Background
The constitutional process of Telangana formation under
article 3 is about to reach the final stage.
There is widespread speculation that Nallari Kiran Kumar
Reddy (and other competing politicians/contractors) will mount a legal
challenge to somehow stave off the inevitable. Assorted ambulance chasers,
hoping perhaps to further either political fortunes and/or career
opportunities, are trying to fish in the troubled waters. In a situation where
Indian attorneys are not permitted to advertise, the alternate option of
"arguing in the media" is nevertheless tempting.
It is not out of place to remember here that the
anti-Telangana forces have huge resources (including perhaps the power of a cash
rich state funded by Telangana surpluses) at their command. Some of them were
able to mobilize the services of top notch (read highly paid) attorneys in
frivolous litigation.
The article
interpreting
a federal Constitution provides some fodder for such legal misadventures. Arghya
Sengupta and Alok Prasanna Kumar while repeating the bogey of "federal
spirit" that hitherto was confined to motivated politicians, attempt a
brave new uncharted approach.
The authors' contentions are summarized below:
·
The draft bill has been "decisively
rejected" by both the state assembly & council
·
Article 3 proviso (and indeed the article
itself) was introduced at a time when there was no real possibility of such a
disagreement
·
This is no longer the case. The Indian
federalism is changing as "aptly
demonstrated by the curious situation of a Congress government at the State
level defying its counterpart in power at the Centre"
·
Federalism is a part of the basic structure of
the Indian constitution
·
The Supreme Court verdict in SR Bommai v. Union
of India, 1994, is a game changer with a "deeper lesson"
·
The Bommai case together with AP assembly's
"rejection" of the draft Telangana bill (along with other similar
acts of defiance) call for a "reworked
understanding of federalism"
To give Sengupta & Kumar their due, they agree an
interpretation that holds the state legislature's views have no legal effect
"may indeed be the position of
the law as it stands today".
Even when arguing for "new federalism", they concede the assembly's
"views" are not "the last word on the matter. Such an
inference would be plainly
unconstitutional".
Their conclusion is however interesting: "However, it
is necessary that the Central government be required in law to adequately take into consideration the reasons
why the Andhra Pradesh Assembly rejected the Telangana Bill. This obligation
should be discharged in writing,
demonstrating a proper application of
mind with accompanying reasons as to why each recommendation has been
accepted or rejected. Without such consideration, the Andhra Pradesh Reorganization
Bill, 2013, if passed, would seriously
lack legitimacy and be inconsonant with the dynamic federal spirit of the
Constitution".
As we know, the groups fighting Telangana have a limited
time focus i.e. the next elections. They are primarily interested in holding
off Telangana formation till the polls hoping that the situation will change at
the hustling. Even if it does not change, they would have obtained a great deal
of mileage from the "I stopped Telangana" campaign.
The authors have unwittingly played themselves into the
hands of these anti-Telangana lobbies. Even assuming the recommendations do
reach the cabinet, assessing and/or implementing these in the limited time
available is not feasible. The concept of "new federalism" will be
welcome ammunition in the hands of vested interests. We can confidently expect
this will become one of the key focus areas in the "litigation swamp"
before the appointed day.
Let us look at the legal & constitutional matters raised
by the authors. The temptation to delve into the political sphere should be
resisted though.
Basic structure
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 mentions supremacy of the
constitution, republican and democratic form of government, secular character
of the constitution, separation of powers between the legislature, the
executive and the judiciary & federal character of the constitution as the
essential features. This basic structure is held to be "built on the basic
foundation, i.e., the dignity and freedom of the individual". The learned
judge held the seventh schedule,
representation of states in Parliament & the amendment process relating to
specified matters "can rightly be said to involve the federal structure
and the rights of the States". He reiterates this by stating the distribution
of powers is "the essence of
federalism".
It is worth noting that judges do not make laws. Therefore
it is erroneous to conclude the basic structure doctrine became a law with this
case. The doctrine should be understood as an interpretation of the
constitution right from day one.
Bommai case
The celebrated Bommai case (SR Bommai v. Union of India,
1994) involved the invocation of article 356 ("president's rule) in six
states. Three state governments (Karnataka, Meghalaya & Nagaland) had
dismissed based on a governor's report claiming loss of majority.
