consti pro
TRANSCRIPT
-
8/19/2019 Consti Pro
1/21
The Hindu
Jayaprakash Narayan
The decision to divide Andhra Pradesh raises important questions about federalism and the nation’s
future. This is the first time in India that a state is souht to be divided !ithout the consent of the
"tate leislature# and !ithout a neotiated settlement amon stakeholders and reions# and in the
face of public opposition.
All ma$or federal democracies have in their %onstitutions the provision that a state cannot be divided
or mered !ith another state !ithout its prior consent. This is the essence of federalism.
Article 3
India’s %onstitution&makers ave much thouht to the issue of formation of ne! states and
reoranisation of states. The 'raftin %ommittee and the %onstituent Assembly !ere a!are of the
circumstances prevailin at that time. India !itnessed Partition# accompanied by violence#
bloodshed# and forced mass miration. In addition# there !ere several kinds of "tates ( Parts A# )
and % ( and there !as need to reoranise all states and interate the **+ princely states. If the
consent of every "tate or ,nit !as a precondition to alterin the boundary# reoranisation !ould
have become an e-cruciatinly difficult e-ercise. %onsequently# the final te-t of Article as
promulated provided for the President’s recommendation and ascertainin the vie!s of the state
concerned both !ith respect to the proposal to introduce the )ill and !ith respect to the provisions
thereof.
/ur nation&builders !ere !ise in draftin the %onstitution to suit our requirements. 0ore important#
successive overnments have !isely applied Article in dealin !ith states. 1hile prior consent of
the state !as not necessary under the %onstitution# in practice every state has been formed !ith prior
consent# in most cases after a detailed# impartial e-amination by an independent commission. /nly
in the case of Pun$ab# there !as no leislature at the time of dividin the "tate in 2344. )ut there !as
a broad consensus amon stakeholders and no opposition.
"o far# Parliament and overnments have acted !ith restraint and !isdom in dealin !ith boundary
issues and formation of states. They re$ected the notion that anythin could be done to alter
boundaries# provided it is not e-pressly prohibited by the %onstitution. 1hile prior consent of thestate leislature is not mandatory# in practice care has been taken to obtain consent# or to act only on
the e-press request of the state. The 23*4 reoranisation !as based on the fundamental principle of
lanuae5 there !as broad national consensus on the issue.
Articles 6 7 in their present form are enablin provisions empo!erin Parliament to act in an
e-ceptional situation !hen national interest !arrants it# or to settle marinal boundary disputes
bet!een states !hen they are recalcitrant and efforts to reconcile differences and arrive at a
-
8/19/2019 Consti Pro
2/21
settlement fail. The framers of the %onstitution did not intend to ive Parliament arbitrary po!ers to
redra! boundaries5 nor did successive Parliaments and overnments act unilaterally or arbitrarily
!ithout consent# broad consensus or neotiated settlement.
8ven after 239:# in every case of state formation# the consent of the state leislature !as obtained.
The broader principle of federalism and the !illin consent of constituent units and their people has been deemed to be necessary before a state is formed or a territory mered# unless over!helmin
national interest demands action by Parliament. The procedure !as observed in creatin Jharkhand#
,ttaranchal and %hhattisarh in +;;;.
'r. Ambedkar said in his reply to the debate in the %onstituent Assembly on states’ rihts< =The>
chare is that the %entre has been iven the po!er to override the "tates. This chare must be
admitted. )ut before condemnin the %onstitution for containin such overridin po!ers# certain
considerations must be borne in mind. The first is that these overridin po!ers do not form the
normal feature of the %onstitution. Their use and operation are e-pressly confined to emerencies
only?.
It is this spirit that informed the actions of the ,nion overnment and Parliament over the past si-
decades. There !ere blemishes in the application of Article *4 earlier. )ut over the past t!o decades
Indian federalism has matured a reat deal. The "upreme %ourt# in Bommai @2337# made Article
*4 more or less a =dead letter? ( as 'r. Ambedkar had hoped. Thouh the Binance %ommission’s
recommendations are not bindin on Parliament and overnment# those of every Binance
%ommission in respect of devolution of resources have been accepted and implemented. "ince the
report of the Tenth Binance %ommission# there has been reater transparency in devolution< most of
the ta- revenues of the ,nion are bein treated as the divisible pool# and a fi-ed proportion of it is
shared !ith states as decided by the Binance %ommission. "tates are no! more in control of their
economic future.
Limited sovereignty
This does not mean states can act as they please# or that their territorial interity is inviolable. There
is one nation and one citiCenship# and the nation’s territorial interity is paramount. Ho!ever#
!ithin that overarchin frame!ork# states e-ercise limited sovereinty# and the federal spirit informs
the operation of the %onstitution. The %onstitution did not intend to make India a unitary country
!ith states functionin as municipalities# their survival dependent on the !ill and !him of the ,nion
overnment. Nor did the operation of our %onstitution over the past 4 years suest a de
facto unitary state. In fact# federalism has been deepenin in India# in keepin !ith lobal trends.
The determined efforts of the ,nion overnment and its oft&repeated declarations that Andhra
Pradesh !ill be divided irrespective of the leislature’s vie!s# pose a rave daner to federalism andunity. Andhra Pradesh !as formed !ith the prior consent of the Andhra "tate Deislature# and the
Hyderabad "tate Deislature. 1hen t!o popular movements for the state’s division !ere launched in
the three reions ( in Telanana in 2343&:;# and in %oastal Andhra and Eayalaseema in 23:+&: (
the ,nion overnment encouraed all reions to arrive at a neotiated settlement. %orrespondin
constitutional provisions !ere put in place to safeuard the interests of all reions. An e-plicit and
implicit compact !as made by the ,nion !ith the people of Andhra Pradesh to the effect that the
"tate !ould remain united. It is on this basis that people mirated on a lare scale to the other
-
8/19/2019 Consti Pro
3/21
reions and to the capital# Hyderabad# and built their lives# livelihoods and the "tate’s economy. In
this backdrop# any redra!in of boundaries !ould need another areement arrived at by the affected
parties throuh patient neotiation. The ,nion has a seminal role in helpin reconcile conflictin
interests harmoniously. Parliament can act only on the basis of such an areement# consensus and
consent. Any other approach !ould be ham&handed# arbitrary and uneven# and run counter to the
principles and practice of federalism as they have evolved under Indian conditions.
