Proposed Population Definition Change Raises Questions on Delimitation

Summary: The article argues that the proposed constitutional amendment Bills scheduled for the Monsoon Session 2026 contain a significant flaw by altering the constitutional meaning of the term “population” and permitting Parliament to determine the applicable census through ordinary legislation for delimitation and related purposes. It contends that the existing freeze on parliamentary and legislative assembly seats based on earlier census figures was intended to avoid disadvantaging States that controlled population growth, while demographic changes have widened disparities in representation. According to the author, replacing the reference to the last published census with a census chosen by Parliament could permit different census figures to be applied for different States and dilute the constitutional principle of equal representation. The article further argues that delegating this constitutional function to ordinary legislation may grant excessive discretion in constituency readjustment and resource allocation. It also compares the existing constitutional provisions with the proposed amendments and discusses census data and historical observations relating to population-based policymaking.

Objective

a) Author, in this article, tries to highlight one major flaw in the Constitutional amendment Bills scheduled to be tabled in the monsoon session of parliament starting 20-July-2026 which failed to pass the muster in the parliament’s special session held in April 2026.

b) The flaw is

a. changing in the definition of ‘population’ and

b. delegating the mandate of constitution to redraft the constitutiescies by an ordinary law to be passed by Parliament.

Preface

c) Any reference to Parliament will also include a reference to the respective State Legislative Assemblies.

d) Today the Parliament’s (and that of State Legislative Assemblies) seats stand freezed on the basis of population figures of the year 1971 (again postponed in 2002) census. The purpose being, States who have successfully implemented population growth control etc. should not be penalized and those who have failed should not benefit.

e) India, as a country, has been simply postponing the problem or situation, since 1971. Today, India already stands substantially shifted away from the mandate of Article 81 that each seat in Parliament should represent the same volume of population.

f) The very reason that the census data is critical because almost all the decisions in general and distribution of resources in particular are based on this empirical data. The country’s demographic profile has since undergone substantial changes, including significant changes in

• inter-State and intra-State population
• rapid urbanisation and migration,
• Dis-proportionate growth in certain regions,
• Cultural mind-set.
• Spending habits

Background

g) On 16 April 2026 a 3 day special session of parliament commenced to consider and pass the following bills and the union Government could not get it through. Now they are scheduled to be re-introduced in the upcoming monsoon session starting 20-July-2026.

• The Constitution (131^stAmendment) Bill, 2026
• The Union Territories Laws (Amendment) Bill, 2026
• The Delimitation Bill, 2026

Author’s thoughts

h) At the outset, it has nothing to do with “women empowerment”.

i) These bills, more specifically, the Constitution (131^stAmendment) Bill, 2026 and the Union Territories Laws (Amendment) Bill, 2026 are arbitrary and unconstitutional.

Potential Impact

h) If these bills pass the muster of parliament, it will

a. give unbrindled power to the parliament to re-align the constituencies as per their whims and fancies.

b. have a radical shift in allocation of resources. Needless to add, those who will be losing will retaliate.

c. The focus or political parties may shift from rural areas to urban areas. It exposes a risk of giving lower importance to issues of rural area in general and agriculture in particular.

Changing the definition of “Population”

k) sds These Bills will give a strong blow to the structural fabric of principle of one person one vote one value.

l) It practically removes the relevant portion from the constitution and delegates the same to be governed by an ordinary law as made by the Parliament.

Most draconian statement “…… “population” means

m) Most draconian statement “…… “population” means the population as ascertained at such census, as Parliament may by law determine ……, of which the relevant figures have been published”

 n) Para phrased herein-below – “population” means the population 

 o) It is not possible for the author to quantify the impact as to what these provisions may cause…

p) At the end of the article, the author provided a chart giving following details

a. Article No.

b. Text as it stands today (current law)

c. Text after the Constitution (One Hundred and Thirty-first Amendment) Bill, 2026

q) Following one example will suffice. The law passed by parliament in this regard defines population for the purposes of delimitation etc. as follows. For example, population of Andhra Pradesh will be as per 1^stcensus, that of Arunachal Pradesh will be as per 2^nd. so on and so forth.

r) One can be as imaginative as he/she can be…..

