Delimitation: Dangers and Demands

I Mallikajuna Sharma

The Election Commission briefly informs: “Delimitation literally means the act or process of fixing limits or boundaries of territorial constituencies in a country or a province having a legislative body. The job of delimitation is assigned to a high-power body. Such a body is known as the Delimitation Commission or a Boundary Commission. In India, such Delimitation Commissions have been constituted 4 times–in 1952 under the Delimitation Commission Act, 1952, in 1963 under the Delimitation Commission Act, 1962, in 1973 under the Delimitation Act, 1972, and in 2002 under the Delimitation Act, 2002. The Delimitation Commission in India is a high-power body whose orders have the force of law and cannot be called in question before any court. These orders come into force on a date to be specified by the President of India in this behalf. The copies of its orders are laid before the House of the People and the State Legislative Assembly concerned, but no modifications are permissible therein by them.”

“Delimitation commissions have been set up four times in the past–1953, 1962, 1972, and 2002–under Delimitation Commission Acts of 1952, 1962, 1972, and 2002. The union government had suspended delimitation in 1976 until after the 2001 census so that states’ family planning programmes would not affect their political representation in the Lok Sabha. This had led to wide discrepancies in the size of constituencies, with the largest having over three million electors, and the smallest less than 50,000.”

The first delimitation exercise in 1953 was done by the Delimitation Commission 1952 which was created due to the Delimitation of Parliamentary and Assembly Constituencies Order, 1951. Justice N Chandrasekhar Aiyar, a retired justice of the Supreme Court, was its chairman in 1953. The commission recommended the increase of the seats in the Lok Sabha from 489 to 494.

The second delimitation exercise was done in 1963; it was the first delimitation exercise after the reorganisation of states in 1956. Only single-seat constituencies were permitted. The delimitation commission was set up per The Delimitation Commission Act–1962–An Act to provide for the readjustment of the allocation of seats in the House of the People to the States, the total number of seats in the Legislative Assembly of each State, the division of each State into territorial constituencies for elections to the House of the People and Legislative Assemblies of the States... The exercise was done on the basis of 1961 Census, and the parliamentary seats were increased to 522 and the Assembly seats to 3771.

The second delimitation commission process has become more well-known and controversial due to a challenge to the provisions of, and powers to the Commission under, this Delimitation Commission Act 1962 by one Meghraj Kothari in MP High Court and the ultimate final decision of a Constitution Bench of the Apex Court which held that the proceedings and decisions of the delimitation commission being sanctified by a parliamentary law cannot in general be found fault with by any courts and this decision was taken as the ultimate judicial guidance even to this day in Indian jurisprudence. So, it is appropriate here to delve into some detail about the circumstances, reasons and purport of that Meghraj Kothari decision. Kothari’s contentions were rejected by the M P High Court, whereupon he went to the Supreme Court on appeal, but the Supreme Court also dismissed his appeal on the ground that the delineation of constituencies done by a delimitation commission cannot be challenged in any court as per the provisions of the said Act.

Meghraj Kothari was a “voter of Ujjain Parliamentary Constituency in the State of Madhya Pradesh [who] felt aggrieved by the order of the Delimitation Commission, set up under the Delimitation Commission Act, 1962, which undertook the delimitation of parliamentary and assembly constituencies in the whole of India on the basis of 1961 census. The Delimitation Commission reserved the Ujjain Parliamentary Constituency for the Scheduled Castes. The voter then claimed to have an unfettered right to contest election from any parliamentary or assembly constituency in the State of Madhya Pradesh, but the reservation of Ujjain Parliamentary Constituency for the Scheduled Castes deprived him of such right to contest election from that constituency as he did not belong to the Scheduled Caste. He moved to the Madhya Pradesh High Court seeking to quash the order of the Delimitation Commission. The High Court did not grant him the relief [holding] that it has no jurisdiction to go into the question of the order of the Delimitation Commission. Aggrieved by the High Court’s refusal he then approached the Supreme Court. But the Supreme Court also did not interfere with the order of the Delimitation Commission, holding that Article 329(a) barred such interference. It was contended on behalf of the petitioner that under Article 329(a), the validity of any law relating to delimitation of constituencies or the allotment of seats to such constituencies made under Articles 327 or 328 could not be called in question, but the order made by the Delimitation Commission was not law and thus not immune from challenge. The Supreme Court did not accept this contention and observed that the Delimitation Commission Act, 1962 provided in Section 10(1) thereof that each of the orders of the Delimitation Commission delimiting the constituencies and reserving the seats in those constituencies for the Scheduled Castes or Scheduled Tribes were required to be published in the Gazette of India and in the official gazettes of the States concerned, and Section 10(2) further provided that ‘upon publication in the Gazette of India, every such order shall have the force of law and shall not be called in question in any Court’.

