Delimitation is the drawing of the boundaries of Parliamentary or Assembly constituencies. In India boundaries are meant to be examined after ten-yearly census to reflect changes in population, for which Parliament by law established an independent Delimitation Commission, made up of the Chief Election Commissioner and two Judges of the Supreme Court or High Court. The country has been divided into 543 parliamentary constituencies, each of which returns one MP to the Lok Sabha, the Lower House of the Parliament. The size and shape of the parliamentary constituencies are determined by an independent Delimitation Commission, which aims to create constituencies which have roughly the same population, subject to geographical considerations and the boundaries of the States and administrative areas.
According to the Constitution of India, the delimitation of constituencies is to be determined by the entrusted authority and, that should be final and there should not be any intervention by any other authority, including the courts. This is provided in Article 329(a) of the Constitution and, according to that:
Notwithstanding anything in this Constitution:
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any court.
The reason behind this provision is:
(a) It has always been regarded as most important matter that Parliament and State Legislatures have to perform, the elections should be held regularly, and according to the fixed time table.
(b) The Constitution even stipulates the periods during which each House of Parliament and of a State Legislature must meet to transact its business. In Meghraj Kothari v. Delimitation Commission,1 it was held by the Supreme Court that “If the orders made by the authority delimiting the constituencies are not treated as final and are made subject to review or revision by some other authority, then any voter in any constituency, if he so wished, could hold up an election indefinitely by questioning the delimitation of constituencies from court to court”.
In this case, the facts are, a voter of Ujjain Parliamentary Constituency in the State of Madhya Pradesh 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 the Court held 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’. The Supreme Court, further observed that the provisions of Section 10 of the Delimitation Commission Act, 1962, put the orders of the Delimitation Commission and published in the Gazette of India ‘in the same street as a law made by Parliament itself’. According to the Supreme Court, “the Delimitation Commission Act, 1962 was made by Parliament, not under
Article 82, which merely envisages that upon the completion of each census, the allocation of seats in the House of the People and the division of each State into territorial constituencies may have to be readjusted, but under Article 327,
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1. MANU/SC/0054/1966 : AIR 1967 SC 669.
which empowers Parliament to make laws with respect to, inter alia, all matters relating to delimitation of constituencies”.
It deserves to be noted that Article 329(a) makes not only the law made by Parliament under Article 327, but also the law purporting to be made under that Article, immune from challenge before any court. In Vallabhbhai Kushalbhai Patel v. State of Gujarat,1 the reservation of seven out of the 12 Assembly Constituencies in the Surat district by the Delimitation Commission was challenged before the Gujarat High Court. The High Court refused to go into any of the contentions of the petitioner and held that the court has no jurisdiction in respect of the orders of the Delimitation Commission, and observed that Article 329(a) was a constitutional device to protect a legislative measure and for this device, the entire election machinery would break down if a voter was allowed to challenge the orders of the Delimitation Commission from court to court. The High Court while rejecting the contention of the petitioner held that the provisions of the aforesaid Act amounted to abdication by Parliament of its legislative powers and observed that the words ‘purported to be made’ in Article 329(a) had to be given the widest construction, keeping in view the object underlying that Article.
In Ravinandan Singh v. Election Commission of India,2 the Madhya Pradesh High Court was petitioned that the Election Commission may be directed not to convert the Sidhi Parliamentary Constituency from general constituency to a reserved constituency for the Scheduled Castes, under the provisions of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. The bar under Article 329(a) was sought to be overcome on the ground that the Election Commission had not yet passed its final order and that the High Court could intervene in the matter under Article 226. The High Court did not accept the above contention and prayer of the petitioner, holding that the Election Commission was the final authority in the matter under the said Act and Article 329(a) applied not only to the final order of the Commission but also to its proceedings. If the population of the Scheduled Castes increases, the number of seats reserved for them also correspondingly increases and the Commission was entitled to convert the above constituency from a general to a reserved constituency. In M. Yellapa v. Delimitation Commission,3 the question raised before the Andhra Pradesh High Court was that the Delimitation Commission, by its final order, reserved Kalyandurg Assembly Constituency for the Scheduled Castes, whereas in the draft proposals published by the Commission, it was the Madakasira Constituency which was proposed to be reserved and not Kalyandurg. The High Court did not interfere with the order of the Delimitation Commission and it was held to be unassailable.
Mohd. Abdul Ghani v. Election Commission of India seems to be the only exceptional case where the Calcutta High Court intervened and directed a
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1. 56 ELR 227.
2. 64 ELR 301.
