A fear of change

K.C. SIVARAMAKRISHNAN

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THE Delimitation Amendment Act passed by the Parliament in March 2008 finally takes delimitation of parliament and assembly constituencies out of the deep freeze where it had remained for over 30 years. The proceedings of the four hour debate in the Lok Sabha on 11 March 2008, however, make for rather sad reading. While some members well-versed with the subject took the government to task for dealing callously with such a vital issue, many others, including the Law Minister, gave an impression of being pushed most reluctantly into accepting delimitation only because of a constitutional process set in motion by the Parliament itself and seeing no escape from the outcome.

A fear of change in any electoral constituency is a common malady suffered by legislators across the world. Yet, over a period of time they come to terms with the inevitability of adjusting to demographic changes and accept the universal principle of parity in the value of a vote. The delimitation drama as played out in our country over the past few years has to a large extent been a product of this fear. Unfortunately, the Delimitation Commission, set up after a gap of thirty years, chose a reactive and bureaucratic role for itself rather than being proactive and using the opportunity to help both the people and the political class understand and adjust to a process, complicated in the best of circumstances.

India is not the only country with a parliamentary system based on territorial constituencies. Several others have a similar arrangement and also a system by which the boundaries of the territorial constituencies are adjusted from time to time to reflect demographic changes. The framers of the Indian Constitution had also foreseen this. Articles 82 and 170 of the Constitution stipulate that after every census held in decadal intervals, the boundaries of the Lok Sabha and assembly constituencies should be adjusted. But the omnibus 42nd Constitutional Amendment during Indira Gandhi’s time, which contained as many as thirty-six items, changed all that. A freeze on the delimitation of constituencies until the Census of 2001 was one of the changes. The ostensible purpose was to ensure that southern states like Tamil Nadu, Kerala or Karnataka do not lose seats in the Lok Sabha by applying across the country parity in the population-Lok Sabha seat ratio. A simpler way to deal with this so-called North-South divide issue would have been to freeze the total number of seats allocated to the different states rather than hold hostage the entire process of delimitation. The rationale for freezing the delimitation of assembly constituencies was even more bizarre: that disparities in population growth within a state could be modified by the loss or gain of assembly seats. Nevertheless, this amendment was carried through as part of a larger basket of changes to the Constitution.

 

During the 1990s attempts were made to revive the process of delimitation. Based on the recommendations of the Dinesh Goswami Committee on Electoral Reforms, the Constitution 71st Amendment Bill 1990 was introduced and passed in the Rajya Sabha in April 1992 and then referred to a Select Committee by the Lok Sabha in May 1992. This committee expressed the opinion: ‘There is a great need for fresh delimitation of constituencies on the basis of 1991 Census. The avowed object of the existing constitutional embargo can be fully achieved if the embargo is put only on the total number of Lok Sabha seats allocated to each state and the total number of seats in various state legislative assemblies and readjustment of territorial extent of parliamentary and assembly constituencies be allowed and such delimitation be done on priority basis.’ Despite this recommendation of the committee chaired by P.R. Kumaramangalam, the bill was withdrawn in June 1994, while it awaited consideration and passage by the Lok Sabha.

A second attempt was made when the Constitution 80th Amendment Bill 1996 was moved by the then Law Minister, Ramakant Kalap, in July 1996 but the bill lapsed upon the dissolution of the Lok Sabha. In May 1998 an all party meeting on electoral reforms was convened by the then Law Minister Ram Jethmalani. The minutes of this meeting contained as an annexure in a subsequent Rajya Sabha committee, reveal that while some parties favoured readjustment of parliamentary and assembly constituencies, some others were opposed to it on the ground that readjustment would ‘change the community composition and disturb the base on which seats were reserved.’ Eventually the committee decided that since delimitation would be mandatory after the year 2000, based on the census held thereafter and as the year 2000 was close by, there was no need to amend the Constitution and the existing position may continue till fresh delimitation became due as per constitutional provisions. This decision is well in keeping with our penchant for procrastination.

