Assam: Legal Battle Over Delimitation to Resume Post August, Petitioners Allege Official Neglect

Kolkata: For the Opposition in the Bharatiya Janata Party-ruled Assam, a fresh round of legal battle in the Supreme Court will begin on the delimitation issue after the current month as by mid-August, the Centre and the Election Commission of India (EC) will have submitted their affidavit and after that, it will be the Opposition's turn to submit their rejoinder.

This schedule derives from the Supreme Court's order on July 24 allowing five weeks – three for the Centre and ECI and two for the Opposition – after which the case will be posted. A bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra on July 24 refused to concede the Opposition's demand for a stay on the ongoing delimitation process but agreed to hear their challenge to Section 8A of the Representation of People's Act (RPA).

The opposition parties have raised many objections to the draft released by ECI on June 20, 2023. They had met ECI officials at least three times in New Delhi and during their visit to Assam. Still, at no stage ECI entertained their objections, according to Assam Congress president Bhupen Kumar Bora.

Under the existing provisions, delimitation, once finalised and notified, cannot be challenged even in a court of law and, therefore, for the Opposition, it has become all the more important to explore fresh legal avenues to see their objections, which they describe as "serious and in tune with ground realities" are addressed.

Their expectation, as evident from NewsClick's talks with several opposition leaders, is that when SC takes up the Section 8A – RPR challenge, they can seek scrutiny of their objections as "ECI has been maintaining total silence on their objections," although abiding by procedures and rules, it has invited objections and suggestions to the draft. But, it has not reverted with their response.

The proposed grouping and regrouping of constituency jurisdiction has evoked strong reactions from the opposition parties, which have detected many anomalies and practical and irrationalities.

For example, in the context of the changes mooted for the Assembly seats under the Dhubri Lok Sabha constituency, currently represented by the All India United Democratic Front (AIUDF) chief Badruddin Ajmal, the representation of the Communist Party of India (Marxist) observes, "The apparent logic behind such a proposal is to ghettoise a particular community."

The Dhubri Lok Sabha seat has 11 Muslim-dominated constituencies. To this, two Assembly seats – 22 Mandia and 23 Chenga of Barpeta district, which also has a concentration of Muslims, are proposed to be added.

CPI(M) 's representation to ECI has termed it as a move "to ghettoise the community."

Elaborating, CPI(M) state secretary Suprakash Talukdar told NewsClick the additional seats are adjacent to Barpeta district HQs and, therefore, those seats should be part of the Barpeta Lok Sabha constituency.

Another illogical move is to put Goalpara East Assembly under the Dhubri Lok Sabha seat and bring Goalpara West (ST) Assembly constituency under the Guwahati Lok Sabha constituency. It is incongruous because one has to cross Goalpara West to reach Goalpara East from Dhubri.

Talukdar observed, "We have every reason to believe that such an illogical proposal is only possible when considerations on communal lines are made the basis. Such segregation of citizens on communal lines cannot be accepted."

AIUDF General Secretary Aminul Islam, who represents Mankachar in the Assembly, told NewsClick that the draft smacks of a deliberate attempt by the BJP "to further a malicious and divisive agenda." The draft betrays an utter disregard for boundaries and administrative units. At the behest of the BJP brass in New Delhi and Guwahati, attempts are being made to weaken AIUDF, he said.

"We have information that ECI officials have interacted with a cabinet sub-committee but ignored all our requests for giving us time."

Geographical compactness and administrative convenience have been discussed in several readjustments, which, if acted upon, could result in fragmentation of constituencies. Also, ECI has disintegrated revenue villages from their corresponding administrative units, gaon panchayat. This will weaken local representation and dilute the voice of communities residing in the affected areas.

"We have cited several examples to support our contention," Islam told NewsClick.

President of the regional party Assam Jatiya Parishad (AJP), Lurinjyoti Gogoi, has called a halt to the exercise as the sensitive issue of the National Register of Citizens remains pending in the Supreme Court and the Armed Forces (Special Powers) Act is still in force in certain parts of Assam.

The finalisation of NRC is essential to detect and delete the names of 'foreigners.' Delimitation in these circumstances cannot produce the desired result to help the indigenous people of Assam to preserve and protect their identity, AJP has contended. Gogoi told NewsClick he agrees with the assessment of other opposition leaders that BJP is trying to benefit from the ongoing process in future elections.

Communist Party of India leader and former MLA Munin Mahanta said there had been flagrant violations of the Delimitation Act, and the authorities, including the Union law ministry, would appear to be avoiding the uniform application of laws, rules and procedures. In the case of Assam, the exercise is being carried out with reference to the 2001 census under the aegis of ECI. In contrast, for the Union Territory of Jammu & Kashmir, the exercise was conducted with reference to the 2011 census under a commission headed by a former Supreme Court judge [Justice RP Desai].

"When ECI officials visited our state, I asked them about the difference in approach, but they had no answer."

Senior advocate Kapil Sibal, who appeared for the petitioners, stated that under normal circumstances, delimitation is to be carried out by a delimitation commission headed by a retired Supreme Court judge and consisting of people's representatives as members. The assignment for ECI smacks of arbitrariness in this case.

Mahanta cited another deviation – that of applying the criterion of population density, although the unambiguous Constitutional mandate is that delimitation should be based on population. Given so many inconsistencies and anomalies, the exercise should be deferred.

Deferment won't impact voting for the 2024 Lok Sabha elections.

"How were the Assembly elections conducted in Assam in 2021?" the CPI leader asked.

In this context, it may be mentioned that under Section 10A of the Delimitation Act, 2002, the President can defer exercise in a state if the situation is not conducive. Under Section 8A of RPA, delimitation in Arunachal, Assam, Manipur and Nagaland is to be carried out by ECI if the President rescinds the deferment order. Both these provisions were introduced in 2008. The Opposition's contention is Presidential deferment has not happened. Therefore, the job could have been assigned to a delimitation commission headed by a retired Supreme Court judge.

According to Debabrata Saikia, Congress legislature party leader, the matter is already subjudiced and further legal proceedings are to take place. The issue of 19 lakh persons omitted from the NRC list is there. The Supreme Court's order regarding the appointment of ECI members by a three-member panel comprising the Prime Minister, the leader of the Opposition in Lok Sabha (if not there, leader of the single largest party) and the Chief Justice of India is yet to be implemented by New Delhi.

"Should we not keep these points too in view" was Saikia's cryptic remarks, seemingly in the context of the suspicions expressed. Talukdar and Borah asserted that "this situation" cannot be accepted; it has to be fought.

The petitioners are Lurinjyoti Gogoi of AJP, Saikia and Rokibul Hussain of Congress, Akhil Gogoi of Raijor Dal, Manoranjan Talukdar of CPI(M), Ghanakanta of Trinamool Congress, Mahanta of CPI, Diganta Konwar of Anchalik Gana Mancha, Mahendra Bhuyan of Nationalist Congress Party and Swarna Hazarika of Rashtriya Janata Dal. The petition was filed through advocate-on-record Fuzail Ahmad Ayyubi. Ajmal's AIUDF has petitioned separately.

Meanwhile, Borah informed NewsClick that nine national and three regional parties have decided to launch the Assam chapter of INDIA (Indian National Developmental Inclusive Alliance), the 26-party national alliance launched recently. A formal announcement will be made soon.

The writer is a Kolkata-based freelance journalist.