats shall be reserved, if any for Scheduled Castes and the Scheduled Tribes and cause such order to be published in the Official gazette; and upon such publication, the order shall have the force of law and shall not be in question in any court and the Delimitation of Parliamentary and Assembly Constituencies Order 2008 shall be deemed to have been modified accordingly.

(6) Every order made under sub-sections (1) and (2) and clause (e) of sub-section (5) shall be laid before each House of Parliament.

(7) Every order made under sub-section (1) and (3) and clause (e) of sub-section (5) shall, as soon as may be after it is published under that sub-section, be laid before the Legislative Assembly of the State concerned.”

The February 8, 2008 order was reversed by an order S.O. No. 905(E) dated February 28, 2020 wherein it was indicated that the law and order situation has significantly improved to enable conduct of delimitation exercise in respect of Manipur, with different but similar orders for the remaining three NE states, and by a notification S.O. No. 1015 (E) dated March 6, 2020 a Delimitation Commission was constituted under the Delimitation Commission Act, 2002 for delimitation of the 4 NE states and Jammu and Kashmir

Mendiratta’s argument is that the March 6 notification violates section 8A of the RP Act 1950. It is not a mere case of violating the law, it is nothing but to bypass the ECI which by law had been mandated to carry out the delimitation exercise in the four NE states, if need arises and the notification is apparently ab initio null and void. Further, technically the life of the Delimitation Commission constituted under the Delimitation Act, 2002 ends by 31st July, 2008 as it has to publish all orders by this date and hence no further Commission can be constituted under this Act, till a fresh Amendment extending the date for publishing its orders under Section 10(6) is carried out either through an Ordinance or through an Act passed by the Parliament.  In fact, there were certain lapses in that the orders of the Delimitation Commission were published only on 26th November, 2008 and not before 31st July 2008 as mandated by law for all the other States and UTs.

People of Manipur are more emotive than rationale. They react emotionally and are prepared to die for a cause but hardly anyone studies in depth the issues and comes out with various alternatives which can be plausible solutions, or they don’t have the patience to see any issue to its logical conclusion. In this case also, groups for and against the delimitation exercise had written ad nauseam but without touching the core issue, which is the legal basis. This is the most important as without an enabling law the exercise cannot be carried out.

The enabling law for this purpose is the RP Act, 1950 and not the Delimitation Commission Act, 2002 which was incorrectly used by the Law Ministry. There seems to be some confusion in the Law Ministry on this issue and the series of orders/notifications issued do not inspire much confidence.

The officials in the Law Ministry earlier was known for their competence but perhaps due to the packing of the various ministries with “committed bureaucracy” biased or incompetent people have starting ruling the roost leading to such snafu.

There is likely to be a change in the Associate Members as Shri Y. Surchandra has been disqualified by the Speaker (though the order is under challenge before the law court) and Shri Kh Joykishan had tendered his resignation. Despite this, the Commission is going ahead with the task assigned to it.

Although it may give only a temporary respite; the notification of March 6. 2020 constituting the Delimitation Commission for J&K and the four NE states including Manipur must be challenged before the law court arguing that the said notification is ultra vires of the law. This will show the incompetency and the bias of those in authority.

The ongoing contempt case and the writs must be followed up rigorously. Delhi must be made to let know that Manipur should not be pushed around all the time, like some of its spineless leaders. But this may be a cry in the wilderness as Manipur is perhaps the only NE states which did not go to Court on the CAA issue; so called leaders here seem to provide only lip-service without much substance and their sole object is to popularise themselves; nothing more nothing less!

First Published: July 21, 2020, 9:40 p.m.