List of Census published

s) The only condition to be followed is that the relevant census should have been published. It does not even put a restriction that it should be that of Independent India. Following is the list of censuses published.

t) Census of India 2027 (16th census) is being run in two phases with different sets of attributes captured in each.

Empirical Data from census

u) To understand and appreciate the usage of using latest census, look at the empirical data captured by the census for the whole population. 

Phase I — Houselisting & Housing Census (April–September 2026)

This phase covers the house/household, not individuals. The notified schedule (January 2026) has 33 items, grouped as follows:

 A change from the 2021 (shelved) schedule: floor/wall/roof material, previously one combined question, is now split into three separate questions — hence 33 items versus 31 earlier.

 Phase II — Population Enumeration (from Feb/Mar 2027)

This is the individual-level count. The exact question-by-question schedule hasn’t been notified yet, but the government has confirmed the categories of data to be captured for every person:

The Phase II questionnaire, including the exact caste-enumeration format, is still to be officially notified — expected closer to the February 2027 exercise.

Synonymous use of discretionary power

v) In past, in respect of reservation, reliance was placed on such a flowed census data.

w) One may usefully refer to the dissenting opinion in the popular Supreme Court judgement in the case of Indra Sawhney v UOI. The purpose is not to go in the correctness or otherwise of the judgement. This decision upheld reservation for employment in public sector based on findings of Mandal Commission Report.

x) In this case, atleast a report was there. The majority judgement was 6:3. In all there were 6 judgements.

A reader may consider reading the whole judgements three dissenting judges. The author is reproducing para 539 of the judgement. Emphasis supplied by underline by the Author.

539. Finally we have to examine the process of identification of the backward classes and test the same at the anvil of Article 16(4) as interpreted by us. Mandal Commission was set up on January 1, 1979 under Article 340 to identify the classes for the purposes of Article 16(4). The Commission identified 3743 backward castes and submitted its report on December 31, 1980. No action was taken on the Mandal Report by the successive governments for a decade. The Mandal report was finally lifted from the Morgue by the government of the day which accepted the report and issued Memorandum dated August 13, 1990 providing reservations for 3743 backward castes identified by the Mandal Commission.

Legal aspects arising out of Article 16(4) have been discussed and decided. Finally we have to examine the process of identification of the backward classes and test the same at the anvil of Article 16(4) as interpreted by us. Mandal Commission was set up on January 1, 1979 under Article 340 to identify the classes for the purposes of Article 16(4). The Commission identified 3743 backward castes and submitted its report on December 31, 1980. No action was taken on the Mandal Report by the successive governments for a decade. The Mandal report was finally lifted from the Morgue by the government of the day which accepted the report and issued Memorandum dated August 13, 1990 providing reservations for 3743 backward castes identified by the Mandal Commission. Later on the successor government amended the reservation – policy by the Memorandum dated September 25, 1991. These Memoranda have been reproduced in the judgments proposed by brother Judges. Both the Memoranda are based on the Mandal Report. The reservations provided under the two Memoranda are to be extended to 3743 castes identified by the Mandal Commission. It is, therefore, necessary to find out whether the backward classes to which reservations under the Memoranda are being extended, have been constitutionally and validly identified. I do not agree with the theory – apparently without logic – that the Memoranda can be adjudicated de-hors Mandal Report. Elaborate arguments were addressed before us challenging the validity of Mandal Report by M/s. Palkhiwala, Venugopal, Shyamala Pappu and other learned Counsel appearing for the petitioners. Agreeing with the learned Counsel, I hold that the identification of 3743 castes as the ‘beneficiary-class’ for job reservations under Article 16(4), is wholly unconstitutional, invalid and cannot be acted upon. My reasons for holding so are as under:

 The terms of reference require the Commission “to determinethe criteria for defining the socially and educationally backward classes”. Assume that Mandal has done so. The reference and the Mandal Commission’s investigation is based on the legal fallacy that the expression “backward class of citizens” means the same thing as “socially and educationally backward classes of citizens” in Article 15(4). That is why the Commission was asked to identify socially and educationally backward classes. We have held that two expressions in Article 16(4) and 15(4) do not mean the same thing. The classes to be identified under Article 16(4) cannot be confined only to social and educational backwardness. The definition therein is much wider and is not limited as under Article 15(4). It is thus, evident that the identification of the “backward classes” under Article 16(4) cannot be based only on the criteria of social and educational backwardness. Other classes which could have been identified on the basis of occupation, economic standards, environments, backward area residence, etc. etc. have been left out of consideration. The identification done by Mandal is thus violative of Article 16(4) and as such cannot be sustained.