Four BJP states (including UP where the dismissed Chief
Minister did not file a legal challenge) were dismissed in the aftermath of the
Babri masjid demolition. The center contended these states would not implement
the ban (subsequently overthrown) against the RSS.
As all the cases related to article 356, they were tried
together. The verdict was pronounced almost 5 years from the date of Bommai's
dismissal. Interestingly enough, Bommai lost his Hubli (rural) seat by 3,000
votes in the elections held after his dismissal.
Six separate judgments were delivered on behalf of the nine
judges. The verdict is briefly stated below. I ignore disagreements and nuances
between the learned judges as it is not germane to the present exercise.
·
The powers conferred by article 356 are not absolute but conditional
·
The legal bar in article 74 (2) covers only the cabinet's advice but not the
material leading to the executive decision
·
A proclamation under article 356 is not immune
from judicial review covering the existence
& relevance of material leading to the decision
·
If a petitioner makes out a strong prima facie
case, the center is obligated to prove that the material existed and was
relevant
·
Judicial review is not synonymous with
justiciability
·
A dispute is justiciable if "judicially manageable
standards" can be applied
·
An irreversible action (e.g. dissolving the
assembly) may not be initiated unless Parliament approves the proclamation
under 356 (4)
·
Any state acting in a manner that
subverts/sabotages secularism is an adequate ground for invoking article 356
(1)
The honorable court held the proclamations in the first
three cases held unconstitutional while the BJP state cases were found to be
legal. However no relief was provided due to subsequent elections.
The case's significance stems from the following:
·
Eliminating arbitrariness from by insisting that
the three conditions specified in 356 (1) must be complied with
·
Strict interpretation of "cannot be carried on in accordance with the
provisions of this Constitution" in 356 (1)
·
Focus on "failure of constitutional machinery" in the article title
·
Application of the part title "emergency provisions"
·
Interpreting 356 (3) as an approval of the decision in accordance with the principle of legislative superiority
·
Freeing up the material behind the judicial
review decision by narrowly interpreting "any, and if so what, advice"
in 74 (2)
Federalism & the Bommai case
Justice PB Sawant (on behalf of Justice Kuldip Singh and
himself) cited democracy & federalism as essential features and a part of
the basic structure. He wrote: "The power vested de jure in the President
but de facto in the Council of Ministers under Article 356 has all the latent
capacity to emasculate the two basic features of the Constitution and hence it
is necessary to scrutinize the material on the basis of which the advice is
given and the President forms his satisfaction more closely and circumspectly.
This can be done by the courts while confining themselves to the acknowledged
parameters of the judicial review as discussed above, viz., illegality, irrationality and mala fides.
Such scrutiny of the material will also be within the judicially discoverable and manageable standards".
Delving further into the principle of federalism, the honorable
judge asserts "States have an independent
constitutional existence and they have as important a role to play in the
political, social, educational and cultural life of the people as the Union.
They are neither satellites nor agents
of the Centre".
Justice K. Ramawamy in his judgment held "distribution
of the power of the State among its coordinate bodies" as the essence of
federalism. He cites West Bengal v. Union of India, 1962, to the effect that
"only those powers and
authorities which are concerned with the regulation
of local problems are vested in the State and those which tend to maintain
the economic nature and commerce, unity of the nation are left with the Union".
Justice BP Jeevan Reddy (on behalf of Justice SC Agrawal and
himself) held federalism "broadly indicates a division of powers". He rightly points out "No two
federal constitutions are alike" and reminds India is "not a case of
independent States coming together to form a Federation as in the case of USA".
The learned judge looks at various constitutional provisions
to arrive at the view Founding Fathers wished the center should be strong.
While concluding so, he cautions this "does not mean that States are mere
appendages of the Centre. Within the
sphere allotted to them, States are supreme".
Justice S. Ratnavel Pandian outlines the conflicts during
the constituent assembly debates between those who favored a strong center and
those fighting for state rights. He describes the constitution finally derived
as a compromise. He reiterates his agreement with Justice Reddy's reasoning
(apart from agreeing with his verdict totally).