3. 59 ELR 273.
group of 16 mouzas to be excluded from one constituency and tagged on to another adjacent constituency, because it considered those villages as having become contiguous to the latter constituency owing to a change in the course of the Ganges. These 16 mouzas, at the time of delimitation of the above constituencies in 1975, were located on western side of the Ganges and formed part of Murshidabad district and were included in Farakka and Aurangabad Assembly Constituencies by the Delimitation Commission. Subsequently, the Ganges changed its course and these villages now fell on the other side of the river and became contiguous to Kaliachak Assembly Constituency in district Malda. The State Government changed the extent of the districts so as to include these mouzas in Malda district taking them out of Murshidabad district. Consequently, it was proposed to the Election Commission that the territorial extent of the above constituencies may also be correspondingly changed. The Election Commission expressed its inability to do so, as it contended that the territorial extent of the constituencies as delimited by the Delimitation Commission could not be changed or readjusted by any authority, until the next delimitation was undertaken by the authority contemplated under Article 170. The High Court, however, did not agree with that contention and directed that the territorial extent of the above Assembly constituencies should be altered so as to be in conformity with the geographical changes and the changes in the administrative set up. But, when the Election Commission moved to the Supreme Court, the Apex Court promptly halted the process of alteration, as directed by the High Court. In Election Commission of India v. Md. Abdul Ghani1, the appeal of the Election Commission was finally allowed by the Supreme Court, upholding the view of the Commission that the territorial extent of constituencies as delimited by the Delimitation Commission could not be altered by the Election Commission.
According to the Article 81(1)(b) of the Constitution (as originaly enacted) provided that for the purposes of elections to the House of the People, directly by the voters in the States, the States shall be divided, grouped or formed into territorial constituencies and the number of members to be allotted to each such constituency shall be so determined as to ensure that there shall not be less than one member for every 7,50,000 of the population and not more than one member for every 5,00,000 of the population. Similarly, Article 170(2) provided that the representation in the Legislative Assembly of each State shall also be by direct election from territorial constituencies in the State on a scale of not more than one member for every 75,000 of the population. According to Articles 81(3) and 170(4), it was further provided that, upon the completion of each census, the
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1. MANU/SC/0839/1995 : (1995) 6 SCC 721.
representation of several territorial constituencies in the House of the People and in the Legislative Assembly of each State shall be re-adjusted by such authority, in such manner and with effect from such date as Parliament may by law determine. Again such re-adjustments shall not affect representation in the then existing House of the People or, as the case may be, the Legislative Assembly of a State, until the dissolution of that House or Assembly. But the Constitution was silent as to who shall undertake the initial division of States into territorial parliamentary and assembly constituencies and the allocation of seats to such constituencies. Sections 6 and 9 of the Representation of the People Act, 1950 tried to fill this gap, as it provided, as soon as may be, after the commencement of that Act, the President shall, by order determine:
(i) the parliamentary and assembly constituencies into which each State shall be divided;
(ii) the extent of each such constituency;
(iii) the number of seats allotted to each constituency; and
(iv) the number of seats, if any, reserved for the Scheduled Castes or for the Scheduled Tribes in each constituency.
To enable the President to make such orders, it was made the function of the Election Commission to formulate proposals as to the delimitation of constituencies in each State and to submit the same to the President. Section 13 of the R.P. Act, 1950, also provided that the Election Commission shall formulate such proposals in consultation with parliamentary advisory committees in respect of each State, which were to be set up by the Speaker of the provisional Parliament, consisting of not less than three, and not more than seven members of Parliament representing that State. Section 13(3) of the same Act provides that, every order made by the President was to be laid before Parliament, as soon as may be after it was made, and was subject to such modifications as Parliament might make on a motion made within 20 days from the date on which the order was so laid. According to Sections 12 and 13 of the Act, the orders made by the President from time to time could be altered or amended by him, after consultation with the Election Commission and subject to such further modifications as Parliament might make.
In the light of these provisions, the Election Commission formulated its proposals, based on the estimated population of each State of 1950 to the President for approval. The proposals relating to delimitation made by the Election Commission were revised to certain extent by the Central Government and a final Delimitation Order was accordingly drawn up for each State and issued by the President during May, 1951.
