Consti Pro

8/19/2019 Consti Pro

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The Hindu

Jayaprakash Narayan

The decision to divide Andhra Pradesh raises important questions about federalism and the nation’s

future. This is the first time in India that a state is souht to be divided !ithout the consent of the

"tate leislature# and !ithout a neotiated settlement amon stakeholders and reions# and in the

face of public opposition.

All ma$or federal democracies have in their %onstitutions the provision that a state cannot be divided

or mered !ith another state !ithout its prior consent. This is the essence of federalism.

Article 3

India’s %onstitution&makers ave much thouht to the issue of formation of ne! states and

reoranisation of states. The 'raftin %ommittee and the %onstituent Assembly !ere a!are of the

circumstances prevailin at that time. India !itnessed Partition# accompanied by violence#

bloodshed# and forced mass miration. In addition# there !ere several kinds of "tates ( Parts A# )

and % ( and there !as need to reoranise all states and interate the **+ princely states. If the

consent of every "tate or ,nit !as a precondition to alterin the boundary# reoranisation !ould

have become an e-cruciatinly difficult e-ercise. %onsequently# the final te-t of Article as

promulated provided for the President’s recommendation and ascertainin the vie!s of the state

concerned both !ith respect to the proposal to introduce the )ill and !ith respect to the provisions

thereof.

/ur nation&builders !ere !ise in draftin the %onstitution to suit our requirements. 0ore important#

successive overnments have !isely applied Article in dealin !ith states. 1hile prior consent of

the state !as not necessary under the %onstitution# in practice every state has been formed !ith prior

consent# in most cases after a detailed# impartial e-amination by an independent commission. /nly

in the case of Pun$ab# there !as no leislature at the time of dividin the "tate in 2344. )ut there !as

a broad consensus amon stakeholders and no opposition.

"o far# Parliament and overnments have acted !ith restraint and !isdom in dealin !ith boundary

issues and formation of states. They re$ected the notion that anythin could be done to alter

boundaries# provided it is not e-pressly prohibited by the %onstitution. 1hile prior consent of thestate leislature is not mandatory# in practice care has been taken to obtain consent# or to act only on

the e-press request of the state. The 23*4 reoranisation !as based on the fundamental principle of

lanuae5 there !as broad national consensus on the issue.

Articles 6 7 in their present form are enablin provisions empo!erin Parliament to act in an

e-ceptional situation !hen national interest !arrants it# or to settle marinal boundary disputes

bet!een states !hen they are recalcitrant and efforts to reconcile differences and arrive at a


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settlement fail. The framers of the %onstitution did not intend to ive Parliament arbitrary po!ers to

redra! boundaries5 nor did successive Parliaments and overnments act unilaterally or arbitrarily

!ithout consent# broad consensus or neotiated settlement.

8ven after 239:# in every case of state formation# the consent of the state leislature !as obtained.

The broader principle of federalism and the !illin consent of constituent units and their people has been deemed to be necessary before a state is formed or a territory mered# unless over!helmin

national interest demands action by Parliament. The procedure !as observed in creatin Jharkhand#

,ttaranchal and %hhattisarh in +;;;.

'r. Ambedkar said in his reply to the debate in the %onstituent Assembly on states’ rihts< =The>

chare is that the %entre has been iven the po!er to override the "tates. This chare must be

admitted. )ut before condemnin the %onstitution for containin such overridin po!ers# certain

considerations must be borne in mind. The first is that these overridin po!ers do not form the

normal feature of the %onstitution. Their use and operation are e-pressly confined to emerencies

only?.

It is this spirit that informed the actions of the ,nion overnment and Parliament over the past si-

decades. There !ere blemishes in the application of Article *4 earlier. )ut over the past t!o decades

Indian federalism has matured a reat deal. The "upreme %ourt# in Bommai @2337# made Article

*4 more or less a =dead letter? ( as 'r. Ambedkar had hoped. Thouh the Binance %ommission’s

recommendations are not bindin on Parliament and overnment# those of every Binance

%ommission in respect of devolution of resources have been accepted and implemented. "ince the

report of the Tenth Binance %ommission# there has been reater transparency in devolution< most of

the ta- revenues of the ,nion are bein treated as the divisible pool# and a fi-ed proportion of it is

shared !ith states as decided by the Binance %ommission. "tates are no! more in control of their

economic future.

Limited sovereignty

This does not mean states can act as they please# or that their territorial interity is inviolable. There

is one nation and one citiCenship# and the nation’s territorial interity is paramount. Ho!ever#

!ithin that overarchin frame!ork# states e-ercise limited sovereinty# and the federal spirit informs

the operation of the %onstitution. The %onstitution did not intend to make India a unitary country

!ith states functionin as municipalities# their survival dependent on the !ill and !him of the ,nion

overnment. Nor did the operation of our %onstitution over the past 4 years suest a de

facto unitary state. In fact# federalism has been deepenin in India# in keepin !ith lobal trends.

The determined efforts of the ,nion overnment and its oft&repeated declarations that Andhra

Pradesh !ill be divided irrespective of the leislature’s vie!s# pose a rave daner to federalism andunity. Andhra Pradesh !as formed !ith the prior consent of the Andhra "tate Deislature# and the

Hyderabad "tate Deislature. 1hen t!o popular movements for the state’s division !ere launched in

the three reions ( in Telanana in 2343&:;# and in %oastal Andhra and Eayalaseema in 23:+&: (

the ,nion overnment encouraed all reions to arrive at a neotiated settlement. %orrespondin

constitutional provisions !ere put in place to safeuard the interests of all reions. An e-plicit and

implicit compact !as made by the ,nion !ith the people of Andhra Pradesh to the effect that the

"tate !ould remain united. It is on this basis that people mirated on a lare scale to the other


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reions and to the capital# Hyderabad# and built their lives# livelihoods and the "tate’s economy. In

this backdrop# any redra!in of boundaries !ould need another areement arrived at by the affected

parties throuh patient neotiation. The ,nion has a seminal role in helpin reconcile conflictin

interests harmoniously. Parliament can act only on the basis of such an areement# consensus and

consent. Any other approach !ould be ham&handed# arbitrary and uneven# and run counter to the

principles and practice of federalism as they have evolved under Indian conditions.

