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Published : July 10, 2015 | Author : Manmeet Singh
Category : Constitutional Law | Total Views : 32205 | Rating :

Manmeet Singh
I am B.A.LL.B (Hon's) final year of LL.M at Himachal Pradesh University

The Constitution of India is the supreme law of our country and hence every law enacted by the government of India must conform to it. We know that it came into effect on 26th January, 1950. Our Constitution avows the ''Union of India'' to be a sovereign, democratic republic, assuring its citizens of justice, equality, and liberty and to promote among them all fraternity. In 1976, by constitutional amendments, the words 'socialist', 'secular' and 'integrity' and 'Fraternity' were added. Our Constitution is the longest written constitution of any sovereign country in the entire world. It contains 395 (three hundred and ninety five) articles in 22 (twenty two) parts, 12 (twelve) schedules and 94 (ninety four) amendments. There are totally 117,369 words in our constitution. It was written in English. That too, it was also translated into Hindi language officially. Amendments to the constitution can be made by Parliament, yet the Hon'ble Supreme Court of India held (though it is rather controversial) that not every constitutional amendment is permissible. An amendment should respect the 'basic structure' of the constitution, which is immutable. The procedure is laid out in Article 368.

One of special features of the Union of India is that the union is indestructible but the power conferred on Parliament includes the power to form a new state or union territory by uniting a part of any State or Union territory to other State or Union territory. The identity of States can be altered or even expunged by the Parliament. The Constituent Assembly declined a motion in concluding stages to designate India as '' Federation of States''.

Article 1 elucidates India a ''Union of States''. These states are specified in the First Schedule of the constitution. First Schedule lists the States and Territories of India and also lists if any changes to borders of them. Articles 2, 3 and 4 enable parliament by law admit a new state, increase, decrease the area of any state.

Dr. Bhimrao Ramji Ambedkar, as chairman of the Constitution Drafting Committee, who was the Chief Architect of The Constitution of India. explained the position as to '' Federation of States'' as infra :

''... 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 proviso of Article 3 makes it compulsory on the part of the President to refer the bill to the legislature of the 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.

Formation of New State

The authors of Indian constitution, unlike the current generation of Indians, did not believe that the states, districts and mandals within India are static, unchanging, and permanent. They had the maturity to accept that states would evolve and change, and hence made provisions for creation of new states in Indian Union.

Indian Constitution

Article 3 of Indian Constitution addresses the topic of ‘Formation of new States and alteration of areas, boundaries or names of existing States’. It 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 Explanation I In this article, in clauses (a) to (e), State includes a Union territory, but in the proviso, State does not include a Union territory Explanation II The power conferred on Parliament by clause (a) includes the power to form a new State or Union territory by uniting a part of any State or Union territory to any other State or Union territory.

Steps Taken for Creation of New State

The steps for creating a new state are as follows: A bill on a new state has to be recommended by the President. In India it is usually the Cabinet which requests the President to do that. Article 3 makes it clear that the Parliament is the sole authority on making a decision on a new state. President refers the bill to the State Assembly for its views giving it a certain period of time. Parliament is not obligated to follow on the views of State Assembly. If the State Assembly does not express its opinion within the specified period of time, the bill could be introduced in the Parliament after the expiry of the specified period.

Why did the authors of the constitution put complete responsibility of creating new states ONLY with the Parliament? Why did they not provide a bigger role for a State Assembly other than expressing ‘its views’ on the topic?

To understand the intentions behind a certain clause in our Constitution the legal experts refer to the discussions of the authors that preceded the formulation of these clauses referred to as Constituent Assembly Debates (CAD). One legal expert clarifies:

When the Constituent Assembly was deliberating in November 1948 on the scope and content of Article 3, there was a proposal by Prof. KT Shah that the legislation constituting a new State from any region of a State should originate from the legislature of the State concerned. Had this procedure been approved, the power to decide the statehood of a region seeking separation would have been vested with the State legislature dominated by the elite of developed regions.

Opposing the same and using the then demand for an Andhra Province as an example, Shri K Santhanam stated as under: “I wonder whether Professor Shah fully realises the implications of his amendment. If his amendment is adopted, it would mean that no minority in any State can ask for separation of territory… unless it can get a majority in that State legislature.

Take the case of Madras Province for instance. The Andhras want separation. They bring up a resolution in the Madras Legislature. It is defeated by a majority. There ends the matter. The way of the Andhras is blocked altogether. They cannot take any further step to constitute an Andhra province." Thus Article 3 emerged in its current form.

It is the Constitutional intent that the will of the people of a region to form a separate State be the sole criterion for the Centre to initiate the process of State formation. This is the Constitutional benchmark for creating a new State for a region, as amply demonstrated in the deliberations of the Constituent Assembly and as reflected in the current phraseology of Article 3 of the Constitution of India.

This interpretation of Article 3 prevailed over creation of many new states in modern India thereby nearly doubling the number of states in the last fifty years. If not for this interpretation, Andhra State would never have formed. If India had not honored the ‘will of the people of a region to form a separate state’, there wouldn’t have been states like Mizoram, Nagaland, and Tripura, some of them composed of only two districts.

Supreme Court Verdict

A constitutional democracy also refers to legal verdicts which decide on the interpretation and set a precedent on applicability of a certain clause from Indian constitution.

Back in 1960 a Bill was introduced in the Indian Parliament proposing the formation of Maharashtra and Gujarat. This Bill was referred by the President to the State Assembly to obtain their views. Upon receiving the views, the Bill was passed in the Parliament. A petition was filed against this by Babulal Parante in High Court of Bombay:

His contention was that the said Act was passed in contravention of the provisions of Art. 3 of the Constitution, since the Legislature of Bombay had not been given an opportunity of expressing its views on the formation of the composite State. The High Court dismissed the petition.