The !ay the President and Parliament handle the Andhra Pradesh issue !ill# in a fundamental sense#
shape the future of the ,nion itself. This is a definin moment not for Andhra Pradesh alone# but for
our federal %onstitution and India itself.
If such an arbitrary decision becomes a precedent# any and every state could be divided or
boundaries altered !ithout consent# and !ithout a neotiated settlement# that !ill effectively convert
states into municipalities# and India into a unitary state. Neither the %onstitution&makers nor
nation&builders intended such an outcome. And India’s future !ill be in peril if such an effort is
made to make the nation effectively unitary at this stae.
In critical moments like this the President and Parliament have to act !ith restraint# foresiht and
!isdom. The President is not only the head of the Eepublic# he is also a part of Parliament. The
President is elected by members of both Houses as !ell as members of "tate Assemblies. In a
fundamental sense the President represents the nation ( both ,nion and states ( and is the final
defender of the %onstitution and federalism alon !ith the "upreme %ourt. This is therefore a fit case
!here the President should e-ercise his constitutional duty independently before recommendin
introduction of any )ill to divide the "tate of Andhra Pradesh.
Deaders of parliamentary parties too should act !ith clarity and !isdom# and !ith the kno!lede
that division of a state !ithout its consent and a neotiated settlement amon all stake&holders
converts the nation effectively into a unitary one. 8very state !ill# in future# be vulnerable to
unilateral action for short&term electoral e-pediency.
The %onstitution# the President# Parliament and the political parties !ill be put to a severe test in this
case# and the !ay they respond to this challene !ill shape the future of our Eepublic# and the future
of federalism in India.
Nalamotu Chakravarthy
-
8/19/2019 Consti Pro
4/21
S T A T E D I V I S I O N – F E D E R A L I S M B Y D R . J P
N A R A Y A N
The October 3 decision of the Union Government to divide Andhra Pradesh and the subsequent
developments raise important questions about federalism in India and the future of the nation. Several
states have been formed after 1!"# but this is the first occasion $hen a ma%or state is sou&ht to be
divided $ithout the consent of the state le&islature# and $ithout a ne&otiated settlement amon& the sta'e(holders and various re&ions# and in the face of fierce opposition from vast sections of the public.
All ma%or federal democracies have incorporated in their )onstitutions the provision that a state cannot be
divided or mer&ed $ith another state $ithout its prior consent. This is the essence of federalism. The
United States# Australia# German*# )anada and S$it+erland follo$ this model. Similarl* ,ra+il# Ar&entina
and -eico follo$ the same pattern. /ven a unitar* countr* li'e ,ritain# $hile dealin& $ith re&ional
assemblies of 0ales and Scotland# follo$s such a federal principle in practice.
Indian )onstitution(ma'ers &ave considerable thou&ht to the issue of formation of ne$ states and
reor&ani+ation of states $hile draftin& the )onstitution. Article 3 of the draft constitution prepared b*
)onstitutional Advisor Sir , 2 au4 in Oct 156 reads as follo$s7
“The Federal Parliament may, with the previous consent of the Legislature of every Province and
the Legislature of every India State whose boundaries are affected thereby, by Act
1. create a new unit!
8. increase the area of any unit!
3. diminish the area of any unit!
5. alter the boundaries of any unit!
!. alter the name of any unit!
and may with the li"e consent ma"e such incidental and conse#uential provisions by such Act as
it may deem necessary or proper$
%& 'hen any such Act creates a new unit, then as from the date of commencement of the Act that
unit shall be deemed to be included in the First Schedule to this (onstitution, and when provision
is made by any such Act for the alteration of the area or the boundaries or the name of any unit,
then as from the date of commencement of the Act any reference in that schedule to that unit shall be construed as a reference to the unit as so altered$)
9ater# The :raftin& )ommittee revised it $ith the follo$in& proviso7
“Provided that no *ill for the purpose shall be introduced in either +ouse of Parliament ecept on
the recommendation of the President and unless -
-
8/19/2019 Consti Pro
5/21
1. 'here the proposal contained in the *ill affects the boundaries or name of any state or States for
the time being specified in PartI of the First Schedule, the views of the Legislature of the State,
or as the case may be, of each of the States, both with respect to the proposal to introduce the
*ill and with respect to the provisions thereof have been as ascertained by the President! and
a 'here such proposal affects the boundaries or name of any State or States for the time being
specified in PartIII of the First Schedule, the previous consent of the State, or as the case may
be, of each of the States to the proposal has been obtained$)
;o$ever# the :raftin& )ommittee and )onstituent Assembl* $ere 'eenl* a$are of the circumstances
prevailin& in the countr* at that time. India $itnessed partition of the countr*# accompanied b*
unprecedented violence and bloodshed# and the lar&est forced mass mi&ration in histor*. In addition#
there $ere several 'inds of States < Part A# , and )# and there $as need to reor&ani+e all the states and
full* inte&rate the !!8 princel* states. If the consent of ever* State or Unit $as a pre(condition for alterin&
boundar* of a State# reor&ani+ation of Indian States could easil* have been mired in disputes# and $ould
have been a prolon&ed and ecruciatin&l* difficult eercise# dela*in& and hamperin& the nation(buildin&
efforts. Therefore the* $anted to prevent Parliamentar* paral*sis $hile reor&ani+in& the States.
)onsequentl*# the final tet of Article 3 as promul&ated provided for the President=s recommendation and
ascertainin& of the vie$s of the States4 concerned.
Subsequentl*# in 1!!# on the eve of lin&uistic reor&ani+ation of States# Article 3 has been amended
!th Amendment4 to provide for a timeframe for epression of the vie$s of the le&islature# $ith a provision
for the President allo$in& a further period of time on request. )learl*# this timeframe $as incorporated to
ensure that the impendin& States= reor&ani+ation could be carried out smoothl* $ithout unreasonabledela*s.