 It has been held by me that the backward classes for the purpose of Article 16(4) are the backward sections of the classes who are inadequately represented in the State-services. Admittedly, this exercise was not done. Mandal identified the castes on the criteria of social and educational backwardness.

The Terms of Reference further required the Commission “toexamine the desirability or otherwise of making provision for the reservation of appointments or tests…in public services”. This most vital part of the Terms of Reference was wholly ignored by the Commission. Before making its recommendations the Commission was bound, by the Terms of Reference, to determine the desirability or otherwise of such reservations. The Commission did not at all investigate this essential part of the Terms of Reference.

Mandal has not done any survey to find out as to whether3743 castes which according to him are the backward classes, under Article 16(4), had inadequate representation in the State services. There is no material on the record to show that 3743 castes identified by Mandal are not adequately represented in the State services. The conditions of inadequacy is a conditions precedent under Article 16(4) of the Constitution. This having not been established, the identification of the so called “backward classes”, is wholly unconstitutional and inoperative.

Para 12.7 of the report indicates that the list of backward castes was prepared from the following sources:-

1) Socio-educational field survey;

2) Census report of 1961;

3) Personal knowledge gained through extensive touringand from the evidence; and

4) Lists of other backward classes notified by various State Governments.

 The so called “socio-educational field survey”, was an eye-wash. Only two villages and one urban block in each district of the country was taken into consideration. According to the petitioners only .06% of the total villages in the country were surveyed. Mr. Venugopal relied on a chart showing the sources from which the list of castes was prepared by the Mandal Commission. The contents of chart were not disputed before us by the Union of India. Mr. Venugopal pointed out that out of 3743 castes only 406 were subjected to the socio-educational field survey. To be precise the chart shows that only 10.85% castes were subjected to survey and the remaining castes were picked up from other sources. The Commission set up for the purposes of identifying backward classes is under an obligation to conduct comprehensive survey. A backward class, identified on the sole test of caste and that also with only 10.85% socio-educational survey, cannot be constitutionally valid under Article 16(4).

 Large number of castes were picked up by the Mandal Commission from the State lists. It was illustrated before us that out of 260 castes identified from the Union Territory of Pondichhery only 14 were subjected to socio-educational survey. One was identified on personal assessment of the Commission and the remaining 245 castes were picked up from the State list. These facts are not denied by the Union of India in the affidavit filed in writ petition 930/90. Similarly large number of castes were taken from the lists of other backward classes operating in the States. It was wholly illegal for the Commission to adopt the State lists without any investigation and survey. It is not disputed that no Commission was ever set-up in Pondicherry to identify the backward classes. There is nothing in the Mandal report to show that the State lists which were adopted were ever prepared as a result of any survey, investigation or scrutiny. Mandal Report in paras 2.63 and 2.64 specifically states that Haryana, Himachal Pradesh, Assam, Pondicherry, Rajasthan, Orissa, Meghalaya and Delhi have notified lists of Other Backward Classes without their being any enquiry into their conditions. In para 2.65 it is mentioned that Andaman and Nicobar, Arunachal Pradesh, Chandigarh, Dadri and Nagar Haveli, Goa, Daman and Diu, Lakshadweep, Madhya Pradesh, Manipur, Mizoram, Nagaland, Sikkim, Tripura and West Bengal have never prepared a list of OBCS. If the State lists were to be declared as Other Backward Classes by the Central Government then no Commission under Article 340 was required – an Administrator could do the job. When 90% of the castes selected were not subjected to the socio-educatinal survey it is impermissible to treat the said castes as backward classes.

