By: Jashwanth Jessie
Though the constitutional position of formation of Telangana is very clear, some unnecessary controversy is being created from many days in media and the leaders of political parties meeting president on certain issues concerned to to the role of constitution in formation of state. Let us have an analysis on these issues : Article 3 – is the resolution of state legislature required? Is it possible to amend Article 3? Article -371D status? and last but not the least, the veto powers of President on Telangana Bill.
Article 3 – why it cannot be amended?
Article 3 – authorizes the Parliament to:
– 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.
– increase or diminish the area of any state
– Alter the boundaries and names of any state
However, article 3 lays down two conditions in this regard:
1. A bill contemplating the above changes can be introduced in the parliament only with prior recommendations of president.
2. Before recommending the bill, the president has to refer the same to the state legislatures concerned for expressing its views within a specified period.
The president or parliament is not bound by the views of state legislature and may either accept or reject them, even i the views are received in time. In Babulal vs State of Bombay case, 1960 the supreme court said that it is not necessary to make a fresh reference to the state legislature every time an amendment to the bill is moved and accepted in parliament. In the Mullaperiyar case judgement which was delivered on 26 february 2006, the supreme court has clearly said that the power to legislate under article 3 and 4, that is for the re-organisation of state is of a paramount nature, it is a supreme and absolute power, it is a plenary power unfettered by the legislative power of the state under article 246 of 7th schedule.
Supreme Court in Pradeep Chaudhuri vs Union of India while adjudicating on Uttar Pradesh Re-organisation Bill, very effectively said that the consultation of state legislature does not mean concurrence. The state assembly will only be consulted but a concurrence will not be taking place. In 1959 Babulal Parekh vs Others case while delivering the judgement on Mumbai State Re-organisation, the Supreme Court very clearly said what matters as per the indian constitution unlike an american constitution – it is not the previous consent of the legislature that is required but it is only an expression of views of the state legislature is what is required. And when the constitutional position is very clear we are surprised to hear a rattled debate in the media on the constitutional bars in the process of formation of Telangana.
Amending article 3 is not possible as it is the bedrock and reflects the federal structure of Indian Constitution. In Keshavananda Bharathi Case 1973, the supreme court said that even the fundamental rights can be amended, provided the ‘basic structure’ of constitution is not altered. Here in SR Bommai vs Union of India 1994 case, the Supreme court has laid down that the constitution is federal and characterised federalism as its ‘basic feature’. Hence, by taking these two cases into consideration, amending article 3 will certainly lead to the alteration of basic structure of constitution and so it cannot be amended. Federalism itself reflects national integrity and strong union government at the centre and hence the formation of Telangana will increase the national integrity and it is not a threat to national integrity and internal security of the country.
Status of Article 371D Post-Bifurcation:
Article 371D relates to Andhra Pradesh state and when Telangana is bifurcated from AP, the remaining state is called as residuary state of Andhra Pradesh and article 371D doesn’t apply to both the states as their provisions are related to united AP state. As per article 371D, the president who will provide for the establishment of an Administrative Tribunal in the state to deal with certain disputes and grievances relating to appointment, allotment or promotion to civils posts in the state and the president who has the right to abolish this tribunal after he gets satisfied that its continued existence is not necessary, hence the president also can abolish article 371D under the duo consultation with council of ministers and Attorney General of India, as this article is irrelevant for both states. Hence, 371D doesn’t disturb and it will not form a hurdle in the process of formation of Telangana state.
Veto Power of President on T-bill:
The Telangana bill or any other bill for that matter passed by the parliament can become an act only if it receives the assent of President. When such a bill is presented to President for his assent under article 111 he has 3 alternatives – to give assent to the bill, withhold his assent to the bill, return the bill for reconsideration of parliament. However, if the bill is passed again by the parliament with or without amendments and again presented to the president, the president must give his assent to the bill.
Though the president enjoys certain veto powers: Absolute Veto, Qualified, Suspensive Veto, Pocket Veto. The president cannot exercise the absolute veto as Telangana bill is not a private bill and the cabinet is not resigned, these two conditions are not satisfied and hence the president cannot exercise absolute veto. Though the president exercices suspensive veto and returns the bill, the parliament can easily overthrow the veto by passing the bill again with as simple majority and then sending it to president where he has to accept the bill unconditionally. Probably, the president will not exercise the pocket veto as the process of bifurcation was going on in a constitutional manner.
In Indian Constitution the president is just a nominal head, a nominal executive and the real executive are the council of ministers headed by Prime Minister. The president is the head of the state but not the executive. He represents the nation but does not rule the nation.His place in administration is that of a ceremonial device or a seal by which the nation’s decisions are made known.He is generally bound by the advice of his ministers. He can do nothing contrary to their advice nor can he do anything without their advice. This is the beauty of Parliamentary form of government unlike the monarchical presidential form of government where autocracy, despotism, tyranny is prevalent as authority is placed on only one person. Thus, the media and the leaders of political parties who are unclear with the constitutional provisions related to formation of new state and powers of president shall know these facts so that further blunders are not committed by them and see that people are not further misled. At least now they shall understand meeting president will not fetch them anything except a cup of coffee and shall stop filing petitions against constitutionality of bifurcation of state as it would waste their money and time.