/perience has sho$n that our nation(builders $ere $ise in draftin& the )onstitution to suit our
requirements. -ore important# successive &overnments have been ver* mature and $ise in appl*in&
Article 3 and in dealin& $ith States. 0hile prior consent of the State $as not necessar* under the
)onstitution# in practice ever* State has been formed $ith prior consent# and in most cases after a
detailed# impartial eamination of the issues b* an independent commission and based on its
recommendations. Onl* in the case of the Pun%ab# there $as no le&islature at the time of dividin& the
State in 1>># but a broad consensus amon& all sta'e(holders $as available and there $as no opposition
to division of Pun%ab. Also the division $as carried out based on the settled lin&uistic principle# and aParliamentar* )ommittee eamined the issue of boundaries of the ne$ states and other related issues#
and &ave recommendations $hich $ere implemented in their entiret*.
So far# the Parliament and Governments have acted $ith restraint and $isdom in dealin& $ith boundaries
of States and formation of ne$ States. The* re%ected the notion that an*thin& could be done to alter the
boundaries of States provided it is not epressl* prohibited b* the )onstitution. 0hile prior consent of
-
8/19/2019 Consti Pro
6/21
state le&islature is not mandator*# in practice care has been ta'en to obtain the consent of le&islature# or
to act onl* on the epress request of the State. The 1!> reor&ani+ation of States $as based on the
fundamental principle of lan&ua&e# and there $as broad national consensus on the issue.
The States= eor&ani+ation )ommission in its report 1!!4 in Para 1"6 noted $isel*7
“Any measure of reorgani.ation which is li"ely to create tensions and disharmony must wea"en
the sense of unity among the people of India and should not, therefore be countenanced)
The S) further stated in Para 111 iii4 as follo$s7
“*ut while the building of contented units, strong enough to bear their share of the burden, is an
important ob/ective, it is no less necessary that the lin"s between the units and the nation should
be e#ually strong so that under the stress of regional loyalties, the 0nion does not fall apart)$
The )ommission $ent on to caution in Para 118 as follo$s7
“It follows that, while internal ad/ustments at State level are to be desired, it is imperative to
ensure that these do not lead to malad/ustments at the interstate and national level$ From the
point of view of national unity, therefore, reorgani.ation has to aim at a twofold ob/ective1
1. Firm discouragement of disruptive sentiments such as provincialism or linguistic fanaticism! and
8. (onsistent with national solidarity, provision of full scope for the unhampered growth of the
genius of each group of people)
It is this maturit* and $isdom that served us $ell over the past si decades. As the Sar'aria )ommission
noted in 1?6 in paras 8.8."> and 8.8."67
@In all# durin& the last 36 *ears# 8" Acts have been enacted b* Parliament under Articles 3 and 5
to brin& chan&es in the areas# boundaries and names of States
“It is noteworthy that these legislations were passed either with the consent of the States
affected, or on the recommendations of a (ommission or (ommittee set up for the purpose2$
3uestions relating to read/ustment of boundaries of some states still remain unsettled$ The need
for Articles 4 and 5 in the present form has not disappeared)$
)learl*# Articles 3 B 5 in their present form are enablin& provisions empo$erin& the Parliament to act in an
eceptional situation $hen national interest $arrants it# or to settle mar&inal boundar* disputes bet$een
States $hen the* are recalcitrant and all efforts to reconcile their differences and arrive at a ne&otiated
settlement have failed. The framers of the )onstitution had not intended to &ive Parliament arbitrar*
-
8/19/2019 Consti Pro
7/21
po$ers to redra$ boundaries of States at $illC nor did successive Parliaments and Governments act
unilaterall* or arbitraril* $ithout &enuine consent# broad consensus or ne&otiated settlement.
/ven after 1?6# in ever* case of ne$ State formation# the prior consent of the 9e&islature of the affected
State $as obtained# and onl* then did the Parliament act. /ven in respect of Pondicherr* and Goa $hen it$as a Union Territor*# the $ishes of the people and their representatives $ere respected# thou&h neither
consent of the Union Territor* is needed# not is it necessar* to ascertain the vie$s of a le&islature of the
Union Territor*. The broader principle of federalism and $illin& consent of the constituent units and their
people has al$a*s been deemed to be necessar* before a state is formed or a territor* is mer&ed# unless
over$helmin& national interest demands action b* Parliament. The same procedure has been
scrupulousl* observed $hile creatin& the ne$ States of Dhar'hand# Uttaranchal and )hattis&arh in 8""".
:r Ambed'ar stated in his repl* to the debate on States= ri&hts in the )onstituent Assembl* as follo$s7
“The second charge is that the (entre has been given the power to override the States$ This
charge must be admitted$ *ut before condemning the (onstitution for containing such overriding
powers, certain considerations must be borne in mind$ The first is that these overriding powers do
not form the normal feature of the (onstitution$ Their use and operation are epressly confined to
emergencies only)$
It is precisel* this spirit that informed the actions of Union Government and Parliament over the past si
decades. Such admirable $isdom and restraint have been evidence in respect of formation of states on
ever* occasion. There $ere certainl* blemishes in application of Article 3!> earlier. ,ut over the past t$o
decades Indian federalism has matured a &reat deal more. The Supreme )ourt verdict in ,ommai )ase
154 made Article 3!> more or less a @dead letterE as Ambed'ar hoped. Thou&h the Finance
)ommission=s recommendations are not bindin& on the Parliament and Government# therecommendations of ever* Finance )ommission in respect of devolution of resources have been
accepted and implemented full* over the past si decades. Since the report of the Tenth Finance
)ommission# there has been &reater transparenc* in devolution# $ith most of the ta revenues of the
Union bein& treated as the divisible pool# and a fied proportion of it is shared $ith states# and this
proportion is decided b* the Finance )ommission from time to time. 0ith liberali+ation and epansion of
economic freedom# States are no$ more in control of their economic future. 0ith the decline in
importance of ne$ public sector investments and reduced political control of such investments# there is
little scope for discrimination or favouritism in the Union=s dealin&s $ith States. As a result of all these
developments# India is moral federal in nature toda* than ever before in our histor* as a epublic.