 

Eventually, the Constitution 71st Amendment Bill was moved in November 2000, providing for delimitation on the basis of the published figures of the 1991 Census. By November 2000 preparations had already begun for the 2001 Census to take place only a few months later. Nevertheless this bill chose to be 10 years out of date. Later when the bill was discussed by the Parliament Standing Committee chaired by Pranab Mukherjee, there were discussions about the rationale of adopting the 1991 Census. The Law Ministry’s explanation was that if 2001 Census is to be followed, delimitation would be completed only by 2005 and if any contingency arises for holding elections, the proposed rationalization of constituencies would be delayed. Though the Parliament Standing Committee discussed this and related issues, it decided to recommend the passage of the bill more or less as it was. After ratification by more than half the states and presidential assent in February 2002, it became the Constitution 84th Amendment Act.

 

It may be mentioned that in July 2001 the CPR, CSDS and Lok Satta organized a well-attended workshop in Delhi. The Law Minister Arun Jaitley too participated in the workshop which was partly supported by the Government of India. It was urged that the census basis should be reconsidered and that the 2001 Census should be used. Various suggestions in regard to reservation and rotation of SC/ST seats were also made. In the meantime the government continued with its actions to commence delimitation.

For this purpose the 84th Constitutional Amendment alone was not sufficient; a separate act enabling the setting up of a Delimitation Commission was necessary. The 1972 Delimitation Act was mainly a repeat of the 1952 and 1962 acts. Realizing the crippling power of precedent, scholars in CSDS, CPR and Lok Satta prepared a draft delimitation bill and gave it to the Law Minister. In regard to the composition of the commission, it was pointed out that the work involved was not judicial but predominantly non-judicial and administrative, requiring professional expertise in demographics, administration and geographic information systems.

The draft also urged that since the 73rd and 74th Constitutional Amendments had taken effect, virtually establishing a third-tier of government, i.e. the Panchayats and Nagarpalikas, it was important that the electoral systems for the Parliament, Assemblies, Panchayats/Nagarpalikas be properly aligned. The bill therefore proposed the inclusion of the respective State Election Commissioner (who like the Election Commission of India is a constitutional authority) as a member of the Delimitation Commission for the state concerned.

The draft suggested that the procedures and guidelines for the delimitation work, such as permissible variation in population-seat ratio, geographical features particularly in sparsely populated areas, administrative units which would form the building blocks of the constituencies and so on, should be specified in the delimitation law itself.

 

The Delimitation Bill introduced in the Lok Sabha in May 2002 included several of these suggestions. The inclusion of the State Election Commissioner of the state concerned was one of the important changes accepted. However, the bill still left the procedure for the work to be determined by the Delimitation Commission itself. This provision based on a precedent appeared to be mindless rather than malafide since the 1972 Act contained a similar provision. This was unfortunate and expectedly gave rise to avoidable controversy. Eventually, the bill was passed and became the Delimitation Act 2002 which received the assent of the President in June that year. By then the preliminary results of the 2001 Census were available. Though published figures in regard to SC/ST population would come later, it was known that an increase in the SC population and consequently the SC seats would be significant. Accommodating these additional seats became an issue. In the meantime the Delimitation Commission was also established with retired Justice Kuldip Singh as the Chairman. The procedure for delimitation determined by the commission as an ‘internal’ decision was not adequately explained to the MPs and MLAs designated as Associate Members. Nor was this procedure fully acceptable to several of the State Election Commissioners. Controversies began to surface.

The CPR, CSDS and Lok Satta held yet another workshop in March 2003 attended by several MPs from various political parties. The meeting was remarkable for the candidness with which some of the MPs admitted their own lack of knowledge about delimitation in general and their failure to have looked at the 91st Constitution Amendment Bill and Delimitation Bill more closely. The Law Minister convened yet another all-party meeting on 13 March 2003 where it was decided that the 2001 Census figures should be used and the Delimitation Commission advised to more actively involve the associate members.