In this case, Babulal Parante v. State of Bombay, the court explains the provisions of Article 3 of Indian Constitution:

The period within which the State Legislature must express its views has to be specified by the President; but the President may extend the period so specified. If, however, the period specified or extended expires and no views of the State Legislature are received, the second condition laid down in the proviso is fulfilled in spite of the fact that the views of the State Legislature have not been expressed.

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.

Clearly, Indian Constitution envisioned a situation where a state may refuse to provide its view or provide negative views about a formation of a new state, and therefore gave full powers to Indian Parliament to go ahead with its decisions irrespective of opposition from the State Assembly.

Case of Telangana

Telangana region consisting of 10 districts was always a strong contender for a separate state from the beginning. Even in 1956, there were strong indications that it would remain a separate state. However, bowing to the pressure of the prevailing sentiments of that time it was merged with Andhra State to form Andhra Pradesh. To allay the apprehensions of Telangana people, India gave this region and its people certain ‘constitutional guarantees’ protected by a ‘regional standing committee’. All of these experiments stand failed. Telangana has erupted in a violent agitation in 1969 to be brutally suppressed. Telangana then rose in a long and sustained agitation of the last fifteen years.

On 9 Dec 2009, in one pithy statement, Home Minister of Indian Union, P Chidambaram, announced the steps towards formation of a new state in India called Telangana:

“The process of forming the state of Telangana will be initiated.”

It was one of the most ecstatic moments for people of Telangana rivaling the last one which came on 17 September 1948 when Indian forces liberated Hyderabad State from Nizam’s rule. People came out onto the streets, danced and celebrated through the night. The next day, the national and international newspapers ran the news that India gets a new state. Unlike in some democracies countries, Indian leaders have a habit of going back on their words. Little did people of Telangana realize, little did news channels realize, little did international media realize, and little did P Chidambaram himself realize, the catch was in the very next statement!

“An appropriate resolution will be moved in the Assembly.”

With the first sentence the Home Minister of India heralded a new chapter for 35 Million of Telangana supposedly ending a 54 year old struggle, and with the very next sentence he put hard brakes on that new chapter.

Instead of creating the bill for Telangana at the center, in a clear breach of the procedures proposed by Indian Constitution, he referred it directly to State Assembly. It is unfortunate that Honorable Home Minister of India did not do his homework before referring the fate of Telangana back to the State Assembly. If he had followed the proper procedure as prescribed by Indian Constitution, this region would have been spared of so much agony, frustrations, agitations, protests, and also would have avoided nearly 350 suicides of young students.

Immediately after the historic December 9th statement, a series of egregious events unfolded in the State of Andhra Pradesh. Political leaders from Coastal Andhra and Rayalaseema resigned en masse to adjourn the State Assembly so that no resolution on Telangana could take place. This is the third time that the majority Seemandhra region has resorted to such a tactic to subdue and suppress the interests of minority Telangana region. It is ironic that the rationale for creating Article 3 in the current form stemmed from fulfilling aspirations of Andhras to form their own state, but it is now being denied by the same region to people of Telangana.

It is clear that P Chidambaram did not follow the correct procedure. The Indian Cabinet should have created the Bill at the Center and asked the President to refer it to the Andhra Pradesh State Assembly specifying a deadline for expressing its views. If the State Assembly did not respond in time, it could still introduce it in the Parliament.

Instead of realizing his folly, the Home Minister of India reversed his Dec 9thdecision and rolled back his plans for separate Telangana, thereby rewarding the majority region of Seemandhra for their unconstitutional tactic, thereby undermining the very basis on which Article 3 was created. On 23 Dec 2009, in a blatant volte face of this previous statement, P Chidambaram said:

“However, after the (Dec 9th) statement, the situation in Andhra Pradesh has altered. A large number of political parties are divided on the issue.”

“There is a need to hold wide ranging consultations with all political parties and groups in the state. Government of India will take steps to involve all concerned in the process,” he said indicating that the process for evolving all-party consensus over Telangana will have to be undertaken afresh.

Though there is a clear divide within each political party along the regional lines, P Chidambaram expects all political parties within the state to reach a consensus on such a contentious issue, without realizing that Indian Constitution does not recognize political parties as legal representatives of people. Only elected leaders are true representatives of its people. And it is clear that most of the leaders of this region, irrespective of their political affiliation, are in support of separate Telangana.

An all-party consensus is not possible in any democracy. Many bills have been passed in the Parliament though some of the political parties opposed it. Such an expectation, to get an all-party consensus in the matters of creation of states, shows political immaturity emanating from Indian Cabinet.

Step forward
Indian Government should accept that it has made a mistake in referring the issue of Telangana to Andhra Pradesh State Assembly. Now, it has to create a Bill for Telangana solely on the basis of will of the people of the region to form a state, as seen clearly from massive agitations and protests across the region, and evident from the support from elected leaders of the region irrespective of their political affiliation. President of India could then refer the Bill to Andhra Pradesh State Assembly for its views clearly specifying a deadline. If the State of Andhra Pradesh fails to comply or even votes negatively on the Bill, the President of India should still go ahead and introduce it in the Parliament understanding that Article 3 was created to protect the will of smaller region from being suppressed by majority region.
# Constitution of India, 1950
# Constituent Assembly Debate, Re-print, Vol. VII, Paper 43.
# Manupatra Articles
# Article 3, Constitution of India, 1950
# The information is downloaded from the website of Ministry of Law & Justice (Legislative Department).
# Babulal Parante v. State of Bombay, 1960 AIR 51, 1960 SCR (1) 605


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