These developments do not mean that states can act as the* pleaseC nor does it mean that their territorial
inte&rit* is inviolable. )learl*# there is one nation and one citi+enship# and territorial inte&rit* of the nation
is paramount. ;o$ever# $ithin that overarchin& frame$or'# States too eercise limited soverei&nt*# and
federal spirit informs the operation of our )onstitution. The )onstitution never intended to ma'e India a
unitar* countr* $ith States functionin& as municipalities# and their ver* survival as political entities
dependent on the $ill and $him of the Union Government. 2or did the actual operation of our )onstitution
over the past >3 *ears su&&est a de facto unitar* State. In fact# federalism has been deepenin& in India.
This is in 'eepin& $ith &lobal trends. /ven a unitar* countr* $ithout $ritten )onstitution li'e the U is
-
8/19/2019 Consti Pro
8/21
becomin& a federal countr*# $ith re&ional le&islatures in Scotland# 0ales and 2orthern Ireland eercisin&
considerable po$er. /ven Sri 9an'a is no$ attemptin& to institutionali+e a federal model to accommodate
the aspirations of Tamil(spea'in& people. Pa'istan# despite decades of turbulence and dictatorship#
preserved its federal structure.
Our settled constitutional la$ practice in respect of States= formation can be summed up as follo$s7
2e$ States are formed# or boundaries of eistin& states are altered onl* $ith the consent of the affected
States. Onl* in eceptional situations of national emer&enc* or over$helmin& national interest $ould
Parliament be called upon to act on its o$n $ithout the consent of States. 0hen there are stron& popular
demands for division of a state or alterin& the boundaries of a state# consent must be the &uidin& principle
as a &eneral rule. ;o$ever# $hen there is polari+ation and serious diver&ence of vie$s# patient
ne&otiation and ad%ustment and fair reconciliation throu&h a process of &ive and ta'e should be the norm.
The Parliament $ould ordinaril* act onl* after such a consensus and ne&otiated settlement are arrived at.
Onl* in etreme and compellin& circumstances# $hen unit* of India or its securit* is at sta'e# or
over$helmin& national interest demands ad%ustment of boundaries# $ould Parliament act $ithout the
consent of States affected. In redra$in& boundaries of an* State# Parliament $ould act at all times $ith
&reat restraint and circumspection.
The Punchi )ommission on )entre(State elations in its report 8"1"4 in para 5.8."8 stated as follo$s7
“In practice it is rarely possible for the Parliament to ignore the views of the States$ The (entral
government, in effect, cannot concede to the demands of regional groups6communities for a
separate State unless such a proposal is received from the State7s& in which these groups are
currently located$)
This principle can be sli&htl* amended based on the eperience relatin& to Uttar Pradesh. On 2ov 83#
8"11# a fe$ months before the State 9e&islative Assembl* elections $ere due# the Uttar Pradesh
9e&islature passed a resolution see'in& trifurcation of the State. :espite the State=s consent# the
President# the Union Government# and the Parliament chose not to act# and for &ood reason. The
Assembl* resolution $as clearl* for reasons of political epedienc* to &ain short(term electoral
advanta&e# and $as passed $ee's before the &eneral election $as due. )learl*# States cannot be
divided for temporar* electoral advanta&e of one part* or the other. If there is no informed consent# and if
broad consensus amon& all re&ions is not clearl* manifest# division of States for short(term electoral &ains
$ill lead to anarch*# and $ill seriousl* undermine our federalism# and indeed the unit* and inte&rit* of the
nation itself.
The UP episode demonstrates that the settled principle no$ is that the Union $ill not ordinaril* act $ithout
the State=s consent. /ven $hen the affected State consents to alterin& its boundaries# the Union reserves
the ri&ht to re%ect it on broader national considerations. In other $ords# in order to alter the status quo in
respect of boundaries of States# ordinaril* consent of affected states $ould be necessar*. ,ut a State=s
request for alterin& the status quo need not be &ranted unless the Union is convinced that the broader
national interest is served b* such a decision.
-
8/19/2019 Consti Pro
9/21
/ven colonial rulers paid a heav* price b* actin& precipitatel* $ithout the consent of all sta'e(holders.
The partition of ,en&al $as effected b* the then Hicero* 9ord )ur+on# a&ainst the $ishes of lar&e
se&ments of population. There mi&ht $ell have been sound administrative reasons for such a partitionC
but the consent of people affected $as not obtained# and a consensus $as not arrived at. Peoplesuspected that it $as a deliberate plo* to divide the national movement and so$ seeds of communal
disaffection# and rebelled a&ainst it. As a result# the national movement &ained &reat momentum# the
chasm bet$een the colonial &overnment and the people $idened# partition had to be annulled in 111#
and that bitter episode led to man* lastin& consequences.
In the li&ht of these historical and constitutional developments and the evolution of federalism in the
Indian contet# the determined efforts of the Union Government and its oft(repeated declarations that
Andhra Pradesh $ill be divided irrespective of the State 9e&islature=s vie$s pose a &rave dan&er to
federalism and unit* of India. Andhra Pradesh $as formed $ith the prior consent of the then Andhra State
9e&islature# and the then ;*derabad State 9e&islature. 0hen t$o popular movements for division of the
State $ere launched in the three re&ions < in Telan&ana in 1>(6"# and in )oastal Andhra and
a*alaseema in 168(63# < it $as the Union Government $hich encoura&ed all re&ions to arrive at a
ne&otiated settlement. )orrespondin& )onstitutional provisions $ere put in place to safe&uard the
interests of all re&ions. An eplicit and implicit compact $as made b* the Union $ith the people of Andhra
Pradesh to the effect that the State $ould remain united. It is on this basis that people mi&rated on a
lar&e scale to the other re&ions and to the capital cit* of ;*derabad# and built their lives# livelihoods and
the State=s econom*. In this bac'drop# an* redra$in& of the boundaries $ould need another a&reement
arrived at b* the affected parties throu&h patient ne&otiation# and the Union has a seminal role in helpin&
reconcile conflictin& interests harmoniousl*. Parliament can act onl* on the basis of such an a&reement#
consensus and consent of the State. An* other approach $ould be ham(handed# arbitrar*# uneven and
runs counter to the principles and practice of federalism as the* have evolved under Indian conditions.
