November 02, 2013

Article 371-D implications

Background

Many "integrationists" have recently taken up the refrain that Telangana state can be formed under article 3 only after article 371-D is amended or repealed. They further contend that article 371-D can be amended or repealed only under the provisions of article 368. This line of arguments is claimed to be the ultimate weapon (brahmastra) against Telangana formation.

Chief minister Nallari Kiran Kumar Reddy reportedly decided to seek a clarification on the status of 371-D from the central government.

Telugu Desham legislator Payyavula Keshav and YSR Congress politician Raghurama Krishnam Raju have separately approached the Supreme Court against the union cabinet's decision in favor of Telangana formation. These individuals as well as other anti-Telangana politicians are reported to pin their hopes on article 371-D to stall Telangana formation.

In a colorful article published by Sakshi, journalist ABK Prasad compares Andhra Pradesh (AP) to a "relationship of six knots", an allusion to the "three knots" of traditional south Indian marriage. Prasad writes article 371-D is a part of the seventh schedule and therefore its amendment requires two-thirds majority in parliament and ratification by half the states.

Advocate Ravi Shankar Jandhyala is reported to have pointed out that text of Article 371-D speaks generally about the State of Andhra Pradesh without reference to any particular region. He is said to have referred to Indira Gandhi's alleged observation that the article "was kept in the Seventh Schedule so that no unscrupulous Government or claimant would disturb the harmony of the state".

The momentum on this subject may have been fueled in part by the terms of reference (ToR) of Group of Ministers (GoM) setup by the central government to address issues arising from Telangana formation. ToR # 10 reads "Look into the issues arising out of the Presidential Order issued under Article 371-D of the Constitution consequent to the bifurcation and examine any other matter that may arise on account of bifurcation of the state of Andhra Pradesh and make suitable recommendations".

As one would expect, the contentions are not very clear. The "integrationists" are mixing up legal & political arguments. The matter is further obfuscated by the fact that people do not differentiate between article 371-D, six point formula (SPF), GO 610 and other related subjects. The fact that the debate is being played out in the midst of lay people adds to the soundbytes.

Methodology of this report

The following questions need to be answered in my considered opinion:

·         Can the process of Telangana formation be stalled or withdrawn on the ground that article 371-D prevents it?
·         Is article 371-D a part of the seventh schedule?
·         What is the nature of the article 371-D?
·         Is article 371-D intended to perpetuate AP with its current boundaries?
·         What is the purpose of article 371-D?
·         Does article 371-D override articles 3 & 4?
·         Can article 371-D be amended/repealed only the provisions of article 368?
·         Does article 371-D as it currently stands prohibit or forbid Telangana formation?
·         Will article 371-D survive Telangana formation? If yes, to what extent?

My focus here is purely legal: I ignore political (or emotional) aspects totally. As per my usual practice, most of the sources are public domain.

Judicial interference with legislative process

It may be a good idea to start by acknowledging there are three branches of Government i.e. legislature, executive & judiciary. Legislature is generally held to be supreme among these in view of the fact that it represents the will of the people.

Can a court interfere with the legislative process? Halsbury's Laws of England, 4th edition, paragraph 832 states: "The legislative supremacy of Parliament implies not only the inability of the courts to question its power to enact in particular statutory provision, but also their duty to give effect as statutes only to, enactments answering that description. It follows that the courts can become concerned with the question whether a particular document which they are invited to apply has received the consents necessary to constitute it an Act of Parliament".

Lord Leslie Scarman wrote in Duport Steels Ltd v. SIRS, 1980: "We are to be governed not by Parliament’s intentions but by Parliament’s enactments".

Justice KM Yusuf of the Calcutta High Court relying on the above in Shyam Sundar Gupta v. Union of India and Ors, 1989 held the legislative competence of parliament must not be inferred at a stage when a matter is "under active consideration". He held: "I have no hesitation to hold that the Bill, presently before Parliament, if enacted and enforced and thereafter if it affects the federal structure and the framework of the Constitution then only the vires of the same can certainly be challenged in a Court of Law having jurisdiction and will be justiciable".

In other words, no court can or will entertain a prayer to stall or withdraw the process of Telangana formation on any grounds including the alleged conflict with article 371-D. Injunctive relief against a legislative process is neither possible nor reasonable. A plea against Telangana formation will be admissible only after the process is concluded.

Article 371-D & the seventh schedule

The seventh schedule of the Indian constitution consists of three lists. List I (union list) comes under the exclusive legislative jurisdiction of the parliament while list II (state list) falls under the domain of the state legislatures. Both the center and the states can legislate on matters of list III (concurrent list) while unlisted entries are treated at par with list I i.e. all residuary legislative rights vest with the parliament.

The jurisdiction and legislative powers of the center and states are outlined in article 246. This article together with the three lists is an exhaustive guide to the division of powers between the center and the states. It may be noted the state legislative jurisdiction is limited to its own boundaries.

The seventh schedule has been amended several times:

·         Third amendment (1954) modified concurrent list entry 33
·         Sixth amendment (1956) inserted union list entry 92A and modified state list entry 54
·         Seventh amendment (1956) deleted union list entry 33 and state list entries 19, 20, 29 & 36. It also modified union list entries 32, 67 & 79, state list entries 12 & 24 and concurrent list entries 40 & 42
·         Fifteenth amendment (1963) inserted union list entry 78
·         Thirty second amendment (1973) modified union list entry 63
·         Forty second amendment (1976) modified state list entries 1, 2 & 3 and deleted state list entry 11
·         Forty sixth amendment (1982) inserted union list entry 92B and concurrent list entries 11A, 17A, 20A. It also modified state list entry 55 and concurrent list entry 25

A quick glance reveals none of the above changes is even remotely connected to article 371-D. Seventh schedule entries relating to public employment, education & administrative tribunals, the subject matters of article 371-D, have not been amended even once after the constitution came into effect. The claim article 371-D is a part of or otherwise impacts the seventh schedule is as far from reality as possible.

The confusion (or mischief) appears to be stem from union list entry 63. Section 4 of the thirty second amendment act states: "4. Amendment of Seventh Schedule. In the Seventh Schedule to the Constitution, in List I, in entry 63, for the words "Delhi University, and", the words, figures and letter "Delhi University; the University established in pursuance of article 371E;" shall be substituted".

While articles 371-D and 371-E both derive their existence from the thirty second amendment, the latter relates purely to the establishment of a central university in AP. As the relevant union list entry at that time referred to specific universities by name, this entry needed to be amended. Surely not the context to wax eloquently on harmony of the state and other high sounding platitudes, Mr. Jandhyala?

The nature of article 371-D

A plain reading of the article reveals it enables the president "by order" to make provisions related to public employment & education facilities for different regions in AP. Such orders may include several facets such as creating local cadres, local areas, administrative tribunals etc.

Article 371-D came into effect on July 1, 1974. Two presidential orders were issued under the article. An order relating to education admissions came into force in October 1974 while the second order regulating direct recruitment came into effect much later in October 1975.

Being an enabling provision by nature, article 371-D by itself does not have any effect unless the relevant presidential orders are issued. The provisions relating to public employment, for example, remained in abeyance for a full fifteen months. It may be noted the orders are of an executive nature and therefore can be amended (or withdrawn) without any legislative process. The various amendments (including the most recent "14f amendment") prove this beyond doubt.

Article 371-D & AP's "territorial integrity"

The concept of territorial integrity is derived from sovereignty. All jurists accept the position that Indian states do not have any sovereign powers.

Chief Justice Prahlad Gajendragadkar held in the Berubari Union presidential reference, 1960: "It may, therefore, be assumed that in construing Art. 3 we should take into account the fact that the Constitution contemplated changes of the territorial limits of the constituent States and there was no guarantee about their territorial integrity".

The oath of affirmation for a state legislator as prescribed by the third schedule paragraph B runs: "I, AB, having been elected (or nominated) a member of the Legislative Assembly (or Legislative Council), do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter". This is more or less the same as that of a parliament member. This proves adequately that states have no inherent rights of territorial integrity.