Justice AA Ahmadi writes: "our Founding Fathers appear
to have leaned in favor of a strong
Centre while distributing the powers and functions between the Centre and
the States. This becomes obvious from
even a cursory examination of the provisions of the Constitution". He
delves into the constitution making process to conclude: "The scheme for
the distribution of powers between the Union and the States was largely
maintained except that some of the subjects of common interest were transferred
from the Provincial List to the Union List thereby
strengthening the administrative control of the Union".
Justice Jagdish Saran Verma (on behalf of Justice Yogeshwar
Dayal and himself) focuses exclusively on justiciability.
State formation & the Bommai case
Justice Ramaswamy delves into the process of state formation
at some depth noting: "Under Articles 2 and 4 the significant feature is
that while the territorial integrity of India is fully ensured and maintained,
there is a significant absence of the
territorial integrity of the constituent States under Article 3". He
cites Berubari Union presidential reference, 1960 as well as two other cases in
this regard.
The learned judge in his conclusion states: "Federalism
envisaged in the Constitution of India is a basic feature in which the Union of
India is permanent within the territorial limits set in Article 1 of the
Constitution and is indestructible. The State is the creature of the
Constitution and the law made by Articles 2 to 4 with no territorial integrity, but a permanent entity with its boundaries alterable by a law made by
Parliament".
Justice Reddy (on behalf of Justice Agrawal and himself) writes:
"Above all, Article 3 empowers Parliament to form new States out of
existing States either by merger or
division as also to increase, diminish or alter the boundaries of the
States. In the process, existing States may disappear and new ones may come
into existence". He also holds: "The only requirement, in all this process, being the one prescribed in
the proviso to Article 3, viz., ascertainment
of the views of the Legislatures of the affected States". He cites two
previous cases including Berubari Union.
While Justice Pandian does not touch the subject, his "agreement
with the reasoning given by" Justice Reddy presumably extends to state
formation too.
Justice Ahmadi goes into the matter at some depth observing
"it becomes clear that Parliament has the right to form new States, alter
the areas of existing States, or the name of any existing State. Thus the
Constitution permits changes in the territorial limits of the States and does not guarantee their territorial
integrity". Regarding the proviso in article 3, he states: "All
that the proviso to Article 3 requires is that in such cases the President
shall refer the Bill to the Legislatures of the States concerned likely to be
affected "to express their views".
Once the views of the States are known, it is left to Parliament to decide on
the proposed changes. Parliament can, therefore, without the concurrence of the State or States concerned change the
boundaries of the State or increase or diminish its area or change its name.
These provisions show that in the matter of constitution of States, Parliament
is paramount".
Bommai case in the present context
A brief study of the two previous sections reveals the
following:
·
Four of the nine judges defined
"federalism" in the context of distribution
of powers
·
These judges specifically covered the
constitutional provisions relating to state formation
·
The learned judges expressed no contradiction between articles 1-4
on the one hand & federal character on the other
·
Justice Pandian implicitly endorsed Justice
Reddy's view
·
Justice Sawant (and Singh) looked at federalism only from the 356 angle
·
Justice Verma (and Dayal) took no part in the
debate on federalism
Justice Ramaswamy provides an interesting example of the
center's transgressing into the domain of the states: "Centre directs a
non-Hindi-speaking State to adopt Hindi in the Devanagari script as State
language, though predominantly 95% of the population does not know Hindi, nor
has need to adopt it as lingua franca, the violation of the directives does not entail imposition of
President's rule".
Justice Reddy (and Agrawal) cautioned that "courts
should not adopt an approach, an interpretation, which has the effect of or
tends to have the effect of whittling down the powers reserved to the States".
State formation in India
The very first part of the constitution relates to "Union
and its territory". This part includes the following articles:
·
Article 1 (Name and territory of the Union)
states that "India, that is Bharat, shall be a Union of States" and proceeds to list the territorial extent
of the country.
·
Article 2 (Admission or establishment of new
States) reads "Parliament may by law admit into the Union,
or establish, new States on such terms and conditions as it
thinks fit".
