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Interpreting a federal Constitution

The Andhra Pradesh Reorganisation Bill, 2013, which creates the State of Telangana, has been decisively rejected by the Andhra Pradesh Legislative Assembly and Council. This rejection, together
with the recording of 9,072 amendments and expression of views on its various clauses by its MLAs, and 1,157 like suggestions by its MLCs, has brought the process of the creation of new States in India into renewed focus. As has been opined previously in the pages of this newspaper, the constitutional position in this context is straightforward: Article 3 of the Constitution vests Parliament with the power to form a new State, provided that the Bill creating such a State is introduced on the recommendation of the President and he has referred it to the legislature of the affected State “for expressing its views thereon.” This would suggest that the views of the Andhra Pradesh Assembly will have no legal effect; the formation of Telangana is solely the prerogative of the government of India. While this may indeed be the position of the law as it stands today, the unprecedented nature of the rejection of the Bill by the Andhra Pradesh Assembly requires the legal interpretation of Article 3 be reconsidered. Such reconsideration is also prompted by the changing nature of Indian federalism, aptly demonstrated by the curious situation of a Congress government at the State level defying its counterpart in power at the Centre.
Unprecedented rejection
The key distinction between this instance and earlier disputes raised in relation to the formation of a new State lies in the fact that never before has an Amendment Bill been rejected by the State legislature in question. Both in Babulal Parate (Supreme Court) and Pradeep Chaudhary (Supreme Court, 2009) seminal judgments of the Court dealing with the creation of Bombay and Uttaranchal respectively, the issue before the Court was whether it was open to Parliament to amend the final Bill after the State legislature had expressed its views on an earlier, unamended version. In both cases, the Supreme Court, adopting a literal interpretation of Article 3, held that there was no requirement that an amendment to a Bill forming a new State would also have to be referred to the State legislature concerned. Such interpretation is arguably correct — the proviso to Article 3 simply states that the Bill must be sent to the State legislature concerned for expressing its views within a specified period. The provision is silent on whether later amendments have to be referred, as well as on the effect that the views of the State legislatures will have. Thus read literally, even a wholesale rejection of the Bill can be ignored by Parliament, since Article 3 merely gives State Assemblies a consultative role — their views are not binding on Parliament in any way.
However, to treat the State’s views as carrying merely formal value, as has been widely suggested, would render the constitutional process of consultation entirely nugatory in a matter of national importance. The current proviso to Article 3 was introduced by the Constitution (Fifth Amendment) Act, 1955. Before this amendment, the President could only introduce an Amendment Bill in Parliament after referring it to the State legislatures concerned for their views. This was a time-consuming process, allowing States to vacillate in responding, thereby frustrating the efforts of the government of India. This amendment was necessary to lay the groundwork for the smooth passage of the States’ Reorganisation Commission Report that recommended a radical redrawing of State boundaries and creation of new States. By adequately circumscribing State power, it was felt that no single State could hold up the process of reorganisation.
But what if a State rejected the proposal to create a new State outright? Both the proviso to Article 3 as well as the Rajya Sabha debates prior to its passage are silent on this specific question. The reason for such silence is aptly demonstrated in a speech by MP Professor N.G. Ranga who said in the House, “I am glad really now that this Bill has come to be introduced instead of … the Congress Party trusting itself to its capacity to get the local majorities, which are also Congress majorities, to express the views of the legislatures.” (Rajya Sabha Debates, December 15, 1955). The proviso was thus brought in at a time when such disagreement between the Centre and States was not a real possibility. Neither did Parliament envisage nor did it legislate for such a situation. The rejection of the Telangana Bill by the Andhra Pradesh Assembly is evidence of a dramatically changed time. For the legal interpretation of Article 3 to ignore such change would be an anachronism. It would also be inconsonant with the Supreme Court’s characterisation of the Constitution as “a living tree” capable of continuous growth with concomitantly changing scenarios.
Bommai case
Such reinterpretation of provisions of the Constitution that have bearing on its federal character has precedent. In terms of the legality of the imposition of President’s Rule in States under Article 356, the Supreme Court in S.R. Bommai v. Union of India (Supreme Court, 1994) overruled its own precedent in the case of State of Rajasthan v Union of India (Supreme Court, 1977). While holding that the power of the President to impose President’s Rule is not above and beyond judicial review entirely, the Court narrowed down the circumstances and the manner in which such powers could be exercised. The premise of this shift in constitutional jurisprudence was that the principle of federalism was part of the basic structure of the Constitution, and this principle could only be deviated from in exceptional and extraordinary circumstances, i.e. where constitutional rule was not possible in the State. In doing so, the Court recognised the pitfalls of a literal minded construction of the Constitution as was done in the Rajasthan case. In the absence of any checks on the exceptional power of the President to impose President’s Rule and give federalism a go-by in the name of upholding the Constitution, the Court recognised that the Constitution itself could be subverted.
The Supreme Court’s course correction in Bommai has a deeper lesson. That India’s constitutionally envisaged federal structure has a strong centralising tendency is beyond question. Such a tendency is not unique to India. Federal states the world over — Canada, the United States, Australia — all display discernible centripetal forces irrespective of differences in their federal structure. But the decision in Bommai and now the Andhra Pradesh Assembly’s rejection of the Telangana Bill marks a significant change in this dynamic. It provides recognition to a more balanced union, with Centre and States seen increasingly as coordinate entities. At a time when the Chief Minister of West Bengal trumps the decision of the government of India to sign an international accord, the sole prerogative of the Central government, and the Chief Minister of Tamil Nadu prevents Sri Lankan cricketers from playing in Chennai despite them having valid visas for travel in India, such a reworked understanding of federalism in India is both realistic and pragmatic.
Towards a new federalism
In the face of such changes, to merely parrot an originalist constitutional vision of a strong Centre while interpreting legal provisions is to take a blinkered view. The centralising tendency in India’s federal structure was adopted at a time when it was necessary to weld India’s disparate elements together into a nation. This was a task for which the government of India was uniquely positioned and required a supporting constitutional architecture. Thus, the federal provisions of the Constitution were as much lofty vision as political strategy. Such strategy now requires a careful recalibration since such a tool for nation-building, if used unthinkingly, will be seen purely as central hegemony. Such forced unitarity will be more harmful than a genuine recognition of a more equal federal structure that is perfectly consonant with the idea of India.
This does not in any way mean that the Andhra Pradesh Assembly’s views on the Telangana Bill should be the last word on the matter. Such an inference would be plainly unconstitutional. However, it is necessary that the Central government be required in law to adequately take into consideration the reasons why the Andhra Pradesh Assembly rejected the Telangana Bill. This obligation should be discharged in writing, demonstrating a proper application of mind with accompanying reasons as to why each recommendation has been accepted or rejected. Without such consideration, the Andhra Pradesh Reorganisation Bill, 2013, if passed, would seriously lack legitimacy and be inconsonant with the dynamic federal spirit of the Constitution.
(With inputs from Sakshi Aravind)
(Arghya Sengupta and Alok Prasanna Kumar are research director and senior resident fellow respectively, at Vidhi Centre for Legal Policy, a New Delhi-based legal policy think tank.)
The rejection of the Telangana Bill by
the Andhra Pradesh Assembly must not be dismissed as having no legal consequences as that would render the constitutional process of consultation entirely nugatory

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