Articles 3 & 371-D don’t impact each other
December 15,2013, 09.26 AM IST | The Hans India
Parliament is empowered to reorganise States; Only opinion of the Assembly, and not voting, is required.
There is absolutely no need to amend Article 371-D in order to bifurcate the State of Andhra Pradesh. Textual changes would suffice to make the Article applicable to both the successor States and it could be part of the State Reorganisation Bill. There is no need for a separate amendment. Article 371-D was intended to provide equal educational and employment opportunities to all.
It does not hinder or impede the State’s division, observed Justice B Sudarshan Reddy, former judge of the Supreme Court and Lok Ayukta of Goa until recently, in an exclusive interview with HMTV Chief of Bureau N Viswanath.
Here are excerpts:
Is there any link between Article 371-D of the Constitution and bifurcation of AP? Is it necessary to amend the Article for which two-thirds majority in Parliament is needed?
There is no link between Article 371-D and Article 3 which facilitates division of a State. The views on the need to amend Article 371-D seem to have already divided the State. However, it is not correct to claim that the State can’t be divided without amending the Article, which is incorporated to empower the President for providing equal opportunities to all in education and employment.
For example, Article 371-B is a special provision for Assam. Under the Presidential orders, either special opportunity or a sub-state can be created for the ST (tribal) areas. Utilising its provisions, a sub-state Meghalaya had been created in 1969, which failed. In 1971 Assam was re-organised to create a special State of Meghalaya, by amending Article 371-D. This is still part of the Constitution, despite the formation of the two States.
Article 244-A, also incorporated in 1969, is a special provision, which is applicable only to Assam for creating a sub-State. However, it remained untouched in 1971 when Assam was reorganised to create Meghalaya. Articles 371-B and 244-A have been retained in the Constitution, empowering parliament by Article 3 to create Meghalaya State.
Was Article 371-B was still in force when Assam and Meghalaya were divided?
No. It can’t be, as a sub-State has been formed.
Was it necessary to amend the constitution to create the sub-State?
Article 371-D is temporary. So are Articles 370 and 371(temporary, transitional and special purpose legislations). This and Article 3 have no links with Parliament powers. Art 371 earlier, before amendment, contained special provisions with respect to the State of AP and the State of Bombay under which Telangana Regional Committee was formed and separate development boards for Vidarbha and Marathwada were constituted. Of course, the Telangana Regional Committee has been deleted by the 32nd amendment of the Constitution by incorporating Art 371-D.
But even prior to that under Bombay Reorganisation Act, 1960, for the words of State of Bombay, Maharashtra and Gujarat were substituted simply by Bombay State Reorganisation Act, 1960, enabling Governors to establish special development boards for Vidarbha, Marathwada, Sourashtra, Kutch etc. By making a textual amendment to Art 370-D in the present AP State Reorganisation Act, Article 371-D could be made applicable to both the successor States if the States so desire and the Parliament agrees to that.
Is Article 368 the only provision whereby the provisions of the Constitution can be amended or are there any other procedures?
No. In fact, every State Reorganisation Act from 1956 onwards amended the provisions of the Constitution by not following the procedures prescribed in Article 368. I will give you an illustration. Article 170 mandates that “the Legislative Assembly of each State shall consist of not more than 500 and not less than 60 members chosen by direct election from territorial constituencies in the State. While reorganising Punjab, only 54 members from the undivided State of Punjab could be allocated to Haryana as members of the Legislative Assembly. This was challenged.
The Supreme Court, in the case of Mangal Singh, observed that though such allotment was not in conformity with Art. 170, the same was upheld on the ground that such incidental and supplementary provisions could be made by Parliament under Article 4 while reorganising a State under Art. 3. So far, the Constitution has been amended 159 times without resorting to Art. 368 and they are not characterised as Constitutional amendments though in effect some of the provisions of the Constitution stand amended.
Should there be a resolution passed by the Assembly if a State has to be bifurcated?
