By: Prof Madabhushi Sridhar
The lobbying of anti-Telangana forces is too long to reach any place. Now, reportedly the Union Ministry of Law said Article 371D needs to be amended before bifurcating the state.
A very emphatic judgment given by the Andhra Pradesh High Court on 8th October 2013, clearly stating that 371D was not an obstacle was ignored by the Union Ministry, perhaps by mistake. In fact, Deputy Chief Minister Damodar Raja Narasimha has included this judgment as an annexure in his comprehensive note submitted to GoM on 12th November.
It appears that the GoM is seeking the opinion of Attorney General Goolam Gahanvati. It is ironical that anti-Telangana forces are using all the three ‘ESTATES’ (Executive, Legislature and Judiciary) along with the Fourth Estate, which is being used, abused and misused profusely, just to further their ‘real estate’ interests in Hyderabad and for that to stall formation of State of Telangana. The PIL by an anti-Telangana Advocate was wishfully expected to be the weapon or brahmastra to stop bifurcation, but with the merits of judgment crisply drafted by two judges with clear vision of Constitutional scheme, it turned out to be the weapon in the hands of pro-Telangana forces. When the Estate of Judiciary did not come to their rescue, they are using again Fourth Estate to sideline this emphatic judgment which should silence the biased critics of Articles 3 and 371D. They are also trying to influence the ‘executive’ through the notes to be submitted to GoM. There is neither mention of this judgment in discussion in electronic media or articles in newspapers.
Mr. P V Krishnaiah, senior Advocate filed a PIL seeking a writ of Mandamus restraining the President of India from exercising constitutional power under Article 3 of the Constitution of India in pursuance of any recommendation by the Union Cabinet on bifurcation. Petitioner also wanted declaration that Article 3 and Constitution (V Amendment) 1955 which resulted in present Article 3 as unconstitutional alleging that it violated the basic structure and preamble of Constitution. The PIL also sought High Court to issue direction to the effect that as long as Article 371-D is in force, the Union of India is not having any authority or power to exercise power under Article 3 of the Constitution of India for bifurcation of existing State of A.P., and forming proposed new State of Telangana.
Article 3 is Basic Structure of Constitution
Question 1: Whether Article 3 will hit any basic structure theory of the Constitution?
Answer: While refusing to hold that Article 3 hits basic structure, the division bench held that Article 3 was part of the basic structure. Finding no merit in this argument, the, Chief Justice Kalyan Jyothi Sengupta of AP High Court and Justice K C Bhanu answered this question “we are of the view ‘No’, for the simple reason that Article 3 has been designed in such a way that enables the Parliament essentially to maintain the concept of federalism as Article 3 provides for separating or joining for reorganization of the States”.
The bench held that by any stretch of imagination the aforesaid Article cannot be said to be violating the basic structure, even if we assume that it is liable to be challenged. The Bench reiterated that Article 3 empowered Parliament to regulate and preserve Federalism as enshrined in the Constitution and in that sense, it (Article 3) is one part of basic structure of the Constitution. It has further laid down that `a plain reading of the proviso, it appears that with the insertion thereof, the Legislature has merely made a provision regarding methodology with regard to formation of new States and alteration of areas, boundaries or names of existing States. According to Bench, with the insertion of the aforesaid proviso, no portion of the Constitution, much less any portion which relatable to basic structure, has been affected.
The Bench explained that Article 3 provided the following mechanism. A Bill has to be prepared for any of the purposes as above for introducing in either house of the Parliament on the recommendation of the President and again if the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has to be 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. Therefore, while making reference in ascertaining the views of State legislature before recommending the introduction of bill in Parliament by the President, the time has to be fixed for expressing the views.
The Bench held that this safeguard measure has been provided by inserting the proviso in order to avoid any complaint of exercise of unbridled power of Parliament and the recommendation of the President and obtaining views of the State legislature concerned were sought to be made an essential part of this exercise of Parliament. This has not been left with Parliament alone and it has been made collective participation of Constitutional Authorities. Finally the High Court said that it could not review and rethink or probe into the mind of the Legislature, simply because it is not within the jurisdiction of this Court. It is for the Parliament and the Parliament alone can think of it with compliance as above. Referring to Babulal Parate v State of Bombay (AIR 1960 SC 51) the Bench said: “We are of the view that recommendation of President and obtaining views of State concerned are sine qua non”.
Restraining the President
Question 2. Whether Court can restrain the President from recommending Bill on Telangana?