 1961 census was also taken as a source for preparing the list of backward castes. There is nothing on the record to show as to why Mandal relied on 1961 census when the 1971 census was available. A statement filed by Mr. Venugopal after examining the government records shows that the castes were also picked up from the Kaka Kalelkar Commission Report. In para 1.13 Mandal condemns Kaka Kalelkar’s Report, even otherwise the said report was rejected by the Government of India in 1955 but still Mandal adopts castes from the said Report.

 It is, thus, obvious that hardly any investigation was done by the Mandal Commission to find out the backward classes for the purposes of Article 16(4). A collection of so called backward castes by a clerical-act based on drawing-room investigation cannot be the backward classes envisaged under Article 16(4). If the Castes enlisted by Mandal are permitted to avail the benefit of job-reservations, thereby depriving half the country’s population of its right under Article 16(1) the result would be nothing but a fraud on the Constitution.

 The Mandal report virtually re-writes Article 16(4) by substituting caste for class. The caste has been made the sole and exclusive test for determining the backward classes. Every other test-economic or non-economic has been wholly rejected. Para 1.21 of Mandal report states “the substitution of caste by economic tests will amount to ignoring the genesis of social backwardness in the Indian society”. Paras 11.5 and 11.25 of the Mandal report indicate that the caste was taken as a collectivity for the purposes of socio-educational survey. The “indicators” for determining social and educational backwardness were also applied to the castes alone.

 Every single piece of evidence and other material adverted to by the Commission was only for the purpose of determining whether a caste was backward. There was no investigation at all to find out whether a member or family in the caste was backward. The “indicators” invoked to determine backwardness were invariably applied to the castes and not to the individuals. What emerges is that in the first instance only a caste was taken as a collectivity. Thereafter no individual or a family of that caste was subjected to the “indicators”. Only the castes were tested through the “indicators” and the result obtained. Thus the Caste has been made the sole, paramount, overriding and decisive factor. The methodology based on caste alone is unconstitutional as it violates Articles 16(2) and 16(4) of the Constitution of India.

 The Mandal report invents castes even for non-Hindus. The obsession with casteism and the desire to apply the same yardstick to all indians impelled the Commission to identify backward classes among non-Hindus also by the exclusive test of caste (paras 12.11 to 12.18) regardless of the fact that caste is anathema to christenity, Islam and Sikhism. There are various other denominations and religions in the country like Buddhist, Jains, Arya Smajis, Lingyats etc. who do not believe in casteism. The net-result is that almost 25% of the population was not taken into consideration by the Mandal Commission. The approach was anti-secular and against the basic features of the Constitution.

 The Mandal Commission has estimated the population of other backward classes in the country as 52%. To say the least the exercise to reach the figure of 52% is wholly imaginary. It is in the realm of conjecture. The conclusion arrived at in para 12.22 of the Mandal Report to the effect that backward classes constitute nearly 52% of the Indian population is based on 1931 census. It is wholly arbitrary to count the population of backward classes in the country on the basis of census which took place fifty years before the report was submitted. In order to reach the conclusion of 52% Mandal has added up the population of scheduled castes, scheduled tribes, non-Hindu communities (Muslims, Christians, Sikhs, Buddhists, Jains) and the forward Hindu castes and communities (Brahmans, Rajputs, Marathas, Jats, Vashya-Baniya etc., Kayastha, other forward Hindu castes/groups) which make 56.30% of the total population. Mandal has assumed that the residual population of 43.70% (100 minus 56.30 equivalent to 43.70%) consists of backward classes. It is difficult to imagine how anybody can accept such an illusory and wholly arbitrary calculations. It is pity that half of the country is being deprived of their fundamental right under Article 16(1) on the basis of the census exhumed from a sixty year old grave and the calculations which are unknown to logic and fair-play. Mandal further assumed, erroneously, that relative population growth of various communities at the time of Mandal report was the same as at the time of 1931 census. It is assured to think that there was no change in their population growth during the long period of 50 years. It is pertinent to observe that India of 1931 comprised of present India, Pakistan, Bangladesh, Burma and Sri Lanka and as such it would be wholly erroneous to relate the caste-based population situation of 1931 to that of 1980.