Even though perpetual existence of AP is clearly beyond the competence of article 371-D, let us still check if the article solely or even primarily intended to preserve AP in its current boundaries. This point can not be established by plain textual interpretation. Nowhere does the article (or the thirty second amendment) explicitly state this.

The purpose of article 371-D

The statement of objects & reasons of the thirty second amendment traces the history leading to the SPF evolution. It inter alia reads: "This Bill has been brought forward to provide the necessary constitutional authority for giving effect to the Six-Point Formula in so far as it relates to the provision of equitable opportunities for people of different areas of the State in the matter of admission to educational institutions and public employment and constitution of an Administrative Tribunal with jurisdiction to deal with certain disputes and grievances relating to public services".

In other words, the amendment's purpose is limited to SPF # 2-4. Article 371-E relates to the second leg of SPF # 2 while article 371-D covers the rest of the three points. The text of the relevant points is provided below in full. It is clear from the points that these do not seek to perpetuate AP's existence in any manner.

"(2) Institution of uniform, arrangements throughout the state enabling adequate preference being given to local candidates in the matter of admission to educational institutions and establishment of a new Central University at Hyderabad to argument the exiting educational facilities should be the basis of the educational policy of the state.

(3) Subject to the requirements of the state as a whole, local candidates should be given preference to specified extent in the matter of direct recruitment to (i) non-gazetted posts (other than in the Secretariat. Offices of Heads of Department, other State level offices and institutions and the Hyderabad City Police) (ii) corresponding posts under the local bodies and (iii) the posts of Tahsildars, Junior Engineers and Civil Assistant Surgeons. In order to improve their promotion prospects, service cadres should be organized to the extent possible on appropriate local basis up to specified gazetted level, first or second, as may be administratively convenient.

(4) A high power administrative tribunal should be constituted to deal with the grievances of services regarding appointments, seniority, promotion and other allied matters. The decisions of the tribunal should ordinarily be binding on the state government. The constitution of such a tribunal would justify limits on recourse to judiciary in such matters".

The purpose of article 371-D thus clearly emerges as follows:

·         Enabling the definition of local areas
·         Enabling preferential reservations to local candidates in admission to public educational institutions
·         Enabling the organization of local cadres in public service
·         Enabling the allocation of public servants to the appropriate local cadre
·         Enabling preferential reservations to local candidates in direct recruitment of public servants
·         Enabling the fixation of extent & modalities of such preferential reservations
·         Enabling the setting up of administrative tribunals in service matters

The so called "open list" and the "exempted cadres" are features arising from the presidential orders issued pursuant to article 371-D. As we saw earlier, these may be modified or rescinded through executive action. These can therefore be not regarded as the raison d'ĂȘtre of article 371-D.

Please see my blog post titled Central institutions in Hyderabad & the "presidential order" for some other aspects relating to SPF & the presidential order on local cadres.

Article 371-D vs. articles 3 & 4

Issue 1 of Mullaperiyar Environmental Protection Forum v. Union of India & Ors, 2006 read: "Whether Section 108 of the States Reorganization Act, 1956 is unconstitutional"? The plaintiff contended the section encroached on Kerala's entry 17 rights.

Rejecting the plaintiff's contention, Chief Justice Yogesh Kumar Sabharwal held: "The creation of new States by altering territories and boundaries of existing States is within the exclusive domain of Parliament. The law making power under Articles 3 and 4 is paramount and is not subjected to nor fettered by Article 246 and Lists II and III of the Seventh Schedule". He further ruled "The power of Parliament to make law under Articles 3 and 4 is plenary and traverse over all legislative subjects as are necessary for effectuating a proper reorganization of the States".

In an interesting observation, Justice Sabharwal wrote: "The new State owes its very existence to the law made by the Parliament. It would be incongruous to say that the provision in an Act which gives birth to a State is ultra vires a legislative entry which the State may operate after it has come into existence".

The present context is somewhat similar. AP itself is a creation of parliament's exercising of powers under article 3. Article 371-D while not derived from AP legislation would not have come into existence but for the creation of AP by the very same parliament. To that extent it can be treated as a creation of article 3. Claiming it has overriding powers over its creator is therefore equally incongruous.

In Maharashtra v. Narayan Shamrao Puranik and Ors, 1982, one of the issues raised was whether section 51 (3) of the States Reorganization Act, 1956, continued to be valid. The Bombay High Court had earlier held the section was transitory. Justice Ananda Prakash Sen of the Supreme Court overturned the ruling holding inter alia: "The Act is a law under Art. 3 for the reorganization of the States. Art. 4 of the Constitution provides that the law referred to in Art. 3 may contain "such supplemental, incidental and consequential provisions as Parliament may deem necessary" Under the scheme of the Act, these powers continue to exist by reason of Part V of the Act unless Parliament by law otherwise directs".

The historic case Kesavananda Bharati Sripadagalvaru and Ors v. Kerala and Anr, 1973, is best celebrated for its "basic structure" doctrine. This embodies the principle that certain features of the Indian constitution lie outside the amendment powers of article 368. Chief Justice Sarv Mittra Sikri (who coincidentally delivered the unanimous judgment upholding Mulki rules just a few weeks later) mentioned supremacy of the constitution, republican & democratic form of government, secular character, separation of powers among the legislature, executive & judiciary, federalism and dignity & freedom of the individual as the essential features of the constitution. While the basic structure was not given a final definitive shape in this case, the direction pointed to a sea change in the annals of Indian jurisprudence.

The overriding powers claimed for article 371-D are based on the non obstante section 10: "(10) The provisions of this article and of any order made by the President thereunder shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force".

Supreme Court in P. Sambamurthy & Ors v. Andhra Pradesh & Anr, 1986, struck down section 5 of article 371-D. Chief Justice PN Bhagwati delivering the unanimous judgment held: "The Proviso to Clause (5) of Article 371-D is therefore clearly violative of the basic structure doctrine" as the tribunals envisaged failed to meet the judicial review powers vested in the high courts under articles 226 & 227.

The Sambamurthy case is interesting on two angles:

·         Transition of the basic structure doctrine from "article 368 based amendment" to inviolability. This is a welcome sign of the doctrine's evolution over the years.
·         The non obstante section 10 did not prevent the decision. This is not surprising given that articles 226 & 227 are essential to the preservation of the basic structure and thus override formal non obstante sections. This can additionally be used to infer that article 371-D does not form a part of the basic structure.

The non obstante section 10 requires the provisions of the article (and resulting presidential orders) to have effect not withstanding any other constitutional provision or law. While this is subservient to the basic structure doctrine as established in the Sambamurthy case, it is adequate if the seven "purposes" listed in the previous section are not disabled.

As we saw earlier Justice Sikri opined that federal structure is a part of the constitution's basic structure. Though India is not a true federation of states, the federal principle (e.g. distribution of powers) is an important feature of the constitution. The center's powers to admit/create/modify states is derived from articles 2-4. There is a thus a reasonable ground to treat these articles as a part of the basic structure. When (if) this conclusion is reached, article 371-D will be totally powerless against articles 3 & 4.

Telangana formation & article 371-D

There are two possible options for the formation of Telangana. The first would be to amend article 371-D as a part of the reorganization act. This is possible under article 4 (produced in full below):

"4. (1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary.

(2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368".

Section 85 of the Bombay Reorganization Act, 1960, made two incidental changes to article 371. Section 71 of the North-Eastern Areas (Reorganization) Act, 1971, changed article 371-B. Several similar supplemental, incidental and consequential amendments were incorporated during every reorganization.

Section 13 of the Punjab Reorganization Act, 1966, assigned 54 assembly seats to Haryana against the "not less than sixty prescribed by article 170 (1). This was contested in Mangal Singh & Anr v. Union of India, 1966. Justice JC Shah delivering the unanimous judgment wrote: "On the plain words of Art. 4, there is no warrant for the contention advanced by counsel for the appellants that the supplemental, incidental and consequential provisions, which by virtue of Art. 4 the Parliament is competent to make, must be supplemental, incidental or consequential to the amendment of the First or the Fourth Schedule".

