Telangana- Constitutional Issues in New State Formation

“Political will and Parliament Bill are enough for formation of Telangana State as per the Constitutional procedures and requirements. Neither the consent of Andhra Pradesh Assembly, nor the Amendment to the Constitution is required for carving out a new territory from the boundaries of present Andhra Pradesh state.”[1]

The Constitution in Article 3 vests the power to form new States and alteration of areas, boundaries, or names of existing States in Parliament alone which may pass the law on the subject. The Bill for the purpose can be introduced in either House of Parliament on the recommendation of the President which in fact means recommendation of the Union Government as the President acts on the advice of the Union Government.

The Constitution, however, is silent on the subject of the criteria for forming States doing nothing more than giving the power of formation of States to Parliament. While giving power exclusively to Parliament may be conducive to the integrity and unity of India, it gives no guidance to Parliament or a body created by Parliament as to the principles for the formation of States. This brings out the basic deficiencies in the Constitution of our Republic which is often lauded for having stood the test of time but which in fact leaves several important aspects untouched.

The only attempt in the pre-independence days to provide a logical basis for the formation of States was the Motilal Nehru Committee Report[2] of 1928 which recommended the formation of States on a linguistic basis. Major languages provide the cultural base of the life of the Indian people and should be the appropriate base for State formation, it asserted.

This principle was accepted by the major party in the forefront of the fight of the Indian people for independence, namely, the Indian National Congress. Even in the pre-independence days, the regional committees of the Congress were formed on the basis of linguistic areas. Thus the four Kannad speaking districts in Bombay province went with the Congress Committee for Karnataka covering the rest of the Kannad region. The British rulers, having no use of the culture of the Indian people, had constituted large provinces purely on the administrative criteria. There were the three major ‘regulated provinces’ of Bombay, Madras and Bengal with the major cities of Bombay, Madras and Calcutta as their headquarters. The Bombay province stretched from Sindh to Gujarat, Western Maharashtra and Northern Karnatak districts. In 1935 Sindh was separated to become an independent province. The Madras province covered the Tamil land, Rayalaseema and coastal Telugu areas and the Karnataka districts of South Canara. The Bengal province once covered the whole of Eastern India. Later Assam, Bihar and in 1935 Orissa became independent provinces. As British rule extended, new provinces were formed. The United Province covered the vast Ganga-Yamuna area stretching from the Himalayan regions of Garhwal and Kumaon to the planes of Brijbhoomi, Bundelkhand to Lucknow, Banaras and Allahabad. The Central Province consisted of both Marathi (Vidarbha) and Hindi (Mahakoshal) areas with the capital Nagpur and also included the largest Bastar district and other tribal areas. Punjab in the Northwest covered the whole of Punjab (Western now in Pakistan and Eastern in India) including the hilly areas and Hindi speaking Haryana.[3]

THE LEGAL PROVISIONS

Laws regarding this issue have been clearly laid down in Article 2 and Article 3 of the Indian Constitution. Article 2 reads as, Admission or establishment of new States.—Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit”.[4]

When the writers of Constitution were drafting Article 3, our nation was not fully integrated or well organized as some Princely States were not included and States Reorganization Commission was working on forming linguistic states. Keeping in view the need for formation of new states, an enabling provision giving power to the Parliament was incorporated in Article 3. For this purpose the Constitution provided a simple and easy process for ‘reorganizing’ a new state. Article 3 says that Parliament can enact a law to reorganize the existing states by separating new state out of territories of the existing states, or by uniting two or more states or parts of states, or by uniting any territory to a part of any state, or by altering their boundaries, or by separating territory from, or increasing or diminishing the area of, or by changing the name of, a state.  If the Parliament acts as per these provisions of the Constitution, it will automatically effect a change in the Schedules, without necessitating a separate Constitutional Amendment. The Bill approved by the Parliament would change those schedules to suit the new state. Hence Constitutional Amendment is also not required.[5]

In the case of Telangana, the Union Cabinet has to take a political decision and advice President to recommend to the Parliament to pass such a legislation carving out Telangana from existing boundaries of Andhra Pradesh. While political initiative is expected to happen from the people prevailing over the ruling party at the Center, the Constitutional process should begin from the Union Cabinet. Our Constitution says that if process of carving out a state affects the boundaries of existing state, (in case of Telangana, it will definitely affect the boundaries of Andhra Pradesh as ten districts have to be removed), the President is bound to refer the Bill to be introduced in Parliament, to the Andhra Pradesh Assembly. While such reference is mandatory, the President need not decide as per the opinion expressed by such state legislative Assembly. This means, even if there is an opposition to the ‘referred bill’ or such reference is not responded within prescribed time, or when such a bill is approved, the President can go ahead with formation of a new state. However, it is a political requirement for building a strong opinion in favour of a new state to prevail over the Union to fulfil the aspirations of the people.