The !ay the President and Parliament handle the Andhra Pradesh issue !ill# in a fundamental sense#

shape the future of the ,nion itself. This is a definin moment not for Andhra Pradesh alone# but for

our federal %onstitution and India itself.

If such an arbitrary decision becomes a precedent# any and every state could be divided or

boundaries altered !ithout consent# and !ithout a neotiated settlement# that !ill effectively convert

states into municipalities# and India into a unitary state. Neither the %onstitution&makers nor

nation&builders intended such an outcome. And India’s future !ill be in peril if such an effort is

made to make the nation effectively unitary at this stae.

In critical moments like this the President and Parliament have to act !ith restraint# foresiht and

!isdom. The President is not only the head of the Eepublic# he is also a part of Parliament. The

President is elected by members of both Houses as !ell as members of "tate Assemblies. In a

fundamental sense the President represents the nation ( both ,nion and states ( and is the final

defender of the %onstitution and federalism alon !ith the "upreme %ourt. This is therefore a fit case

!here the President should e-ercise his constitutional duty independently before recommendin

introduction of any )ill to divide the "tate of Andhra Pradesh.

Deaders of parliamentary parties too should act !ith clarity and !isdom# and !ith the kno!lede

that division of a state !ithout its consent and a neotiated settlement amon all stake&holders

converts the nation effectively into a unitary one. 8very state !ill# in future# be vulnerable to

unilateral action for short&term electoral e-pediency.

The %onstitution# the President# Parliament and the political parties !ill be put to a severe test in this

case# and the !ay they respond to this challene !ill shape the future of our Eepublic# and the future

of federalism in India.

Nalamotu Chakravarthy


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S T A T E D I V I S I O N – F E D E R A L I S M B Y D R . J P

N A R A Y A N

The October 3 decision of the Union Government to divide Andhra Pradesh and the subsequent

developments raise important questions about federalism in India and the future of the nation. Several

states have been formed after 1!"# but this is the first occasion $hen a ma%or state is sou&ht to be

divided $ithout the consent of the state le&islature# and $ithout a ne&otiated settlement amon& the sta'e(holders and various re&ions# and in the face of fierce opposition from vast sections of the public.

All ma%or federal democracies have incorporated in their )onstitutions the provision that a state cannot be

divided or mer&ed $ith another state $ithout its prior consent. This is the essence of federalism. The

United States# Australia# German*# )anada and S$it+erland follo$ this model. Similarl* ,ra+il# Ar&entina

and -eico follo$ the same pattern. /ven a unitar* countr* li'e ,ritain# $hile dealin& $ith re&ional

assemblies of 0ales and Scotland# follo$s such a federal principle in practice.

Indian )onstitution(ma'ers &ave considerable thou&ht to the issue of formation of ne$ states and

reor&ani+ation of states $hile draftin& the )onstitution. Article 3 of the draft constitution prepared b*

)onstitutional Advisor Sir , 2 au4 in Oct 156 reads as follo$s7

“The Federal Parliament may, with the previous consent of the Legislature of every Province and

the Legislature of every India State whose boundaries are affected thereby, by Act

1. create a new unit!

8. increase the area of any unit!

3. diminish the area of any unit!

5. alter the boundaries of any unit!

!. alter the name of any unit!

and may with the li"e consent ma"e such incidental and conse#uential provisions by such Act as

it may deem necessary or proper$

%& 'hen any such Act creates a new unit, then as from the date of commencement of the Act that

unit shall be deemed to be included in the First Schedule to this (onstitution, and when provision

is made by any such Act for the alteration of the area or the boundaries or the name of any unit,

then as from the date of commencement of the Act any reference in that schedule to that unit shall be construed as a reference to the unit as so altered$)

9ater# The :raftin& )ommittee revised it $ith the follo$in& proviso7

“Provided that no *ill for the purpose shall be introduced in either +ouse of Parliament ecept on

the recommendation of the President and unless -


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1. 'here the proposal contained in the *ill affects the boundaries or name of any state or States for

the time being specified in PartI of the First Schedule, the views of the Legislature of the State,

or as the case may be, of each of the States, both with respect to the proposal to introduce the

*ill and with respect to the provisions thereof have been as ascertained by the President! and

a 'here such proposal affects the boundaries or name of any State or States for the time being

specified in PartIII of the First Schedule, the previous consent of the State, or as the case may

be, of each of the States to the proposal has been obtained$)

;o$ever# the :raftin& )ommittee and )onstituent Assembl* $ere 'eenl* a$are of the circumstances

prevailin& in the countr* at that time. India $itnessed partition of the countr*# accompanied b*

unprecedented violence and bloodshed# and the lar&est forced mass mi&ration in histor*. In addition#

there $ere several 'inds of States < Part A# , and )# and there $as need to reor&ani+e all the states and

full* inte&rate the !!8 princel* states. If the consent of ever* State or Unit $as a pre(condition for alterin&

boundar* of a State# reor&ani+ation of Indian States could easil* have been mired in disputes# and $ould

have been a prolon&ed and ecruciatin&l* difficult eercise# dela*in& and hamperin& the nation(buildin&

efforts. Therefore the* $anted to prevent Parliamentar* paral*sis $hile reor&ani+in& the States.

)onsequentl*# the final tet of Article 3 as promul&ated provided for the President=s recommendation and

ascertainin& of the vie$s of the States4 concerned.