The learned judge further observed: "Power to reduce the total number of members of the Legislative Assembly below the minimum prescribed by Art. 170 (1) is, in our judgment, implicit in the authority to make laws under Art. 4. Such a provision is undoubtedly an amendment of the Constitution, but by the express provision contained in cl. (2) of Art. 4, no such law which amends the First and the Fourth Schedule or which makes supplemental, incidental and consequential provisions is to be deemed an amendment of the Constitution for the purposes of Art.368". In other words, the act informally but effectively amended article 170 (1).

In view of the above, Telangana formation is possible by amending article 371-D formally or otherwise through the powers of article 4. The non obstante section 10 would not be able to prevent this as long as the seven stated purposes are not disabled. Even this condition would be unnecessary if article 3 is treated as a part of the basic structure.

The second option (perhaps the path of least resistance) is to let article 371-D unchanged during the reorganization process. The fate of article 371-D under this scenario is examined in the next section.

Post-Telangana article 371-D

It is an accepted position that a law (whether a piece of legislation or an executive order) would continue to be valid in the entire original territorial jurisdiction unless repealed or modified by a competent authority. If this were not so, states would need to reintroduce every single legislation and executive order every time administrative boundaries change. The obvious exception to this principle is situations where a law (or its parts) is inherently repugnant to the changed circumstances e.g. an AP coastal fishing regulation would be inapplicable in Telangana.

Article 371-D would therefore continue to apply unless amended. Section 1 of the article reads: "(1) The President may by order made with respect to the State of Andhra Pradesh provide, having regard to the requirements of the state as a whole, for equitable opportunities and facilities for the people belonging to different parts of the state, in the matter of public employment and in the matter of education, and different provisions may be made for various parts of the state".

The term "Andhra Pradesh" obviously refers to the state as it existed in 1974. Therefore the article would continue to be valid for both the successor states of Telangana and residual AP. The presidential orders too would continue to be valid within both states without territorial overlap. Telangana public servants would be organized into two local areas & cadres while the residual state will stay content with the other four zones. State level institutions in each state would continue to be governed in the same way as before. The exempted cadre (e.g. secretariat staff) would be organized in both states i.e. Paruchuri Ashok Babu would be eligible to continue at the residual AP secretariat wherever it is located.

What if Telangana or residual AP wants to change any of the terms of the presidential orders? For example Telangana may desire to opt out of article 371-D. Similarly residual AP may wish to local areas to be reorganized?


The solution is simple: through presidential order! Pass a resolution in the relevant assembly and forward it to the president for implementation. Article 371-D places no restriction on the number of orders as long as there is no contradiction between the various orders.

60 comments:

  1. Do you know Dr. Ambedkar wanted state approval for reorganisation

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    1. Let me answer you on both conceptual & factual fronts.

      The "legislative" intent behind a law is required only in case of ambiguity.

      Lod Diplock wrote in Fothergill v. Monarcj Airlines Ltd, 1980:

      "The source to which Parliament must have intended the citizen to refer is the language of the Act itself. These are the words which Parliament has itself approved as accurately expressing its intentions. If the meaning of those words is clear and unambiguous and does not lead to a result that is manifestly absurd or unreasonable, it would be a confidence trick by Parliament and destructive of all legal certainty if the private citizen could not rely upon that meaning but was required to search through all that had happened before and in the course of the legislative process in order to see whether there was anything to be found from which it could be inferred that Parliament's real intention had not been accurately expressed by the actual words that Parliament had adopted to communicate it to those affected by the legislation"

      Now to the factual front. At the time of independence, the term "states" referred to the former princely states while what we call "states" now were labeled "provinces". You may like to look up the constitutional debate to see what Dr. Ambedkar referred to in the context. Alternately send me the link you rely on and I will revert after verification.

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    2. Jai, The state vs province differentiation is only to clear the ambiguity during the debates. I guess Anon question is more directed towards the intent of Ambedkar behind making such provision. ie. reorganization process should start only with the consultation of state's legislature.

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    3. Satya, intentions per se are not justiciable. Please see Scarman & Diplock statements.

      Courts all over try to decipher "legislative intent" only (and if only) a plain reading fails to resolve an issue framed for judging the case.

      "Ascertaining the views" is no doubt an important part of the process. This can however begin only after the cabinet decision. This is exactly where we stand today.

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    4. Jai, Intent and spirit is as much important as the verbiage of a rule. if you go thru the Constituent assembly debates on article 3, Ambedkar answer to KT Shaw's proposal of resolution in state assembly signifies the importance of consultation of state assembly.

      The constitution framers did not let the complete power to one entity.

      Ambedkar said,

      " As regards the amendment moved by Prof. Shah, I do not see much difference between my amendment as contained in sub-clause (a) of the new proviso and his. He says that the discussion shall be initiated in the States. My sub-clause (a) of the proviso also provides that the States shall be consulted. I have not the least doubt about it that the method of consulting, which the President will adopt, will be to ask either the Prime Minister or the Governor to table a resolution which may be discussed in the particular State legislature which may be affected, so that ultimately the initiation will be the local legislature and not by the Parliament at all. I therefore submit that the amendment of Professor Shah is really unnecessary."

      In the above quote Prime minister means the chief minister of a province.

      He clearly said the initiation should come from state's legislature but not by parliament.

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    5. Satya,

      Let us first resolve the provinces vs. states question:

      Mr. Shah suggested adding a proviso requiring that a proposal relating to boundat/name/area of a "state" should originate from its proviso

      Dr. Ambedkar proposed a proviso with two legs. The first relates to states in part I of first schedule ("provinces") and requires only ascertaining of views. The second relates to states in part III where "previous consent" is required.

      Dr. Ambedkar explains the reason for the different approach: "With regard to (b), the provision is that there shall be consent. The distinction, as I said, is based upon the fact that, so far as we are at present concerned, the position of the provinces is different from the position of the States. The States are sovereign States and the *provinces are not sovereign States*. Consequently, the Government need not be bound to require the consent of the provinces to change their boundaries; while in the case of the Indian States it is appropriate, in view of the fact that sovereignty remains with them, that their consent should be obtained".

      It may be noted part III did not finally make it to the constitution. This is the reason why the second leg of the proviso remained stillborn.

      Turning to the other point, Dr. Ambedkar points out to the consulting process. Let us note the sequence of events: 1) cabinet (president) decision, 2) reference to assembly for ascertaining the views 3) parliament approval & 4) assent. Dr. Ambedkar argues that this sequence ensures that the assembly's views are ascertained *before* the parliament debates & votes on it. To that extent the assembly is deemed to be the initiator. This is why he submits the Shah amendment to be unnecessary.

      In any case, the "intentions" behind a legislation are to be applied *if and only if* the text of the language is ambiguous or unclear in some way. This principle is upheld by all jurists. As the language of article 3 is crystal clear, any debate on the "legislative intent" is unnecessary.

      I appreciate there are many people who are unhappy with the way article 3 is phrased. These folks are best advised to initiate an amendment under article 368. Persisting with res judicata arguments does not add to the quality of discourse.

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    6. Strictly speaking, this conversation is unrelated to the current post. Having allowed Anon's comment, I am allowing rejoinders. I will appreciate if all commenters stick to the subjects already raised in this thread.

      Satya, for the record, I appreciate your research & presentation. Really glad to see you at my blog.

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    7. On second thoughts: having unwittingly opened the "can of worms", it may be best to continue to its logical conclusion. Let us see how many of the CA members supported Prof. KT Shah's implicitly stated "consent requirement" amendment.

      Ten members including Dr. Ambedkar opposed the idea that the consent of "provinces" should be mandatory. I am classifying Chaudhari Ranbir Singh & Brajeshwar Prasad as those opposed the idea based on their intent.

