Short Summary:- In this piece, the author presents an overview of the way Article 327 and 329(a) have been interpreted, and proposes a harmonious construction of the two that enables courts to review delimitation orders. The author concludes by noting what the judicial trend in this aspect has been, and analyses the key considerations courts take into consideration when reviewing such orders.

I. Introduction

The delimitation of constituencies and the allotment of seats to such constituencies is a constitutional duty to be performed under Article 82 of the Constitution. Following this mandate, the Parliament enacts a Delimitation Act after each decennial census, and an independent Delimitation Commission (“Commission”) performs the delimitation exercise. This culminates in a delimitation order, on the basis of which elections to the House of People and State Legislative Assemblies are held.

However, Section 10(2) of the present Delimitation Act, 2002, (“Act”) as well as the corresponding provisions of the predecessor delimitation Acts in 1952, 1962 and 1972, accords finality to the delimitation orders and excludes them from judicial review. Such an exclusion is further reinforced by a similar bar contained under Article 329(a) of the Constitution. While free and fair elections are considered to be intrinsic in a democracy, these provisions create a paradox since the delimitation exercise that lays the foundation for elections are kept outside the purview of the courts.

With the mandate to enact a new delimitation Act in 2026 nearing, it is imperative to re-examine some of the conflicting verdicts that have interpreted Article 329(a) in light of its rationale. In engaging in such an analysis, I have analyzed true scope of the bar from judicial review under Article 329(a), and argued that there cannot be an absolute bar on judicial review over unconstitutional delimitation orders by strictly applying Article 329(a).

II. Harmonious Interpretation of Article 327 and Article 329(a)

The Parliament derives its power to make laws on delimitation from Article 327 read in conjunction with Item 72 List 1 of Schedule VII. Further, Article 329(a) of the Constitution, through its non-obstante clause, provides that 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.” It was established that the delimitation Act, being a ‘law made by Parliament’ under Article 327, could not be challenged as per the bar contained in Article 329(a). However, after the delimitation exercise in 1964 it was contended that although Article 329(a) precluded the Delimitation Commission Act, 1962, from being challenged, it did not prevent a challenge to the delimitation order, since the latter was not a ‘law made by Parliament’ under Article 327. This question was resolved in 1967 by a constitutional bench of the Supreme Court (“SC”) in Meghraj Kothari v. Delimitation Commission (“Meghraj Kothari”), which held that the delimitation orders are ‘purported to be made by the Parliament’ under Article 327. This widened the scope of the word ‘law’ appearing in Article 329(a) to protect not only the delimitation Act but also the delimitation orders from judicial review. 

Here, it is pertinent to note that in-spite of the non-obstante clause contained in Article 329(a), Article 327 begins with the words ‘subject to the provisions of the Constitution’. Drawing from the above interpretation in Meghraj Kothari, if the delimitation orders are a law purported to be made under Article 327, then the delimitation orders will have to be in conformity to the Constitution as per the opening words of Article 327.

Therefore, by a harmonious construction of Article 329(a) and Article 327, it is only when the Commission issues an order in accordance with the Constitution, will it be protected from judicial review under Article 329(a). Such a duty is also presently entrusted upon the Commission under Section 8 and Section 9 of the Act which stipulates that the delimitation of constituencies and allotment of seats to the House of People and the State Legislative Assemblies has to be done as per, inter alia, the principle of one person, one vote, one value under Article 81 and Article 170 of the Constitution respectively.

III. Intent of the Bar Contained under Article 329(a)

1. Scope of the bar under Article 329(a)

During the adoption of draft Article 291-A, the Constituent Assembly did not propose any amendments or raise any objections to the bar on judicial review. Consequently, it was incorporated unaltered into the Constitution as Article 329(a). Even when enacting the Delimitation Commission Act, 1952 (“Act”), the parliamentary proceedings had no deliberations on the exclusion of judicial review of the delimitation orders. Hence, the Act retained Section 9(2), which accorded finality and force of law to the delimitation orders published in the official gazette.