Subsequentl*# in 1!!# on the eve of lin&uistic reor&ani+ation of States# Article 3 has been amended

!th Amendment4 to provide for a timeframe for epression of the vie$s of the le&islature# $ith a provision

for the President allo$in& a further period of time on request. )learl*# this timeframe $as incorporated to

ensure that the impendin& States= reor&ani+ation could be carried out smoothl* $ithout unreasonabledela*s.

/perience has sho$n that our nation(builders $ere $ise in draftin& the )onstitution to suit our

requirements. -ore important# successive &overnments have been ver* mature and $ise in appl*in&

Article 3 and in dealin& $ith States. 0hile prior consent of the State $as not necessar* under the

)onstitution# in practice ever* State has been formed $ith prior consent# and in most cases after a

detailed# impartial eamination of the issues b* an independent commission and based on its

recommendations. Onl* in the case of the Pun%ab# there $as no le&islature at the time of dividin& the

State in 1>># but a broad consensus amon& all sta'e(holders $as available and there $as no opposition

to division of Pun%ab. Also the division $as carried out based on the settled lin&uistic principle# and aParliamentar* )ommittee eamined the issue of boundaries of the ne$ states and other related issues#

and &ave recommendations $hich $ere implemented in their entiret*.

So far# the Parliament and Governments have acted $ith restraint and $isdom in dealin& $ith boundaries

of States and formation of ne$ States. The* re%ected the notion that an*thin& could be done to alter the

boundaries of States provided it is not epressl* prohibited b* the )onstitution. 0hile prior consent of


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state le&islature is not mandator*# in practice care has been ta'en to obtain the consent of le&islature# or

to act onl* on the epress request of the State. The 1!> reor&ani+ation of States $as based on the

fundamental principle of lan&ua&e# and there $as broad national consensus on the issue.

The States= eor&ani+ation )ommission in its report 1!!4 in Para 1"6 noted $isel*7

“Any measure of reorgani.ation which is li"ely to create tensions and disharmony must wea"en

the sense of unity among the people of India and should not, therefore be countenanced)

The S) further stated in Para 111 iii4 as follo$s7

“*ut while the building of contented units, strong enough to bear their share of the burden, is an

important ob/ective, it is no less necessary that the lin"s between the units and the nation should

be e#ually strong so that under the stress of regional loyalties, the 0nion does not fall apart)$

The )ommission $ent on to caution in Para 118 as follo$s7

“It follows that, while internal ad/ustments at State level are to be desired, it is imperative to

ensure that these do not lead to malad/ustments at the interstate and national level$ From the

point of view of national unity, therefore, reorgani.ation has to aim at a twofold ob/ective1

1. Firm discouragement of disruptive sentiments such as provincialism or linguistic fanaticism! and

8. (onsistent with national solidarity, provision of full scope for the unhampered growth of the

genius of each group of people)

It is this maturit* and $isdom that served us $ell over the past si decades. As the Sar'aria )ommission

noted in 1?6 in paras 8.8."> and 8.8."67

@In all# durin& the last 36 *ears# 8" Acts have been enacted b* Parliament under Articles 3 and 5

to brin& chan&es in the areas# boundaries and names of States

“It is noteworthy that these legislations were passed either with the consent of the States

affected, or on the recommendations of a (ommission or (ommittee set up for the purpose2$

3uestions relating to read/ustment of boundaries of some states still remain unsettled$ The need

for Articles 4 and 5 in the present form has not disappeared)$

)learl*# Articles 3 B 5 in their present form are enablin& provisions empo$erin& the Parliament to act in an

eceptional situation $hen national interest $arrants it# or to settle mar&inal boundar* disputes bet$een

States $hen the* are recalcitrant and all efforts to reconcile their differences and arrive at a ne&otiated

settlement have failed. The framers of the )onstitution had not intended to &ive Parliament arbitrar*


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po$ers to redra$ boundaries of States at $illC nor did successive Parliaments and Governments act

unilaterall* or arbitraril* $ithout &enuine consent# broad consensus or ne&otiated settlement.

/ven after 1?6# in ever* case of ne$ State formation# the prior consent of the 9e&islature of the affected

State $as obtained# and onl* then did the Parliament act. /ven in respect of Pondicherr* and Goa $hen it$as a Union Territor*# the $ishes of the people and their representatives $ere respected# thou&h neither

consent of the Union Territor* is needed# not is it necessar* to ascertain the vie$s of a le&islature of the

Union Territor*. The broader principle of federalism and $illin& consent of the constituent units and their

people has al$a*s been deemed to be necessar* before a state is formed or a territor* is mer&ed# unless

over$helmin& national interest demands action b* Parliament. The same procedure has been

scrupulousl* observed $hile creatin& the ne$ States of Dhar'hand# Uttaranchal and )hattis&arh in 8""".

:r Ambed'ar stated in his repl* to the debate on States= ri&hts in the )onstituent Assembl* as follo$s7

“The second charge is that the (entre has been given the power to override the States$ This

charge must be admitted$ *ut before condemning the (onstitution 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 (onstitution$ Their use and operation are epressly confined to

emergencies only)$

It is precisel* this spirit that informed the actions of Union Government and Parliament over the past si

decades. Such admirable $isdom and restraint have been evidence in respect of formation of states on

ever* occasion. There $ere certainl* blemishes in application of Article 3!> earlier. ,ut over the past t$o

decades Indian federalism has matured a &reat deal more. The Supreme )ourt verdict in ,ommai )ase

154 made Article 3!> more or less a @dead letterE as Ambed'ar hoped. Thou&h the Finance

)ommission=s recommendations are not bindin& on the Parliament and Government# therecommendations of ever* Finance )ommission in respect of devolution of resources have been

accepted and implemented full* over the past si decades. Since the report of the Tenth Finance

)ommission# there has been &reater transparenc* in devolution# $ith most of the ta revenues of the

Union bein& treated as the divisible pool# and a fied proportion of it is shared $ith states# and this

proportion is decided b* the Finance )ommission from time to time. 0ith liberali+ation and epansion of

economic freedom# States are no$ more in control of their economic future. 0ith the decline in

importance of ne$ public sector investments and reduced political control of such investments# there is

little scope for discrimination or favouritism in the Union=s dealin&s $ith States. As a result of all these

developments# India is moral federal in nature toda* than ever before in our histor* as a epublic.