The circumstances of October 3# 8"13 resolution of the )abinet and subsequent developments ma'e it
abundantl* clear that the Union is actin& arbitraril*# contrar* to past precedent and practice# in haste# and
$ith short(term electoral considerations in mind. There is not even the minimum effort to &enuinel*
ascertain the State 9e&islature=s vie$s and to accommodate them# let alone obtain its prior consent.
There has been no honest effort to encoura&e detailed discussion and ne&otiation amon& all sta'e(
holders# and no effort to arrive at a ne&otiated settlement satisfactor* to all re&ions.
It is such arbitrar* actions $ith short(term electoral calculations in mind that created &rave crises for the
unit* and inte&rit* of the nation in the Pun%ab and Dammu and ashmir in the ?"=s. Fundamentalistreli&ious &roups prone to violence and bloodshed $ere encoura&ed in the Pun%ab for partisan political
&ains# and Pun%ab and India paid a heav* price for such a foll*. Similarl*# the elected Government $as
dismissed b* en&ineerin& defections and on spurious &rounds in Dammu and ashmir in 1?5# and
subsequentl* an electoral alliance $as forced on the un$illin& re&ional part*# 2ational )onference# in
1?6. As a result# terrorism reared its u&l* head# and the nation continues to pa* a heav* price.
-
8/19/2019 Consti Pro
10/21
If no$# a ne$ precedent is established b* dividin& Andhra Pradesh $ithout the consent of the State
9e&islature# and $ithout a ne&otiated settlement reached b* all re&ions# it could lead to serious
disaffection and malad%ustment at the inter(state and national level. Such a precedent ma* eventuall*
lead to division of an* ma%or State $ithout the $illin& consent of the State and ne&otiated settlement of
the sta'e(holders. The resultin& lin&uistic disaffection# re&ional stresses# and malad%ustment $ill
eventuall* threaten national unit* and inte&rit*# and there is ever* dan&er that the Union $ill fall apart$ithin a &eneration.
The $a* the President and Parliament handle the Andhra Pradesh issue $ill# in a fundamental sense#
shape the future of the Union itself. This is a definin& moment not for Andhra Pradesh alone# but for our
federal )onstitution and India itself.
Undoubtedl* there is lar&e support for the formation of Telan&ana state in the Telan&ana re&ion outside
the Greater ;*derabad cit*. /quall* certainl*# there is over$helmin& opposition to division of the State in
)oastal Andhra and a*alaseema re&ions# and in ;*derabad cit*. It cannot be an*bod*=s case that status
quo ante should# or can# be restored. ,ut $hat is needed is not precipitate and arbitrar* action b* the
Union# but pains(ta'in& efforts to assist ne&otiated settlement reconcilin& all conflictin& interests. In a
hi&hl* polari+ed situation li'e this# $hen about 3" people ferventl* $ant division# and about 6"J of the
people are vehementl* opposed to division of the State# there has to be a ne&otiated settlement
satisf*in& all# or at an* rate minimi+in& dissatisfaction to all. The Union cannot create a &roup of $inners#
and a much lar&er &roup of losers. That $ill be a recipe for disaffection# disharmon* and threat to national
unit*.
If such a arbitrar* decision b* the Union becomes a precedent# an* and ever* State could be divided or
boundaries altered $ithout the State=s consent# and $ithout a ne&otiated settlement. That $ill effectivel*
convert States into municipalities# and India into a unitar* State. 2either the )onstitution ma'ers# nor nation builders intended such an outcome. And India=s future $ill be in peril if such an effort is made to
ma'e the nation effectivel* unitar* at this sta&e.
It is in critical moments li'e this that the President and Parliament have to act $ith &reat restraint#
foresi&ht and $isdom. The President is not onl* the head of the epublic# but he is also a part of the
Parliament. The President is elected b* members of both ;ouses of Parliament as $ell as members of
State 9e&islative Assemblies. In a fundamental sense the President represents the nation < both Union
and States < and is the final defender of the )onstitution and federalism alon& $ith the Supreme )ourt.
This is therefore a fit case $here the President should eercise his constitutional dut* independentl*
before recommendin& introduction of an* ,ill to divide the State of Andhra Pradesh.
The leaders of Parliamentar* parties too should act $ith clarit* and $isdom# and $ith the 'no$led&e that
division of a State $ithout the State=s consent and a ne&otiated settlement amon& all sta'e(holders
converts the nation effectivel* into a unitar* one# and ever* State of the Union $ill# in future# be vulnerable
to unilateral action for short(term electoral epedienc*.
-
8/19/2019 Consti Pro
11/21
The )onstitution# the President# the Parliament and the political parties $ill be put to a severe test in this
case# and the $a* the* respond to this challen&e $ill shape the future of our epublic# and the future of
federalism in India.
Parliament has an unambiguous power
K Nageshwar
In the context of the proposed division of Andhra Pradesh the question arises, what is
the due process for reorganising states? The Constitution and various judgments of the
Supreme Court are quite cear that Pariament has the unequivoca power in deciding
matters reating to reorganisation of the states! An" de#ate regarding the
constitutiona provisions is more in the ream of poitics than a#out an" interpretation
of the Constitution!
K Nageshwar ([email protected] is a member o! the Legislative
"ouncil o! Andhra Pradesh and teaches at the #epartment o!
"ommunication and $ournalism% &smania 'niversity% yderabad.
