Parliament has an unambiguous power
In the context of the proposed division of Andhra Pradesh the question arises, what is the due process for reorganising states? The Constitution and various judgments of the Supreme Court are quite clear that Parliament has the unequivocal power in deciding matters relating to reorganisation of the states. Any debate regarding the constitutional provisions is more in the realm of politics than about any interpretation of the Constitution.
K Nageshwar (firstname.lastname@example.org) is a member of the Legislative Council of Andhra Pradesh and teaches at the Department of Communication and Journalism, Osmania University, Hyderabad.
There has been an intense debate in the recent past on the constitutional aspects surrounding the bifurcation of Andhra Pradesh. The prominent politico-constitutional question often being raised is with regard to the role of Parliament and the state legislature in the process of bifurcation. Leaving aside the merits and demerits of bifurcation, it is worth reviewing the constitutional questions being raised in the political debate over the issue. Both the supporters and opponents of bifurcation are looking at the constitutional issues involved from their own political perspectives. An artificial cleavage is sought to be created between political constitutionalism and legal constitutionalism though the constitutional position is not only clear but has been upheld time and again by the apex court while adjudicating many cases over the past five decades.
The first question is on Article 3 of the Constitution. There is a demand now to review Article 3, claiming that it goes against federalism. The dilution of federalism is a political question. The political process operates on what the Constitution says today, not on what the Constitution should have been. During the six decades of post-Independence Indian history there has been an intense battle in the political and legal spheres on many constitutional provisions that strengthen the unitary character of the polity. These debates have led to a proper interpretation. The classic example is that of Article 356. But, barring a few court cases, no serious debate has ever been initiated on amending Article 3 of the Constitution, which clearly keeps the power to bifurcate in the exclusive domain of Parliament. The Constitution accords Parliament unequivocal and unambiguous powers in this regard. The Supreme Court of India has repeatedly upheld this in its judgments between 1959 and 2009. The state legislature was accorded only a consultative role. This is a constitutional reality, evident from a plain reading of the relevant provisions of the Constitution.
Article 3 of the Constitution says:
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.
Article 3 makes three things clear: (1) A state is bifurcated by an Act of Parliament and Parliament only. (2) Before enactment by Parliament, the president has to refer the draft bill to the legislature. (3) The legislature has to express its views.
Therefore, seeking the views of the legislature to be affected is mandatory for Parliament before bifurcating a state. But the views of the legislature are not binding on Parliament. Parliament can make a law bifurcating a state in whatever manner it deems fit, independent of whatever may be the views expressed by the concerned legislature. The legislature was given only a consultative role. Any argument that such a provision goes contrary to federalism is a political question which needs to be settled through the political process. The constitutional interpretation of Article 3 cannot be determined by political arguments.
Scope of the Legislature
The Supreme Court itself has defined the meaning of the word expression of its views in the case – The Supreme Court, Civil Original Jurisdiction. Transfer Case (Civil) No 62 of 2002 (Arising out of Writ Petition No 43094 of 2000) Pradeep Chaudhary and Ors. …Appellants vs Union of India and Anr…Respondents. The judgment said as follows:
….While a power to introduce the Bill is kept with the Parliament, ‘consultation’ with the State Legislature although is mandatory but its recommendations were not binding on the Parliament. ‘Consultation’ in a case of this nature would not mean concurrence. …the Parliament would not be bound by the views of the State Legislature and even in a case where substantive amendment is carried out, the amended Parliamentary Bill need not be referred to the State Legislature again for obtaining its fresh views….
The respective roles of Parliament and the state legislature figured even in the constitutional debates. Should the prior consent of the affected legislature be insisted upon? This was even debated in the Constituent Assembly. An amendment was adopted making the role of the concerned state legislature merely consultative.
A perusal of the constitutional debates on Article 3 reveals this:
In the case of Provinces all that is necessary is consultation. Consent 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.With regard to Indian States, the provision is that there shall be consent. The distinction is based upon the fact that, so far as we are at present concerned, the position of the Provinces is different from the position of the States. The States are sovereign States and the provinces are not sovereign States. While in the case of the Indian States, it is appropriate, in view of the fact that sovereignty remains with them that their consent should be obtained… (The then provinces now indicate States. The princely states were then referred to as Indian States).