These developments do not mean that states can act as the* pleaseC nor does it mean that their territorial

inte&rit* is inviolable. )learl*# there is one nation and one citi+enship# and territorial inte&rit* of the nation

is paramount. ;o$ever# $ithin that overarchin& frame$or'# States too eercise limited soverei&nt*# and

federal spirit informs the operation of our )onstitution. The )onstitution never intended to ma'e India a

unitar* countr* $ith States functionin& as municipalities# and their ver* survival as political entities

dependent on the $ill and $him of the Union Government. 2or did the actual operation of our )onstitution

over the past >3 *ears su&&est a de facto unitar* State. In fact# federalism has been deepenin& in India.

This is in 'eepin& $ith &lobal trends. /ven a unitar* countr* $ithout $ritten )onstitution li'e the U is


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becomin& a federal countr*# $ith re&ional le&islatures in Scotland# 0ales and 2orthern Ireland eercisin&

considerable po$er. /ven Sri 9an'a is no$ attemptin& to institutionali+e a federal model to accommodate

the aspirations of Tamil(spea'in& people. Pa'istan# despite decades of turbulence and dictatorship#

preserved its federal structure.

Our settled constitutional la$ practice in respect of States= formation can be summed up as follo$s7

2e$ States are formed# or boundaries of eistin& states are altered onl* $ith the consent of the affected

States. Onl* in eceptional situations of national emer&enc* or over$helmin& national interest $ould

Parliament be called upon to act on its o$n $ithout the consent of States. 0hen there are stron& popular

demands for division of a state or alterin& the boundaries of a state# consent must be the &uidin& principle

as a &eneral rule. ;o$ever# $hen there is polari+ation and serious diver&ence of vie$s# patient

ne&otiation and ad%ustment and fair reconciliation throu&h a process of &ive and ta'e should be the norm.

The Parliament $ould ordinaril* act onl* after such a consensus and ne&otiated settlement are arrived at.

Onl* in etreme and compellin& circumstances# $hen unit* of India or its securit* is at sta'e# or

over$helmin& national interest demands ad%ustment of boundaries# $ould Parliament act $ithout the

consent of States affected. In redra$in& boundaries of an* State# Parliament $ould act at all times $ith

&reat restraint and circumspection.

The Punchi )ommission on )entre(State elations in its report 8"1"4 in para 5.8."8 stated as follo$s7

“In practice it is rarely possible for the Parliament to ignore the views of the States$ The (entral

government, in effect, cannot concede to the demands of regional groups6communities for a

separate State unless such a proposal is received from the State7s& in which these groups are

currently located$)

This principle can be sli&htl* amended based on the eperience relatin& to Uttar Pradesh. On 2ov 83#

8"11# a fe$ months before the State 9e&islative Assembl* elections $ere due# the Uttar Pradesh

9e&islature passed a resolution see'in& trifurcation of the State. :espite the State=s consent# the

President# the Union Government# and the Parliament chose not to act# and for &ood reason. The

Assembl* resolution $as clearl* for reasons of political epedienc* to &ain short(term electoral

advanta&e# and $as passed $ee's before the &eneral election $as due. )learl*# States cannot be

divided for temporar* electoral advanta&e of one part* or the other. If there is no informed consent# and if

broad consensus amon& all re&ions is not clearl* manifest# division of States for short(term electoral &ains

$ill lead to anarch*# and $ill seriousl* undermine our federalism# and indeed the unit* and inte&rit* of the

nation itself.

The UP episode demonstrates that the settled principle no$ is that the Union $ill not ordinaril* act $ithout

the State=s consent. /ven $hen the affected State consents to alterin& its boundaries# the Union reserves

the ri&ht to re%ect it on broader national considerations. In other $ords# in order to alter the status quo in

respect of boundaries of States# ordinaril* consent of affected states $ould be necessar*. ,ut a State=s

request for alterin& the status quo need not be &ranted unless the Union is convinced that the broader

national interest is served b* such a decision.


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/ven colonial rulers paid a heav* price b* actin& precipitatel* $ithout the consent of all sta'e(holders.

The partition of ,en&al $as effected b* the then Hicero* 9ord )ur+on# a&ainst the $ishes of lar&e

se&ments of population. There mi&ht $ell have been sound administrative reasons for such a partitionC

but the consent of people affected $as not obtained# and a consensus $as not arrived at. Peoplesuspected that it $as a deliberate plo* to divide the national movement and so$ seeds of communal

disaffection# and rebelled a&ainst it. As a result# the national movement &ained &reat momentum# the

chasm bet$een the colonial &overnment and the people $idened# partition had to be annulled in 111#

and that bitter episode led to man* lastin& consequences.

In the li&ht of these historical and constitutional developments and the evolution of federalism in the

Indian contet# the determined efforts of the Union Government and its oft(repeated declarations that

Andhra Pradesh $ill be divided irrespective of the State 9e&islature=s vie$s pose a &rave dan&er to

federalism and unit* of India. Andhra Pradesh $as formed $ith the prior consent of the then Andhra State

9e&islature# and the then ;*derabad State 9e&islature. 0hen t$o popular movements for division of the

State $ere launched in the three re&ions < in Telan&ana in 1>(6"# and in )oastal Andhra and

a*alaseema in 168(63# < it $as the Union Government $hich encoura&ed all re&ions to arrive at a

ne&otiated settlement. )orrespondin& )onstitutional provisions $ere put in place to safe&uard the

interests of all re&ions. An eplicit and implicit compact $as made b* the Union $ith the people of Andhra

Pradesh to the effect that the State $ould remain united. It is on this basis that people mi&rated on a

lar&e scale to the other re&ions and to the capital cit* of ;*derabad# and built their lives# livelihoods and

the State=s econom*. In this bac'drop# an* redra$in& of the boundaries $ould need another a&reement

arrived at b* the affected parties throu&h patient ne&otiation# and the Union has a seminal role in helpin&

reconcile conflictin& interests harmoniousl*. Parliament can act onl* on the basis of such an a&reement#

consensus and consent of the State. An* other approach $ould be ham(handed# arbitrar*# uneven and

runs counter to the principles and practice of federalism as the* have evolved under Indian conditions.