After the 1951-census, another delimitation of the constituencies became inevitable in all States as the delimitation of constituencies made by the President in 1951 was temporary in nature. The Election Commission observed in context of the delimitation exercise undertaken in 1950, the procedure followed for the purpose did not work out satisfactorily and left many a parties and persons aggrieved. The Election Commission, therefore, recommended to the government that the future delimitation of constituencies should be made by an independent commission, and the decisions of such commission should be made final in law. The government accepted this suggestion and accordingly provided for the constitution of an independent Delimitation Commission under the Delimitation Act, 1952. The Delimitation Commission so constituted consisted of three members. Under this Act, the orders of the Delimitation Commission were given finality as having the force of law and were not subject to any modification or review by Parliament or by any court of law. The Delimitation Commission hardly completed its task of re-adjusting the number of seats and the territorial extent of Parliamentary and Assembly Constituencies till July, 1956. The States Reorganization Act, 1956 and the Constitution (Seventh Amendment) Act, 1956 contemplated the setting up of a new Delimitation Commission for the purpose. However, the government re-appointed the same members as the members of the new Delimitation Commission which completed its task on 19th December, 1956. The constituencies delimited by the orders of the Delimitation Commission formed the basis for the second and third general elections to the House of the People and the State Legislative Assemblies held in 1957 and 1962 respectively.
After 1961 census, an independent Delimitation Commission was set up in January, 1963, under the Delimitation Commission Act, 1962. Again it consisted of three members. The Commission finished the task originally assigned to it by July, 1966, but it had to undertake additional work on the reorganisation of Punjab, Haryana and Himachal Pradesh and the creation of a new Union Territory of Chandigarh under the Punjab Reorganisation Act, 1966. At this stage, C.P. Sinha J. resigned his membership of the Delimitation Commission and a new member, R.C. Soni, J., a retired judge of the Punjab and Haryana High Court, was appointed in his place. The Delimitation Commission reconstituted as one of its member resigned, then it completed its work in all respects. It was on the basis of the orders of this Commission that the fourth and fifth general elections to the House of the People were held in 1967 and 1971 respectively and a number of general elections and mid-term general elections were held to various States Legislative Assemblies in 1967, 1968, 1969, 1971 and 1972.
Based on the 1971-census, Parliament enacted the necessary legislation under the nomenclature of Delimitation Act, 1972, instead of the earlier nomenclature of Delimitation Commission Acts which it had passed in 1952 and 1962. Under this new Act, the Delimitation Commission constituted in 1973 was a three member Commission. This Commission completed its task in October, 1975.
In every Delimitation Commission, there was a provision for associate members for the purpose of assisting the Commission in its duties in respect of each State. These members were to be nominated by the Speaker of the Lower House or, as the case may be, the Speaker of the Legislative Assembly concerned. Section 5 of the Delimitation Act, 1972, provides that, the number of members of the House of the People representing any State was five or less, then all such members were to function as the aforesaid associate members. But, these associate members had no right to vote in the proceedings of the Delimitation Commission or to sign any decision of that Commission.
These Delimitation Commissions were empowered to determine their own procedures and were also vested with the powers of a civil court under the Code of Civil Procedure, 1908, in the matter of summoning and enforcing the attendance of witnesses from any part of India. In case of any difference of opinion among the members of the Commission, the opinion of the majority shall prevail.
No Delimitation Commission has been set up after 1975, as the Constitution was amended by the Constitution (Forty-second Amendment) Act, 1976, freezing the number of seats in the House of the People, until the first census to be taken after the year 2000.
In all cases after 1975, of delimiting the parliamentary and assembly constituencies or locating the additional reserved constituencies for the Scheduled Castes and Scheduled Tribes was entrusted by Parliament to the Election Commission, instead of setting up any separate body for the purpose. It should be noted that even to the Delimitation Commissions set up from time to time, secretarial assistance has always been provided mainly by the Election Commission.
Before undertaking the exercise of delimitation, any authority has to follow certain basic principles which has been laid down in the Constitution. These principles have been supplemented by Parliament whenever it provided for the setting up of an independent Delimitation Commission or entrusted this task to any other authority.
According to Articles 81(1) and 170(1) of the Constitution, the maximum limits are laid down beyond which the total membership of the House of the People and of the State Legislative Assemblies cannot go. Additionally, the minimum membership limit of the State Legislative Assemblies is also laid down by the Constitution. These limits cannot be transgressed and every delimitation authority, has to so fix the total number of seats in the House of the People and in the Legislative Assembly of each State that such numbers fall within the prescribed parameters.
Under Article 81(2)(a), the Constitution has laid down the basic principle for the allocation of seats to various States in the House of the People. The number of seats in the House of the People shall be allotted to each State in such manner that the ratio between that number and the population of the State is, so far as practicable, is the same for all States, so that these seats are equitably distributed among all States. However, an exception has been made under Article 81(2), in the case of smaller States whose population does not exceed six millions, in order that their interests are duly safeguarded in the matter of their adequate representation in the House of the People.
