State’s consent not necessary

Advocate J.P.Rao requested the High Court in his PIL for the appointment of amicus curiae for plebiscite on bifurcation. He contends that the impugned action in the absence of eliciting the expression of the people of the State amounts to violation of the Constitution. In fact the personal visits and consultations of GoM and TFC with political parties and different sections of people at different levels can be treated as expression of people.

The Constitution does not insist on the State Assembly’s assent to the bifurcation Bill. Yet, the President endowed with the supreme constitutional power refers the bill to State Assembly for expressing ‘the views’. The views can be interpreted as opinions, feelings, sentiments, deficiencies if any and requirements etc… but not a negation of the concept in the Bill. ‘Bill… referred by the President to the Assembly’ also connotes the affirmative consultation and positive reaction with expression of their feelings. Upholding the validity of Section 108 of the States Reorganization Act 1956 which provides for the continuity of agreements between the then existing states, the Supreme Court held in ‘Mullaperiyar Environmental Protection Forum Vs Union of India’ (AIR 2006, SC, 1428):

“The law making power under Articles 3 and 4 is paramount and is neither subjected to nor fettered by Article 246. The constitutional validity of law made under Articles 3 and 4 cannot be questioned on ground of lack of legislative competence with reference to the lists of Seventh Schedule”.

Chief Minister Kiran Kumar Reddy time and again repeats that they will oppose the Bill in the Assembly. Of course, they can utilize their fundamental right of freedom of speech and expression but are not supposed to negate the Constitutional provisions.

According to Article 107, the passing of a Bill in the House of people is done through three stages, known as readings. At the first stage the Bill is introduced where no discussion takes place. This is first reading. The second reading is consideration stage where the Bill is discussed. At this stage amendments are moved and accepted or rejected. At the third reading stage, discussions take place and the Bill is passed. All these three readings take place in both Houses of Parliament.

The bill passed by the Parliament is presented to the President. He may assent to it or withhold it indefinitely or he may send it back to Parliament for consideration. But on second recommendation of the Bill by the Parliament, the President shall not under Article 111, withhold his assent to the Bill. However, the powers conferred under this Article are formal powers of the President which he exercises on ministerial advice.

Clause (3) of Article 75 lays down: “The Council of Ministers shall be collectively responsible to the House of the people”. This clause incorporates ‘the principle of collective responsibility’, the essential characteristic and the very basis of Parliamentary form of Government. As per this principle, Cabinet decisions bind all Ministers even if they argue in opposite direction. The whole Council of Ministers, on issues involving matters policy, will have to be treated as one entity so far as its answerability to legislature is concerned. Prime Minister Prof. Manmohan Singh enforced this principle as an effective weapon in his hand to maintain unity in the Government by forming GoM in the context of AP bifurcation. This is the established British Convention which is incorporated in India as an express provision of the Constitution under Articles 75(3) and 164(2).

Thus the Constitution has conferred plenary powers to the Parliament and supreme powers, under principle of collective responsibility, to the council of Ministers to provide unity in administration at nominal level.

The presentation of the Bill on bifurcation in the assembly is to extract the opinion, feelings and their representation as a convention. The object of this convention is to fill the deficiencies or bottlenecks, if at all, arising out of bifurcation. The opinion is expected to be in affirmation, not in negation. This is the true spirit of the convention. Mention can be made from NALSAR Prof. M. Sridhar who too, in his article entitled ‘Misleading the People and Statute Position (The Hans India Issue dt.23-10-13)’, says that the President sends the Bill to State Assembly for seeking opinion irrespective of its positive or negative opinion. Prof. K. Nageswar of Osmania University, in his article ‘State Division and Article 3’ (Eenadu, dt. 19-10-13), also confirmed this interpretation. YSR Congress Party in its writ petition filed in the Supreme Court on October 29 contended: “The centre took the decision of bifurcation by violating the established convention and practice. It is inexplicable as to why the Union did not obtain the resolution of State Assembly for the divisions”.

MP Vundavalli Arun Kumar’s defense is: As many as 28 new States have been formulated only after getting the approval of the State Assemblies and so, here too. Situations and complications differ from state to state. The Apex Court follows the precedent in many cases as far as possible. But when the case is entirely different, judgement differs. When the very precedent endowed with legal sanctity is replaced banking on the queer situation, why can’t a convention!

The members of GoM and the Special Task Force constituted by the Union Cabinet represent the regions concerned and they have been acquainted with the problems and complications in the context of bifurcation. Public opinion can be conveyed not only indirectly in the Assembly by MLAs and Ministers, but can also be best conveyed/represented directly by their personal visits and survey of State in different locations. In a way, MP Arun Kumar’s, MLAs’ and NGO leaders’ insistence on people’ opinion is also fulfilled by the approach of TFC and GoM.

The AP NGO leaders backed/supported by some legislators still make a tune of ‘Sankharaavam’ for further agitation by way of strike on the basis of two aspects.

(i) Defeating the resolution of Bifurcation Bill in the Assembly

(ii) Issue of altering of Article 371-D.

This is due to lack of clarity of interpretation of the two issues as delineated above in this article. Following the ‘principle of collective responsibility’ the Cabinet which represents the whole Parliament, has been constitutionally binding in all activities and directions. Admitting the purview and plenary power of Parliament, the High Court of AP and the Supreme Court of India dismissed a number of PIL petitions filed by many advocates and political leaders. The same will be the result of PIL petition filed by TDP leader Payyavula Keshav too in the Supreme Court shortly. Decisions on some burning cases on bifurcation have been reserved by the Apex Court for three months paving way for the final decision of Parliament.

Another legal practitioner J.P.Rao went to the extent of requesting the High Court in his PIL for the appointment of amicus curiae (a helping counsel in the court) for plebiscite on bifurcation. He contends that the impugned action in the absence of eliciting the expression of the people of the State amounts to violation of the Constitution. The High Court ruled out that the stage of the issue has not come up for judicial review. But, in fact, the personal visits and consultations of GoM and TFC with political parties, different sections of people at different levels can be treated as expression of people. Para ‘5’ of ‘Cabinet Note’ is specifically suggestive of this.

The author is Principal, Govt. Jr College, Satyavedu