 

The Constitution had once again to be amended, for which purpose the 96th Constitution Amendment Bill was prepared. The Statement of Objects and Reasons, appended to the bill, contained a rather unusual paragraph stating that the views ‘expressed by various intellectuals including lawyers, political thinkers and other experts’ have been taken into account. Pranab Mukherjee was contacted with the suggestion that as with the previous bill, this one should also be referred to the parliament committee of which he was the chairman. It was further suggested there was no justification for a freeze on the number of assembly seats. Since around this time a limit on the size of the Council of Ministers in proportion to the size of the assembly was on the anvil, it was thought that the political leadership would be favourably inclined to the idea of increasing the size of assemblies.

 

However, the bill was not referred to the parliament committee and was passed as prepared. It eventually became the 87th Amendment to the Constitution. This time there was no ratification by the states. The Law Ministry took the stand that since only the base date was being changed from the 1991 Census to the 2001 Census, ratification by the states for a second time was not required. The Delimitation Act 2002 had also to be amended. This was done by an ordinance in June 2003, later replaced by a law. This meant that the work done by the Delimitation Commission since its establishment in 2002 was a waste. The work had to be started all over again.

Questions about the procedure to be followed figured in the second innings of the Delimitation Commission as well. The CSDS/CPR representatives had meetings with retired Justice Kuldip Singh. It was urged that the Delimitation Commission as a whole, including the State Election Commissioners, should decide the procedure for the delimitation work. Since many of them had served as chief secretaries in their respective states, their vast administrative experience would be valuable. Assistance in working out a rational and equitable formula for the determination of the SC constituencies was also offered. The Delimitation Commission, however, proceeded to act very much on its own. Press reports appeared about the Delimitation Commission even bypassing the SECs on a couple of occasions, choosing to deal directly with the Chief Electoral Officers in the states. However, the commission did open a website and issued a new set of guidelines and methodology to be followed by the commission to all associate members and assured that its work would be thorough and transparent.

Nevertheless, the fact remains that on two or three critical items regarding the procedure to be followed the commission adhered to decisions that it had taken before. One was in regard to population; the commission took an ‘internal’ decision that deviation to the extent of 10% plus or minus from the state/district average would be acceptable. Second, the commission also decided that delimitation would be done with regard to different types of administrative units such as district, sub-divisions, tehsils, patwari circles etc, as prevailing on 1 August 2002 rather than panchayat and municipal wards as a uniform approach.

 

It should be noted that the Delimitation Act 2002 does not contain any provision for a so-called ‘internal’ decision. Under the act, commission means the whole commission, which comprises the Chairman, the Election Commissioner of India nominated as a member and the State Election Commissioner of the concerned state ex officio. In spite of repeated suggestions and advice from different SECs, as also civil society organizations, the Delimitation Commission was not prepared to have a joint meeting with all the SECs before determining the procedure.

The reluctance of the Delimitation Commission to revisit its so-called internal decisions did create controversy. In a vast country like India with diverse geographic and democratic characteristics, the extent of permissible variation is of immense significance. Simplistic adherence to the 10% formula expectedly gave rise to controversies in hill states like Uttarakhand, the northeastern states, tribal states like Jharkhand, and so on. Second, the failure of the commission to apply its mind to consider various alternatives in determining SC constituencies also resulted in their uneven distribution in a state.

Third, before advising the states not to change their existing administrative units, there should have been some consultation with the SECs as to what would be the appropriate administrative unit for the purpose of delimiting assembly and parliament constituencies. This was not done. As a result in different states, different administrative units have been taken as the building blocks. In Andhra, the basic building block is the mandal, which is an intermediate level panchayat. In Bihar it is a community development block; in Chattisgarh it is a tehsil or revenue inspector circle; in Gujarat and Maharashtra a combination of municipal and census delineations (for urban areas) and tehsils for rural areas has been followed. Out of 25 states, in only six are the delimitation and census units the same.

 

The 73rd and the 74th Constitutional Amendments clearly provide that barring cantonments, every other part of the country will be constituted into a panchayat or a nagarpalika of specified levels. Using a panchayat or a municipal ward as the basic building block for delimiting an assembly constituency would have aligned the electoral structure, including the electoral rolls, between the three levels – namely Parliament, assembly and rural-urban local bodies. Since these wards are delimited on the basis of census figures, a census database could have been used. This would also have helped citizen to clearly understand where s/he fits into the electoral map. The very objective of including the State Election Commissioners into the Delimitation Commission was to bring about this alignment. Unfortunately, the Delimitation Commission’s manner of work and interaction with the State Election Commissioners became highly varied and, therefore, defeated this important purpose.