The circumstances of October 3# 8"13 resolution of the )abinet and subsequent developments ma'e it

abundantl* clear that the Union is actin& arbitraril*# contrar* to past precedent and practice# in haste# and

$ith short(term electoral considerations in mind. There is not even the minimum effort to &enuinel*

ascertain the State 9e&islature=s vie$s and to accommodate them# let alone obtain its prior consent.

There has been no honest effort to encoura&e detailed discussion and ne&otiation amon& all sta'e(

holders# and no effort to arrive at a ne&otiated settlement satisfactor* to all re&ions.

It is such arbitrar* actions $ith short(term electoral calculations in mind that created &rave crises for the

unit* and inte&rit* of the nation in the Pun%ab and Dammu and ashmir in the ?"=s. Fundamentalistreli&ious &roups prone to violence and bloodshed $ere encoura&ed in the Pun%ab for partisan political

&ains# and Pun%ab and India paid a heav* price for such a foll*. Similarl*# the elected Government $as

dismissed b* en&ineerin& defections and on spurious &rounds in Dammu and ashmir in 1?5# and

subsequentl* an electoral alliance $as forced on the un$illin& re&ional part*# 2ational )onference# in

1?6. As a result# terrorism reared its u&l* head# and the nation continues to pa* a heav* price.


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If no$# a ne$ precedent is established b* dividin& Andhra Pradesh $ithout the consent of the State

9e&islature# and $ithout a ne&otiated settlement reached b* all re&ions# it could lead to serious

disaffection and malad%ustment at the inter(state and national level. Such a precedent ma* eventuall*

lead to division of an* ma%or State $ithout the $illin& consent of the State and ne&otiated settlement of

the sta'e(holders. The resultin& lin&uistic disaffection# re&ional stresses# and malad%ustment $ill

eventuall* threaten national unit* and inte&rit*# and there is ever* dan&er that the Union $ill fall apart$ithin a &eneration.

The $a* the President and Parliament handle the Andhra Pradesh issue $ill# in a fundamental sense#

shape the future of the Union itself. This is a definin& moment not for Andhra Pradesh alone# but for our

federal )onstitution and India itself.

Undoubtedl* there is lar&e support for the formation of Telan&ana state in the Telan&ana re&ion outside

the Greater ;*derabad cit*. /quall* certainl*# there is over$helmin& opposition to division of the State in

)oastal Andhra and a*alaseema re&ions# and in ;*derabad cit*. It cannot be an*bod*=s case that status

quo ante should# or can# be restored. ,ut $hat is needed is not precipitate and arbitrar* action b* the

Union# but pains(ta'in& efforts to assist ne&otiated settlement reconcilin& all conflictin& interests. In a

hi&hl* polari+ed situation li'e this# $hen about 3" people ferventl* $ant division# and about 6"J of the

people are vehementl* opposed to division of the State# there has to be a ne&otiated settlement

satisf*in& all# or at an* rate minimi+in& dissatisfaction to all. The Union cannot create a &roup of $inners#

and a much lar&er &roup of losers. That $ill be a recipe for disaffection# disharmon* and threat to national

unit*.

If such a arbitrar* decision b* the Union becomes a precedent# an* and ever* State could be divided or

boundaries altered $ithout the State=s consent# and $ithout a ne&otiated settlement. That $ill effectivel*

convert States into municipalities# and India into a unitar* State. 2either the )onstitution ma'ers# nor nation builders intended such an outcome. And India=s future $ill be in peril if such an effort is made to

ma'e the nation effectivel* unitar* at this sta&e.

It is in critical moments li'e this that the President and Parliament have to act $ith &reat restraint#

foresi&ht and $isdom. The President is not onl* the head of the epublic# but he is also a part of the

Parliament. The President is elected b* members of both ;ouses of Parliament as $ell as members of

State 9e&islative Assemblies. In a fundamental sense the President represents the nation < both Union

and States < and is the final defender of the )onstitution and federalism alon& $ith the Supreme )ourt.

This is therefore a fit case $here the President should eercise his constitutional dut* independentl*

before recommendin& introduction of an* ,ill to divide the State of Andhra Pradesh.

The leaders of Parliamentar* parties too should act $ith clarit* and $isdom# and $ith the 'no$led&e that

division of a State $ithout the State=s consent and a ne&otiated settlement amon& all sta'e(holders

converts the nation effectivel* into a unitar* one# and ever* State of the Union $ill# in future# be vulnerable

to unilateral action for short(term electoral epedienc*.


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The )onstitution# the President# the Parliament and the political parties $ill be put to a severe test in this

case# and the $a* the* respond to this challen&e $ill shape the future of our epublic# and the future of

federalism in India.

Parliament has an unambiguous power

K Nageshwar

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 cear that Pariament has the unequivoca power in deciding

matters reating to reorganisation of the states! An" de#ate regarding the

constitutiona provisions is more in the ream of poitics than a#out an" interpretation

of the Constitution!

K Nageshwar ([email protected] is a member o! the Legislative

"ouncil o! Andhra Pradesh and teaches at the #epartment o!

"ommunication and $ournalism% &smania 'niversity% yderabad.