It should be noted that in an earlier decision DravidaMunnetraKazhagamv State of Tamil Nadu (‘DMK’) and State of Goa v Fouziya Imtiaz Shaikh (‘Fouziya’) also a 3-Judge bench of the Apex Court expressed similar opinions and even allowed DMK’s petitions in part; the latter Fouziya decision contains a detailed discussion and in the ultimate paragraph it was observed: “68. The most disturbing feature of these cases is the subversion of the constitutional mandate contained in Article 243K of the Constitution of India. The State Election Commissioner has to be a person who is independent of the State Government, as he is an important constitutional functionary who is to oversee the entire election process in the state qua panchayats and municipalities. The importance given to the independence of a State Election Commissioner is explicit from the provision for removal from his office made in the proviso to clause (2) of Article 243 K. Insofar as the manner and the ground for his removal from the office is concerned, he has been equated with a Judge of a High Court. Giving an additional charge of such an important and independent constitutional office to an officer who is directly under the control of the State Government is, in our opinion, a mockery of the constitutional mandate. We therefore declare that the additional charge given to a Law Secretary to the government of the state flouts the constitutional mandate of Article 243 K. The State Government is directed to remedy this position by appointing an independent person to be the State Election Commissioner at the earliest.

Such person cannot be a person who holds any office or post in the Central or any State Government. It is also made clear that henceforth, all State Election Commissioners appointed under Article 243K in the length and breadth of India have to be independent persons who cannot be persons who are occupying a post or office under the Central or any State Government....”

The third delimitation exercise was done in 1973. The delimitation commission of 1973 was chaired by Justice J L Kapur, a retired justice of the Supreme Court. The commission recommended the increase of the seats in the Lok Sabha from 522 to 542 (later increased to 543 with the addition of one more seat for the new state of Sikkim). It also recommended an increase in the total number of assembly seats across all states and Union Territories in the country from 3771 to 3997 (including 32 for Sikkim’s legislative assembly). The exercise was based on the 1971 Census.

The next delimitation commission was set up on 12 July 2002 after the 2001 census with Justice Kuldip Singh, a retired Judge of the Supreme Court, as its Chairperson. The Commission has submitted its recommendations. In December 2007, the Supreme Court, on a petition issued notice to the central government asking reasons for non-implementation. On 4 January 2008, the Cabinet Committee on Political Affairs (CCPA) decided to implement the order from the Delimitation Commission. The recommendations of the Commission was approved by President Pratibha Patil on 19 February. This means that all future elections in India for states covered by the commission will be held under the newly formed constituencies. The present delimitation of parliamentary constituencies has been done on the basis of 2001 census figures under the provisions of Delimitation Act, 2002. The assembly election in Karnataka, conducted in three phases in May 2008, was the first to use the new boundaries as drawn by the 2002 delimitation commission. The tenure of the Delimitation Commission lasted until 31 May 2008. The delimitation orders issued by the Commission were given effect from 19 February 2008 for most states and union territories and 20 March 2008 for Tripura and Meghalaya, by a presidential order. The orders regarding Jharkhand were nullified till 2026 by inserting section 10B into the Delimitation Act, 2002. The delimitation of four north-eastern states was deferred due to security risks, by four separate presidential orders, all issued on 8 February 2008, for Assam, Arunachal Pradesh, Nagaland and Manipur. The order regarding Assam was rescinded on 28 February 2020. Subsequently, the Government of India has reconstituted the Delimitation Commission for these four states as well as the union territory of Jammu and Kashmir on 6 March 2020, under the chairpersonship of former Supreme Court judge Ranjana Prakash Desai. In March 2021, the four north-eastern states were removed from the purview of the reconstituted Commission.