      Dr. BR Ambedkar: "The distinction, as I said, is based upon the fact that, so far as we are at present concerned, the position of the provinces is different from the position of the States. The States are sovereign States and the provinces are not sovereign States. Consequently, the Government need not be bound to require the consent of the provinces to change their boundaries; while in the case of the Indian States it is appropriate, in view of the fact that sovereignty remains with them, that their consent should be obtained".

      K. Santhanam: "Take the case of the Madras Province for instance. The Andhras want separation. They bring up a resolution in the Madras legislature. It is defeated by a majority. There ends the matter. The way of the Andhras is blocked altogether. They cannot take any further step to constitute an Andhra province".

      Pandit HN Kunzru: "I am not asking that the States should have no voice in connection with matters relating to their territorial limits. All that I am asking for is that the consent of the States should not be necessary for a reorganization of their territories. Consultation with them should be quite enough".

      Pandit TD Bhargava: "For example, if any part of a big province wants to break away then the only course before it is to bring the matter before the Members. But by doing so the very purpose would be defeated because the majority would always reject such a proposal".

      Gopikrishna Vijayavargiya: "I think, mere consultation would be sufficient in the matter of the States also as it is in connection with the Provinces".

      Prof. SL Saksena: "My honorable friend Pandit Kunzru has also argued that there should be no differentiation at least in this matter namely about consent and consultation. He wants that the States should only be consulted just like the Provinces. He has also pointed out Sections in the Draft Constitution where the States have been asked to fall inline with the Provinces, and I think he has made out a very good case. I am very much in agreement with all that he said".

      L. Krishnaswami Bharathi: "Sir, I fully support Dr. Ambedkar's amendment and the principle underlying it. He said that in the case of Provinces, that is Part I States, mere consultation is enough, in the case of Indian States previous consent is necessary".

      Chaudhari Ranbir Singh: " I no doubt support the amendment but at the same time I want that it should be changed so as to include without any doubt the provision that when the Centre consults the provincial legislature the opinion of the majority of the representatives of the territory, which wants to separate itself and join another province, should also be on record and that their recorded opinion should appear before the Central Assembly so that it may know what that particular territory desires".

      Continued further due to comment size limits

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    8. Continuing from the previous:

      RK Sidhwa: "With these observations, I support the amendment strongly and I hope Dr. Ambedkar will clear the point why a differentiation has been made in the case of the States, why he has stated that the views of the legislature should be ascertained in the case of the provinces, whereas in the case of the States he has stated that their previous consent should be obtained".

      Brajeshwar Prasad: " The Government of India must have the power to takeover the administration of a State into its own hand, if it does not govern well or in accord with spirit of the Constitution. Similarly it must have the authority to punish a recalcitrant state which under the stress of centrifugal forces tends to drift away from the Centre".

      Four members including Prof. Shah supported the idea that the consent of "provinces" should be mandatory. I am classifying RK Chaudhari as those who supported the idea based on the intent even though they actually supported Dr. Ambedkar's text.

      Prof. KT Shah: "Lest I should be misunderstood, I would at once add that I am certainly not in love with the present position, or the continuance of the alignment of the provinces and States as they stand today. They need to be altered, they must be altered. But they must be altered only as and how the people primarily affected desire them to be altered, and not in accordance with the preconception, the notion, of such adjustment that those at the Centre may have, even if some of those at the Centre are the representatives of the people concerned".

      Rai Bahadur SN Sahaya: "I feel that in both the cases of the Provinces and the Indian States, the words 'previous consent' should occur".

      Rohini Kumar Chaudhari: Merely because the States now are showing their inclination to come and join us in all matters, we must not ask them to agree to a proposition whereby you will be able to alter their name, diminish their area, or change their boundary or do anything of that kind, without their consent.

      HV Kamath: "So also if the provinces are consulted and if their views are against such a proposal, then that proposal will not be made in the Union Parliament".

      One member, Raj Bahadur, may be treated as non-committal.

      So the final tally is 10 against, 4 in favor and 1 neutral. I hope this sets at rest what the "intent" of the constitution framers really was.

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    9. Jai, I think you are mixing up 2 different things. If I go thru the CA debates it appears there is no difference of opinion when it comes to consent of states. (in the sense of province vs states)

      But prof. KT Shah's question is directed towards the provinces of India, though he used the word "state" in the sense center vs state. not province vs state.

      with this clarity, let me put down KT Shah's amendment and Ambedkar's response.

      Prof. KT Shah: Sir, here is a proposal to consult first the Legislature of the State, whose name or boundaries are proposed to be altered, or whose areas are proposed to be increased or diminished. We are all aware that the existing Units which make up this Federation are not equal inter se are not logical, are not happily constructed so as to minister to the development of the country or even of the areas themselves. It is necessary, and it will soon perhaps have to be implemented in some form or another, that these areas be reconstructed. That would mean that their boundaries, perhaps even their name, and their territories, may be altered, upwards or downwards. If that becomes necessary, then I submit the proper course would be to consult the people themselves who are affected, if not by a direct Referendum to the people affected, at least by a consultation of the legislature, rather than that the change be imposed from above, as in may opinion the clause as it stands requires. The parties primarily affected are the people themselves of the areas whose boundaries or name is to be altered, or whose position has in any way to be reconstructed. And it is but a simple proposition - a mere matter of fundamental principle I submit - that you should in a democratic regime consult the peoples affected, and not merely lay it down from above.I recognize that the article as it stands provides that in any such event you should have either a representation from the representatives of the people in the Central Parliament to suggest such an alteration, or alternatively the President should have received some such re-presentation from the people concerned. But it will be the act of the Central authority, and not of the people primarily affected to suggest this variation. I submit that is in principle a wrong approach.

      Any question which relates to the alteration of the present units, their territories, boundaries or name, should begin with the people primarily affected, and should not come from the authority or power at the Centre. The authority at the Centre obviously is not familiar with local conditions; or they may have other outlook, may have other considerations, other reasons, for not accepting or agreeing to such a course. The authority at the Centre, even if moved by the representatives of the areas concerned by some resolution or other procedure, may be guided by the very few persons which, under any scheme of election, will constitute the representatives of those areas in the Central Parliament; and not really consult the entire population, the adult voters of the areas concerned, which I submit is the first requirement of any such readjustment.

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    10. [Continuaton..]

      I make it imperative, therefore, that the first proposition, the initiation of the movement either to integrate or to separate, either to readjust the boundaries or to bring about any new form of configuration, must commence with the people themselves. There is another consideration in the matter, which also should not be ignored, namely that in any such readjustment, it will not be one single group that will be affected or concerned; there may be at least two or more which are likely to be affected; and as such the representatives of those two groups, or those more than two groups in the Central, may not be quite competent to reflect the views of the people as a whole. I admit that in democracy majority rule should prevail. But the majority has not the monopoly of being always right and still less to be always just. If that is so - and I strongly believe it is so - then I submit that the only cure, if you wish to retain democracy, is to secure the assent in advance, to make the initiation, from the beginning, from or by the people concerned in suggesting such readjustment.

      If you go thru the above text, KT Shah is not particular about sovereign 'states' but any territories of India.

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    11. Continuation...

      so, here is the response of Dr BR Ambedkar..

      Mr. Vice-President, if one were to compare the amended proviso with the original proviso as it was set out in the Draft Constitution, the Members will see that the new amendment introduces two changes. One is this: in the original draft the power to introduce the Bill was given exclusively to the Government of India. No Private Member of Parliament had the power, under the original draft, to propose any legislation of this sort. attention of the Drafting Committee was drawn to the fact that this was a somewhat sever and unnecessary curtailment of the right of the members of Parliament to move any motion they liked and in which they felt concerned. Consequently we deleted this provision giving the power exclusively to the Government of India, and gave it to the President and stated that any such Bill whether it was brought by the Government of India or by any private Member should have the recommendation of the President. That is one change.