The exclusion of judicial review in Article 329(a) aligns with several original provisions of the Constitution, such as Articles 31(4), 31(6), 136(2), 227(4), and 262(2), which was affirmed in Indira Nehru Gandhi v. Raj Narain. Here, the five-judge bench was testing the constitutionality of the 39th Amendment to the Constitution that excluded the jurisdiction of all courts over the election of the Prime Minister and Speaker of the House of People. Considering the exclusionary clauses in these original provisions, it was held that judicial review is not indispensable for ‘elections to the country’s legislatures.’

The reasoning behind the specific bar under Article 329(a) was explained in Meghraj Kothari, to be intended to prevent individuals from indefinitely stalling elections by questioning the delimitation orders in successive courts. This interpretation is consonant with an earlier verdict in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency wherein a challenge to the rejection of nomination papers of a prospective candidate by the Returning Officer was dismissed on the ground that in a democracy, it is important that elections are conducted ‘as early as possible’ and as per a ‘time schedule’.

Thereafter, this line of interpretation and the phrase ‘shall not be called in question’ in Article 329(a) have been relied upon by subsequent verdicts to adopt a ‘hands-off’ approach and dismiss challenges against the delimitation orders. Such a judicial trend progressively resulted in the bar under Article 329(a) to be made absolute. For instance, the Andhra Pradesh High Court in G. Prasada Rao v. Election Commission of India, New Delhi, while dismissing a challenge to a notification of the Election Commission of India seeking to amend the existing delimitation order, held that the bar under Article 329(a) is ‘unsurmountable’.

2. Challenge not maintainable only when elections are imminent or in progress

Despite the predominantly hands-off approach, there have been few notable exceptions. For instance, in 2019, the SC in Dravida Munnetra Kazhagam v. State of T.N., allowed a challenge to a mala fide delimitation order that did not account for increase in the number of districts and directed for a fresh delimitation to be undertaken. Further, in 2021, the SC in State of Goa v. Fouziya Imtiaz Shaikh, (“Fouziya Imtiaz Shaikh”) while deciding a challenge to the State Election Commissioner’s order to postpone municipal elections observed that a delimitation order that is made without the authority of the parent Act is open to challenge.

While the Meghraj Kothari position stemmed from the argument of timely conduct of elections, in 2024, the SC in Kishorchandra Chhanganlal Rathod v. Union of India (“Kishorchandra Chhanganlal Rathod”) has distinguished this verdict by observing that a challenge to the delimitation orders is precluded only when the elections are either ‘in progress’ or are ‘imminent’. Here, the SC party reversed the judgment of the high court that dismissed a challenge to a delimitation order and held that a constitutional court is empowered to check arbitrary and whimsical exercise of powers by the Commission. Therefore, the intent of the bar under Article 329(a) cannot be construed to prescribe a complete bar of judicial review over the delimitation orders since that would be against both, public interest and the doctrine of separation of powers.

In an earlier verdict of Mohinder Singh Gill v. Chief Election Commissioner, the SC had clarified that elections are considered to be in progress from the issuance of the presidential notification calling forth the election until the declaration of results. The court also remarked that it would be “fallacious to treat a single step taken in furtherance of an election as equivalent to election.” Building upon this, Fouziya Imtiaz Shaikh observed that delimitation and preparation of electoral rolls is a continuous process and not a part of the election. It was also noted that in the imminency stage of elections, which is prior to the issuance of the presidential notification, the courts can exercise their discretion on whether to allow a challenge to the delimitation orders.

These verdicts can be seen as a reformed approach by the courts that a challenge to a mala fide delimitation order before the election notification furthers the progress of lawful elections and does not amount to ‘calling in question’ an election under Article 329(a).[1] Such a view has also been held by various high courts, most notably the Delhi High Court in Ramesh Dutta v. State Election Commission, wherein a challenge to a notification amending the delimitation order and reserving a seat for women from scheduled castes was allowed.

IV. Curious Case of Article 243-O(a) and Article 243-ZG(a)

Very often, the bar on judicial review contained in Article 329(a) is compared with a similar bar contained in Article 243-O(a) and Article 243-ZG(a) that concerns the delimitation of constituencies for election to panchayats and municipalities respectively. However, mere similarity in phraseology does not change the nature of the underlying provision that is also reinforced by the enabling statute.[2]

For instance, Section 10(2) of the Delimitation Act, 1962, provides that the delimitation order shall have the ‘force of law’ on its publication in the official gazette. This enabled the SC in Meghraj Kothari to decipher the intention of the Parliament that the delimitation orders are not mere administrative directions but shall have the full force of law and placed on the same pedestal as an Act of Parliament. However, Section 32(3) of the U.P. Municipal Corporation Act, 1959, (“U.P. Act”) merely provides that the order of delimitation, upon publication, shall be final and does not impart it the ‘force of law’.