Article 330 of the Constitution provides that seats shall be reserved for the Scheduled Castes and Scheduled Tribes in the House of the People and in the State Legislative Assemblies in proportion to their population in each State.
Articles 81(2)(b) and 170(2), says regarding the principles to be followed at the time of delimitation of parliamentary and assembly constituencies that each State shall be so divided into territorial parliamentary and assembly constituencies that the ratio between the population of each constituency and the number of seats allotted to it is, so far as practicable, the same throughout the State.
In the last such Act for the delimitation of constituencies passed by Parliament in 2002, namely, the Delimitation Act, 2002, Parliament laid down in Section 9(1) thereof that:
(a) All constituencies shall be single-member constituencies and shall, as far as practicable, be geographically compact areas;
(b) In delimiting the constituencies, regard shall be had to physical features, existing boundaries of administrative units, facilities of communication and public convenience;
(c) Every assembly constituency shall be so delimited as to fall wholly within one parliamentary constituency;
(d) Constituencies in which seats are reserved for the Scheduled Castes in any State shall be distributed in different parts of the State and located, as far as practicable, in those areas where the proportion of their population to the total population of those areas is comparatively large; and
(e) Constituencies in which seats are reserved for the Scheduled Tribes in any State shall, as far as practicable, be located in areas where the proportion of their population to the total population of those areas is the largest.
It should be noted that whenever the Delimitation Commission was given some discretion in the matter of identification and location of constituencies in which the seats were reserved for the Scheduled Castes in those areas where the population of the Scheduled Castes was comparatively large, no such discretion was available to that Commission in the matter of reservation of seats for the Scheduled Tribes. In case of the Scheduled Tribes, the seats had to be compulsorily reserved, provided the proportion of their population to the total population was the largest. This is because, most of the Scheduled Tribes are concentrated in some districts or parts of the States.
Publication of Orders of Delimitation Commission and their Date of Publication According to Section 10 of the Delimitation Act of 2002.—
(1) The Commission shall cause each of its orders made under Section 8 or Section 9 to be published in the Gazette of India and in the Official Gazettes of the States concerned and simultaneously cause such orders to be published at last in two vernacular newspapers and publicize on radio, television and other possible media available to the public and after such publication in the Official Gazettes of the States Concerned, every District Election Officer shall cause to be affixed, the Gazette version of such orders relating to the area under his jurisdiction, on a conspicuous part of his office for public notice.
(2) Upon publication in the Gazette of India, every such order shall be have the force of law and shall not be called in question in any court.
(3) As soon as may be after such publication, every such order shall be laid before the House of the People and the Legislative Assemblies of the States concerned.
(4) Subject to the provisions of sub-section (5), the re-adjustment of representation of the several territorial constituencies in the House of the People or in the Legislative Assembly of a State and the delimitation of those constituencies provided for in any such order shall apply in relation to every election to the House or to the Assembly, as the case may be, held after the publication in the Gazette of India of that order and shall so apply in supersession of the provisions relating to such representation and delimitation contained in any other law for the time being in force or any order or notification issued under such law insofar as such representation and delimitation are inconsistent with the provision of this Act:
Provided that nothing in this sub-section shall apply to the delimitation orders published in relation to the State of Jharkhand.
(5) Nothing in this section shall affect the representation in the House of the People or in the Legislative Assembly of a State until the dissolution of the House or of the Assembly, as the case may be, existing on the date of publication in the Gazette of India of the final order or orders of the Commission relating to the delimitation of parliamentary constituencies or, as the case may be, of the assembly constituencies of that State and any bye-election to fill any vacancy in such House or in any such Assembly shall be held on the basis of the provisions of the laws and orders superseded by sub-section (4) as if the said provisions had not been superseded.
(6) The Commission shall endeavour to complete and publish each of its orders referred to in sub-section (1) in the manner provided in that sub-section, within a period not later than 31st day of July, 2008, under Section 3.
According to Section 10A of the Delimitation Act, 2002.—
(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 a serious threat to the peace and public order, 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.
According to Section 10B of the Act.—
Notwithstanding anything contained in sub-section (2) of Section 10, the final orders relating to re-adjustment of number of seats and delimitation of constituencies in respect of the State of Jharkhand published under the said section vide Order O.N. 63(E), dated 30th April, 2007 and O.N. 110(E), dated 17th August, 2007 shall have no legal effect and the delimitation of the constituencies as it stood before the publication of the said orders shall continue to be in force until the year 2026 in relation to every election to the House of the People or to the Legislative Assembly, as the case may be, held after the commencement of the Delimitation (Amendment) Act, 2008.