 According to Mandal Commission’s own showing the materials before the Commission were woefully inadequate. Essential data was nonexistent. “Hardly any State was able to give the desired information” (para 9.4). As regards representation of OBCs in Government services, the information received by the Commission was “too sketchy and scrappy for any meaningful inference which may be valid for the country as a whole”(para 9.14). “No State Government could furnish figures regarding the level of literacy and education amongst other backward class” (para 9.30. “No lists of OBCs is maintained by the Central Government, nor their particulars are separately compiled in Government offices” (para 9.47)

Comparative Table: Articles 55, 81, 82, 170, 330, 332 and 334A of the Constitution of India

Current text as per the Constitution of India (source: Ministry of Law & Justice, indiacode.nic.in) compared against the text as it would read after the Constitution (One Hundred and Thirty-first Amendment) Bill, 2026, as introduced in Lok Sabha (Bill No. 107 of 2026).

Legend:  strikethrough = words omitted/deleted by the Bill;  underline = words inserted/substituted by the Bill.

STATEMENT OF OBJECTS AND REASONS

Article 82 and clause (3) of article 170 of the Constitution provide that upon completion of each census, the total number of seats allotted to each State in the House of the People and in the Legislative Assemblies, and the division of each State into territorial constituencies shall be readjusted by such authority and in such manner as Parliament may by law determine. The third proviso to article 82 and the third proviso to clause (3), of article 170, inter alia, provide that there shall be no fresh readjustment of constituencies until the relevant figures for the first census taken after the year 2026 have been published.

2. The Constitution (Eighty-fourth Amendment) Act, 2001 amended articles 55, 81, 82, 170, 330 and 332 to freeze the allocation of seats in the House of the People and State Legislative Assemblies on the basis of the 1971 census until the first census conducted after the year 2026, while providing for the readjustment of territorial constituencies on the basis of the figures of the 1991 census.

3. Subsequently, the Constitution (Eighty-seventh Amendment) Act, 2003 amended articles 81, 82, 170 and 330 to provide for readjustment of territorial constituencies including those reserved for the Scheduled Castes and the Scheduled Tribes, based on the figures of 2001 census, without affecting the total number of seats allotted to the States in the House of the People or the State Legislative Assemblies.

4. While the freeze of seats on the basis of population figures of the year 1971 census served an important policy purpose, the country’s demographic profile has since undergone substantial changes, as reflected in the population figures of the latest published census, including significant inter-State and intra-State population shifts, rapid urbanisation and migration, and disproportionate growth in certain regions, resulting in wide disparities in the population and the constituencies.

5. Meanwhile, the Constitution (One Hundred and Sixth Amendment) Act, 2023 (popularly known as ‘Nari Shakti Vandan Adhiniyam’), amended article 239AA and inserted articles 330A, 332A and 334A in the Constitution, to provide for reservation of nearly one-third of seats for women in the House of the People and the Legislative Assemblies (including women belonging to the Scheduled Castes and the Scheduled Tribes) with the objective of achieving greater participation of women in the House of the People, the Legislative Assembly of a State and the Legislative Assembly of the National Capital Territory of Delhi. The said provisions contemplate that such reservation shall become operative after the first delimitation is undertaken on the basis of the relevant census taken after the commencement of the said Amendment Act.

6. The next census and the consequential delimitation exercise thereafter will take considerable time and thus, delay the effective and dedicated participation of women in our democratic polity. Hence, the objective of the proposed Bill is to operationalise one-third reservation for women, including women belonging to the Scheduled Castes and the Scheduled Tribes, in the House of the People and the Legislative Assemblies of the States, the National Capital Territory of Delhi and the Union territories through delimitation exercise to be undertaken on the basis of the population figures of the latest published census. Thus, the implementation of reservation of seats for women is linked to the constitutional scheme of readjustment in the allocation of seats in the House of the People and the Legislative Assemblies and re-drawing boundaries of territorial constituencies by the Delimitation Commission.

7. The proposed Bill would facilitate delimitation of territorial constituencies and put in operation, the provisions providing for reservation of seats for women in the House of the People and the Legislative Assemblies. This will also promote women empowerment and provide opportunity for women to participate in the nation-building process. In addition, the increased representation of women in the decision-making process will promote inclusivity and help in achieving the goals of Viksit Bharat@2047.

The Bill seeks to achieve the above objectives.