Framework of the Constitution of India

This paper traces the provisions and framework laid down in the Constitution of India with regard to formation of new states and alteration of boundaries to carve out new states. Since the formation of State of Telangana is an issue attracting controversy and which might result in path breaking changes in the social and political atmosphere of the region as well as the country as a whole, the researcher endeavours to provide an in depth analysis of it. It’s a legal and constitutional issue, yet due to the conditions in the state, it has a socio-political flavour as well. This aspect of the issue cannot be overlooked and has been essentially dealt with. The Object of the project is to study the legal and constitutional framework enshrined in the Constitution of India. Basically, Articles 2 and 3 deal with formation of new states. The project primarily focuses on the creation of new state of Telangana out of the state of Andhra Pradesh. Historical perspective concerning the demand for the new state has not been overlooked and has been given apt weightage in the project. Intricacies involved and interpretation of articles have also been discussed at length in the project to have a better understanding of the topic. The researcher has also discussed a few case laws to buttress the points in a better way.

Scope and Limitations

The scope of this project ranges from a positive analysis of the sources available regarding the topic, to a comparison to its antecedent, and conclude with a normative analysis. The limitation that might be evident would be the limited understanding of the author as to the technical details encountered while dealing with the topic and the limited availability of sources. Due to paucity of time and sources of information, the researcher has been able to present a brief but comprehensive analysis of the topic and constitutional law involved, while acknowledging the fact that a further in depth analysis would provide greater understanding, clarity and knowledge about the applicability and working of this area of law.

Sources of Data

Primarily the researcher has relied on books available in the AMITY Law School library. The researcher has also tried to utilise the resources, articles, ebooks available on the internet.

Chapter I: Introduction and Overview

“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]

Chapter II: The Constitutional Framework

2.1 The Legal Provisions

Laws regarding this issues 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]

The text of article 3 says, “Formation of new States and alteration of areas, boundaries or names of existing States.—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.” [5]

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. [6]

2.2 Reference of The Bill to The State Legislature

The Constitution explicitly provides the procedure for the formation of new States in Article 3. The legislation creating Telangana comes under the ambit of Article 3(a) as it seeks to form the State of Telangana by separating territory from the State of Andhra Pradesh. Therefore, it is essential that the legislation strictly complies with the procedure laid down under Article 3. The proviso appended thereto postulates (1) a Bill not being introduced in Parliament except on the recommendation of the President; and (2) where the proposal contained in the Bill affects the areas, boundaries or names of any of the States, reference of the Bill by the President to the Legislature of that State for expressing its views thereon [7] . It has been well established that in matters of procedure, mandatory words may be construed as directory [8] . Procedural law is not to be an obstruction but an aid to justice and the Courts are to do justice and not wreck the end – product on technicalities [9] . The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intent of the legislature must govern. [10] With respect to the procedure laid down in the proviso to Article 3, the intention simply seems to be to give an opportunity to the State Legislature to express its views, within the time allowed, on the proposals contained in the Bill. [11] This is because it has been held that the Parliament is not bound to accept or act upon the views of the State Legislature. Also, only because one or the other view had been expressed in the State Legislature, the same is not binding upon the Parliament. [12] Furthermore, if a Bill has once been referred to the State Legislature, it can be later amended by the Parliament without fresh reference to the State Legislature. [13]

According to the proviso to Article 3, where the proposal contained in the bill affects the area, boundaries or names of any of the states; it must be referred by the President to the concerned State Legislature for expressing its views thereon within a specified period [14] . Power conferred on Parliament by Articles 2 and 3 is to establish new States conforming to the democratic pattern envisaged by the Constitution and it is not the power to override the constitutional scheme. [15] The States have only the right to be afforded an opportunity to express their views. Thus it is imperative that the President refer the Bill to the concerned Legislature.

The exceptional circumstances during which the President need not ascertain the views of the concerned State are [16] :

(a) When a state legislature is suspended by the President under Article 356, the question of ascertaining the views of the State Legislature does not arise. E.g. Punjab Reorganization Act, 1966 which was passed when the State of Punjab was under President’s rule. The President had, in exercise of his powers under Article 356(1)(c), suspended the operation of the proviso to Article 3 in so far as it related to the sending of the Bill to the State Legislature for its views.