But, this argument given in regard to “consultation and consent” is valid even today. Consent is required only when the states retain sovereignty. In modern India, sovereignty lies with the people of the Union of India. In fact, this distinction was further clarified by the Supreme Court of India in its judgment on the case – Babulal Parate vs The State of Bombay and Another, 28 August 1959. The judgment said:
Article IV, s 3, of the American Constitution which says inter alia that ‘no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States or parts of States without the consent of the legislatures of the State concerned as well as of the Congress.’ That provision is quite different from the proviso we are considering: the former requires the consent of the State Legislature whereas the essential requirement of our proviso is a reference by the President of the proposal contained in the Bill for the expression of its views by the State Legislature…
The Constitution stipulates that the proposal for bifurcation should be first referred to the affected legislature for expression of its views. However, Parliament need not necessarily proceed as per the views of the state legislature. Parliament can even amend the original proposal and adopt it. Even these amendments need not be referred again to the state legislature. This constitutional position, upheld by Supreme Court in case related to Mumbai state reorganisation in 1959 and Uttar Pradesh state reorganisation in 2009, has only articulated the paramount power of Parliament in this regard. The Supreme Court in the Babulal Parate case said:
…the intention seems to be to give an opportunity to the State Legislature to express its views within the time allowed; if the State Legislature fails to avail itself of that opportunity, such failure does not invalidate the introduction of the Bill. Nor is there anything in the proviso to indicate that Parliament must accept or act upon the views of the State Legislature. Indeed, two State Legislatures may express totally divergent views. All that is contemplated is that Parliament should have before it the views of the State Legislatures as to the proposals contained in the Bill and then be free to deal with the Bill in any manner it thinks fit, following the usual practice and procedure prescribed by and under the rules of business. The proviso does not say that if and when a proposal contained in the Bill is modified subsequently by an amendment properly moved and accepted in Parliament, there must be a fresh reference to the State Legislature and a fresh bill must be introduced. It was pointed out in the course of arguments that if the second condition required a fresh reference and a fresh bill for every amendment, it might result in an interminable process; because any and every amendment of the original proposal contained in the Bill would then necessitate a fresh Bill and a fresh reference to the State Legislature. Other difficulties might also arise if such a construction were put on the proviso; for example, in a case where two or three States were involved, different views might be expressed by the Legislatures of different States… If Parliament were to accept the views of one of the Legislatures and not of the other, a fresh reference would still be necessary by reason of any amendment in the original proposal contained in the Bill. We are referring to these difficulties not because we think that a forced meaning should be given to the words of the proviso to avoid certain difficulties which may arise.
Further elaborating on this, the Supreme Court in Pradeep Chaudhary and Others vs Union of India case said:
…indisputably, only because one or the other view had been expressed in the State Legislature, the same would not be binding upon the Parliament even if its views were received in time. When, however, the views of the State Legislature were not received in time, the Parliament would be free to pass the Act in terms of the Bill or with amendment as it may deem fit and proper. It is the Parliament’s prerogative to place the Bill in either of the Houses, either in the same form or with amendments…
Even the commentators on the Constitution of India have also held the same view. In Durga Das Basu’s Commentary on the Constitution of India (2009: 467), it is stated:
It has been ruled by the Speaker of the House of the People that the Bill having once been referred by the President to the State Legislatures concerned and thereafter duly introduced in Parliament, amendments seeking to make provisions different from those contained in the Bill as introduced and thereby affecting the area, boundaries or names of the State are in order and are not ultra vires of the constitution. These amendments are not required to be referred again to the State Legislature concerned nor is any fresh recommendation of the President necessary for their consideration.
Article 3 and Federalism
The most important criticism of Article 3 is that it violates federal principles. It is true that the context in which the final form of Article 3 has evolved is completely different. At the time of drafting the Constitution the nation faced a serious challenge to its unity and integrity. The states were in a very fluid form necessitating a remapping of India. But, the question today is whether it is advisable to accord such paramount power to Parliament in relation to the bifurcation of states. But, surprisingly no serious effort was ever made to redefine Article 3. Can we invoke the principles of federalism when it comes to the bifurcation of states? Bifurcation affects the relationship between two regions of a united state, whereas federalism refers to the relationship between the centre and the states.
