The expression “drama”, though a bit harsh and not entirely justified in the circumstances especially when emotions are still running high over the creation of Telangana, yet it is hard to to find a better word for trying to capture the entire range of emotions which came to be displayed in this entire legislative exercise. First, the Andhra Assembly chose to unanimously reject the Presidential Reference whereby the proposal for the division of the state was referred for the consideration of the state Assembly; then at the time of introduction of the Bill; later on, LokSabha Speaker Meira Kumar had to suspend some 18 MPs from Andhra Pradesh for rest of the session after scenes were observed in LokSabha so much so that that even pepper spraying and fisticuffs were not spared by some of the “Hon’ble” Members of Parliament opposing and supporting Telangana.
Then later on, the LokSabha passed the Bill by “illegally” blacking out the live broadcast and closing the doors in the absence of anybody in the visitors’ gallery or the press gallery. The Bill was rushed through both houses of Parliament without much debate and without carrying out the necessary constitutional amendments which were sine qua non for the passing of Bill. On the Issue of pre requisite constitutional amendments under article 368 necessary before the creation of the State of AndhraPradesh, Law Minister KapilSibal opines that the next government after General Elections may look into it.
The state of Telangana, the 29th state of India, which has been created following the bifurcation of the state of Andhra Pradesh, after it received Presidential assent in early March 2014 does not seem to come to its end. Earlier to the Presidential assent, the Andhra Pradesh Reorganisation Bill 2014 (“Bill”), was passed by the Parliament on February 20th 2014 when the ruling Congress party and the principal opposition party – the BJP — in a significant departure from the past practice got together to pass the Bill.
Now with the Public Interest Litigation, having been filed, before the Supreme Court of India, whereby a plethora of Constitutional Issues have been raised, by none other than the ‘last’ Chief Minister of United Andhra Pradesh, N. Kiran Kumar Reddy on the grounds of the act being “unconstitutional for being violative of the basic structure of the Constitution of India”. Before the Court delves deeper into the various issues, this magazine is trying to analyse and understand the myriad issues which still beg to be answered like the questions of federalism; the rights of thestate assembly vis a vis the power of the Parliament to divide/Reorganise any State it chooses to do so; the federal vision of the fathers of the Constitution etc. . Mind you, this is no mean task as the kind of frenzy which accompanied the creation of Telangana tends to blind the possibility of a rational analysis of the various legal and constitutional questions that have been ruffled up in the process of the creation this state. Yet a humble attempt is being made in that direction. Hope it will not be much off the target.
The Constitutional Scheme for Reorganising/Bifurcating States
The Article 2 of the Constitution of India empowers the Parliament to establish new States. Article 3 deals with formation of new States and alteration of areas, boundaries or names of existing States. The procedure for such formation / alteration is set out in the proviso to the said Article 3 which can be summarized as: Step 1: The President refers the State Reorganisation Bill to the state Legislature for its views within a specified period; Step 2: The President recommends the introduction in either house of the Parliament; Step 3: The Bill on which state legislature has expressed its views is introduced in both houses of Parliament with the last step, of course being the Presidential Assent.
India’s federal structure, as it exists today, has its moorings in the intractable ‘communal question’ the only solution to which was found in tragically partitioning the country and the separatist tendencies displayed by the princely states.
To deal with all such future separatist urges it was thought better that Parliament must have such overwhelming power that there is nothing which can stop its will in the interests of a united and integrated nation. And the views expressed on the issue in the Constituent Assembly are instructive to understand the nature of resolve: “Now that partition is a settled fact, we are unanimously of the view that it would be injurious to the interests of the country to provide for a weak central authority which would be incapable of ensuring peace, of coordinating vital matters of common concern and of speaking effectively for the whole country in the international space.”And it was decided that the Constitution of India should be federal with a strong centre; there should be three legislative lists, and whatever residue was left unenumerated, should go to the Union and not the States. And Dr. Ambedkar’s reply to the debate in the Constituent Assembly on states’ rights on the question of such powers being vested with the Parliament would give the nature of the duty cast upon it by the fathers of the Constitution: “The… charge is that the Centre has been given the power to override the States. This charge must be admitted. But before condemning the Constitution for containing such overriding powers, certain considerations must be borne in mind. The first is that these overriding powers do not form the normal feature of the Constitution. Their use and operation are expressly confined to emergencies only”.
At the outset it may be said that given the background of the acrimony between the two regions in the Andhra Pradesh, which have now been divided by the Act of the Parliament. Depending upon the perspective one is looking at the division of the State, it is heart shattering for some and dream come true for some. And given the contentious history of the demand which goes long back, long long before the creation of the State of Andhra Pradesh itself, it indeed is the realization of a very long standing demand from the people of Telangana, who have throughout felt being marginalized in the United Andhra Pradesh and hence the demand for separate State. Yet the manner in which it has been done is questionable and leaves many questions unanswered and at the risk of being called ‘partisan’ this author feels it’s a very bad legislative precedent. For a very long time, demand for a separate state has been in active or passive phases throughout the history of post independence and reorganised state of Andhra Pradesh on the linguistic basis, or even prior to that, to be more precise.