(b) Where the original Bill has been referred to the State Legislature but modifications to the Bill have not. [17] The Bombay Reorganization Bill as introduced in Parliament provided for the creation of Maharashtra and Gujarat and the Union Territory of Bombay. The President had sent this Bill to the Bombay Legislature in order to ascertain its views. The Bombay Legislature, after expressing its views, sent the Bill back to Parliament where the Bill was modified in that the proposal for the creation of the Union Territory of Bombay was jettisoned. The Bill was passed as modified. In Babulal Parate v State of Bombay [18] , the Act was challenged on the ground that as on the amended Bill the views of the State Legislature had not been ascertained, it was unconstitutional. In this case, the Supreme Court held that the original Bill should be referred to the State Legislature concerned; it does not require fresh reference everytime an amendment of the proposal contained in the Bill is moved and accepted in Parliament.

In R.C.Poudyal & Ors. v Union of India [19] , Article 3 was discussed and it was observed: ‘It cannot be predicated that the Article confers on the Parliament an unreviewable and unfettered power immune from judicial scrutiny. The power is limited by the fundamentals of the Indian constitutionalism and those terms and conditions which the Parliament may deem fit to impose, cannot be inconsistent and irreconcilable with the foundational principles of the Constitution and cannot violate or subvert the constitutional scheme. The validity of a statute is to be tested by the constitutional power of the Legislature at the time of its enactment by that Legislature, and, if thus tested, it is beyond the legislative power, it is not rendered valid’ [20] .

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.

2.3 There is no limitation on Parliamentary power under Articles 2, 3 and 4

Article 1 is recognition that Union of Indian’s territorial limits are unalterable while the States are creatures of the Constitution and are territorially alterable. Under Articles 2, 3 and 4, the most significant feature is that while the territorial integrity of India is fully ensured and maintained, there is a significant absence of the territorial integrity of the Constituent States. [21]

It is clear that the Union of India is the basis of nationality as ‘…the States are limbs of the Union, and while the limbs must be healthy and strong…it is the stability of the Union and its capacity to evolve’ that should be the ‘governing consideration’ for the Parliament. [22] The Constitution has a combination of federal structure with unitary features. [23] The kind of federation we have has been characterised with “a strong unitary bias”, with powers given to the Union Government of supervision and even supersession, in certain circumstances, of State Governments temporarily. [24]

There are no limitations on the power of the Parliament to make law under Articles 2, 3 and 4. While discretion as to ‘terms and conditions’ of admission of a State is provided to Parliament in Article 2, Article 3 essentially has no limitations except for the procedural safeguards laid down in the proviso.

However, it has been held that while both Article 2 and Article 3 grant a large amount of freedom to the Parliament, it cannot be said that this freedom is without any constitutional limitation, since the power conferred on Parliament is always circumscribed by the overall constitutional scheme. [25]

Furthermore, it is a generally accepted principle of statutory interpretation that the Court cannot supply supposed deficiencies for then the Court, ‘instead of declaring the law, would be making laws’. [26] It has also been held that the Court cannot put into the Act words which are not expressed and which cannot reasonably be implied as that would be a work of legislation, outside the province of the Court. [27]

2.4 The Constitutional Assembly Debates: Origin of Article 3

ARTICLE 3 of the Constitution of India vests the Parliament with the power to form a new State by separating territory from any State. However, the text of the said provision is silent as to what could be the constitutional benchmark for the Centre to create a new state for a region of an existing State.

When faced with questions relating to the interpretation of the provisions of the Constitution, we must look to the Constituent Assembly Debates (CAD) which preceded the formulation of the provisions of the Constitution so as to ascertain the Constitutional intent behind the phraseology of the provisions adopted.

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, either for forming a new province or for joining an adjacent State unless it can get a majority in that State legislature. I cannot understand what he means by “Originating”. 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…” [28]

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.

Chapter III: The Case of Telangana

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. The Constitution of India 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 fulfill the aspirations of the people.

3.1 The Demand for Telangana: A Historical Perspective

The historical perspective of the demand for creation of the state of Telangana cannot be neglected. If we go to the etymology of the word, it means, “Land of Telugu people” [29] . The name itself suggests its association with the Telugu heartland, its geographical status. The geographical status of this state dates back to Puranic times where it has been extensively discussed as Tailangana Desha, the land of till, or oil seeds. It was basically a separate state until Andhra Pradesh became the first state to be created on the basis of language in 1956. Telangana was merged with Andhra to form a unified ANDHRA PRADESH under a Gentleman’s Agreement. However the State Reorganisation Committee did not support this, and neither did the erstwhile Chief Minister of Hyderabad State, Burguala Ramakrishna Rao. Even Nehru was skeptical about it as it might give an expansionist tinge to the reorganization. In December 1953, the States Reorganization Commission was appointed to prepare for the creation of states on linguistic lines. The States Reorganization Commission (SRC) was not in favour of an immediate merger of Telangana region with Andhra state, despite the common language between the two.

