Archive for December, 2013

Sunday, December 22nd, 2013

The October 3 decision of the Union Government to divide Andhra Pradesh and the subsequent developments raise important questions about federalism in India and the future of the nation.  Several states have been formed after 1950, but this is the first occasion when a major state is sought to be divided without the consent of the state legislature, and without a negotiated settlement among the stake-holders and various regions, and in the face of fierce opposition from vast sections of the public.



All major federal democracies have incorporated in their Constitutions the provision that a state cannot be divided or merged with another state without its prior consent.  This is the essence of federalism.  The United States, Australia, Germany, Canada and Switzerland follow this model.  Similarly Brazil, Argentina and Mexico follow the same pattern.  Even a unitary country like Britain, while dealing with regional assemblies of Wales and Scotland, follows such a federal principle in practice.



Indian Constitution-makers gave considerable thought to the issue of formation of new states and reorganization of states while drafting the Constitution.   Article 3 of the draft constitution prepared by Constitutional Advisor (Sir B N Rau) in Oct 1947 reads as follows:


“The Federal Parliament may, with the previous consent of the Legislature of every Province and the Legislature of every India State whose boundaries are affected thereby, by Act-

  1. create a new unit;
  2. increase the area of any unit;
  3. diminish the area of any unit;
  4. alter the boundaries of any unit;
  5. alter the name of any unit;

and may with the like consent make such incidental and consequential provisions by such Act as it may deem necessary or proper.


2) When any such Act creates a new unit, then as from the date of commencement of the Act that unit shall be deemed to be included in the First Schedule to this Constitution, and when provision is made by any such Act for the alteration of the area or the boundaries or the name of any unit, then as from the date of commencement of the Act any reference in that schedule to that unit shall be construed as a reference to the unit as so altered.”


Later, The Drafting Committee revised it with the following proviso:


“Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless –  


  1. Where the proposal contained in the Bill affects the boundaries or name of any state or States for the time being specified in Part-I of the First Schedule, the views of the Legislature of the State, or as the case may be, of each of the States, both with respect to the proposal to introduce the Bill and with respect to the provisions thereof have been as ascertained by the President; and


  1. Where such proposal affects the boundaries or name of any State or States for the time being specified in Part-III of the First Schedule, the previous consent of the State, or as the case may be, of each of the States to the proposal has been obtained.”



However, the Drafting Committee and Constituent Assembly were keenly aware of the circumstances prevailing in the country at that time.  India witnessed partition of the country, accompanied by unprecedented violence and bloodshed, and the largest forced mass migration in history.  In addition, there were several kinds of States – Part A, B and C, and there was need to reorganize all the states and fully integrate the 552 princely states.  If the consent of every State or Unit was a pre-condition for altering boundary of a State, reorganization of Indian States could easily have been mired in disputes, and would have been a prolonged and excruciatingly difficult exercise, delaying and hampering the nation-building efforts.  Therefore they wanted to prevent Parliamentary paralysis while reorganizing the States.  Consequently, the final text of Article 3 as promulgated provided for the President’s recommendation and ascertaining of the views of the State(s) concerned.



Subsequently, in 1955, on the eve of linguistic reorganization of States, Article 3 has been amended (5th Amendment) to provide for a timeframe for expression of the views of the legislature, with a provision for the President allowing a further period of time on request.  Clearly, this timeframe was incorporated to ensure that the impending States’ reorganization could be carried out smoothly without unreasonable delays.



Experience has shown that our nation-builders were wise in drafting the Constitution to suit our requirements.   More important, successive governments have been very mature and wise in applying Article 3 and in dealing with States.  While prior consent of the State was not necessary under the Constitution, in practice every State has been formed with prior consent, and in most cases after a detailed, impartial examination of the issues by an independent commission and based on its recommendations.  Only in the case of the Punjab, there was no legislature at the time of dividing the State in 1966, but a broad consensus among all stake-holders was available and there was no opposition to division of Punjab.  Also the division was carried out based on the settled linguistic principle, and a Parliamentary Committee examined the issue of boundaries of the new states and other related issues, and gave recommendations which were implemented in their entirety. 



So far, the Parliament and Governments have acted with restraint and wisdom in dealing with boundaries of States and formation of new States. They rejected the notion that anything could be done to alter the boundaries of States provided it is not expressly prohibited by the Constitution.  While prior consent of state legislature is not mandatory, in practice care has been taken to obtain the consent of legislature, or to act only on the express request of the State.  The 1956 reorganization of States was based on the fundamental principle of language, and there was broad national consensus on the issue. 