There has been an intense debate in the recent past on the constitutional aspects

surroundin the bifurcation of Andhra Pradesh. The prominent politico&constitutional

question often bein raised is !ith reard to the role of Parliament and the state

leislature in the process of bifurcation. Deavin aside the merits and demerits of

bifurcation# it is !orth revie!in the constitutional questions bein raised in the

political debate over the issue. )oth the supporters and opponents of bifurcation are

lookin at the constitutional issues involved from their o!n political perspectives. An

artificial cleavae is souht to be created bet!een political constitutionalism and leal


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constitutionalism thouh the constitutional position is not only clear but has been

upheld time and aain by the ape- court !hile ad$udicatin many cases over the past

five decades.

The first question is on Article of the %onstitution. There is a demand no! to revie! Article # claimin that it oes aainst federalism. The dilution of federalism is a political

question. The political process operates on !hat the %onstitution says today# not on

!hat the %onstitution should have been. 'urin the si- decades of post&Independence

Indian history there has been an intense battle in the political and leal spheres on

many constitutional provisions that strenthen the unitary character of the polity. These

debates have led to a proper interpretation. The classic e-ample is that of Article *4.

)ut# barrin a fe! court cases# no serious debate has ever been initiated on amendin

Article of the %onstitution# !hich clearly keeps the po!er to bifurcate in the e-clusive

domain of Parliament. The %onstitution accords Parliament unequivocal and

unambiuous po!ers in this reard. The "upreme %ourt of India has repeatedly upheld

this in its $udments bet!een 23*3 and +;;3. The state leislature !as accorded only a

consultative role. This is a constitutional reality# evident from a plain readin of the

relevant provisions of the %onstitution.

Article 3 o! the "onstitution says)

alter the boundaries of any "tate5 @e alter the name of any "tate


13/21

Therefore# seekin the vie!s of the leislature to be affected is mandatory for Parliament

before bifurcatin a state. )ut the vie!s of the leislature are not bindin on Parliament.

Parliament can make a la! bifurcatin a state in !hatever manner it deems fit#

independent of !hatever may be the vie!s e-pressed by the concerned leislature. The

leislature !as iven only a consultative role. Any arument that such a provision oes

contrary to federalism is a political question !hich needs to be settled throuh the

political process. The constitutional interpretation of Article cannot be determined by

political aruments.

*cope o! the Legislature

7;37 of +;;; Pradeep %haudhary and /rs. >Appellants vs ,nion of India and Anr>

Eespondents. The $udment said as follo!s


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soverein "tates. 1hile in the case of the Indian "tates# it is appropriate# in vie! of the

fact that sovereinty remains !ith them that their consent should be obtained> @The

then provinces no! indicate "tates. The princely states !ere then referred to as Indian

"tates.

)ut# this arument iven in reard to =consultation and consent? is valid even today.

%onsent is required only !hen the states retain sovereinty. In modern India#

sovereinty lies !ith the people of the ,nion of India. In fact# this distinction !as

further clarified by the "upreme %ourt of India in its $udment on the case F )abulal

Parate vs The "tate of )ombay and Another# +9 Auust 23*3. The $udment said<

Artice I*, s +, of the American Constitution which sa"s inter aia that 'no new State

sha #e formed or erected within the jurisdiction of an" other State, nor an" State #e

formed #" the junction of two or more States or parts of States without the consent of

the egisatures of the State concerned as we as of the Congress!( That provision is

quite different from the proviso we are considering the former requires the consent of

the State )egisature whereas the essentia requirement of our proviso is a reference

#" the President of the proposa contained in the Bi for the expression of its views #"

the State )egisature$

The %onstitution stipulates that the proposal for bifurcation should be first referred to

the affected leislature for e-pression of its vie!s. Ho!ever# Parliament need not

necessarily proceed as per the vie!s of the state leislature. Parliament can even amendthe oriinal proposal and adopt it. 8ven these amendments need not be referred aain

to the state leislature. This constitutional position# upheld by "upreme %ourt in case

related to 0umbai state reoranisation in 23*3 and ,ttar Pradesh state reoranisation

in +;;3# has only articulated the paramount po!er of Parliament in this reard. The

"upreme %ourt in the )abulal Parate case said<

>the intention seems to be to ive an opportunity to the "tate Deislature to e-press its

vie!s !ithin the time allo!ed5 if the "tate Deislature fails to avail itself of that

opportunity# such failure does not invalidate the introduction of the )ill. Nor is thereanythin in the proviso to indicate that Parliament must accept or act upon the vie!s of

the "tate Deislature. Indeed# t!o "tate Deislatures may e-press totally diverent vie!s.

All that is contemplated is that Parliament should have before it the vie!s of the "tate

Deislatures as to the proposals contained in the )ill and then be free to deal !ith the

)ill in any manner it thinks fit# follo!in the usual practice and procedure prescribed by


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and under the rules of business. The proviso does not say that if and !hen a proposal

contained in the )ill is modified subsequently by an amendment properly moved and

accepted in Parliament# there must be a fresh reference to the "tate Deislature and a

fresh bill must be introduced. It !as pointed out in the course of aruments that if the

second condition required a fresh reference and a fresh bill for every amendment# it

miht result in an interminable process5 because any and every amendment of the

oriinal proposal contained in the )ill !ould then necessitate a fresh )ill and a fresh

reference to the "tate Deislature. /ther difficulties miht also arise if such a

construction !ere put on the proviso5 for e-ample# in a case !here t!o or three "tates

!ere involved# different vie!s miht be e-pressed by the Deislatures of different

"tates> If Parliament !ere to accept the vie!s of one of the Deislatures and not of the

other# a fresh reference !ould still be necessary by reason of any amendment in the

oriinal proposal contained in the )ill. 1e are referrin to these difficulties not because !e think that a forced meanin should be iven to the !ords of the proviso to avoid

certain difficulties !hich may arise.

