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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