The Supreme Court on Monday refused to stay the ongoing delimitation of Assam's 14 Lok Sabha and 126 assembly seats by the Election Commission and sought the response of the Centre and the poll panel on a batch of petitions on the issue.
A bench of Chief Justice D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra, however, agreed to examine the constitutional validity of Section 8A of the Representation of the People Act, 1950 empowering the Election Commission to undertake the delimitation of constituencies.
"At this stage when delimitation has commenced, having due regard to issuance of the draft proposal on June 20, 2023, it would not be proper to interdict the process at this stage. Hence while reserving the constitutional challenge, we are not issuing any orders restraining the Election Commission to take any further steps, the bench said in its order.
The top court sought the replies of the Centre, the Election Commission and the Assam government on three petitions in three weeks and said the petitioners can file their rejoinders in two weeks after that.
The bench took note of the submissions of senior advocate Kapil Sibal, who was appearing for the political parties which have filed the petitions, that now all states will follow suit and take steps since the way has been cleared for the delimitation exercise for states like Arunachal Pradesh and Nagaland.
“We will list this immediately after the Delhi services ordinance case,” the CJI said.
Ten leaders representing nine opposition parties in Assam- Congress, Raijor Dal, Assam Jatiya Parishad, CPI(M), CPI, TMC, NCP, RJD, and Anchalik Gana Morcha - recently filed a plea in the top court challenging the ongoing delimitation process.
Two other pleas are also pending before the court on this issue.
The petitioners have specifically challenged the methodology adopted by the poll panel and its proposals notified on June 20, 2023.
One of the pleas challenged section 8A of the Representation of People Act, 1950, based on which the poll panel exercised its power to conduct the delimitation process in Assam.
Sibal said the delimitation exercise in Assam was being carried out with scant regard to the rules and the provisions of the Delimitation Act which provided for the participation of lawmakers. The process, he said, had to be carried out by the delimitation commission headed by a serving or retired Supreme Court judge.
He said the delimitation exercise in Jammu and Kashmir was conducted by a commission headed by former apex court judge Ranjana Prakash Desai.
"Reasons for which deferment (of delimitation exercise in Assam other states) was granted are no longer in existence and that process must be a representative process under the Delimitation Act. Now the notification says the Election Commission will complete the process, the senior lawyer said.
From where does the Law Ministry get this power? he asked.
"This is a non-representative process and it is dehors (outside the scope of) the underlying basic feature of the Constitution and this is the heart of democracy. It is not even an exercise conducted by one or two members," Sibal said.
The provision, empowering the poll panel, is the statute book for last 16 years, the bench said, adding it will issue notices on petitions but will not stay the statutory provision under which the Election commission was conducting the delimitation exercise.
The senior lawyer said the manner in which the existing exercise was being carried out was unheard of.
"What they are doing is that they are taking the density of population and comparing it with other districts and the delimitation commission categorises districts by giving a margin of 10 per cent, Sibal said.
Solicitor General Tushar Mehta, appearing for the Centre and the state government, said the exercise of power by its holder does not become invalid just because it has been exercised, according to the petitioner, in a wrong manner.
After conducting a three-day public hearing, the poll panel received on July 22 more than 1,200 representations from various groups, including those who shared divergent views on matters such as renaming assembly constituencies, on Assam's draft delimitation proposal.
In its delimitation draft issued on June 20, the poll panel proposed to retain the number of assembly seats in Assam at 126 and the Lok Sabha constituencies at 14.
The EC has also proposed that the assembly seats reserved for Scheduled Castes be increased from eight to nine and for Scheduled Tribes from 16 to 19.
One of the pleas in the apex court questioned the methodology adopted by the poll panel, saying different average assembly constituency size for different districts and population density should not play a role in the delimitation process.
It said while the Constitution seeks to re-adjust constituencies to ensure equal population distribution, the poll panel, relying on the 2001 census, has created three categories of districts and used different criteria for each category, potentially resulting in a deviation of up to 33 per cent in population between the largest and smallest constituencies.
It assailed the validity of Section 8A of the Representation of People Act, 1950 under which the poll panel exercises its power.
The plea said the provision is arbitrary and discriminatory against Assam and three other northeastern states.
It said the delimitation exercise elsewhere in the country, including Jammu and Kashmir, has been conducted by a high-powered body headed by a retired Supreme Court judge.
The petition sought the apex court's intervention to address the issues and ensure a fair and unbiased delimitation process in Assam.