Paragraph 382 of States Reorganization Commission Report (SRC) said

“opinion in Andhra is overwhelmingly in favour of the larger unit, public opinion in Telangana has still to crystallize itself. Important leaders of public opinion in Andhra themselves seem to appreciate that the unification of Telangana with Andhra, though desirable, should be based on a voluntary and willing association of the people and that it is primarily for the people of Telangana to take a decision about their future”. [30]

The people of Telangana had several concerns. The region had a less developed economy than Andhra, but with a larger revenue base (mostly because it taxed rather than prohibited alcoholic beverages), which people of Telangana feared might be diverted for use in Andhra. They also feared that planned irrigation projects on the Krishna and Godavari rivers would not benefit Telangana proportionately even though people of Telangana controlled the headwaters of the rivers. It was also feared that the people of Andhra, who had access to higher standards of education under the British Rule, would have an unfair advantage in seeking Government and Educational jobs.

Despite all this, Telangana was merged. Right from the 14th Century to 1956, Telangana was never a part of Andhra. Six centuries of separate existence has led Telangana to acquire an identity of its own. The Fazal Ali Committee whose recommendations led to the redrawing of the provincial boundaries of India had specifically commented on Telangana. It stated that it would be wrong to merge Telangana with Andhra once the old Hyderabad state (comprising of modern day North Karnataka, Marathwada and Telangana) was abolished. Its reasons were simple: a) Economic b) Lack of public support for Andhra Pradesh in Telangana area. It recommended a separate Hyderabad State that may join Andhra at its own option later. This was however overlooked by the Govt. of India in view of a Gentlemen’s Agreement entered into by Telangana and Andhra leaders. The Andhra leaders promised among others that a) Telangana would benefit from the planned dams on the Krishna and Godavari rivers b) Telanganites would be given preference in jobs c) 40% of ministers to be from Telangana. While Pt. Nehru had his doubts, he nevertheless gave the go ahead.

By 1969, the illusion had been shattered. Once every clause of the agreement had been broken, Telangana erupted. More than 350 people died in police firing alone. Indira Gandhi in a masterstroke made the leader of the movement, M Chenna Reddy the Governor of UP and thus controlled the flames of what promised to be a repeat of the Telangana Rebellion of the 1940s when the peasants overthrew their landlords and liberated a third of the region.

The commission proposed that the Telangana region be constituted as a separate state with a provision for unification with Andhra state, after the 1961 general elections, if a resolution could be passed in the Telangana state assembly with a two-third majority. This was popularly known as Nehru’s scheme of divorce, which unfortunately failed.

In the years after the formation of Andhra Pradesh state, people of Telangana expressed dissatisfaction over how the agreements and guarantees were implemented. Discontent with the 1956 Gentleman’s agreement intensified in January 1969, when the guarantees that had been agreed on were supposed to lapse. Student agitation for the continuation of the agreement began at Osmania University in Hyderabad and spread to other parts of the region. Government employees and opposition members of the state legislative assembly swiftly threatened “direct action” in support of the students. This movement, also known as Telangana movement, led to widespread violence and deaths of hundreds of people including 369 students. [31]

The emotions and forces generated by the movement in 1969 were not strong enough, however, for a continuing drive for a separate state until 1990s when Bharatiya Janata Party (BJP), promised a separate Telangana state if they came to power. BJP created Jharkhand, Chhattisgarh and Uttarkhand states in year 2000 as promised. But the BJP could not create a separate Telangana state because of the opposition from its coalition partner, Telugu Desam Party. [32]  These developments brought new life into the separatist Telangana movement by year 2000. [33]  Congress party MLAs from the Telangana region, supported a separate Telangana state and formed the Telangana Congress Legislators Forum. [34]  In another development, a new party called Telangana Rashtra Samithi (or TRS), led by Kalvakuntla Chandrasekhar Rao (KCR), was formed with the single point agenda of creating a separate Telangana state, with Hyderabad as its capital. [35]

3.2 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 liber