By B Kamalaker Rao & Harsha Peechara
In the light of the UPA’s decision to create a separate state of Telangana, there is a need to understand the legislative processes involved. It is a known fact that Articles 2, 3 & 4 of the Constitution empower Parliament, by way of law, to form a new state, increase or diminish the area of any state or alter the boundaries or name of any state.
Article 3 vests the power to form new states solely with Parliament, but requires the President to ascertain the views of the legislature of the state affected. However, it is the interpretation of the proviso to Article 3 which is now the bone of contention between Telangana and Seemandhra leaders. The Seemandhra leaders, citing examples of Uttarakhand, Jharkhand and Chhattisgarh, where bills were passed by the state legislative assemblies concerned, argue that the Telangana bill should be passed by the AP Legislative Assembly before it can be introduced in Parliament. However, Telangana leaders argue that as per Article 3, Parliament has absolute power to create a new state and there is no need for the resolution to be passed by AP Assembly.
In order to determine the true scope and effect of Article 3, one must take such considerations as are germane to the interpretation of the provisions of the Constitution ie the Constituent Assembly debates which preceded the formulation of the provisions of the Constitution. The wording of Article 3 finds its origins in Section 290(1) of the Government of India Act, 1935, wherein the power to create a new state was given to the Governor-General, provided that before making any such order, the Governor-General was required to ascertain the views of the government of the province which would be affected by the order.
During the drafting of Indian Constitution, the initial draft of Article 3 granted the power to create a new state solely to the Central government. However, the power of the Central government to introduce legislation was restricted by two conditions i.e. before any action is initiated, there must be a representation made to the President by a majority of the representatives of the state legislature concerned, or a resolution on that behalf is passed by the legislature of the state. However, on November 17, 1948, when the Constituent Assembly was discussing the scope and wording of Article 3, Dr Ambedkar introduced an amended proviso wherein the two above mentioned requirements were removed.
Ambedkar argued that in case of reorganisation of states, all that is necessary is consultation, and consent of the state or states 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.
When the Constituent Assembly was discussing Ambedkar’s amendment, another amendment was moved by Prof KT Shah stating that the legislation constituting a new state from any region of a state should originate from the legislature of the state concerned. Opposing it and using the then demand for an Andhra Province as an example, SK Santhanam (member of Madras Province) stated that, “Mr Vice-President, I wonder whether Professor Shah fully realises the implications of his amendment. If his amendment is adopted, it would mean that no minority in any state can ask for separation of territory, either for forming a new province or for joining an adjacent state unless it can get a majority in that state legislature. I cannot understand what he means by ‘Originating’. Take the case of Madras Province. The Andhras want separation. They bring up a resolution in the Madras Legislature. It is defeated by a majority. The way of the Andhras is blocked altogether. They cannot take any further step to constitute an Andhra province. On the other hand, as re-drafted by Dr. Ambedkar, if the Andhras fail to get a majority in the legislature, they can go straight to the President and represent to him what the majority did in their case and ask for further action removing the block in the way of a province for them. If they are able to convince the President, he may recommend it and either the Government of India may themselves sponsor legislation for the purpose or any private member or a group in the Central legislature can take up the question. Therefore, by Mr Shah’s amendment, instead of democracy, we will have absolute autocracy of the majority in every province and state.”
The Constituent Assembly, after debating on the two above mentioned amendments for two days, rejected Shah’s proposal and accepted Ambedkar’s amendment on November 18, 1948. Subsequently, Parliament had further diluted the proviso to Article 3 by the fifth Constitutional amendment of 1955, by substituting the word “ascertained” with “referred”. The amendment also granted the power to the President to impose a time limit within which states are to express their views on any proposal for reorganisation referred to them. If, however, a state legislature does not express its views within the time specified by the President, he may recommend the introduction of the bill in Parliament even though the views of the state concerned have not been expressed.
It is also worthy to note that in certain exceptional circumstances as set out below, the President need not even ascertain the views of the State concerned:
a) Where the original bill has been referred to the state legislature, but modifications to the bill have not. The original Bombay Reorganisation Bill provided for creation of Maharashtra and Gujarat and the Union Territory of Bombay. The President had sent this Bill to the Bombay Legislature in order to ascertain its views. The Bombay Legislature, after expressing its views, sent the Bill back to Parliament where the Bill was modified in that the proposal for creation of Union Territory of Bombay was jettisoned. The Bill was passed as modified.
b) When the Punjab Reorganisation Act, 1966, was passed by Parliament, the President did not refer the draft bill to then existing State of Punjab as it was under President’s rule. Since the state legislature was suspended by the President under Article 356, the question of ascertaining the views of the state legislature under the proviso to Article 3 did not arise and the exercise of power under Article 356 prevailed over the requirement of the proviso to Article 3.
Thus, it is abundantly clear that political will and passage of bill in Parliament are enough for the formation of Telangana state. There is no need for any constitutional amendment or consent of the AP Assembly for carving out a new state.
(B Kamalaker Rao is a former MLC and Harsha Peechara is an advocate of the Supreme Court)
Courtesy: The New Indian Express