There has been an intense debate in the recent past on the constitutional aspects
surroundin the bifurcation of Andhra Pradesh. The prominent politico&constitutional
question often bein raised is !ith reard to the role of Parliament and the state
leislature in the process of bifurcation. Deavin aside the merits and demerits of
bifurcation# it is !orth revie!in the constitutional questions bein raised in the
political debate over the issue. )oth the supporters and opponents of bifurcation are
lookin at the constitutional issues involved from their o!n political perspectives. An
artificial cleavae is souht to be created bet!een political constitutionalism and leal
-
8/19/2019 Consti Pro
12/21
constitutionalism thouh the constitutional position is not only clear but has been
upheld time and aain by the ape- court !hile ad$udicatin many cases over the past
five decades.
The first question is on Article of the %onstitution. There is a demand no! to revie! Article # claimin that it oes aainst federalism. The dilution of federalism is a political
question. The political process operates on !hat the %onstitution says today# not on
!hat the %onstitution should have been. 'urin the si- decades of post&Independence
Indian history there has been an intense battle in the political and leal spheres on
many constitutional provisions that strenthen the unitary character of the polity. These
debates have led to a proper interpretation. The classic e-ample is that of Article *4.
)ut# barrin a fe! court cases# no serious debate has ever been initiated on amendin
Article of the %onstitution# !hich clearly keeps the po!er to bifurcate in the e-clusive
domain of Parliament. The %onstitution accords Parliament unequivocal and
unambiuous po!ers in this reard. The "upreme %ourt of India has repeatedly upheld
this in its $udments bet!een 23*3 and +;;3. The state leislature !as accorded only a
consultative role. This is a constitutional reality# evident from a plain readin of the
relevant provisions of the %onstitution.
Article 3 o! the "onstitution says)
alter the boundaries of any "tate5 @e alter the name of any "tate
-
8/19/2019 Consti Pro
13/21
Therefore# seekin the vie!s of the leislature to be affected is mandatory for Parliament
before bifurcatin a state. )ut the vie!s of the leislature are not bindin on Parliament.
Parliament can make a la! bifurcatin a state in !hatever manner it deems fit#
independent of !hatever may be the vie!s e-pressed by the concerned leislature. The
leislature !as iven only a consultative role. Any arument that such a provision oes
contrary to federalism is a political question !hich needs to be settled throuh the
political process. The constitutional interpretation of Article cannot be determined by
political aruments.
*cope o! the Legislature
7;37 of +;;; Pradeep %haudhary and /rs. >Appellants vs ,nion of India and Anr>
Eespondents. The $udment said as follo!s
-
8/19/2019 Consti Pro
14/21
soverein "tates. 1hile in the case of the Indian "tates# it is appropriate# in vie! of the
fact that sovereinty remains !ith them that their consent should be obtained> @The
then provinces no! indicate "tates. The princely states !ere then referred to as Indian
"tates.
)ut# this arument iven in reard to =consultation and consent? is valid even today.
%onsent is required only !hen the states retain sovereinty. In modern India#
sovereinty lies !ith the people of the ,nion of India. In fact# this distinction !as
further clarified by the "upreme %ourt of India in its $udment on the case F )abulal
Parate vs The "tate of )ombay and Another# +9 Auust 23*3. The $udment said<
Artice I*, s +, of the American Constitution which sa"s inter aia that 'no new State
sha #e formed or erected within the jurisdiction of an" other State, nor an" State #e
formed #" the junction of two or more States or parts of States without the consent of
the egisatures of the State concerned as we as of the Congress!( That provision is
quite different from the proviso we are considering the former requires the consent of
the State )egisature whereas the essentia requirement of our proviso is a reference
#" the President of the proposa contained in the Bi for the expression of its views #"
the State )egisature$
The %onstitution stipulates that the proposal for bifurcation should be first referred to
the affected leislature for e-pression of its vie!s. Ho!ever# Parliament need not
necessarily proceed as per the vie!s of the state leislature. Parliament can even amendthe oriinal proposal and adopt it. 8ven these amendments need not be referred aain
to the state leislature. This constitutional position# upheld by "upreme %ourt in case
related to 0umbai state reoranisation in 23*3 and ,ttar Pradesh state reoranisation
in +;;3# has only articulated the paramount po!er of Parliament in this reard. The
"upreme %ourt in the )abulal Parate case said<
>the intention seems to be to ive an opportunity to the "tate Deislature to e-press its
vie!s !ithin the time allo!ed5 if the "tate Deislature fails to avail itself of that
opportunity# such failure does not invalidate the introduction of the )ill. Nor is thereanythin in the proviso to indicate that Parliament must accept or act upon the vie!s of
the "tate Deislature. Indeed# t!o "tate Deislatures may e-press totally diverent vie!s.
All that is contemplated is that Parliament should have before it the vie!s of the "tate
Deislatures as to the proposals contained in the )ill and then be free to deal !ith the
)ill in any manner it thinks fit# follo!in the usual practice and procedure prescribed by
-
8/19/2019 Consti Pro
15/21
and under the rules of business. The proviso does not say that if and !hen a proposal
contained in the )ill is modified subsequently by an amendment properly moved and
accepted in Parliament# there must be a fresh reference to the "tate Deislature and a
fresh bill must be introduced. It !as pointed out in the course of aruments that if the
second condition required a fresh reference and a fresh bill for every amendment# it
miht result in an interminable process5 because any and every amendment of the
oriinal proposal contained in the )ill !ould then necessitate a fresh )ill and a fresh
reference to the "tate Deislature. /ther difficulties miht also arise if such a
construction !ere put on the proviso5 for e-ample# in a case !here t!o or three "tates
!ere involved# different vie!s miht be e-pressed by the Deislatures of different
"tates> If Parliament !ere to accept the vie!s of one of the Deislatures and not of the
other# a fresh reference !ould still be necessary by reason of any amendment in the
oriinal proposal contained in the )ill. 1e are referrin to these difficulties not because !e think that a forced meanin should be iven to the !ords of the proviso to avoid
certain difficulties !hich may arise.