The States’ Reorganization Commission in its report (1955) in Para 107 noted wisely:


“Any measure of reorganization which is likely to create tensions and disharmony must weaken the sense of unity among the people of India and should not, therefore be countenanced”



The SRC further stated in Para 111 (iii) as follows:


“But while the building of contented units, strong enough to bear their share of the burden, is an important objective, it is no less necessary that the links between the units and the nation should be equally strong so that under the stress of regional loyalties, the Union does not fall apart”.



The Commission went on to caution in Para 112 as follows:


“It follows that, while internal adjustments at State level are to be desired, it is imperative to ensure that these do not lead to maladjustments at the inter-state and national level. From the point of view of national unity, therefore, reorganization has to aim at a two-fold objective:

  1. Firm discouragement of disruptive sentiments such as provincialism or linguistic fanaticism; and
  2. Consistent with national solidarity, provision of full scope for the unhampered growth of the genius of each group of people”



It is this maturity and wisdom that served us well over the past six decades. As the Sarkaria Commission noted in 1987 in paras 2.29.06 and 2.29.07:


“In all, during the last 37 years, 20 Acts have been enacted by Parliament under Articles 3 and 4 to bring changes in the areas, boundaries and names of States ……


“It is noteworthy that these legislations were passed either with the consent of the States affected, or on the recommendations of a Commission or Committee set up for the purpose…. Questions relating to readjustment of boundaries of some states still remain unsettled. The need for Articles 3 and 4 in the present form has not disappeared”.



Clearly, Articles 3 & 4 in their present form are enabling provisions empowering the Parliament to act in an exceptional situation when national interest warrants it, or to settle marginal boundary disputes between States when they are recalcitrant and all efforts to reconcile their differences and arrive at a negotiated settlement have failed. The framers of the Constitution had not intended to give Parliament arbitrary powers to redraw boundaries of States at will; nor did successive Parliaments and Governments act unilaterally or arbitrarily without genuine consent, broad consensus or negotiated settlement.



Even after 1987, in every case of new State formation, the prior consent of the Legislature of the affected State was obtained, and only then did the Parliament act. Even in respect of Pondicherry and Goa when it was a Union Territory, the wishes of the people and their representatives were respected, though neither consent of the Union Territory is needed, not is it necessary to ascertain the views of a legislature of the Union Territory. The broader principle of federalism and willing consent of the constituent units and their people has always been deemed to be necessary before a state is formed or a territory is merged, unless overwhelming national interest demands action by Parliament. The same procedure has been scrupulously observed while creating the new States of Jharkhand, Uttaranchal and Chattisgarh in 2000.



Dr Ambedkar stated in his reply to the debate on States’ rights in the Constituent Assembly as follows:


“The second charge is that the Centre has been given the power to override the States. This charge must be admitted. But before condemning the Constitution for containing such overriding powers, certain considerations must be borne in mind. The first is that these overriding powers do not form the normal feature of the Constitution. Their use and operation are expressly confined to emergencies only”.



It is precisely this spirit that informed the actions of Union Government and Parliament over the past six decades. Such admirable wisdom and restraint have been evidence in respect of formation of states on every occasion. There were certainly blemishes in application of Article 356 earlier. But over the past two decades Indian federalism has matured a great deal more. The Supreme Court verdict in Bommai Case (1994) made Article 356 more or less a “dead letter” as Ambedkar hoped. Though the Finance Commission’s recommendations are not binding on the Parliament and Government, the recommendations of every Finance Commission in respect of devolution of resources have been accepted and implemented fully over the past six decades. Since the report of the Tenth Finance Commission, there has been greater transparency in devolution, with most of the tax revenues of the Union being treated as the divisible pool, and a fixed proportion of it is shared with states, and this proportion is decided by the Finance Commission from time to time. With liberalization and expansion of economic freedom, States are now more in control of their economic future. With the decline in importance of new public sector investments and reduced political control of such investments, there is little scope for discrimination or favouritism in the Union’s dealings with States. As a result of all these developments, India is moral federal in nature today than ever before in our history as a Republic.



These developments do not mean that states can act as they please; nor does it mean that their territorial integrity is inviolable. Clearly, there is one nation and one citizenship, and territorial integrity of the nation is paramount. However, within that overarching framework, States too exercise limited sovereignty, and federal spirit informs the operation of our Constitution. The Constitution never intended to make India a unitary country with States functioning as municipalities, and their very survival as political entities dependent on the will and whim of the Union Government. Nor did the actual operation of our Constitution over the past 63 years suggest a de facto unitary State. In fact, federalism has been deepening in India. This is in keeping with global trends. Even a unitary country without written Constitution like the UK is becoming a federal country, with regional legislatures in Scotland, Wales and Northern Ireland exercising considerable power. Even Sri Lanka is now attempting to institutionalize a federal model to accommodate the aspirations of Tamil-speaking people. Pakistan, despite decades of turbulence and dictatorship, preserved its federal structure.