      In the case of (a), that is to say, reorgaisation of territories of States falling in Part I, all that is necessary is consultation. Consent is not required. All that the President is called upon to do is to be satisfied, before making the recommendation, that their wishes have been consulted.

      As regards the amendment moved by Prof. Shah, I do not see much difference between my amendment as contained in sub-clause (a) of the new proviso and his. He says that the discussion shall be initiated in the States. My sub-clause (a) of the proviso also provides that the States shall be consulted. I have not the least doubt about it that the method of consulting, which the President will adopt, will be to ask either the Prime Minister or the Governor to table a resolution which may be discussed in the particular State legislature which may be affected, so that ultimately the initiation will be the local legislature and not by the Parliament at all. I therefore submit that the amendment of Professor Shah is really unnecessary.

      with the above discussion it is ample clear that..

      1. Both Ambedkar and Shah wanted an important role for state legislature (in a sense both effected parties) to be performed

      2. Another significant point is, unlike the other bills, the bill for state reorganization should be introduced by president, Not the otherway round.
      3. Ambedkar agreed to the concern of KT shah that the initiation should be from legislature and not by the parliament at all.

      as quoted in my previous comment, the framework checkmates any kind of tyranny of majority. If state legislature try to bulldoze the minority opinion, the parliament can overturn and if parliament is doing it (like int case of AP) the president can stop it.

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    12. There is no doubt whatsoever that Prof. Shah wanted two conditions for part I states (aka provinces):

      S1: The bill should originate in the state assembly
      S2: A bill that is defeated in the assembly should not proceed to the parliament. This is implicit from his argument.

      Dr. Ambedkar suggested the following legislative route:

      L1. Bill is referred by the President to the state assembly for its views
      L2. Parliament takes the final decision by voting on an official or private bill

      There are several non-legislative processes that happen before this:

      NL1: Cabinet considers the reorganization on its own
      NL2: Cabinet forwards the decision to President
      NL3: President accepts the decision

      For brevity & convenience, I omitted article 74 (2) related aspects above.

      Dr. Ambedkar contended that L1 meets Prof. Shah's request S1. He clearly negative S2.

      "Both Ambedkar and Shah wanted an important role for state legislature (in a sense both effected parties) to be performed"

      Agreed. Prof. Shah wanted "prior consent" but Dr. Ambedkar was only agreeable to "views to be ascertained". The majority of speakers (as well as the final text) disagreed with Prof. Shah.

      "2. Another significant point is, unlike the other bills, the bill for state reorganization should be introduced by president, Not the otherway round"

      No. The President only "refers" the bill to the assembly

      "Ambedkar agreed to the concern of KT shah that the initiation should be from legislature and not by the parliament at all"

      Yes but after steps NL1-NL3 that Prof. Shah did not want. Dr. Ambedkar merely said L1 accommodates S1.

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    13. Another point to be noted. Though Dr. Ambedkar headed the Drafting Committee, his views can't be deemed to prevail over the majority. This goes for all others, including luminaries like Prof. Shah, Pt. Kunzru or HV Kamath.

      Plumping for one individual's views when they are in a clear minority may suit one's interests but can't provide the "shield of legislative intent" (which itself is unnecessary in unambiguously worded subjects).

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    14. NL2: Cabinet forwards the decision to President
      NL3: President accepts the decision


      Here is the difference. Between NL2 and NL3, the President should consult the state legislature. Then *only* the bill should be recommended by president, though it need not bear the opinion of legislature.

      >> Another point to be noted. Though Dr. Ambedkar headed the Drafting Committee, his views can't be deemed to prevail over the majority.

      No. I am taking the Ambedkar 'personal' views here. I am just taking his 'official' explanation for article 3 and its provisions.

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    15. "Between NL2 and NL3, the President should consult the state legislature"

      This may be what you want. However I am not sure if it is permitted by article 74.

      In any case, this is not what Dr. Ambedkar in response to Prof. Shah.

      "I am taking the Ambedkar 'personal' views here. I am just taking his 'official' explanation for article 3 and its provisions"

      So am I. One individual's "position" is *not* equal to "legislative intent". Otherwise it would defeat the entire constitutional process.

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    16. oops sorry.. read the last para in my above comment as "I am not taking the Ambedkar 'personal' views here. I am just taking his 'official' explanation for article 3 and its provisions"

      Delete
    17. article 74 is when the bill goes to president from cabinet. Here is what article 3 got exclusivity. The bill should be introduced by president. since there is no difference of opinion btwn President and cabinet in the states formed so far, it cannot be taken as a norm that cabinet had authority to do so

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    18. In fact I did not notice the missing "not" :)

      Under article 74, the President has no right to reject cabinet advice. The best he can do is to return it *once only* for consideration. The advice becomes binding once it is forwarded by the cabinet a second time (with or without changes).

      I am not sure if the President can consult the state legislature between NL2 NL3. This could be tantamount to releasing the cabinet decision to the public domain.

      In any case, this is not what Dr. Ambedkar (or even Prof. Shah for that matter) suggested, much less the law of the land.

      "The bill should be introduced by president"

      Not feasible as the article currently stands. The President can only "refer to the legislature", not introduce the bill.

      "since there is no difference of opinion btwn President and cabinet in the states formed so far, it cannot be taken as a norm that cabinet had authority to do so"

      Article 74 is clear on this. The President has no overriding powers over the cabinet.

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  2. Jai, simply amazing. I am now a fan of your's :)

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    1. Thanks. In fact it is not too difficult to look through the maze of conflicting information. All it takes is patience in sorting through the detail.

      I am not surprised that a layman like ABK Prasad failing to separate rice from chaff. A legal expert like Jandhyala falling for wrong information is however beyond me.

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  3. Andhra Pradesh State Government Non Gazetted Officers' Association (APNGOA) President P Ashok Babu said here today that unless Article 371(D) of the Constitution is either amended or scrapped, Andhra Pradesh cannot be bifurcated. He told reporters here today that convening an all party meet by the Union Home ministry to discuss the issue of bifurcation of Andhra Pradesh is merely an eye wash by the union government and the all-party meet may not serve any purpose. However, he demanded that the union government should discuss the bifurcation issue with all stake holders and all political parties. He said that an all-party meet should not decide major issues like bifurcation of Andhra Pradesh. He said that both the state as well as union governments are confused and prolonging the process in the name of an all-party meet and the constitution of a Group of Ministers would not be ideal. "We do not recognise the group of ministers which deals with issues after the bifurcation," he said. Ashok Babu said that all organisations fighting against AP's bifurcation will meet on November 4 to finalise their future course of action and also decide the dates to meet the President of India, the Prime Minister and other national leaders of political parties. He said that the Samaikhyandhra movement for a "united" Andhra Pradesh, would be intensified when the bill is placed before the assembly either for discussion or voting.

    http://www.greatandhra.com/politics/gossip/ap-bifurcation-impossible-due-to-article-371d-51054.html

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    1. Ashok (not sure if this is your real name?),

      If Ashok Babu was so confidant, he should not have gone in for the long strike that imposed immense suffering on his fellow employees.

      Delete
  4. >> It is an accepted position that a law (whether a piece of legislation or an executive order) would continue to be valid in the entire original territorial jurisdiction unless repealed or modified by a competent authority.

    Then how mulki rules were not existed in kannada, maharashtra regions of erstwhile hyd state, when these regions became part of their respective states?

    why article 371(1) is specially introduced by AP?


    AFAIK, article 371 is a special case which is applicable to states. any changes there of, in view of the state boundaries will not implicitly applicable if the said boundaries change. It requires amendment.

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    1. Were Mulki rules invalidated in HK & Marathwada? The question has never been tested judicially.

      The various articles under part XXI are "temporary, transitional & special provisions". BTW articles 371 & 371-B were amended under the provisions of article 4 (1).

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    2. >> Were Mulki rules invalidated in HK & Marathwada? The question has never been tested judicially.

      Actually, acc. to ur post, it is the other way which(non validity of mulki rules) need to be questioned judicially as mulki rules for these regions continue to exist 'automatically' and valid.