The other school of thought is that if a minority territory within a united state wants to be separated, the mandatory consent of the affected legislature would make reorganisation of state impossible. In fact, this opinion was expressed even in the Constituent Assembly debates. The questions raised over bifurcation invoking the principles of federalism are essentially political in nature. Until now, there is no such judicial interpretation stating that Article 3 violates federalism, which forms a part of the basic structure of the Constitution. In fact, the judgments say otherwise. The judgment of the Andhra Pradesh High Court delivered through the Chief Justice Kalyan Jyoti Sengupta and Justice K C Bhanu on public interest litigation (no 435 of 2013, dated 8 October 2013), P V Krishnaiah petitioner vs Union of India said:
…The Article 3 has been designed in such a way that enables the Parliament essentially to maintain the concept of federalism. The Federal character of the Constitution is reserved by Article 3 of the Constitution of India …
In fact, the Constitution itself imposes certain limits on federalism. India is an indestructible union of destructible states. The remapping of states is therefore a simple exercise under the Indian Constitution. This constitutional position still remains unchanged. The unique aspect of the Indian Union is that the union is indestructible but not so the states; their identity can be altered or even obliterated. This is a departure from a federal feature which obtains in a classical federation like the US. The Constituent Assembly rejected a motion in the concluding stages to designate India as a “Federation of States”. B R Ambedkar, while introducing the Draft Constitution, explained the position thus:
…that though India was to be a federation, the federation was not the result of an agreement by the States to join in a federation, and that the federation not being the result of an agreement, no State has the right to secede from it. The federation is a Union because it is indestructible. Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source. The Americans had to wage a civil war to establish that the States have no right of secession and that their federation was indestructible. The Drafting Committee thought that it was better to make it clear at the outset rather than to leave it to speculation or to disputes.
Thus the reorganisation of a state by an Act of Parliament can be questioned on political grounds but invoking constitutional provisions would be futile.
The Supreme Court has also clarified the reasons for the state legislature being endowed with the power only to express its views in judgment on Babulal Parate case. The apex court has reiterated this position in the Pradeep Chaudhary case also. The Court has opined:
…none of the constituent units of the Indian Union was sovereign and independent in the sense the American colonies or the Swiss Cantons were before they formed their federal unions. The constituent Assembly of India, deriving its power from the sovereign people, was unfettered by any previous commitment in evolving a constitutional pattern suitable to the genius and requirements of the Indian people as a whole. Unlike some other federal legislature, Parliament, representing the people of India as a whole, has been vested with the exclusive power of admitting or establishing new States, increasing or diminishing the area of an existing State or altering its boundaries, the Legislature or Legislatures of the States concerned having only the right to an expression of views on the proposals. It is significant that for making such territorial adjustments it is not necessary even to invoke the provisions governing constitutional amendments…
Further elaborating the same position, the Supreme Court in its judgment on a case popularly known as Berubaru case (The Berubari Union and Exchange of Enclaves, special reference No 1/1959 on 14 March 1960 Equivalent citations: AIR 1960 SC 845, 1960 3 SCR 250 Author: Gajendragadkar Bench: B Sinha, A S Shah, K Dasgupta, K S Rao, M Hidayatullah, P Gajendragadkar, S Das) the apex court explained:
…unlike other federations, the Federation embodied in the said Act was not the result of a pact or union between separate and independent communities of States who came together for certain common purposes and surrendered a part of their sovereignty. The constituent units of the federation were deliberately created and it is significant that they, unlike the units of other federations, had no organic roots in the past. Hence, in the Indian Constitution, by contrast with other Federal Constitutions, the emphasis on the preservation of the territorial integrity of the constituent States is absent. The makers of the Constitution were aware of the peculiar conditions under which, and the reasons for which, the States (originally Provinces) were formed and their boundaries were defined, and so they deliberately adopted the provisions in Art. 3 with a view to meet the possibility of the redistribution of the said territories after the integration of the Indian States…
The points of difference between north American federalism and Indian federalism as contemplated by the Drafting Committee were explained by Ambedkar in the Constituent Assembly:
…India not opting for dual citizenship, States not having separate Constitutions and States enjoying residual powers apart from the principal difference that the American federation is the result of agreement between the Union and the States…
