Wednesday, December 11, 2013

Key to Telangana is Article 3

Key to Telangana: Article 3

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.

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.

The steps for creating a new state are as follows: A bill on a new state has to be recommended by the President.  The Cabinet 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? 

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.

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 in High Court of Bombay.

The 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.

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.

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. 

Now, President of India would 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 would 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. 

(Source E=mc^2:

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