      That is what I am saying. Article 371 D requires amendment. It will not become 'implicit'

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    3. As per the judgment in Venkata Reddy case, Mulki rules (relating to domicile) survived reorganization. Therefore the rules survived in Marathwada & HK too.

      Section 2 of the act (repealing Mulki rules) was struck down *only* with respect to Telangana. The section applies to other parts of the country. Therefore Mulki rules were repealed in these two regions as of 1959 through the legislative powers exercised by the competent authority.

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  5. Jai, there is another misconception on supreme court upholding the mulki rules. The judgement did not consider who a mulki is.I guess, it considered the entire state ppl as mulkis.

    because, the andhra pradesh public employment act, which enables spl provisions for only to ppl of telangana region (in other case mulkis) was stuck down by supreme court as unconstitutional.

    So, supreme court upholding mulki rules is not in the same context/meaning of how separatists are proclaiming.

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    1. Which case are you referring to. Please read Director Of Industries v. V. Venkata Reddy & Ors, 1972, to appreciate what the court actually ordered. BTW the learned judges applied "legislative intent" in deciding the case.

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    2. I am referring to AVS Narasimha rao vs state of Andhra pradesh.

      I have gone thru the judgement u mentioned. actually there is another judgement after that by AP high court giving a different definition of mulki which dont apply to native telangana ppl.

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    3. Let us trace the sequence of developments on the Mulki rules front. It is a long but interesting journey.

      Article 16 relates to equality of opportunity in public employment. 16 (2) specifically forbids discrimination "on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them". 16 (3) however permits parliament to make "any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment".

      Article 35 (b) reserves to the parliament (and not any state legislature), the powers over "any law in force immediately before the commencement of this Constitution in the territory of India". In other words, Mulki rules, to the extent they relate to domicile, continue to be in operation unless repealed or amended by parliament

      Accordingly The Public Employment (Requirement as to Residence) Act, 1957, was enacted on December 7, 1957.

      Section 2 of the act repealed "any law then in force in any State or Union territory by virtue of clause (b) of article 35 of the Constitution prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, that State or Union territory, any requirement as to residence therein prior to such employment or appointment". In other words, Mulki rules were repealed by this section.

      Section 3 of the act empowered the central government to issue rules regarding appointments to subordinate services for Telangana domiciled individuals.

      Section 5 of the act provided for a duration of five years (later changed to fifteen years).

      This was formalized through the Andhra Pradesh Public Employment (Requirement as to Residence) Rules, 1959. In other words, protection similar to Mulki rules was reintroduced through section 3 albeit for a limited period till 1974.

      The Supreme Court in AVS Narasimha Rao and Ors v. Andhra Pradesh and Anr, 1969, struck down section 3 of the act insofar as it pertains to Telangana and the 1959 Rules on the ground that it violates article 16. The court held the term "state" in 16 (3) can only refer to a state and not a region.

      Delivering the unanimous decision of the five judge bench, Justice Mohammad Hidayatullah held: "Section 3 of the Public Employment (Requirements as to Residence) Act, 1957 in so far as it relates to Telangana (and we say nothing about the other parts) and Rule 3 of the rules under it are ultra vires the Constitutions". Regarding the continuation of Mulki rules, the learned judge wrote: "It was argued that the Mulki Rules existing in the former Hyderabad State must continue to operate by virtue of Art. 35 (b) in this area. This point is not raised by the petitions under consideration and no expression of opinion by us 'is desirable".

      Continued further due to comment size limits

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    4. Continuing from the previous:

      The AP high court looked at the question left open in P. Lakshmana Rao v. Andhra Pradesh and Ors, 1970. The main question was if section 2 of the act that repealed Mulki rules survived the striking down of section 3. Applying the test of "legislative intent", Justice Gopal Rao Ekbote (writing for himself & Chief Justice N. Kumarayya) held: "The test which normally followed is whether or not the Legislature would have passed the valid provisions, Section 2 in this case, had it been presented with the invalid Sections 3 to 5 removed. It is difficult to assume that the Parliament would have ever intended to enact Section 2 alone". Accordingly section 2 was also struck down insofar as it pertains to Telangana. Mulki rules were thus held to have survived (or revived) in its post-1948 extent. Justice Avula Sambasiva Rao delivered a separate but concurring judgment agreeing with the majority ruling.

      The matter then came up before a five judge bench of the high court. While unfortunately I can't find the full judgment text on the Internet, snippets are available from the Director of Industries v. V. Venkata Reddy & Ors, 1972. The bench by a 4-1 majority (Justice Konda Madhava Reddy dissenting) held: "the Mulki rules are not valid and operative after the formation of the State of Andhra Pradesh. In any event, they do not revive and cannot be deemed to be valid and operative in view of the decision of the Supreme Court in AVS Narasimha Rao's case". This judgment effectively overturned the judgment in Lakshmana Rao's case.

      Director of Industries v. V. Venkata Reddy & Ors, 1972, is a landmark case. The five judge bench delivered a unanimous judgment virtually upholding the contentions of Justice Ekbote & Justice Madhava Reddy.

      Chief Justice Sikri held the Mulki rules survived the formation of AP by virtue of article 35 (b). The learned judge held: "That this is the proper question follows from the words "notwithstanding anything in the Constitution". This expression equally applies to art. 35(a) and art. 35(b). In art. 35(b) the effect of these words is not only to continue 'he impugned rules but to continue them until Parliament repeals, amends or alters them. It seems to us that the effect of reorganization of States made under arts. 3 and 4 of making Telangana a part of a new State has to be ignored under art. 35(b) it must be remembered that art. 35(b) is a part of the Chapter on Fundamental Rights-would be liable to be taken away by the re-organization of States. It cannot be denied that the purpose of reorganization of States is not to take away fundamental rights".

      The court recalled that Narasimha Rao case was concerned only with section 3 of the act. The learned court held: "This Court specifically held that S. 3 was bad insofar as it dealt with the Telangana region. We hold that s. 2 is also bad insofar as it dealt with Telangana area"

      An interesting part of the judgment is that the time limit set in section 5 of the act vanished. Mulki rules would continue to hold good till amended or repealed by the parliament.

      Delete
    5. Wow, you are a profesar!

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    6. With all due respect to the Apex court, I feel the issue should have handled comprehensively. I see a lack of a holistic view in these judgements and conflicting opinions between various judgements.

      If I understand these 3 judgements correctly,

      1. In Venkat Reddy's case the supreme court upheld the validity of mulki rules on the basis and consideration of art 35(b)
      2. Where as article 35(b) refers to article 16(3) indirectly.
      3. As per article 16(3) the domiciliary rules apply to a state or union territory but not to a region. Based on this premise, the court invalidated the public employement act clause 3 and called mulki rules as unconstitutional.
      4. In Laxman Rao's case the court opined mulki rules continue to operate in the said regions of respective states based on reorganization act.

      with such judgement, the mulki rules in k'taka hyd region and marathwada regions continue to exist based on article 35(b) and reorganization act and cannot be repealed based on article 16(2). With this there would not any requirement of article 372(I) which amended recently for hyd-k'taka region.

      There are lot of questions left unanswered/not considered by the court as they dealt with only with in the scope of each case.

      so, it is unclear to me whether the mulki rules continued from former hyd state based on article 35(b) or because the parliament enacted new rules based on article 16(3), which intern termed as unconstitutional.

      another surprise is why nobody from hyd-k'taka or marathwada challenged their state. govts based on these judgements.

      And the final twist is the after all these judgements, the andhra pradesh high court has given a new definition of mulki in its judgement, terming those who are natives are not mulkis but only came from outside and lived in hyd state for 15 yrs. :D

      Here is another fun part: The hyderabad govt before reorganization tried to repeal the mulki rules or alter it seems from the original rules. http://oi43.tinypic.com/n4wcco.jpg

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    7. There are three "releases" of the Mulki rules.

