However, a three-judge panel headed by Chief Justice DY Chandrachud accepted the claim of petitioner’s lawyer Kapil Sibal that the constitutional validity of Section 8A of the RP Act, introduced in 2008 by the UPA government through an Act of Parliament, could be tested by the SC. He issued a notice to the Union government and sought its response within three weeks, while giving the petitioners two weeks to file their rejoinder.
Sibal argued that going the Section 8A route to carry out delimitation was unconstitutional as it deprived people’s representatives from participating in the exercise under the Delimitation Act 2002, which establishes a commission headed by a sitting or retired SC judge with central and state election commissioners as members and also the participation of MPs and MLAs from political parties in proportion to their representation in the Lok Sabha and assembly.
Sibal said that the process carried out by the EC was contrary to the mandates of articles 170 (2) and 80 (2) of the Constitution, which says that each state will be divided into electoral districts to ensure that each electoral district has as similar population as possible. He argued that the delimitation exercise in Assam was being conducted based on population density, a criterion unknown by the Constitution or the law.
Attorney General Tushar Mehta responded by saying that the challenge had come too late, considering that Section 8A was enacted 15 years ago. In addition, he said that the exercise had been underway since December 2020 after a presidential order suspending the delineation exercise in these four northeastern states was rescinded following a major improvement in the law and order situation in those states. This was never questioned, he added.
In its order, the court said: “The narrative of the facts indicates that the delimitation process has already started on February 28, 2020. Section 8A of the RP Act makes a special provision for four states: Arunachal Pradesh, Assam, Nagaland and Manipur. Following the rescission (revocation) of the order to suspend the delimitation exercise (in these four states), the conduct of the delimitation exercise has been entrusted to the EC.
“Section 8A contains detailed specifications for the EC to carry out the delineation exercise. At this stage in which the delimitation exercise process has begun, after the notification of February 28, 2020, particularly with regard to the issuance of the draft proposal on June 20 of this year, it is not appropriate for the Supreme Court of Justice to prohibit the process at this stage.