The best way to explain how the constituencies are delimited can be by illustrating the manner and methodology adopted by the last Delimitation Commission set up in 1973. That Commission was to re-adjust:
(i) the allocation of seats to the various States in the House of the People;
(ii) the total number of seats in the Legislative Assembly of each State;
(iii) the number of seats to be reserved for the Scheduled Castes and Scheduled Tribes in the House of the People and each Legislative Assembly; and
(iv) the territorial extent of all parliamentary and assembly constituencies in the country, on the basis of the 1971-census.
The Delimitation Commission had to ensure that (as far as possible):
(i) all constituencies should be more or less equal in population; and
(ii) these constituencies should be geographically compact areas in which administrative units were kept intact and not unnecessarily broken.
Apart from these, physical features like, hills, deserts, rivers, etc., means of communication and considerations of public convenience had also to be kept in view while drawing the boundaries of the constituencies.
Under the Delimitation Act, 1972, each Parliamentary Constituency was to comprise an integral number of assembly constituencies in a State and the total number of assembly constituencies in the State was to be an integral multiple of parliamentary constituencies in the State. However, there was no guideline provided in the Act as regards such integral multiple and it was left to the Delimitation Commission to determine such multiple having regard to the broad parameters laid down by the Constitution that a State Legislative Assembly shall not have less than 60 members and not more than 500 members. The Delimitation Commission had thus to see that the Legislative Assembly of a State was neither too big nor too small, keeping in view its population, size, geographical features, means of communication, etc. After determining the allocation of seats to every State in the House of the People and in the Legislative Assembly, the Delimitation Commission then worked out to determine the seats to be reserved for the Scheduled Castes and Scheduled Tribes in each State separately.
Again, the next task which is more tedious is that the Commission was to determine the territorial extent of parliamentary and assembly constituencies in each State. As far as territorial extent of the Assembly constituencies was concerned, the Delimitation Commission decided that if possible it should be co-terminus with the boundaries of the district within which such constituencies fall and, therefore, further decided to allot a full integral number of assembly constituencies to each district depending upon its population. Therefore, the total number of assembly constituencies in a State was divided among the several districts in the State in the ratio of their population to the total population of the State.
According to Article 81(3) of the Constitution, the expression ‘population’ means the population ascertained at the last preceding census of which the relevant figures have been published:
Provided that the reference in this clause to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2026 have been published, be construed,—
(i) there shall be allotted to each State a number of seats in the House of the People in such manner that the ratio between that number and the population of the State is, so far as practicable, the same for all States, as a reference to the 1971-census;
(ii) each State shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and number of seats allotted to it is, so far as practicable, the same throughout the State, as a reference to the 2001-census.
In the explanation to Article 170(2) the expression ‘population’ means the population as ascertained at the last preceding census of which the relevant figures have been published:
Provided that the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2026 have been published, be constructed as a reference to the 2001-census.
Section 2(c) of the Representation of the People Act, 1950 says that, “‘Council constituency’ means a constituency provided by law for the purpose of elections to the Legislative Council of a State”. The Legislative Council of the States so composed that one-third of their members are elected by the local authorities’ constituencies and one-twelfth of their members each are elected by the graduates’ constituencies and teachers’ constituencies. Therefore, these three types of constituencies are called the ‘Council constituencies’.
According to Section 10(i) of the Representation of the People Act, 1950:
“The allocation of seats in the Legislative Councils of the States having such Councils shall be as shown in the Third Schedule”.
Section 11 of the Representation of the People Act, 1950 reads:
As soon as may be after the commencement of this Act, the President shall, by order, determine—
(a) the constituencies into which each State having a Legislative Council shall be divided for the purpose of elections to that Council under each of the sub-clauses (a), (b) and (c) of Clause (3) of Article 171;
(b) the extent of each constituency; and
(c) the number of seats allotted to each constituency.
Section 12 of the said Act says that the President may, from time to time, after consulting the Election Commission, by order, alter or amend any order made by him under Section 11.
Section 13(3) of the said Act provides that, every order made under Sections 11 and 12, shall be laid before Parliament as soon as may be after it is made, and shall be subject to such modifications as Parliament may make on a motion made within twenty days from the date on which the order is so laid.
Under the present orders, most of the Council constituencies have been converted into single-member constituencies as it was felt that the multi-member constituencies, were very large in areas and not easily manageable and the candidates and parties were also finding it difficult to conduct effective campaigns in such vast constituencies.
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