      The original one (say R1) contained certain elements relating to sovereignty (e.g. subject of Hyderabad, loyalty to HEH Nizam) that did not survive the constitution.

      The balance of the Mulki rules (let us call it R2) survived the constitution under 35 (b).

      Section 2 of the Public Employment (Requirement as to Residence) Act, 1957 abolished R2. Section 3 enabled the parliament to create similar laws. Andhra Pradesh Public Employment (Requirement as to Residence) Rules, 1959, created what can be termed as Mulki Rules R3. These were initially valid till 1964 & later extended to 1974.

      The apex court in the Narasimha Rao case held section 3 (and the associated R3 Mulki Rules) ultra vires insofar as Telangana is concerned as they violated 16 (3).

      In Venkata Reddy's case, the honorable court struck down section 2 as well with respect to Telangana. Mulki Rules R2 were thus revived. These were to be valid till amended/repealed by the parliament.

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    8. Section 2 repealed the Mulki rules throughout the erstwhile Hyderabad state. Section 3 reestablished Mulki rules (R3) only for Telangana.

      Sections 2 & 3 were both struck down *only* insofar as it relates to Telangana.

      Therefore, section 2 survives in HK and Marathwada).

      Mulki rules (R2) were thus applicable for a very brief period in these areas. I do not know if they were ever implemented (I guess not).

      FYI Bellary is a part of the HKSS "special treatment". The area is not identical to what we normally term "Hyderabad Karnatak".

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    9. "And the final twist is the after all these judgements, the andhra pradesh high court has given a new definition of mulki in its judgement, terming those who are natives are not mulkis but only came from outside and lived in hyd state for 15 yrs."

      I am really skeptical about this. AFAIK, Mulki rules (both R2 & R3) were based on domicile irrespective of place of birth.

      I can't conceive of a situation where a "native" is denied Mulki status even after meeting domicile requirements. This would be a blatant violation of 16 (2). Even if (a big if) AP courts decreed this, the Supreme Court would have overturned the judgment.

      Can you provide me the source (either the case details or link), thanks.

      I will disregard this till then.

      Do you know the date of Bindu's statement please?

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    10. Judgement given on 17th february 1973. Kondal rao vs state of Andhra Pradesh

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    11. This comment has been removed by the author.

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    12. Reposting after correcting a typo:

      Satya, I tried hard but could not find the full text of this judgment anywhere.

      On SKC (page 75), I find:

      "The Andhra Pradesh High Court on February 16, 1973, declared that people from outside who came to Telangana and settled there could *also* be Mulkis and not only those who were born and brought up in Telangana"

      It appears there is another version of Mulki rules! As per SKC (page 74) R4 was enacted by the parliament on Dec-31-1972 (in the post-Venkata Reddy situation). This sought to limit Mulki rules till 1977 (Hyderabad)/1980 (rest of Telangana). This (and not R2 as I thought earlier) was finally repealed in the post-SPF days.

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    13. >> people from outside who came to Telangana and settled there could *also* be Mulkis and not only those who were born and brought up in Telangana"

      Dont u see the keyword *also* is incorrect by the follow thru line.
      "As a result of this decision, the Telangana people claimed that they lost the benefit of the Mulki Rule. "

      How will Telangana ppl loose if others *also* become mulkis? especially The original rule itself have such provision?

      The judgement is based on the rule 1(B) and rule 3 of mulki rules, on which supreme court gave verdict in Venkat reddy's case. The act in this case is "Hyderabad Civil Service Regulations promulgated by Nizam's Firman dated 25th Ramzan 1337H--Mulki Rules--Validity of-- Rule 1(b) and r. 3"


      Now what rule 1(b) says..

      (b) by residence in the Hyderabad State he has been entitled to be Mulki, or

      rule 3

      3. A person shall be called a Mulki who has a permanent residence in the Hyderabad State for at least 15 years and had abandoned the idea of returning to the place of his previous residence and has obtained an affidavit to that effect on a prescribed form attested by a Magistrate.

      Both referring in a sense for *outsiders*.

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    14. Bindu's statement is on 1954 June18

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    15. I agree *also* is inconsistent with the claim that Telanganites allegedly bemoaned their "loss".

      But the *only* interpretation does not explain another case that SKC is referring just after this.

      "In another development , on July 11, 1973, the Andhra Pradesh High Court gave another verdict that Mulki Rules would apply to initial recruitment and nor for subsequent stages of promotion, seniority, reversion, retrenchment or ousting from service, whether temporary or permanent".

      The text of this judgment is also not available on the Internet.

      The "also or only" tie can be broken only on reading the full text of the judgments. Perhaps these in paid subscription legal engines that I don't have access to.

      The text of the rules in Venkata Reddy's case is from R1 version. What is needed is the R2 text (after omitting sections that became inoperative after the constitution came into being).

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    16. The story on Bindu's statement is rather confusing. I guess he was speaking to the press after receiving a communique from the center.

      Lakshmana Rao's case refers to Hyderabad General Recruitment Rules issued by the Rajpramukh in 1955. While the court did not settle the question if the Rajpramukh's action was legal or not, it does show that the 1954 Bindu story was not the final interpretation of the Government.

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  6. Looks like the high court refused to interfere with the judicial process.

    http://www.namasthetelangaana.com/turningpoint/article.asp?category=1&subCategory=2&ContentId=298183

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    1. Another report on the judgment:

      http://www.deccanchronicle.com/131107/news-current-affairs/article/court-upholds-prez-power-split-ap?page=show

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  7. Jai, the following has been extracted from the Objects and Reasons attached to the 33rd Amebdment Bill which got enacted as 32nd Amendment Act to insert Article 371D and Article 371E.

    "Recently several leaders of Andhra Pradesh made
    a concerted effort to analyse the factors which have been giving rise
    to the dissatisfaction and find enduring answers to the problems with
    a view to achieving fuller emotional integration of the people of
    Andhra Pradesh. On the 21st September, 1973, they suggested certain
    measures (generally known as the Six-Point Formula) indicating a
    uniform approach for promoting accelerated development of the backward
    areas of the State so as to secure the balanced development of the
    State as a whole and for providing equitable opportunities to
    different areas of the State in this matter of education, employment
    and career prospects in public services. This formula has received
    wide support in Andhra Pradesh and has been endorsed by the State
    Government."

    The point to be noted here is " find enduring answers to the problems with
    a view to achieving fuller emotional integration of the people of
    Andhra Pradesh". The Union Government cannot unilaterally (without the consent of the impacted State legislature) divide the Andhra Pradesh State against the "spirit" of the Article 371D. The very purpose of Article 371D is to assuage the feelings of job losses to another region on the hand and lack of jobs in their capital city on the other. So, in the event of a separatist movement from Telangana in 1969, and in Andhra in 1972, the Parliament enacted a constitutional amendment to provide special provisions which in general are violative of the fundamental right to equality and in breach of the Constitutional tenets but specifically focussing on doing justice to the people concerned. This Article 371D provides a constitutional guarantee to the Six Point Formula agreed the representatives of the three regions of the State, which was also ratified by the State Government ( legislature is obviously implied). Moreover, the same Objects and Reasons state that " When the State of Andhra Pradesh was formed in 1956, certain
    safeguards were envisaged for the Telangana area in the matter of
    development and also in the matter of employment opportunities and
    educational facilities for the residents of that area. The provisions
    of clause (1) of article 371 of the Constitution were intended to give
    effect to certain features of these safeguards.The provisions of clause (1) of article 371 of the Constitution were intended to give effect to certain features of these safeguards. The Public Employment (Requirement as to Residence) Act, 1957, was enacted inter alia to provide for employment opportunities for residents of Telangana area. But in 1969, the Supreme Court held the relevant provision of the Act to be unconstitutional is so far as it related to the safeguards
    envisaged for the Telangana area."

    I don't think i or anyone else need to say more that the discriminatory domicile requirements set in favour of Telangana were struck down by the Supreme Court and that is also one of the reasons that the Article 371D came into picture.