·
Article 2A relating to Sikkim's association with
India was repealed after Sikkim was admitted to the union
·
Article 3 (Formation of new States and
alteration of areas, boundaries or names of existing States) provides the Parliament
the necessary powers to form states and/or alter area/boundary/names of states
·
Article 4 (Laws made under articles 2 and 3 to
provide for the amendment of the First and the Fourth Schedules and supplemental,
incidental and consequential matters) provides the necessary powers to Parliament
Article 3 is reproduced in full below:
Parliament may by law:
(a) form a new State by separation of territory from any
State or by uniting two or more States or parts of States or by uniting any
territory to a part of any State;
(b) increase the area of any State
(c) diminish the area of any State
(d) alter the boundaries of any State
(e) alter the name of any State
Provided that no Bill for the purpose shall be introduced in
either House of Parliament except on the recommendation of the President and
unless, where the proposal contained in the Bill affects the area, boundaries or
name of any of the States, the Bill has been referred by the President to the
Legislature of that State for expressing
its views thereon within such period as may be specified in the reference
or within such further period as the President may allow and the period so
specified or allowed has expired.
Explanation I: In this article, in clauses (a) to (e), "State"
includes a Union territory, but in the proviso, "State" does not include
a Union territory
Explanation II: The power conferred on Parliament by clause (a)
includes the power to form a new State or Union territory by uniting a part of any
State or Union territory to any other State or Union territory
Article 3 is the successor of section 290 of the Government
of India Act, 1935. It is titled "Creation of new Provinces and alterations
of boundaries of Provinces" and constitutes one of the two sections of the
part labeled "New Provinces and alterations of boundaries of Provinces".
Section 290 of the 1935 Act is reproduced in full below:
(1) Subject to the provisions of this section, His Majesty may
by Order in Council:
(a) create a new Province
(b) increase the area of any Province
(c) diminish the area of any Province
(d) alter the boundaries of any Province
Provided that, before the draft of any such Order is laid
before Parliament, the Secretary of State shall take such steps as His Majesty may
direct for ascertaining the views of
the Federal Government and the Chambers of the Federal Legislature and the views
of the Government and the Chamber or Chambers of the Legislature of any Province
which will be affected by the Order, both with respect to the proposal to make the
Order and with respect to the provisions to be inserted therein.
(2) An Order made under this section may contain such provisions
for varying the representation in the Federal Legislature of any Governor's
Province the boundaries of which are altered by the Order and for varying the
composition of the Legislature of any such Province, such provisions with respect
to apportionments and adjustments of and in respect of assets and liabilities, and
such other supplemental, incidental and consequential provisions as His Majesty
may deem necessary or, proper
Provided that no such Order shall vary the total membership of
either Chamber of the Federal Legislature.
(3) In this section the expression "Province" means
either a Governor's Province or a Chief Commissioner's Province.
Comparing article 3 with its predecessor, it incorporates
the following important changes:
·
Section 390 required the views of the Indian
government & the central legislature to be obtained. This provision is redundant
in the post-independence context
·
Section 390 required the views of the provincial
government & legislature in certain cases. Article 3 restricts this to the
legislature alone
·
Section 390 required the ascertainment of views on
both the "order" itself and its provisions. Article 390 does not make
this distinction
The second change is interesting. It appears the Founding Fathers
wanted the legislature, not the
Government, to express its views.
Conclusions
Let us first check if the inclusion of federalism in the
basic structure relates in any way to article 3. The Bommai case judgment (and Chief
Justice Sikri's verdict in the Kesavananda Bharati case) leads to the following
irresistible conclusions:
·
The federal
character of our constitution (a more appropriate term than
"federalism") is a part of its basic structure
·
The majority of the judges in the Bommai case (as
well as Chief Justice Sikri earlier) clearly defined federalism as non-intrusion into the state's domain
·
The learned judges specifically considered the state
formation provisions and expressed no
contradiction between this & the basic structure
·
Article 3 relates to Part-I (Union and its
territory) that by definition can only
be vested with the center
·
Article 3 (and its predecessor in the 1935)
confer absolute powers unlike the
conditional powers of article 356 (and section 93)
·
Not a single item in the state or concurrent
lists is even remotely connected to
state formation
·
The Indian constitution does not envisage dual control on any power
·
Formation of new states per se does not violate the
basic structure as it does not directly enable the center to usurp any of the
state powers
·
The powers delegated to the states under the
constitution are merely distributed
among the successors in the modified
territorial extent
·
Sections violating the basic structure (e.g. the
extraordinary powers to the governor) can be struck down without invalidating the reorganization
Did the Founding Fathers not envisage a situation where the
state could "reject" the draft bill? This does not carry much weight
considering the following:
·
India was in political turmoil in 1935 when section
290 came into force. It is inconceivable the colonial powers did not visualize
any opposition to their policies.
