Assembly views imperative : Ex-CJI

Under Article 3 of the Constitution, why are the 'views' of the Legislature of the concerned state important and what is the intent of Article 3 in providing for seeking the ‘views’ of the State Legislature?

Formation of a new state, or alteration of boundaries of an existing state, is a matter concerning the people of the state whose boundaries are proposed to be altered. It is in this context that Article 3 of the Constitution provides for expression of views of the people, who would be affected by the alteration of the boundaries, or creation of a new State. Such views of the people are expressed in form of views of the State Legislature of the state, who are the elected representatives of the people.

It is because of this reason that under Article 3 of the Constitution the requirement for seeking views of the State Legislature is of utmost importance prior to taking a decision for alteration of the boundaries of the existing states or creation of a new State. As regards Andhra Pradesh, in terms of Article 168 of the Constitution, the Legislature comprises of two houses, viz., Legislative Assembly and Legislative Council.

Thus, in accordance with Article 3 of the Constitution, the views of the members of the Andhra Pradesh Legislative Council and the Andhra Pradesh Legislative Assembly will have to be sought in respect of the creation of the proposed State of Telangana by bifurcating the existing State of Andhra Pradesh.

The requirement of ascertaining the views of the Legislature of the concerned state has been in existence even prior to the Constitution and was also contained in the Government of India Act, 1935. Section 290(1) of the Government of India Act, 1935 provided as follows:

"Subject to the provisions of this section, the Governor-General may by Order –

(a) Create a new Province;

(b) Increase the area of any Province;

(c) Diminish the area of any Province;

(d) Alter the boundaries of any Province.

Provided that before making any such Order the Governor-General shall ascertain the views of the Government of any Province which will be affected by the Order, both with respect to the proposal to make the Order and with respect to the provisions to be inserted therein."

The importance of consultation with the Legislature of the concerned state also finds mention in the Constituent Assembly Debates, wherein the importance of consultation with the Legislature of the concerned state was unanimously stressed upon by its members. The unanimous view expressed by the Constituent Assembly was that the people who would be eventually affected by the alteration of the boundaries, or creation of a new state, must be heard and the President ought to be satisfied that they have been properly consulted. Particularly, reference is drawn to the following portions of the debates:

Speech of K T Shah

"...That would mean that their boundaries, perhaps even their name, and their territories, may be altered, upwards or downwards. If that becomes necessary, then I submit the proper course would be to consult the people themselves who are affected, if not by a direct Referendum to the people affected, at least by a consultation of the legislature, rather than that the change be imposed from above, as in my opinion the clause as it stands requires.

The parties primarily affected are the people themselves of the areas whose boundaries or name is to be altered, or whose position has in any way to be reconstructed. And it is but a simple proposition - a mere matter of fundamental principle I submit - that you should in a democratic regime consult the peoples affected, and not merely lay it down from above. I recognize that the article as it stands provides that in any such event you should have either a representation from the representatives of the people in the Central Parliament to suggest such an alteration, or alternatively the President should have received some such re¬presentation from the people concerned.. "2

"Any Question which relates to the alteration of the present units, their territories, boundaries or name, should begin with the people primarily affected, and should not come from the authority or power at the Centre. The authority at the Centre obviously is not familiar with local conditions; or they may have other outlook, may have other considerations, other reasons, for not accepting or agreeing to such a course.

The authority at the Centre, even if moved by the representatives of the areas concerned by some resolution or other procedure, may be guided by the very few persons which, under any scheme of election, will constitute the representatives of those areas in the Central Parliament; and not really consult the entire population, the adult voters of the areas concerned, which I submit is the first requirement of any such readjustment"

"...I have not the least doubt about it that the method of consulting, which the President will adopt, will be to ask either the Prime Minister or the Governor to table a resolution which may be discussed in the particular State legislature which may be affected, so that ultimately the initiation will be the local legislature and not by the Parliament at all. I therefore submit that the amendment of Professor Shah is really unnecessary"

"...I entirely agree with him that no such motion should be considered in any House if the State which is affected is not at all in favour of it. I say that if there is not a single Member of the legislature in a State who countenances the idea of separation, it is unthinkable that the Central Legislature would take up that matter.. "

I, however, take this opportunity of assuring the representatives of Mysore State that whether the article provides for consultation or consent of the legislature of the affected State, the wishes of the people cannot be ignored either by the Central Government or legislature. After all, we are a democracy: the main sanction behind us is the will of the people and we cannot act in disregard of public opinion..."

The relevance of the views of the concerned State was also stressed upon in the report of Justice M.M. Punchhi (Retd.), former Chief Justice of India, on Centre-State relations7, wherein it was stated that "there was complete unanimity among the founding fathers that a strong federal government cannot assume an authoritarian outlook and the position and status of the States had to be suitably protected. While reposing great faith in the working of the parliamentary democracy, the focus was that the power must be exercised responsibly and under legislative sanction and scrutiny.

The Constitution, for this purpose, made provisions for ‘consultation.' which would act as a check to the arbitrary use of certain exclusive powers of the Union. These were in three forms: (i) consultation with the State, a pre- reguisite (Article 3); (ii) indirect or designated a consent of the upper House of Parliament (i.e., the council of States, known as the Rajya Sabha) (Article 249); and (iii) majoritarian consent, pertaining to many constitutional provisions, the amendment of which cannot be effected unless approved by not less than one-half of total states of India (Article 368)."

"The Constitution of India generates a highly complex notion of a strong federal union. It assigns certain exclusive powers in terms of legislative , . initiative and executive controls to the Central Government, the exercise of which can have a transforming impact on the polity. But, interestingly, these powers are made subject to varying degrees of federal concurrence, with an in-built constitutional mechanism of checks and balances, and parliamentary accountability.

The organic Constitution, as it is, allows re-organisation of the States and provision of state-hood to Union Territories. For example, the Parliament has, by virtue of Article 3 of the Constitution, the exclusive power to form federal units. However, any legislative proposal in this regard cannot be introduced without obtaining prior Presidential (i.e.. Central Government) sanction, which, in turn, must ascertain the views of the affected States before approving the introduction of such a bill in the Parliament. In practice it is rarely possible for the Parliament to ignore the views of the States..."

From the above it is evident, that the formation of a new state, or alteration of boundaries of an existing state, is a grave and serious matter concerning the people of the state concerned. Therefore, it is a constitutional requirement that before such an action is taken, the views of the Legislature of the concerned State, who represent the people of the State, are taken.

Obviously, when the members of the Legislative Assembly and the Legislative Council express their views, it tantamount to the views of the people of the constituency which they represent. It is possibly because of this reason that under Article 3 of the Constitution the requirement for seeking views of the legislature of the concerned state is of utmost importance in taking a decision as to whether there would be any alteration of the boundaries of the existing states or a new state would be created. Accordingly, the process of seeking the views of the Legislature cannot be rendered nugatory or treated as a mere formality.