    If the State of Andhra Pradesh gets divided, then the Parliament may question what is the need for any special provisions to either Telangana or Seemandhra; since there is no specific need for "achieving fuller emotional integration of the people" of either State. It is like two fighting cats gave the bread to a monkey for judgement, which ate the whole pie deceiving both the cats.

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    1. The statement of objects has two paragraphs. The first provides general background. The second paragraph provides the legislative intent:

      "This Bill has been brought forward to provide the necessary constitutional authority for giving effect to the Six-Point Formula in so far as it relates to the provision of equitable opportunities for people of different areas of the State in the matter of admission to educational institutions and public employment and constitution of an Administrative Tribunal with jurisdiction to deal with certain disputes and grievances relating to public services".

      In any case, the "intentions" behind a legislation are to be applied *if and only if* the text of the language is ambiguous or unclear in some way. This principle is upheld by all jurists. As the language of article 371-D is crystal clear, any debate on the "legislative intent" is unnecessary.

      Delete
    2. "legislature is obviously implied"

      Not so obvious to me. Can you cite the relevant assembly resolution?

      "The very purpose of Article 371D is to assuage the feelings of job losses to another region on the hand and lack of jobs in their capital city on the other"

      Please see the seven purposes I listed. No other purpose is applicable.

      "discriminatory domicile requirements set in favour of Telangana were struck down by the Supreme Court"

      Please see the Venkata Reddy case

      Delete
  8. Will Seeamandra people be eligible for non-local quota after bifurcation?

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    1. There is no concept of non-local quota. Article 371-D refers only to "preference or reservation".

      The presidential order similarly speaks of "x% of the posts to be filled by direct recruitment any time .... shall be reserved in favour of local candidates in relation to the local area in respect of such cadre".

      The number x is different for different categories.

      The other jobs (100 minus x) are "open" i.e. both locals & non-locals can compete for these on merit basis.

      There is no rule that the non-locals should be from AP. Every Indian outside the local area can compete for these jobs. An applicant from Vijayawada, Warangal, Bangalore or Delhi is equally non-local in Tirupati/Vizag.

      If 371-D & presidential orders are continued in Telangana, Seemandhras can compete for the unreserved jobs like anyone else. In fact, if zones 5 & 6 continue as it is, Warangal, Vizag & Calcutta people will all be non-locals in Hyderabad.

      The situation on education is similar.

      Two more points:

      1. The definition of "local" depends on domicile, not factors like place of birth. An Andhra born person will be a local in Telangana if he lives for the required number of years. A Telangana born person will become non-local if he fails to do so.

      2. Parliament can under article 16 (3) prescribe appropriate domicile for public employment in any state. Telangana can use this route to bypass (and opt out of) article 371-D.

      Delete
  9. Very interesting read Sir. Keep up the good work. :)

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    1. Thanks a lot.

      I am pleased to receive an acclaimed legal expert at my blog.

      Delete
    2. Dear friends,

      Mr. Suyash Verma runs the popular & exemplary Desi Kanoon web site. He shares his erudite views on several interesting (and important) legal matters.

      Please see www.desikanoon.co.in to benefit from his opinions.

      Regards,

      Jai

      Delete
  10. Looks like the High Court reached similar conclusions in PV Krishnaiah's PIL.

    http://missiontelangana.com/contentions-about-article-371d-are-absurd/

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    1. The complete judgment is now available.

      http://missiontelangana.com/ap-high-court-judgement-on-article-371d/
      http://indiacurrentaffairs.org/high-court-judgement-on-article-371-d/

      Is article 3 a part of the basic structure? The honorable court tilted to this view opining "Article 3 in our view has empowered Parliament to regulate and preserve Federalism as enshrined in the Constitution. In that sense, *it is one part of basic structure* of the Constitution".

      Can the court interfere with the state formation process? The court declined to do so holding: "How the Court can restrain the Union of India which is responsible for preparation of the Bill from acting under the Constitution, is *beyond our comprehension*. Such an order cannot be passed by this Court following the *one of the basic structure of the Constitution, namely separation of power*".

      On the contention that the non-obstante section 10 of article 371-D overrides articles 3 & 4, the learned judges observed: "Therefore, according to us, subject matter of this Article will have the overriding effect over *similar or corresponding subject matter* of any provision of Constitution or laws. For example, provisions of Articles 15 and 16 of the Constitution of India. In other words, it will have overriding effect in the same area and field and *not in different field*".

      The honorable court was skeptical about the contention that 371-D is a part of the basic structure: "How far Article 371D of the Constitution of India, which has been brought into existence *by way of amendment*, can stand to the test of theory of basic structure is also debatable".

      The contention that Telangana formation will frustrate the objective of article 371-D was found to be of no merit. "The petitioner submits that in the event the State is bifurcated in exercise of power of Article 3 of the Constitution of India, then the object as enshrined in Article 371D will be frustrated and rendered nugatory. We *do not find any merit* in this submission".

      The assertion that Telangana formation is not legal as long as article 371-D was dismissed as being absurd. Excerpt from the judgment:

      "The petitioner then argued that so long as Article 371-D is in force, no steps can be taken under Article 3 of the Constitution for forming a new State. Such argument is *absolutely absurd*. As we have already indicated that Article 3 operates in one particular field and this power is *originally given* by the framers of the Constitution to the Parliament by the Constituent Assembly and such power *cannot be abrogated or cannot be put on hold* at the instance of any citizen of India. Accordingly, we are unable to accept this contention that operation of Article 3 will remain suspended so long as Article 371-D is in force and is not amended. It is *an absurd proposition* suggested by the petitioner".

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  11. Mr.Jai, u have spoken a lot on Article 371(D) and Article 371E. But other jurists are of a contradictory opinion to yours.Some of them aver that both these articles have some connection wtih 7th schedule matters and hence need a special majority to be amended. With this back ground I would like to know your views on the following:
    - As the latest news reports suggest, the law ministry has recommended to GOM that article 371D certainly needs to be amended before taking up the T-bill.In fact it has recommended that amendement bill should also be moved in Parliament along with T-bill.Of course, the law ministry has yet to give its opinion whether it needs to be amended with a special majority ( as in 7th schedule matters) or a simple majority.
    - Is it not true that even if the Article 371D is not connected with 7th schedule, it still needs to be amended with 2/3 of the members present in houses(LS or RS)
    - The Article 371E relates to the setting up of a central university.This also needs to be amended becuase the central university has been set up for the State of "Andhra Pradesh". This needs to be amended before the T-bill is introduced.Otherwise how it is tenable that the residuary state of AP has its central University outside its boundaries.

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    1. I believe the question will be settled once the full text of the PV Krishnaiah case is available.

      "Some of them aver that both these articles have some connection wtih 7th schedule matters"

      Who? I have shown Jandhyala's claim to be wrong. Alternately anyone can check the various entries in the 3 lists & let me know the impacted entry number.

      "As the latest news reports"

      I don't go too much by news stories. There is too much kite flying.

      "it still needs to be amended with 2/3 of the members present in houses"

      No, the reorganization act can make "supplemental, incidental and consequential" amendments.

      Article 4 (2):

      "No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368"

      "This also needs to be amended becuase the central university has been set up for the State of "Andhra Pradesh"".

      The central university has been setup *in* AP, not *for* AP. In any case, AP here refers to the state as it stood on *that* day.

      "Otherwise how it is tenable that the residuary state of AP has its central University outside its boundaries"

      The central university is India's, not AP's. The phrase "its central university" is a contradiction of terms.

      The above reflects my understanding, not preference or "parroting".


      Delete
  12. t survive the court case no matter how long be it continued.
    Riders of the bicycles will also use the bicycle helmets
    for safety. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

    Here is my page; federal law reference

    ReplyDelete
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    1. Your link leads to an unrelated page.

      I don't understand the bike helmets context. Can you please provide the caselaw reference, thanks.

      "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people"

      Looks correct to me. Having said this how does it relate to the present post? I will be thankful if you can elaborate further.

      Delete

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