The insistence of the Delimitation Commission that administrative wards should not be changed when the delimitation operation was in progress created other problems. In UP, the delimitation of constituencies for the 11 nagar nigams was held up for about a year in 2005-06 because of this restriction. The matter went to the High Court. Eventually, it was held that the delimitation exercises for Lok Sabha and assemblies on the one hand and rural or urban local bodies on the other are two different exercises.

 

A major reason for the Delimitation Commission’s reluctance to devise and adhere to a participative and open procedure was its fear that this would delay work. Under Section 10(6) of the Delimitation Act, the commission should endeavour to complete and publish each of its orders within two years of its constitution. This was an exhortation and not a legal command. At any rate, the period between 2002 and 2003 was lost because of change in the census base from 1991 to 2001. The commission was kept in suspended animation till the Ordinance of 2003 amending the Delimitation Act. The period could have been used in sorting out procedures and issues of methodology.

Anyhow, whatever the shortcomings in procedure, the commission did make some progress in its second innings. Draft notifications were issued and hearings held. By 2005, the commission notified its orders in respect of five states – Goa, Kerala, Mizoram, Pondicherry and Tripura. By 2006 another ten states were added to the list. By 2007 notifications were issued in respect of eight more states.

Between May 2006 and December 2007, assembly elections were held in Kerala, Goa, HP, UP, Punjab, Uttarakhand, Assam and Pondicherry for which delimitation had been done and notifications issued by the commission. But the date of effect was not notified by a presidential order and as such the elections were held on the basis of the 1972 delimitation. Application of a fresh delimitation would have enabled the public as well as the contestants to adjust to the revisions. While some problems in regard to a few general constituencies becoming reserved would have remained, the process of understanding the new constituencies would actually have been strengthened by experience on the ground.

 

In this respect at least, the Delimitation Commission cannot be blamed. The reasons for the presidential order not being issued were political, and not administrative. Soon after the draft of some notifications began to appear, political opposition to delimitation of any kind also surfaced, based on the universal fear that any change in the configuration of an electoral constituency would hurt the interests of the sitting member. Though the Delimitation Commission included five MPs and five MLAs as associate members for each state, and some consultation and interaction did take place, the fears were not allayed. The apprehension that delimitation would adversely affect sitting members and political parties soon became more vocal. Several important members of the ruling coalition shared this fear.

It is obvious that attempts were made to persuade the Delimitation Commission to modify some of its orders or at least take more time to complete its work. The commission’s term was due to expire by end July 2007 and it sought a three-month extension. The government responded by extending the term for a whole year, up to July 2008. On 17 July 2007 the Delimitation Commission issued a press note stating it needed only three months and would wind up its work by end October. Here was an extraordinary situation where a commission appointed by the government was determined to finish its work at the earliest, but the government on the other hand wanted a delay!

 

One month later, on 17 August 2007, the Delimitation Commission issued yet another press note stating that since the commission had completed and notified its work in respect of 25 states, it would be obligatory for the central government to ensure that the Presidential Order be issued. There were also petitions before the Supreme Court prior to this, seeking a direction to the government to issue such orders. Though the Supreme Court declined to intervene, as the year 2007 neared its end it became clear that the government could not delay matters any further. However, an alibi was needed for not having acted in time. The court cases in regard to some of the northeastern states and the issue of tribal constituencies in Jharkhand provided an alibi.

On 14 January 2008, the Delimitation Amendment Ordinance 2008 was promulgated to give effect to the delimitation in respect of 22 states, but deferring the delimitation in respect of the northeastern states and Jharkhand. Since the budget session was commencing in February, a private member moved a motion in the House disapproving the promulgation of the ordinance in haste. However, on 11 March 2008, the Lok Sabha debated the matter, the motion of disapproval was withdrawn and the Delimitation Amendment Bill to replace the ordinance approved.