Burther elaboratin on this# the "upreme %ourt in Pradeep %haudhary and /thers vs

,nion of India case said<

>indisputably# only because one or the other vie! had been e-pressed in the "tate

Deislature# the same !ould not be bindin upon the Parliament even if its vie!s !ere

received in time. 1hen# ho!ever# the vie!s of the "tate Deislature !ere not received in

time# the Parliament !ould be free to pass the Act in terms of the )ill or !ithamendment as it may deem fit and proper. It is the Parliament’s preroative to place the

)ill in either of the Houses# either in the same form or !ith amendments>

8ven the commentators on the %onstitution of India have also held the same vie!. In

'ura 'as )asu’s %ommentary on the %onstitution of India @+;;3< 74:# it is stated<

It has been ruled by the "peaker of the House of the People that the )ill havin once

been referred by the President to the "tate Deislatures concerned and thereafter duly

introduced in Parliament# amendments seekin to make provisions different from those

contained in the )ill as introduced and thereby affectin the area# boundaries or names

of the "tate are in order and are not ultra vires of the constitution. These amendments

are not required to be referred aain to the "tate Deislature concerned nor is any fresh

recommendation of the President necessary for their consideration.

Article and Bederalism


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. %an !e invoke the principles of federalism !hen it comes to the bifurcation of statesG

)ifurcation affects the relationship bet!een t!o reions of a united state# !hereas

federalism refers to the relationship bet!een the centre and the states. The most

important criticism of Article is that it violates federal principles. It is true that the

conte-t in !hich the final form of Article has evolved is completely different. At the

time of draftin the %onstitution the nation faced a serious challene to its unity and

interity. The states !ere in a very fluid form necessitatin a remappin of India. )ut#

the question today is !hether it is advisable to accord such paramount po!er to

Parliament in relation to the bifurcation of states. )ut# surprisinly no serious effort !as

ever made to redefine Article

The other school of thouht is that if a minority territory !ithin a united state !ants to

be separated# the mandatory consent of the affected leislature !ould make

reoranisation of state impossible. In fact# this opinion !as e-pressed even in the

%onstituent Assembly debates. The questions raised over bifurcation invokin the

principles of federalism are essentially political in nature. ,ntil no!# there is no such

$udicial interpretation statin that Article violates federalism# !hich forms a part of

the basic structure of the %onstitution. In fact# the $udments say other!ise. The

$udment of the Andhra Pradesh Hih %ourt delivered throuh the %hief Justice alyan

Jyoti "enupta and Justice % )hanu on public interest litiation @no 7* of +;2#

dated 9 /ctober +;2# P rishnaiah petitioner vs ,nion of India said<

>The Article has been desined in such a !ay that enables the Parliament essentially

to maintain the concept of federalism. The Bederal character of the %onstitution is

reserved by Article of the %onstitution of India >

In fact# the %onstitution itself imposes certain limits on federalism. India is an

indestructible union of destructible states. The remappin of states is therefore a simple

e-ercise under the Indian %onstitution. This constitutional position still remains

unchaned. The unique aspect of the Indian ,nion is that the union is indestructible but

not so the states5 their identity can be altered or even obliterated. This is a departure

from a federal feature !hich obtains in a classical federation like the ,". The

%onstituent Assembly re$ected a motion in the concludin staes to desinate India as a

=Bederation of "tates?. ) E Ambedkar# !hile introducin the 'raft %onstitution#

e-plained the position thus


17/21

>that thouh India !as to be a federation# the federation !as not the result of an

areement by the "tates to $oin in a federation# and that the federation not bein the

result of an areement# no "tate has the riht to secede from it. The federation is a

,nion because it is indestructible. Thouh the country and the people may be divided

into different "tates for convenience of administration# the country is one interal

!hole# its people a sinle people livin under a sinle imperium derived from a sinle

source. The Americans had to !ae a civil !ar to establish that the "tates have no riht

of secession and that their federation !as indestructible. The 'raftin %ommittee

thouht that it !as better to make it clear at the outset rather than to leave it to

speculation or to disputes.

Thus the reoranisation of a state by an Act of Parliament can be questioned on political

rounds but invokin constitutional provisions !ould be futile.

The "upreme %ourt has also clarified the reasons for the state leislature bein endo!ed

!ith the po!er only to e-press its vie!s in $udment on )abulal Parate case. The ape-

court has reiterated this position in the Pradeep %haudhary case also. The %ourt has

opined<

>none of the constituent units of the Indian ,nion !as soverein and independent in

the sense the American colonies or the "!iss %antons !ere before they formed their

federal unions. The constituent Assembly of India# derivin its po!er from the soverein

people# !as unfettered by any previous commitment in evolvin a constitutional patternsuitable to the enius and requirements of the Indian people as a !hole. ,nlike some

other federal leislature# Parliament# representin the people of India as a !hole# has

been vested !ith the e-clusive po!er of admittin or establishin ne! "tates# increasin

or diminishin the area of an e-istin "tate or alterin its boundaries# the Deislature or

Deislatures of the "tates concerned havin only the riht to an e-pression of vie!s on

the proposals. It is sinificant that for makin such territorial ad$ustments it is not

necessary even to invoke the provisions overnin constitutional amendments>

Hidayatullah# P a$endraadkar# " 'as the ape- court e-plained


18/21

>unlike other federations# the Bederation embodied in the said Act !as not the result of

a pact or union bet!een separate and independent communities of "tates !ho came

toether for certain common purposes and surrendered a part of their sovereinty. The

constituent units of the federation !ere deliberately created and it is sinificant that

they# unlike the units of other federations# had no oranic roots in the past. Hence# in

the Indian %onstitution# by contrast !ith other Bederal %onstitutions# the emphasis on

the preservation of the territorial interity of the constituent "tates is absent. The

makers of the %onstitution !ere a!are of the peculiar conditions under !hich# and the

reasons for !hich# the "tates @oriinally Provinces !ere formed and their boundaries

!ere defined# and so they deliberately adopted the provisions in Art. !ith a vie! to

meet the possibility of the redistribution of the said territories after the interation of

the Indian "tates>

The points of difference bet!een north American federalism and Indian federalism ascontemplated by the 'raftin %ommittee !ere e-plained by Ambedkar in the