Wikipedia informs that–‘‘Up until 1976, after every Indian Census, the seats of Lok Sabha, Rajya Sabha and State legislative assemblies of India were re-distributed respectively throughout the country so as to have equal population representation from every seat. The apportionment was done thrice as per 1951, 1961 and 1971 population censuses. However, during the Emergency, through the Forty-second Amendment the government froze the total Parliamentary and Assembly seats in each state till the 2001 Census. This was done, mainly, due to wide discrepancies in family planning among the states. Thus, it gives time to states with higher fertility rates to implement family planning to bring the fertility rates down. // Even though the boundaries of constituencies were altered in 2001 to equate population among the parliamentary and assembly seats; the number of Lok Sabha seats that each state has and those of legislative assemblies has remained unaltered since 1971 census and may only be changed after 2026 as the constitution was again amended (84th amendment to Indian Constitution) in 2002 to continue the freeze on the total number of seats in each state till 2026. This was mainly done as states which had implemented family planning widely like Kerala, Tamil Nadu and Punjab would stand to lose many parliamentary seats representation, and states with poor family planning programmes and higher fertility rates like Uttar Pradesh, Bihar, and Rajasthan would gain many of the seats transferred from better-performing states.” The apprehensions summarised in the last sentence of this extract are now widely expressed by the Chief Ministers and political leaders of the Southern States now and especially Stalin, the Tamil Nadu Chief Minister, is making a lot of hullabaloo on this apprehension and even invited scores of political leaders, chief ministers of states, etc. to a recent conference to be held in Tamil Nadu on this burning topic.

Stalin’s apprehensions may be somewhat exaggerated but yet this is really a burning issue. In the last 20-30 years Southern States have progressed considerably more than the Northern ones, especially in family control programmes and results, general developmental indexes, etc. and in case population per constituency (say 16 lakhs or 20 lakhs) be made the only criterion for delimitation next surely southern states will lose considerable number of seats in the Lok Sabha. Naturally, that will lead to a significant decrease in clout in the general running of the central legislature which is the final law-making and decision-making body in all salient fields of developmental efforts and democratic functioning in the country. As such, this writer opines that additional factor such as success in family control, in general development, in elimination of stark poverty, in the general welfare of the inhabitants etc. should also be made plus or minus factors to an extent in delimitation of parliamentary constituencies in the country.

However, so long as the 84th Constitution Amendment Act is in operation, and the current BJP Government does not take up any move to bring in any further constitution amendment to undo its safeguards, there is no immediate cause to worry till 2026 or as some put it till 2035 even. The Central Government should openly declare and assure the public that no such further amendment moves are in stake and for the coming two general elections at least not a slight variation in the proportion of parliamentary seats between the South (including East) and North would be permitted.

As Indian legislature is bicameral, Council of States i.e. Rajya Sabha, whatever be the manner of election to each seat in it, should switch on to a near-U.S. Senate model–States with one crore or more population, as also the National Capital Territory, should be equally allotted 10 seats each; those states with less than one crore population 5 seats each (with plus/minus 1-2 seats variations) and all Union Territories 1-2 seats only in the Rajya Sabha. That would give another strong defence to the States–small or big–to resist any possible future tyranny of the Centre. It will also make any future constitutional amendments on key issues more difficult for manipulate and, if at all made, those would be based upon a general consensus.

I Mallikajuna Sharma, Advocate, Hyderabad; also, Convener, Marxist Study Forum, Hyderabad and Editor, Law Animated World.

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Vol 57, No. 39, March 23 - 29, 2025