The consequence of the absence of this provision was noted by the SC in Anugrah Narain Singh v. State of Uttar Pradesh (“Anugrah Singh Narain”) which observed that the absence of ‘force of law’ would mean that the delimitation orders under the U.P. Act are not on the same street as an Act of Legislature. Hence, they cannot be considered as a ‘law’ under Article 243-O(a) to attract the bar to judicial review. Therefore, as Fouziya Imtiaz Shaikh notes, Meghraj Kothari was distinguished in Anugrah Narain Singh, by holding that the delimitation orders for municipalities and panchayats are not completely barred from being challenged on the grounds of colourable exercise of power and on the ground of arbitrariness. However, such a challenge must be made immediately on the publication of the order in the gazette and before the publication of notifications for elections.

Moreover, since Article 243-O(a) and Article 243-ZG(a) on the one hand and Article 329(a) on the other hand operate in different fields, the verdicts on the former cannot be used to support a challenge to a delimitation order falling under the ambit of Article 329(a). However, regardless of this distinction, the verdicts on Article 243-O(a) and Article 243-ZG(a) can be used to understand the time when the courts can entertain a challenge over the delimitation orders. In other words, verdicts such as Fouziya Imtiaz Shaikh and Anugrah Narain Singh should not be read restrictively to obstruct a challenge to an unconstitutional delimitation order for the House of People and the State Legislative Assemblies. Such a restrictive approach was avoided in Kishorchandra Chhanganlal Rathod when the SC relied on Fouziya Imtiaz Shaikh purposefully interpret Article 329(a), as noted above.

V. Conclusion

The expression ‘free and fair elections’ being fundamental to democracy connotes two important aspects. Firstly, elections must be held in a time bound manner as per the fixed schedule, with all its controversial matters and disputes being held off until after the results are declared in order to ensure that the election proceedings are not unduly retarded or protracted. Secondly, and more importantly, it is not only the timely conduct of elections but also the conduct of elections as per the law that is vital.

The 1967 verdict in Meghraj Kothari focuses only on the first aspect (the timely conduct of elections) in order to preclude a challenge to the delimitation order. While such an interpretation had largely resulted in a judicial hands-off approach on the ground that Article 329(a) created an absolute bar, the courts have also distinguished Meghraj Kothari to enunciate grounds for judicially reviewing unconstitutional delimitation orders. It is important to note that delimitation forms the bed-rock on which the entire process of election rests, and hence, has to be constitutional to subserve democracy. This requires emphasis on the second aspect of free and fair elections.

Without judicial review over the delimitation orders, the mandate for the Commission to follow the principles under the Constitution and the Act, will be an empty formality. Since the Parliament consistently re-enacts the provision that excludes judicial review over the delimitation orders in the successive delimitation Acts, it is highly unlikely that the next delimitation Act after the census of the year 2026 will be any different. Therefore, a clear understanding of the intent behind the bar under Article 329(a) is essential to ensure that the delimitation orders do not operate in a constitutional blind-spot.

In attempting to do so, I have put forth three essentials to sustain a challenge to a delimitation order, while also balancing the two aspects of free and fair elections. First, the delimitation order must be irreconcilable to Part III of the Constitution (Fundamental Rights), or against the Constitutional duties enjoined upon the Commission or contrary to the parent Act. Second, the challenge must be made before the presidential notification that calls forth an election. Lastly, the challenge must facilitate the conduct of lawful election and not stall it beyond reason. In other words, the challenge must be to fulfil the prerequisites of a lawful election through correction of errors in the delimitation order. Such an approach would not deviate from the intent behind the bar under Article 329(a) as it ensures ‘timely conduct of lawful elections’, which is of paramount importance in a democratic polity.

[1] Sujit Choudhry (ed), The Oxford Handbook of The Indian Constitution (OUP2016) 871

[2] M P Jain, Indian Constitutional Law (8th edn, LexisNexis 2018) 689