Burther elaboratin on this# the "upreme %ourt in Pradeep %haudhary and /thers vs
,nion of India case said<
>indisputably# only because one or the other vie! had been e-pressed in the "tate
Deislature# the same !ould not be bindin upon the Parliament even if its vie!s !ere
received in time. 1hen# ho!ever# the vie!s of the "tate Deislature !ere not received in
time# the Parliament !ould be free to pass the Act in terms of the )ill or !ithamendment as it may deem fit and proper. It is the Parliament’s preroative to place the
)ill in either of the Houses# either in the same form or !ith amendments>
8ven the commentators on the %onstitution of India have also held the same vie!. In
'ura 'as )asu’s %ommentary on the %onstitution of India @+;;3< 74:# it is stated<
It has been ruled by the "peaker of the House of the People that the )ill havin once
been referred by the President to the "tate Deislatures concerned and thereafter duly
introduced in Parliament# amendments seekin to make provisions different from those
contained in the )ill as introduced and thereby affectin the area# boundaries or names
of the "tate are in order and are not ultra vires of the constitution. These amendments
are not required to be referred aain to the "tate Deislature concerned nor is any fresh
recommendation of the President necessary for their consideration.
Article and Bederalism
-
8/19/2019 Consti Pro
16/21
. %an !e invoke the principles of federalism !hen it comes to the bifurcation of statesG
)ifurcation affects the relationship bet!een t!o reions of a united state# !hereas
federalism refers to the relationship bet!een the centre and the states. The most
important criticism of Article is that it violates federal principles. It is true that the
conte-t in !hich the final form of Article has evolved is completely different. At the
time of draftin the %onstitution the nation faced a serious challene to its unity and
interity. The states !ere in a very fluid form necessitatin a remappin of India. )ut#
the question today is !hether it is advisable to accord such paramount po!er to
Parliament in relation to the bifurcation of states. )ut# surprisinly no serious effort !as
ever made to redefine Article
The other school of thouht is that if a minority territory !ithin a united state !ants to
be separated# the mandatory consent of the affected leislature !ould make
reoranisation of state impossible. In fact# this opinion !as e-pressed even in the
%onstituent Assembly debates. The questions raised over bifurcation invokin the
principles of federalism are essentially political in nature. ,ntil no!# there is no such
$udicial interpretation statin that Article violates federalism# !hich forms a part of
the basic structure of the %onstitution. In fact# the $udments say other!ise. The
$udment of the Andhra Pradesh Hih %ourt delivered throuh the %hief Justice alyan
Jyoti "enupta and Justice % )hanu on public interest litiation @no 7* of +;2#
dated 9 /ctober +;2# P rishnaiah petitioner vs ,nion of India said<
>The Article has been desined in such a !ay that enables the Parliament essentially
to maintain the concept of federalism. The Bederal character of the %onstitution is
reserved by Article of the %onstitution of India >
In fact# the %onstitution itself imposes certain limits on federalism. India is an
indestructible union of destructible states. The remappin of states is therefore a simple
e-ercise under the Indian %onstitution. This constitutional position still remains
unchaned. The unique aspect of the Indian ,nion is that the union is indestructible but
not so the states5 their identity can be altered or even obliterated. This is a departure
from a federal feature !hich obtains in a classical federation like the ,". The
%onstituent Assembly re$ected a motion in the concludin staes to desinate India as a
=Bederation of "tates?. ) E Ambedkar# !hile introducin the 'raft %onstitution#
e-plained the position thus
-
8/19/2019 Consti Pro
17/21
>that thouh India !as to be a federation# the federation !as not the result of an
areement by the "tates to $oin in a federation# and that the federation not bein the
result of an areement# no "tate has the riht to secede from it. The federation is a
,nion because it is indestructible. Thouh the country and the people may be divided
into different "tates for convenience of administration# the country is one interal
!hole# its people a sinle people livin under a sinle imperium derived from a sinle
source. The Americans had to !ae a civil !ar to establish that the "tates have no riht
of secession and that their federation !as indestructible. The 'raftin %ommittee
thouht that it !as better to make it clear at the outset rather than to leave it to
speculation or to disputes.
Thus the reoranisation of a state by an Act of Parliament can be questioned on political
rounds but invokin constitutional provisions !ould be futile.
The "upreme %ourt has also clarified the reasons for the state leislature bein endo!ed
!ith the po!er only to e-press its vie!s in $udment on )abulal Parate case. The ape-
court has reiterated this position in the Pradeep %haudhary case also. The %ourt has
opined<
>none of the constituent units of the Indian ,nion !as soverein and independent in
the sense the American colonies or the "!iss %antons !ere before they formed their
federal unions. The constituent Assembly of India# derivin its po!er from the soverein
people# !as unfettered by any previous commitment in evolvin a constitutional patternsuitable to the enius and requirements of the Indian people as a !hole. ,nlike some
other federal leislature# Parliament# representin the people of India as a !hole# has
been vested !ith the e-clusive po!er of admittin or establishin ne! "tates# increasin
or diminishin the area of an e-istin "tate or alterin its boundaries# the Deislature or
Deislatures of the "tates concerned havin only the riht to an e-pression of vie!s on
the proposals. It is sinificant that for makin such territorial ad$ustments it is not
necessary even to invoke the provisions overnin constitutional amendments>
Hidayatullah# P a$endraadkar# " 'as the ape- court e-plained
-
8/19/2019 Consti Pro
18/21
>unlike other federations# the Bederation embodied in the said Act !as not the result of
a pact or union bet!een separate and independent communities of "tates !ho came
toether for certain common purposes and surrendered a part of their sovereinty. The
constituent units of the federation !ere deliberately created and it is sinificant that
they# unlike the units of other federations# had no oranic roots in the past. Hence# in
the Indian %onstitution# by contrast !ith other Bederal %onstitutions# the emphasis on