%onstituent Assembly<

>India not optin for dual citiCenship# "tates not havin separate %onstitutions and

"tates en$oyin residual po!ers apart from the principal difference that the American

federation is the result of areement bet!een the ,nion and the "tates>

Paramount and Plenary Po!er

The "upreme %ourt# in a number of $udments# upheld the paramount position ofParliament as far as the reoranisation of states is concerned. 0ore sinificantly#

definin the nature and scope of Articles and 7 of the %onstitution# the "upreme %ourt

stated that the po!er of Parliament as e-clusive and plenary in the 0ullaperiyar

8nvironmental Protection Borum vs ,nion of India. The "upreme %ourt Judment on

0ullaperiyar 'am on +: Bebruary +;;4 @%ase No< 1rit Petition @%ivil 94 of +;;2

Petitioner< 0ullaperiyar 8nvironmental Protection Borum Eespondent< ,nion of India

and /rs# 'ate of Judment< +: Bebruary +;;4 )ench< L "abhar!al# % Thakker and

P )alasubramanyan Judment< Judment M1ith Tc @% Nos *4&*3 and 34&33 of +;;+

L "abhar!al# %JI said<

>the creation of ne! "tates by alterin territories and boundaries of e-istin "tates is

!ithin the e-clusive domain of Parliament. The la! makin po!er under Articles and

7 is paramount and is neither sub$ected to nor fettered by Article +74 and lists II and III

of the "eventh "chedule. The %onstitution confers supreme and e-clusive po!er on


19/21

Parliament under Articles and 7 so that !hile creatin ne! "tates by reoranisation#

the Parliament may enact provisions for dividin land# !ater and other resources5

distribute the assets and liabilities of predecessor "tates amonst the ne! "tates5 make

provisions for contracts and other leal rihts and obliations. The constitutional

validity of la! made under Articles and 7 cannot be questioned on round of lack of

leislative competence !ith reference to the lists of "eventh "chedule. The ne! "tate

o!es its very e-istence to the la! made by the Parliament. It !ould be inconruous to

say that the provision in an Act !hich ives birth to a "tate is ultra vires a leislative

entry !hich the "tate may operate after it has come into e-istence. The po!ers of the

"tate to enact la!s in list II of "eventh "chedule are sub$ect to Parliamentary leislation

under Articles and 7. >The po!er of Parliament to make la! under Articles and 7 is

plenary and traverse over all leislative sub$ects as are necessary for effectuatin a

proper reoranisation of the "tates>The po!er that Article confers on Parliament !as emphasised even in other cases. The

"upreme %ourt in its $udment on the case F Petitioner< ) Ea$u vs Eespondent< "tate

of u$arat and Anr# 'ate of Judment 7 "eptember 239;# said as follo!s<

>Articles and 7 of the %onstitution deal !ith a special situation and so lon as a

provision of la! promulated by Parliament can be considered as supplemental#

incidental or consequential to the formation of a ne! "tate it !ould be enforceable even

thouh it miht amount to an amendment of certain provisions of the %onstitution>

Article 7 of the %onstitution clarifies this position. It says<

Da!s made under Articles + and to provide for the amendment of the Birst and the

Bourth "chedules and supplemental# incidental and consequential matters.

@2 Any la! referred to in Article + or Article shall contain such provisions for the

amendment of the Birst "chedule and the Bourth "chedule as may be necessary to ive

effect to the provisions of the la! and may also contain such supplemental# incidental

and consequential provisions @includin provisions as to representation in Parliament

and in the Deislature or leislatures of the "tate or "tates affected by such la! as

Parliament may deem necessary.

@+ No such la! as aforesaid shall be deemed to be an amendment of this %onstitution

for the purposes of Article 49.

The "upreme %ourt ives a further elaborate e-planation in reard to the scope of

Articles +# and 7 in a $udment related to the case F 0anal "inh and Another vs

,nion of India @2: November 2344. The $udment stated


20/21

>The la! referred to in Articles + and may therefore alter or amend the Birst "chedule

to the %onstitution !hich sets out the names of the "tates and description of territories

thereof and the Bourth "chedule allottin seats to the "tates in the %ouncil of "tates in

the ,nion Parliament.

The la! so made may also make supplemental# incidental and consequential provisions

!hich !ould include provisions relatin to the settin up of the leislative# e-ecutive and

$udicial orans of the "tate essential to the effective "tate administration under the

%onstitution# e-penditure and distribution of revenue# apportionment of assets and

liabilities# provisions as to services# application and adaptation of la!s# transfer of

proceedins and other related matters.

The above $udment further stated<

$the Constitution aso contempates #" Artice - that in the enactment of aws for

giving effect to the admission, esta#ishment or formation of new States, or ateration

of areas and the #oundaries of those States, power to modif" provisions of the

Constitution in order to tide over a temporar" difficut" ma" #e exercised #" the

Pariament$

The incisive analysis of the relevant constitutional provisions and the interpretation

iven by the constitutional courts clearly indicates that a bifurcation of the state is done

by an Act of Parliament. Parliament has an unambiuous po!er in this reard. The state

leislature !as accorded only a consultative role. 1hen the state leislature e-presses ami-ed opinion Parliament has to take a call. Ho! far Parliament takes conisance of

mutually conflictin sentiments e-pressed in the state leislature is essentially a political

question.

Eeference

)asu# 'ura 'as @+;;3< %ommentary of the %onstitution of India @9th 8dition

@Napur< De-is Ne-is )utter!orths.

Naesh!ar @knhyderabadOmail.com is a member of the Deislative %ouncil of

Andhra Pradesh and teaches at the 'epartment of %ommunication and Journalism#

/smania ,niversity# Hyderabad.

%ourtesy 8conomic and Political 1eekly


21/21

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