Answer: The AP High Court answered this question in nagative, and said: “The President of India being de jure Head of the country, is Constitutionally deemed to be a wisest citizen of the country and he can with his experience think whether any recommendation should be given or not…Obviously, President and all organs of State concerned will certainly look into this matter and it is their anxiety and they will act and no one can presume that the Parliament or His Excellency President or State Assembly will act unconstitutionally. The presumption is otherwise.” It is an absolute constitutional power of the President as enshrined in the Constitution.
His Excellency, the President of India can under no circumstances be restrained by any Court of law and not even by Parliament or Executive as such provision has to be made operative. His Excellency, the President of India is absolutely free to act in terms of the provisions of Article 3 of the Constitution of India”. The bench further explained: “Whether His Excellency will recommend or will not recommend or while taking steps for recommendation what measures His Excellency will take, is his own power. Whether His Excellency, President will act on his own or would be advised by anybody, it is for the President of India to decide and for this reason, at the moment, we do not have any material or ground to examine this matter. Besides, this is not an issue at all to be adjudicated by us. Under the law, no Court can restrain any person from exercising the lawful power, much less constitutional power. Therefore, this prayer cannot be entertained at all”.
Article 371D will not override Article 3
Question 3: Whether Article 371D prevents exercise of power under Article 3?
Answer: In their anxiety and frustration, anti-Telangana forces are trying to use every available means or creating panic by propagating baseless apprehensions about Article 371D. It is an enabling special provision in Part XXI under the title “temporary, transitional and special provisions”.
The Supreme Court explained the object of enacting Article 371D provision in Chief Justice of A.P. vs. LVA Dikshitulu [AIR 1979 SC 193] and said that object was two fold- (i) to promote accelerated development of backward areas of the State of A.P. so as to secure the balanced development of the State as a whole; (ii) to provide equitable opportunities to different areas of the State in the matter of education, employment and career prospects in Public Service. On a plain reading of the aforesaid provision, it appears that the Special Provision has been made in order to give a special privilege to the State of Andhra Pradesh and it is not intended to give any overriding effect over other provisions of the Constitution. Saying this, the Bench referred to clause 10 of 371D which said that 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. The subject matter of this Article will have the overriding effect over similar or corresponding subject matter of any provision of Constitution or laws, such as Articles 15 and 16 of the Constitution of India, which is in the same area and field and not in different field, explained the High Court. This Article has been designed for reservation with regard to employment opportunities, admission in educational institutions etc., and this provision is special in nature and even any contrary judgment, which was in existence, will not have any effect. Article 14 which is in part III of the Constitution of India, provides for equality and Article 16 also provides for equality with regard to empoloyment. Obviously, this provision (Article 371-D) may run counter to Articles 14, 15 and 16 of the Constitution of India, which the Bench said was not examining the same, as it was not the issue before the bench. The Bench did not go into the question whether 371D would stand the test of the theory of basic structure and applied the provision as it is and finally said that this did not have any nexus as to the subject matter of Article 3 which operates in different field. It said: “..question of overriding effect or inconsistency as argued does not arise. It would have applied had it been in the same field and subject”.
Referring to another contention of the petitioner who said that in the event the State was bifurcated in exercise of power of Article 3, then the object as enshrined in Article 371D will be frustrated and rendered nugatory, the Bench did “..not find any merit in this submission..We are of the view that the whole object of introducing this Article is to provide safeguard measures in the interest of the region of Andhra Pradesh. In the event the State of Andhra Pradesh is bifurcated by the Parliament, ultimately, it is for the Parliament to take measures for reframing the same provision with suitable amendment or deleting altogether. It is consequential measure, if necessary”.
The justices minced no words in using the expression ‘absolutely absurd’ to describe the contention of the petitioner that so long as Article 371D was in force, no steps could be taken under Article 3. The bench further said: “We are of the view that Article 3 of the Constitution operates in a different field and for different purpose and there is no nexus even remotely with each other. Even, they have no quarrel with each other. 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”. (Para 17). The judges were unable to accept the contention that operation of Article 3 would remain suspended so long as Article 371-D is in force and is not amended. It is an absurd proposition suggested by the petitioner, the bench reiterated.
Question 4: Can Court Restrain Agitations for and against bifurcation?
Answer: The Petitioner also sought a direction against strikes and bandhs. However, the petitioner himself submitted that elaborate and extensive grounds were not made with regard to the prayer and hence he would file a comprehensive petition against the issue of agitation and strikes. The Division Bench permitted the petitioner to do so, while dismissing the PIL.
This judgment by the AP High Court is an appropriate answer to all those who are raising baseless doubts about very clear Constitutional provisions, which would certainly guide the Group of Ministers, and it castes doubts as to why the Law Ministry ignored this judgment while submitting its report to GoM.