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Carving a New State – Constitutional Process & Federal Spirit నవంబర్ 19, 2013

Posted by M Bharath Bhushan in Andhra, conflict resolution, Parliament, politics, regionalism, Telangana.
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Divided we stand
K Vivek Reddy, The Indian Express, 18 November 2013

What the Constitution really says about forming new states

India has often been described as an “indestructible union with destructible states”. It is this power to reorganise the state of Andhra Pradesh and create a Telangana state that is now being contested. Despite the fairly clear process stipulated in the Constitution for creating a new state, the opponents of Telangana, including the chief minister, have invoked the Constitution to oppose its creation. This deserves close scrutiny.

First, it has been urged that in the absence of a supporting state resolution from the state legislature, a new state should not be carved out of an existing one. The chief minister has specifically urged that this constitutional convention, which was followed for the creation of Chhattisgarh, Jharkhand and Uttarakhand, be followed even for the creation of Telangana.

This argument proceeds on a misunderstanding of the constitutional process for the creation of a new state. Constitutional conventions apply only when the Constitution is silent. The issue of creation of new states was extensively debated in the Constituent Assembly. Two proposals were specifically considered — one, a new state can be created only after the previous consent of the state legislature was obtained; and two, any proposal for legislation that increases or diminishes the area of an existing state shall originate from the state legislature. Both proposals were rejected on the ground that if either of these were accepted, a minority in the state would never be able to achieve its aspiration for a new state, however justified it may be. It is for this reason that Article 3, dealing with the formation of the new state, only requires the state legislature to “express its views”, rather than a supporting state resolution.

When the States Reorganisation Act, 1956 and the Uttar Pradesh Reorganisation Act, 2000 were challenged, the Supreme Court on both occasions categorically stated that the views of the state legislature would be taken into consideration, but the same would not mean that Parliament would be bound thereby (Babulal Parate vs State of Bombay, 1960 and Pradeep Chaudhury vs Union of India, 2009).

Second, it has been argued that forming a new state out of an existing one without a supporting state resolution would undermine the federal character of the Constitution. This argument proceeds on a misunderstanding of the nature of Indian federalism. Unlike the United States, where states joined together to create a union, the states in India were created by Parliament after the creation of the Union of India. If Parliament has the power to create a state, it would not violate the federal character if it exercises the same power to bifurcate said state. The creation of new states would only deepen the federal character of the Indian polity.

Does this mean that the Centre can carve out a new state without following any norms? Instead of stipulating norms, the Constitution has prescribed an elaborate process to ensure deliberation and debate precedes the creation of a new state. The Constitution mandates that only the president can introduce the bill, followed by debate in both Houses of the state legislature and Parliament, before it is actually voted on and a new state is created.

Third, it is also urged that the creation of a new state be preceded by a constitutional amendment to Article 371D, which makes certain special provisions with regard to various regions of Andhra. This assertion ignores Article 4, which enables Parliament to make such “supplemental, incidental and consequential provisions as Parliament may deem necessary” while reorganising the state. As part of the reorganisation bill, Parliament can make appropriate amendments to Article 371D to safeguard the interests of new states. A constitutional amendment is not required. This is supported by past practice. For instance, when the state of Bombay was bifurcated, the special constitutional provision establishing development boards for various regions within the Bombay province in Article 371 was amended not by way of a constitutional amendment, but as part of the Bombay Reorganisation Act.

The Punjab Reorganisation Act, creating Punjab and Haryana, was challenged on the ground that the strength of the new Haryana legislative assembly was below the constitutionally prescribed limit of 60. The SC rejected the challenge, holding that the power of Parliament to create a new state includes “the power to modify the provisions of the Constitution in order to tide over a temporary difficulty”. However, Parliament cannot use this power to override the constitutional scheme by creating a state that does not have a legislature, executive or judiciary. But for that restriction, Parliament can amend any other provision of the Constitution while creating a new state (Mangal Singh vs Shrimati Rattno, 1967). Thus, Article 371D can be amended as part of the reorganisation bill without a constitutional amendment.

Fourth, it has also been argued that when the president refers a bill to the state legislature for expressing its views, a resolution has to be introduced on the floor of the legislature, followed by voting. This again ignores Article 3, which uses the phrase “expressing its views”. Whenever the Constitution mandates voting or passing of a resolution by the state legislature, it has expressly said so (Article 368 and 169). However, Article 3 neither speaks of the word “resolution” nor does it speak of voting. It only requires the legislature to “express its views”, which need not be by way of voting. Each member or political party and the state cabinet can express their views in the legislature and the same would be transmitted to the president.

Carving out a new state has always been a difficult issue, but this has to be resolved on the floor of Parliament, not in the courtroom.

K. Vivek Reddy

The writer is a Hyderabad-based lawyer

Source: http://www.indianexpress.com/news/divided-we-stand/1196223/0

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