Especially from the time an assurance was given to Chandrashekar Rao in 2009, and thereafter Justice B.N. Krishna “Committee For Consultations on The Situation In Andhra Pradesh” was constituted in March 2010. This committee submitted its Report way back in December 2010. From then on, the respondents continued to sleep over that Report waiting for the opportune time till the last session of the present Parliament to pass the Reorganisation Bill. The Sri Krishna committee offered in brief the following possible solutions, leaving the choice open and urging that the ability to confront realities and resolve them with wisdom be combined (Para 9.4.01) :
The framers of the Constitution did not intend to give Parliament arbitrary powers to redraw boundaries; nor did successive Parliaments and Governments, act unilaterally or arbitrarily without consent, broad consensus or negotiated settlement with the concerned State. Principles of federalism were always in the background while dealing with such situations, except for this unprecedented act under challenge. At least from 1987 onwards, taking the consent of the state legislature has been the norm. The broader principle of federalism and the willing consent of constituent units and their people has been deemed to be necessary before a state is formed or a territory merged. This norm was observedin creating the states of Jharkhand, Uttaranchal and Chhattisgarh in 2000. The way the Respondents have gone ahead with the Presidential Reference and Passage of the Reorganisation Bill, is going to shape the future of the Union itself as it sets a bad precedent.
So the attention of this Court is sought as this is a defining moment in our Constitutional history having a bearing on our federal Constitution and India itself. If such an arbitrary decision becomes a precedent, it will make every State vulnerable to unilateral action for short term electoral expediency for all times to come. It is interesting to specifically note, the debate on the floor of RajyaSabha on 20.02.2014 on the issue of pre-requisite constitutional amendments. Reference during the debate was drawn to Amendments made to the Constitution in a similar situation, in the case of Arunachal Pradesh under Articles 371H under Article 368. Similar amendments were said to benecessary even before the creation of the State of Andhra Pradesh. The views aired by the Law minister on this are especially interesting and revealing wherein he specifically stated that the next Government after General Elections may look into it. This statement of the Law Minister tells a lot about the defective legal/constitutional procedure adopted for the creation of the state of Telangana.
When the scheme of constitution is closely examined, it emerges that exercise of power under Article 2-4 of the Constitution is made subject to Article 371 D (10). As a result, exercise of power under article 2-4 without amending the non obstante clause in Article 371 D (10) amounts to flagrant constitutional violation to subserve the interests of electoral expediency. Further the statement of learned Law Minister Kapil Sibal on the floor of Rajya Sabha is an admission of this truth about the scheme of our Constitution and which he impliedly admits is being violated and the next govt.after general elections may make amends in that regard. So, it is stated that, the rule of accidentality as is envisaged under Article 4 must not be allowed to indiscriminately gobble up provisions it is not meant to.
But it must also be remembered that with greater power comes greater responsibility. The idea of vesting Parliament with such overwhelming power to ‘play’ with the territorial integrity of the nation was to deal with really serious issues and not the one displayed in the current situation where the sole idea seems to be take as much electoral advantage as one may in the circumstances. There this author believes Parliament has failed in that solemn duty that it owes to the nation and has set a very bad and dangerous precedent which may lead to separatist tendencies.
But the way the ruling Congress party and the principal opposition BJP, who for most part of the entire duration of the 15th Lok Sabah did not let the Parliament function, on one ground or the other, came together for a simple electoral gambit extracted a cynical sigh from many people like this Author. The unity of purpose in the last session of the Parliament, just before the general elections 2014, demonstrated by the ruling party and the Principal opposition is remarkable and makes one really doubtful of the manner in which it all has been done. It is important to note that the state of Telangana has been created without following the constitutionally mandated procedures and in utter disregard of the views of all the Constitutional functionaries in the State of Andhra Pradesh and without carrying out necessary and mandatory amendments to the Constitution before the passage of the subject impugned Bill, and in that sense, if this author may dare say, does not set good legislative precedent as at no cost the Constitutional mandate must be allowed to be short circuited for not so ideal electoral gains.
As per the Constitution, India has a federal structure, with clear demarcation of powers and responsibilities between the Centre and the States. This principle has been extensively examined by the Supreme Court in KeshavanandaBharati vs. State of Kerala AIR 1973 SC 1461 which propounded the doctrine of basic structure of the Constitution and had declared ‘federalism’ to be an integral part of thereof; BabulalParate vs. State of Bombay AIR 1960 SC 51; Mangal Singh vs. Union of India AIR 1967 SC 944 may be referred to in this regard. The decision to bifurcate Andhra Pradesh raises important questions about federalism and the nation’s future. As it may be seen, this is the first time in India that a State is divided without the consent of the State legislature, and without a negotiated settlement among stakeholders and regions, and in the face of public opposition. Therefore, this is a great opportunity for an extensive judicial review on the touchstone of Constitutional principles.
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