Supreme Court on Creation of Telangana: Is it a Political Question?

The Supreme Court is of the view that the issue of carving out a separate state of Telangana from Andhra Pradesh is a “political question” which cannot be answered by it. It maintained that no larger constitutional question arose at this stage from the issue as there is no decision on the division of the state requiring its interference to examine the legality.

A Bench comprising Chief Justice S H Kapadia and Justice K S Radhakrishnan said, “We are of the view that at this stage, the larger constitutional question does not arise for consideration. As far as the division of the state is concerned, it is a political question and we cannot answer that.”

The Bench disfavoured the idea of laying down of guidelines for exercising powers by the government to go into the contentious issue of creating a separate Telangana state from Andhra Pradesh. It said that when a law is proposed for carving out the new state, it would consider the matter afresh. “Till date, no law has been proposed for the purpose of carving out the state and as and when something is proposed or enacted, we will consider it and it will be open for the petitioners to approach this court,” the Bench said giving liberty to the petitioners to withdraw their petitions which were filed when the agitation for Telangana was at its peak.

The two PILs had contended that no constitutional power can be exercised arbitrarily and there must be some guidelines or basis in this regard. Senior advocate Harish Salve, appearing for K Srinivas Reddy, said,

“Power under Article 3 and 4 is the solemn constitutional power and it is obvious that no constitutional power can be exercised arbitrarily and at will without there being a fundamental constitutional paradigm or basis to the exercise of power,”

He said the manner in which the entire matter relating to creation of a new state was being dealt with proved that there was no established principle for the government to act on such issues.

CONCLUSION

Since the creation of Telangana is not merely a constitutional issue, historical, political and societal aspects pertaining to the issue were also discussed. There is a subjective study on the creation of State of Telangana rather than having a generalised knowledge about the constitutional provisions enshrined in the Constitution of India dealing with creation of new states.

 

Books Referred

  1. Vepa Sarathi, Interpretation of Statutes, 582 (Dr. R. Prakash ed., Eastern Book Company, Lucknow, 4th ed. 2003) (1975).
  2. G.P. Singh, Principles of Statutory Interpretation, 312 (Wadhwa and Company, Law Publishers 8th ed. 2001) (1966).
  3. M. Hidayatullah, Constitutional Law of India, V I, 1st ed., 1984
  4. Durga Das Basu, Shorter Constitution of India, 13th ed., 2003

Other Helpful Resources

  1. Constitutional Assembly Debates
  2. States Reorganization Commission Report

[1] Madhabhushi Sridhar Acharyalulu, “Concurrence Of Legislature: Not A Constitutional Requirement For Telangana Formation”, Published on 12-12-2009, http://indiacurrentaffairs.org/concurrence-of-legislature-not-a-constitutional-requirement-for-telangana-formation-madabhushi-sridha/ Last Accessed 8 August, 2010

[2] M. S. Thirumalai, “Language in India”, Vol. V, 5 May 2005

[3] P.R. Dubhashi, “Issue of Organisation of States in India”, MAINSTREAM, Vol. XLVIII, No 6, January 30, 2010

[4] Article 2, Constitution of India

[5] Supra at 1

 

Article by :

Swati Sharma

Amity Law School, Noida, AUUP

[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]

By Competition2011 on June 7, 2011 · Posted in Constitutional Law

4 Comments | Post Comment

Charu says:

Very well written. Good Read 🙂

Posted on June 7th, 2011

swati sharma says:

Thank you! 🙂

Posted on June 7th, 2011

Yasir Abbas says:

A very nice article. Illuminating.

Posted on June 7th, 2011

Dinesh says:

I want to know that in which part of constition alow to formation of new state

Posted on February 11th, 2014