·
Constituent assembly debates clearly establish
the conflict was foreseen. Mr. K. Santhanam stated: "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".
·
Congress secured only 152 of the 375 seats in
the 1951 Madras elections. Prof. NG Ranga (whose Rajyasabha speech is cited by
Sengupta & Kumar) was himself a prominent opposition leader
·
A speech in 1955, that too by an individual who
was not a member of the constituent assembly, can offer no clue on the alleged 1949
"thought shortfall" of the Founding Fathers
Even assuming arguendo the contingency of
"rejection" was not contemplated, should courts try to fill the
alleged gap? Let us also temporarily ignore the fact an original provision of
the constitution can be amended only by Parliament
and is immune from judicial pronunciations (to the extent of the original text).
Justice Ramaswamy considers the question in the very same
Bommai case. The learned judge held: "Though it is settled law that in
working the law and finding yearning gaps therein, to give life and force to
the legislative intent, instead of blaming the draftsman, the courts ironed out
the creases by appropriate technique of interpretation and infused life into
dry bones of law. But such an interpretation in our respectful view is not
permissible, when we are called upon to interpret the organic Constitution and
working the political institutions created therein".
He goes on to observe: "Where the language of a statute
is clear and unambiguous, there is
no room for the application either of the doctrine of casus omissus or of
pressing into service external aid, for in such a case the words used by the
Constitution or the statute speak for themselves and it is not the function of the court to add words or expressions merely to
suit what the court thinks is the supposed intention of the legislature".
The language of article 3 is unambiguous and clear. There is no doubt what the key terms (Parliament,
law, state, territory, area, boundary, legislature & views) mean. The Parliament
is given absolute power in the matter of state formation. The proviso merely requires the state legislature views
be ascertained. The fact that a proviso
is not a condition is widely accepted by every expert.
Article 3 does not consider the possible outcomes from the
process of ascertaining views. The only prudent course for any court to pursue
is to deduce the Founding Fathers did
not deem it necessary to consider the probable outcomes.
Finally let us take a look at the relevance of the alleged
"rejection" by the state legislature
·
The resolution alleged to have been moved by Nallari
Kiran Kumar Reddy was proposed under rule 77 of the Rules of Procedure and
Conduct of Business in AP assembly
·
The resolution was claimed to have introduced
under his official capacity as the leader of the house even though it was not
discussed at any cabinet meeting
·
Rule 77 requires ten days notice unless waived explicitly by the speaker
·
When the assembly is considering a communique
from the President, normal business rules are not applicable
·
A resolution under rule 77 needs to be read by
the proposer and duly seconded
·
A discussion is mandatory on such resolutions
·
The procedure adopted by Nadendla Manohar followed
none of the requirements
·
The resolution was neither read by the proposer
nor seconded
·
No discussion was permitted
·
The entire
process was completed in a matter of two minutes
·
The text
of the resolution is not available till date
·
The fact that the resolution was raised after the conclusion of the debate on
the draft reorganization bill prevents it from being considered as the view of
the legislature
Let us summarize the findings:
·
Speculating the Founding Fathers did not
envisage the likely outcomes of "ascertainment of views" is
unnecessary, unfounded & invalid
·
Bommai case is irrelevant to the context of
state formation
·
The alleged resolution is not equivalent to
"rejection" of the draft bill
·
The recommendations made by Sengupta & Kumar
are unnecessary in the light of the
above
I rest my case. I will be pleased to answer any questions
anyone may have.