It was necessary for such a resolution before December 24, 1955, as Art. 3 stood at that time. The requirement, then, was, “the views of the legislature of the State with respect to the proposal to introduce a Bill and with respect to the provisions of the Bill were required to be ascertained (emphasis added) by the President.
But that is not the Constitutional position after Art 3 was amended on December 24, 1955. The present requirement is that “the President is required to refer the Bill to the legislature only for expressing its views and there is no requirement of any resolution.
What is the role of the Legislative Council in this matter?
Legislature includes both the Houses. What applies to Legislative Assembly is applicable to Legislative Council. The expression used in Art. 3 was “reference to legislature “, which means both the Houses within the meaning of Art. 168.
Is it the case that the undivided State has no role in the division of the State?
Under Article 3, Parliament alone is empowered to reorganise the States. Before the draft Bill on a State’s division is introduced in Parliament it should be sent by the President to the State Assembly for its views. This is a must. However, a State can be divided without considering the opinion of the State Assembly. Article 3 has given enormous powers to Parliament which has to follow certain guidelines like the President sending the State’s division Bill to the Legislative Assembly and the Council, before it is introduced in parliament.
After securing the opinion of the legislature, the Bill can be tabled in Parliament with the President’s clearance. Article 3 is intended to prevent a threat to the nation’s integrity following discord between regions. It ensures equal development in all regions by empowering Parliament. However, the States don’t have supreme powers. This is clear when constitutional oath is taken to protect the nation’s integrity and to honour its supreme powers, but it is not limited to a State, because a State can be divided any time.
Comparison between Article 3 and Article 371-D is inappropriate, like likening an apple and a sweet lime. In this regard there is no need to have any confusion, as it does not have anything to do with the AP Legislative set-up. Opinions can only be given on the draft division Bill sent to the State by the President; suggestions to create two or three State can be made; even no division can also be mooted. It is not within the members’ purview to say that the State can’t be divided with Article 371-D remaining as part of the constitution.
Can the Assembly seek extension of time required to give opinion on the draft Bill?
The Assembly can ask for extension of the time-frame for reacting to the Bill on State’s division. Only the President can take a decision on this; either to give more time or not.
Is voting in Assembly needed in the process?
Voting is not required as the Constitution specifies that only views/opinion could be given, either in written form or orally, which will be taken into consideration. However, this does not give decision-making powers to the Assembly. In this regard the question of a threat to a federal set-up does not arise.
The State’s division is only an effort to re-mark its boundaries. In a nation like the USA there are citizenship rights of a State and the nation. This is not applicable to India, which only provides national citizenship, with the final decision-making power resting with Parliament; even the President does not have this right. If Parliament enacts a law, the President has to approve it.
Can the President directly ask the Speaker to get the Bill tabled and debated?
Had the President written directly to the Assembly Speaker the draft Telangana Bill need not be referred to the Business Advisory Committee (BAC); the Speaker can directly table it and ask either the Legislative Affairs minister or the Chief Minister to initiate the debate. The Assembly can only give its opinion. Since the Telangana issue has been raging since 1956, there have been several schemes, GOs and discussions. The draft Bill will not face any Constitutional problems. It is immaterial how it reaches the State, either it is brought by a person or by a flight.
The decision on the time when the Assembly can debate the Bill rests with the BAC; whether it is before December 20 or later is to be decided by the BAC. The debate should be taken up immediately if elaborate discussions are to take place. Since this is a democratic country, a decision can’t be forced with providing due opportunities for discussions. Such opportunities should be utilised in better fashion, instead of planning to delay the process which is not a democratic practice. It will be a policy decision whether to retain Article 371-D after the two States are formed.
I have seen the draft Bill, which says that 371-D will be enforced both in Telangana and the residual State of AP. On this, both the Assembly and the Council can give their views. If people of a region refuse to have it, Parliament can take it into consideration or it can ignore it.
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