the preservation of the territorial interity of the constituent "tates is absent. The
makers of the %onstitution !ere a!are of the peculiar conditions under !hich# and the
reasons for !hich# the "tates @oriinally Provinces !ere formed and their boundaries
!ere defined# and so they deliberately adopted the provisions in Art. !ith a vie! to
meet the possibility of the redistribution of the said territories after the interation of
the Indian "tates>
The points of difference bet!een north American federalism and Indian federalism ascontemplated by the 'raftin %ommittee !ere e-plained by Ambedkar in the
%onstituent Assembly<
>India not optin for dual citiCenship# "tates not havin separate %onstitutions and
"tates en$oyin residual po!ers apart from the principal difference that the American
federation is the result of areement bet!een the ,nion and the "tates>
Paramount and Plenary Po!er
The "upreme %ourt# in a number of $udments# upheld the paramount position ofParliament as far as the reoranisation of states is concerned. 0ore sinificantly#
definin the nature and scope of Articles and 7 of the %onstitution# the "upreme %ourt
stated that the po!er of Parliament as e-clusive and plenary in the 0ullaperiyar
8nvironmental Protection Borum vs ,nion of India. The "upreme %ourt Judment on
0ullaperiyar 'am on +: Bebruary +;;4 @%ase No< 1rit Petition @%ivil 94 of +;;2
Petitioner< 0ullaperiyar 8nvironmental Protection Borum Eespondent< ,nion of India
and /rs# 'ate of Judment< +: Bebruary +;;4 )ench< L "abhar!al# % Thakker and
P )alasubramanyan Judment< Judment M1ith Tc @% Nos *4&*3 and 34&33 of +;;+
L "abhar!al# %JI said<
>the creation of ne! "tates by alterin territories and boundaries of e-istin "tates is
!ithin the e-clusive domain of Parliament. The la! makin po!er under Articles and
7 is paramount and is neither sub$ected to nor fettered by Article +74 and lists II and III
of the "eventh "chedule. The %onstitution confers supreme and e-clusive po!er on
-
8/19/2019 Consti Pro
19/21
Parliament under Articles and 7 so that !hile creatin ne! "tates by reoranisation#
the Parliament may enact provisions for dividin land# !ater and other resources5
distribute the assets and liabilities of predecessor "tates amonst the ne! "tates5 make
provisions for contracts and other leal rihts and obliations. The constitutional
validity of la! made under Articles and 7 cannot be questioned on round of lack of
leislative competence !ith reference to the lists of "eventh "chedule. The ne! "tate
o!es its very e-istence to the la! made by the Parliament. It !ould be inconruous to
say that the provision in an Act !hich ives birth to a "tate is ultra vires a leislative
entry !hich the "tate may operate after it has come into e-istence. The po!ers of the
"tate to enact la!s in list II of "eventh "chedule are sub$ect to Parliamentary leislation
under Articles and 7. >The po!er of Parliament to make la! under Articles and 7 is
plenary and traverse over all leislative sub$ects as are necessary for effectuatin a
proper reoranisation of the "tates>The po!er that Article confers on Parliament !as emphasised even in other cases. The
"upreme %ourt in its $udment on the case F Petitioner< ) Ea$u vs Eespondent< "tate
of u$arat and Anr# 'ate of Judment 7 "eptember 239;# said as follo!s<
>Articles and 7 of the %onstitution deal !ith a special situation and so lon as a
provision of la! promulated by Parliament can be considered as supplemental#
incidental or consequential to the formation of a ne! "tate it !ould be enforceable even
thouh it miht amount to an amendment of certain provisions of the %onstitution>
Article 7 of the %onstitution clarifies this position. It says<
Da!s made under Articles + and to provide for the amendment of the Birst and the
Bourth "chedules and supplemental# incidental and consequential matters.
@2 Any la! referred to in Article + or Article shall contain such provisions for the
amendment of the Birst "chedule and the Bourth "chedule as may be necessary to ive
effect to the provisions of the la! and may also contain such supplemental# incidental
and consequential provisions @includin provisions as to representation in Parliament
and in the Deislature or leislatures of the "tate or "tates affected by such la! as
Parliament may deem necessary.
@+ No such la! as aforesaid shall be deemed to be an amendment of this %onstitution
for the purposes of Article 49.
The "upreme %ourt ives a further elaborate e-planation in reard to the scope of
Articles +# and 7 in a $udment related to the case F 0anal "inh and Another vs
,nion of India @2: November 2344. The $udment stated
-
8/19/2019 Consti Pro
20/21
>The la! referred to in Articles + and may therefore alter or amend the Birst "chedule
to the %onstitution !hich sets out the names of the "tates and description of territories
thereof and the Bourth "chedule allottin seats to the "tates in the %ouncil of "tates in
the ,nion Parliament.
The la! so made may also make supplemental# incidental and consequential provisions
!hich !ould include provisions relatin to the settin up of the leislative# e-ecutive and
$udicial orans of the "tate essential to the effective "tate administration under the
%onstitution# e-penditure and distribution of revenue# apportionment of assets and
liabilities# provisions as to services# application and adaptation of la!s# transfer of
proceedins and other related matters.
The above $udment further stated<
$the Constitution aso contempates #" Artice - that in the enactment of aws for
giving effect to the admission, esta#ishment or formation of new States, or ateration
of areas and the #oundaries of those States, power to modif" provisions of the
Constitution in order to tide over a temporar" difficut" ma" #e exercised #" the
Pariament$
The incisive analysis of the relevant constitutional provisions and the interpretation
iven by the constitutional courts clearly indicates that a bifurcation of the state is done
by an Act of Parliament. Parliament has an unambiuous po!er in this reard. The state
leislature !as accorded only a consultative role. 1hen the state leislature e-presses ami-ed opinion Parliament has to take a call. Ho! far Parliament takes conisance of
mutually conflictin sentiments e-pressed in the state leislature is essentially a political
question.
Eeference
)asu# 'ura 'as @+;;3< %ommentary of the %onstitution of India @9th 8dition
@Napur< De-is Ne-is )utter!orths.
Naesh!ar @knhyderabadOmail.com is a member of the Deislative %ouncil of
Andhra Pradesh and teaches at the 'epartment of %ommunication and Journalism#
/smania ,niversity# Hyderabad.
%ourtesy 8conomic and Political 1eekly
-
8/19/2019 Consti Pro
21/21