 

The proceedings of the Lok Sabha debate are ample reflection of the premise set out at the beginning of this paper that the government because of its unfounded fears, scant knowledge of the delimitation process and the general tendency to avoid rather than adhere to constitutional norms had to be dragged by inexorable circumstances into accepting the inevitable. Observations of two members of the government merit notice. One is from the Minister for Parliamentary Affairs, P.R. Dasmunshi. Referring to the observations that some important members of the government tried to convey the message in the central hall that delimitation may not be implemented, Dasmunshi said: ‘I take full responsibility; I did talk to many senior leaders and said not to worry; that delimitation will not be implemented because of lot of litigations are going on...; a lot of problems are going on.’

However, Dasmunshi could not escape reality. Concluding his remarks he said, ‘It is a fact that every delimitation hits some members, some districts, some constituencies, some parties. But ultimate outcome is of the Delimitation Commission which is a constitutional body. We cannot disrespect, we cannot defy and we cannot get out of it.’

Towards the end of the debate the Law Minister H.R. Bhardwaj also candidly expressed the fear he had since the beginning of delimitation that it would not be in the interest of any political party. He was also candid enough to admit that the Members of Parliament had not applied their mind while considering the Delimitation Act of 2002. On the one hand a fear psychosis about delimitation was being built up; on the other an opportunity to come to terms with the inevitable demographic and territorial changes in the country was missed by Parliament because of its own lack of knowledge about the process, to say the least.

Delimitation has thus run its troubled and tortuous course for seven years since 2001. The decision to implement delimitation, though late, is welcome but the decision to reintroduce the freeze until 2026 contained in the 84th Amendment flies in the face of facts and logic.

 

The population stabilization expected in 2026 is supposed to be the justification for keeping the freeze alive. Whatever be the fears about the North-South divide to justify this, freezing assembly seats within a state suggests that some parts of the state would modify their reproductive behaviour in the context of the distribution of seats. This is facile to say the least. Furthermore, urbanization and migration have brought and will continue to bring significant changes to many constituencies. The increase in SC seats will have to be at the cost of general seats. A modest increase in the assembly seats would have helped to maintain proximity between the citizens and their representatives, propounded as an important criterion of participative democracy.

The fact is that even at the end of the present delimitation disparities will remain; not of such horrendous proportions as before but disparities nevertheless. For instance, for 16 lakh people there will be one Lok Sabha seat in Tamil Nadu; in Rajasthan it will be 22, in Haryana 21 and in UP 20. An assembly seat in Assam and UP will have an average population of four lakh plus, while in Punjab, Kerala or Karnataka it will be between two and 2.5 lakh. Urban constituencies will be more numerous, in particular in the metro cities. To that extent the under-enfranchisement in urban areas prevalent hitherto will be reduced.

 

More analytical papers will follow in the near future about the profile of the new constituencies, their urban or rural character, their occupational and caste characteristics and the implications for the political parties. In the meantime, demographic and economic changes will continue. The first census after 2026 will be in 2031. By then the census figures of 2001 will be 30 years old and we will be back in more or less the same situation as we were in 2002.

Working on the basis of population projections can be an alternative, but for a people prone to contest published figures, projections will only trigger a prolonged battle. There is no alternative other than to revive the process of periodic delimitation that is in vogue in many countries and enjoined by our own constitution makers. Periodic delimitation is the only way to reduce the pain of adjustment in constituency boundaries. The 42nd Amendment was an unprecedented derailment of this established process. Hopefully the results of the fourth delimitation, i.e. the present one, will help bring matters back on track, resuming the journey towards parity.

 

References:

The Boundaries of Indian Democracy, CPR, New Delhi, 2002.

74th Report of the Parliamentary Standing Committee on Home Affairs on the Constitution 91st Amendment Bill. Rajya Sabha, April 2001.

Delimitation Commission of India, press notes of March 2003, July 2007 and August 2007.

Proceedings of the Debate on Delimitation Amendment Bill and related matters in the Lok Sabha on 11 March 2008.

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