Paramount and Plenary Power
The Supreme Court, in a number of judgments, upheld the paramount position of Parliament as far as the reorganisation of states is concerned. More significantly, defining the nature and scope of Articles 3 and 4 of the Constitution, the Supreme Court stated that the power of Parliament as exclusive and plenary in the Mullaperiyar Environmental Protection Forum vs Union of India. The Supreme Court Judgment on Mullaperiyar Dam on 27 February 2006 (Case No: Writ Petition (Civil) 386 of 2001 Petitioner: Mullaperiyar Environmental Protection Forum Respondent: Union of India and Ors, Date of Judgment: 27 February 2006 Bench: Y K Sabharwal, C K Thakker and P K Balasubramanyan Judgment: Judgment [With Tc (C) Nos 56-59 and 96-99 of 2002] Y K Sabharwal, CJI) said:
…the creation of new States by altering territories and boundaries of existing States is within the exclusive domain of Parliament. The law making power under Articles 3 and 4 is paramount and is neither subjected to nor fettered by Article 246 and lists II and III of the Seventh Schedule. The Constitution confers supreme and exclusive power on Parliament under Articles 3 and 4 so that while creating new States by reorganisation, the Parliament may enact provisions for dividing land, water and other resources; distribute the assets and liabilities of predecessor States amongst the new States; make provisions for contracts and other legal rights and obligations. The constitutional validity of law made under Articles 3 and 4 cannot be questioned on ground of lack of legislative competence with reference to the lists of Seventh Schedule. The new State owes its very existence to the law made by the Parliament. It would be incongruous to say that the provision in an Act which gives birth to a State is ultra vires a legislative entry which the State may operate after it has come into existence. The powers of the State to enact laws in list II of Seventh Schedule are subject to Parliamentary legislation under Articles 3 and 4. …The power of Parliament to make law under Articles 3 and 4 is plenary and traverse over all legislative subjects as are necessary for effectuating a proper reorganisation of the States…
The power that Article 3 confers on Parliament was emphasised even in other cases. The Supreme Court in its judgment on the case – Petitioner: V B Raju vs Respondent: State of Gujarat and Anr, Date of Judgment 4 September 1980, said as follows:
…Articles 3 and 4 of the Constitution deal with a special situation and so long as a provision of law promulgated by Parliament can be considered as supplemental, incidental or consequential to the formation of a new State it would be enforceable even though it might amount to an amendment of certain provisions of the Constitution…
Article 4 of the Constitution clarifies this position. It says:
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.
(1) Any law referred to in Article 2 or Article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or legislatures of the State or States affected by such law) as Parliament may deem necessary.
(2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of Article 368.
The Supreme Court gives a further elaborate explanation in regard to the scope of Articles 2, 3 and 4 in a judgment related to the case – Mangal Singh and Another vs Union of India (17 November 1966). The judgment stated
…The law referred to in Articles 2 and 3 may therefore alter or amend the First Schedule to the Constitution which sets out the names of the States and description of territories thereof and the Fourth Schedule allotting seats to the States in the Council of States in the Union Parliament.
The law so made may also make supplemental, incidental and consequential provisions which would include provisions relating to the setting up of the legislative, executive and judicial organs of the State essential to the effective State administration under the Constitution, expenditure and distribution of revenue, apportionment of assets and liabilities, provisions as to services, application and adaptation of laws, transfer of proceedings and other related matters.
The above judgment further stated:
…the Constitution also contemplates by Article 4 that in the enactment of laws for giving effect to the admission, establishment or formation of new States, or alteration of areas and the boundaries of those States, power to modify provisions of the Constitution in order to tide over a temporary difficulty may be exercised by the Parliament…
The incisive analysis of the relevant constitutional provisions and the interpretation given by the constitutional courts clearly indicates that a bifurcation of the state is done by an Act of Parliament. Parliament has an unambiguous power in this regard. The state legislature was accorded only a consultative role. When the state legislature expresses a mixed opinion Parliament has to take a call. How far Parliament takes cognisance of mutually conflicting sentiments expressed in the state legislature is essentially a political question.
Basu, Durga Das (2009): Commentary of the Constitution of India (8th Edition) (Nagpur: Lexis Nexis Butterworths).
K Nageshwar (email@example.com) is a member of the Legislative Council of Andhra Pradesh and teaches at the Department of Communication and Journalism, Osmania University, Hyderabad.
Courtesy Economic and Political Weekly