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Assembly views imperative : Ex-CJI

Assembly views imperative : Ex-CJI
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Assembly Views Imperative : Ex-Chief Justice of India G B Patnaik. Telugu Desam Party, in an attempt to bring to light the importance of views of the...

Telugu Desam Party, in an attempt to bring to light the importance of views of the State Legislative Assembly and Legislative Council on the proposed bifurcation of Andhra Pradesh, sought the opinion of former Chief Justice of India G B Patnaik who made it clear that it is obligatory on the part of the Central Government to send the proposed bifurcation Bill to Andhra Pradesh State Assembly and Council for expressing their views on the Bill.
Following is the full text of the opinion of the former chief justice: The opinion was sought on the following three important areas.
(i) Under Article 3 of the Constitution, why are the 'views' of Legislature of the concerned state important and what is the intent of Article 3 in providing for seeking the views of the State Legislature?;
(ii) What is the process to be followed by the State Legislature for expressing its 'views' under Article 3 of the Constitution? In the present case, the following specific questions further arise;
(a) Whether the expressing of 'views' refers to the expression of 'views' by both the Legislative Assembly and the Legislative Council, where the State Legislature comprising of two houses (as in case of Andhra Pradesh)?;
(b) Whether the expressing of 'views' refers to the expression of 'views' by each member of the State Legislature or by members of various groups/political parties?;
(iii) What is the time to be given by the President of India to the Legislature of the concerned State to discuss and express its 'views'?
Article 3 of Constitution insists on views of Assembly
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
Speech of K T Shah
"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"
Speech of B R Ambedkar
"...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"
Speech of Rohini Kumar Chaudhuri
"...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.. "
Speech of Sardar Vallabhbhai Patel
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 Committee went on to state as follows
"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.
Process to be followed
What is the process to be followed by the State Legislature for expressing its 'views' under Article 3 of the Constitution?
In the present case, following specific questions further arise:
(a) Whether the expressing of 'views' refers the expression of 'views' by both the Legislative Assembly and the Legislative Counsel, where the State Legislature comprising of two houses (as in case of Andhra Pradesh)?; and
b) Whether the expressing of 'views' refers the expression of 'views' by each member of the State Legislature or by member of various groups/political parties?
While, the proviso to Article 3 does not indicate the procedure to be followed by the State Legislature for expressing its views, in a parliamentary form of democracy, views can be expressed only on the floor of the State Legislature by permitting its members to express their opinion in the manner in which the State Legislature decides. Further, the procedure to be followed by the State Legislature under the Constitution would be governed by the rules and procedure for conduct of business of the State Legislature.
As regards the State of Andhra Pradesh, it may be noted that its legislature comprises of two houses, namely, the Legislative Council (of 90 members) and the Legislative Assembly (of 295 members). Therefore, in accordance with Article 3 of the Constitution, the views of the members of both the houses will have to be expressed in respect of the creation of the proposed State of Telangana by bifurcating the existing State of Andhra Pradesh.
In case of expression of views by the Andhra Pradesh Legislative Assembly, the procedure would be governed by the Rules of Procedure and Conduct of Business in the Andhra Pradesh Legislative Assembly wherein rule 231 provides for constitution of a business advisory committee. Rule 232 expressly states that it shall be the function of the business advisory committee to recommend the time that should be allocated for discussion of such Government Bills and other business as the Speaker in consultation with the Leader of the House may direct.
Rule 232 reads as under:
Rule 232 Functions of the Committee
(1) It shall be the function of the Committee to recommend the time that should be allocated for the discussion of the stage or stages of such Government Bills and other business as the Speaker in consultation with the Leader of the House may direct for being referred to the Committee.
(2) The Committee shall have the power to indicate in the proposed time table the different hours at which the various stages of the Bill and other business shall be completed.
(3) The Committee shall have such other functions as may be assigned to it by the Speaker from time to time."
Similarly, in case of expression of views by the Andhra Pradesh Legislative Council, the procedure would be governed by the Rules of Procedure and Conduct of Business in the Andhra Pradesh Legislative Council, which provides for constitution of a business advisory committee. Further, it shall be the function of the business advisory committee to recommend the time that should be allocated for discussion of such Government Bills and other business as the Chairman in consultation with the Leader of the House may direct.
Therefore, for effectively obtaining the views of the State Legislature, it is the State Legislature who will decide the time to be given to each member/ group of members for expressing their views during the discussion on the floor of the State Legislature, taking into consideration the time given by the President for discussion and expressing the views and bearing in mind the rules and procedure for conduct of business of the State Legislature.
In case of Andhra Pradesh, it is for the Business Advisory Committee of the Legislative Assembly of Andhra Pradesh and the Business Advisory Committee of the Legislative Council of Andhra Pradesh to determine the process to be followed by the legislature of Andhra Pradesh for expressing its views under Article 3 of the Constitution.
Time to be given to discuss, express views
What is the time to be given by the President to the State Legislature to discuss and express the 'views'?
Article 3 of the Constitution provides that while referring the Bill to Legislature of the concerned State for expression of views, the President may specify the time-frame within which the State Legislature ought to express its views although no specific time period is stipulated hereunder. Thus, the time-frame to be set for the State Legislature to express its views on the proposed action has been left to the discretion of the President.
In the light of the above the President would be guided by the following considerations:
(i) The legislature should be free to decide the process/ procedure for ascertaining the views of the members on the draft bill;
(ii) The timeline should not dictate the manner/ procedure for the State Legislature to ascertain the views and the State Legislature should be free to decide the process/ procedure for ascertaining the views of the members on the draft bill;
(iii) The time period should be such as to accommodate and facilitate the members of the State Legislature to effectively express their views on all aspects of the matter - in the instant case being 295 members of the Andhra Pradesh Legislative Assembly and 90 members of Andhra Pradesh Legislative Council.
The President, while specifying the time period within which the State Legislature is required to express its views, has to consider a variety of relevant factors such as:
(i) The complexity of the situation at hand.
(ii) The extent of differences in views between different sections of the concerned state, as also various administrative and political challenges that the bill has to address.
Further it may be noted that the Constitution enables the President to allow further period for discussion, if it is not possible to obtain the views of the State Legislature within the time limit prescribed by the President while referring the matter. This suggests that there should be a full-fledged discussion on the floor of the house for obtaining the views of the members of the State Legislature and the President is empowered to grant additional time taking the totality of situation into consideration.
The President may also take into account previous instances and practice followed at the time of formation of the States of Chhattisgarh, Jharkhand and Uttarakhand. The fact that in such cases, a period of six weeks each was granted by the President to the State Legislatures of Madhya Pradesh, Bihar and Uttar Pradesh for expressing their views on the Draft Bills, respectively, may also be taken into account while specifying the time period to be granted to the State Legislature of Andhra Pradesh for expressing its views on the Draft Bill.
Further, in the case of Uttar Pradesh, an extension of 4 weeks was granted by the President to the Uttar Pradesh State Legislature for expressing its views on the draft bill, which goes on to show that the President is considerate of the fact that the process of expression of views by the State Legislature should not be rendered nugatory and treated as a mere formality and the State Legislature is afforded sufficient time for expressing its views on the Draft Bill.

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