A fixed single instant boundary can also do the work of a territorial boundary when it is not possible to redraw territorial boundaries to achieve the desired ends. For instance, all migrants from Pakistan to India, who descended from parents or grandparents born in British India and the princely states, would be eligible for Indian citizenship differently as of 26 November 1949 depending on whether they entered India before or after 19th July 1948. This was the date on which the permit system came to regulate migration from Pakistan to India in the western border. Articles 6 and 7 of the Constitution of India. Those who entered before the 19th of July 1948 would merely need to be ordinarily resident in Indian territory since the date they entered India, while those who entered after 19th July 1948, would have needed to reside in Indian territory for a period of at least 6 months and then apply for (prior to 26 November 1949) and be registered as a citizen. The single instant in July 1948 – an arbitrary moment if ever there was one to those attempting to come to, flee to, or return to India after partition – thus determined the power of people to claim the right of citizenship.

At the end of the period, the sunset clause kicks in causing the statute to expire. Temporary legislations are designed to ensure limited and accountable government. The consent of the public is assumed to favour the law for the duration of the law’s operation, after which consent will need to be obtained once again. Guido Calabresi, A Common Law for the Age of Statutes 59 (Harvard University Press, 1982).

Alexander Hamilton termed “duration” in office as one of the criteria for the energy of the executive. Federalist 70 and 71.

Analogously, the single moment in time at which a sovereign state is constituted is always moving further away as time passes. If the democratic legitimacy of the state is located solely in the consent obtained at its constitution, the state might as well be a monarchy.

The Constitution (Forty-second Amendment) Act, 1976. Thus, constituency boundaries even if redrawn – as they were based on the 2001 census – cannot lead to an increase in the total number of seats to the Lok Sabha or Vidhan Sabha. (The census of 2001 formed the basis for this delimitation exercise under the Delimitation Act, 2002, as amended in 2003, in line with the Constitution (Eighty-fourth Amendment) Act, 2001, and the Constitution (Eighty-seventh Amendment) Act, 2003.)

The ostensible reason behind the freezing of delimitation in the Indian republic was to not punish states that had curbed population growth (by implementing family planning measures) with lesser seats and thus representation in Parliament. See the thinking of the US Supreme Court on this point in Reynolds v. Sims, 377 U.S. 533 (1964), 583-4: “Illustratively, the Alabama Constitution requires decennial reapportionment, yet the last reapportionment of the Alabama Legislature, when this suit was brought, was in 1901. Limitations on the frequency of reapportionment are justified by the need for stability and continuity in the organization of the legislative system, although undoubtedly reapportioning no more frequently than every 10 years leads to some imbalance in the population of districts toward the end of the decennial period, and also to the development of resistance to change on the part of some incumbent legislators. In substance, we do not regard the Equal Protection Clause as requiring daily, monthly, annual or biennial reapportionment, so long as a State has a reasonably conceived plan for periodic readjustment of legislative representation. While we do not intend to indicate that decennial reapportionment is a constitutional requisite, compliance with such an approach would clearly meet the minimal requirements for maintaining a reasonably current scheme of legislative representation. And we do not mean to intimate that more frequent reapportionment would not be constitutionally permissible or practicably desirable. .”

The ordinance was promulgated on 30 December, 2016, two weeks after the Winter Session wrapped up that year. See the notification of the grace period till March 31, 2017 here: https://dea.gov.in/sites/default/files/24Notification%2030.12.2016.pdf. More recently, the Fugitive Economic Offenders Ordinance was promulgated on 21 April, 2018, two weeks after the close of the Budget Session on 6 April, 2018, to put into place measures to deal with offenders some of whom had fled India as early as 2016.

See opinion of Chandrachud, J., Krishna Kumar Singh v. State of Bihar, 2017(2) SCJ 136, paras 67 and 68 holding that ordinances cannot validly create permanent or enduring, irreversible effects beyond their constitutionally mandated cessation of operation after six months. “Acceptance of the doctrine of enduring rights in the context of an ordinance would lead to a situation where the exercise of power by the Governor would survive in terms of the creation of rights and privileges, obligations and liabilities on the hypothesis that these are of an enduring character. The legislature may not have had an opportunity to even discuss or debate the ordinance (where, as in the present case, none of the ordinances was laid before the legislature); an ordinance may have been specifically disapproved or may have ceased to operate upon the expiry of the prescribed period. The enduring rights theory attributes a degree of permanence to the power to promulgate ordinances in derogation of parliamentary control and supremacy.” The only exception to this rule would be “grave elements of public interest or constitutional necessity demonstrated by clear and cogent material.” See para 70.

Fixed single instant bounded powers – being arbitrary to begin with – inherently permit the arbitrary manipulation of political calendars. Thus, where the initial single instant is of questionable legitimacy, the manipulation of the single instant is also seen as questionable. For instance, while the number of constituencies for all popularly elected houses of the Indian legislatures was fixed to reflect the 1971 census, an arbitrary change was effected in the UT of J&K last year. 7 more constituencies were added to its Assembly to reflect the 2011 census (See Sec 60 read with 62 of the J&K Reorganisation Act, 2019). That delimitation freeze of 1971 was seen as barely legitimate is evident from literature. See KC Sivaramakrishnan, North-South Divide and Delimitation Blues, The Economic and Political Weekly, 35, 3093-97; Alistair McMillain, Delimitation, Democracy and End of Constitutional Freeze, The Economic and Political Weekly 35(15), 1271-76.

Parliament’s deoperationalization of Article 370 and the consequent passage of the J&K Reorganisation Act, 2019, the Andhra Pradesh State Legislature’s passing of the Andhra Pradesh Andhra Pradesh Decentralisation and Inclusive Development of All Regions Act, 2020 and the repeal of the prior capital city law, are stand out instances.



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