Our settled constitutional law practice in respect of States’ formation can be summed up as follows:



New States are formed, or boundaries of existing states are altered only with the consent of the affected States. Only in exceptional situations of national emergency or overwhelming national interest would Parliament be called upon to act on its own without the consent of States. When there are strong popular demands for division of a state or altering the boundaries of a state, consent must be the guiding principle as a general rule. However, when there is polarization and serious divergence of views, patient negotiation and adjustment and fair reconciliation through a process of give and take should be the norm.  The Parliament would ordinarily act only after such a consensus and negotiated settlement are arrived at.  Only in extreme and compelling circumstances, when unity of India or its security is at stake, or overwhelming national interest demands adjustment of boundaries, would Parliament act without the consent of States affected. In redrawing boundaries of any State, Parliament would act at all times with great restraint and circumspection.



The Punchi Commission on Centre-State Relations in its report (2010) in para 4.2.02 stated as follows:


“In practice it is rarely possible for the Parliament to ignore the views of the States.  The Central government, in effect, cannot concede to the demands of regional groups/communities for a separate State unless such a proposal is received from the State(s) in which these groups are currently located.”



This principle can be slightly amended based on the experience relating to Uttar Pradesh.  On Nov 23, 2011, a few months before the State Legislative Assembly elections were due, the Uttar Pradesh Legislature passed a resolution seeking trifurcation of the State.  Despite the State’s consent, the President, the Union Government, and the Parliament chose not to act, and for good reason.  The Assembly resolution was clearly for reasons of political expediency to gain short-term electoral advantage, and was passed weeks before the general election was due.  Clearly, States cannot be divided for temporary electoral advantage of one party or the other.  If there is no informed consent, and if broad consensus among all regions is not clearly manifest, division of States for short-term electoral gains will lead to anarchy, and will seriously undermine our federalism, and indeed the unity and integrity of the nation itself. 



The UP episode demonstrates that the settled principle now is that the Union will not ordinarily act without the State’s consent.  Even when the affected State consents to altering its boundaries, the Union reserves the right to reject it on broader national considerations.  In other words, in order to alter the status quo in respect of boundaries of States, ordinarily consent of affected states would be necessary.  But a State’s request for altering the status quo need not be granted unless the Union is convinced that the broader national interest is served by such a decision. 



Even colonial rulers paid a heavy price by acting precipitately without the consent of all stake-holders.  The partition of Bengal was effected by the then Viceroy Lord Curzon, against the wishes of large segments of population. There might well have been sound administrative reasons for such a partition; but the consent of people affected was not obtained, and a consensus was not arrived at.  People suspected that it was a deliberate ploy to divide the national movement and sow seeds of communal disaffection, and rebelled against it.  As a result, the national movement gained great momentum, the chasm between the colonial government and the people widened, partition had to be annulled in 1911, and that bitter episode led to many lasting consequences. 



In the light of these historical and constitutional developments and the evolution of federalism in the Indian context, the determined efforts of the Union Government and its oft-repeated declarations that Andhra Pradesh will be divided irrespective of the State Legislature’s views pose a grave danger to federalism and unity of India.  Andhra Pradesh was formed with the prior consent of the then Andhra State Legislature, and the then Hyderabad State Legislature.  When two popular movements for division of the State were launched in the three regions – in Telangana in 1969-70, and in Coastal Andhra and Rayalaseema in 1972-73,  – it was the Union Government which encouraged all regions to arrive at a negotiated settlement.  Corresponding Constitutional provisions were put in place to safeguard the interests of all regions.  An explicit and implicit compact was made by the Union with the people of Andhra Pradesh to the effect that the State would remain united.  It is on this basis that people migrated on a large scale to the other regions and to the capital city of Hyderabad, and built their lives, livelihoods and the State’s economy.  In this backdrop, any redrawing of the boundaries would need another agreement arrived at by the affected parties through patient negotiation, and the Union has a seminal role in helping reconcile conflicting interests harmoniously.  Parliament can act only on the basis of such an agreement, consensus and consent of the State.  Any other approach would be ham-handed, arbitrary, uneven and runs counter to the principles and practice of federalism as they have evolved under Indian conditions.



The circumstances of October 3, 2013 resolution of the Cabinet and subsequent developments make it abundantly clear that the Union is acting arbitrarily, contrary to past precedent and practice, in haste, and with short-term electoral considerations in mind.  There is not even the minimum effort to genuinely ascertain the State Legislature’s views and to accommodate them, let alone obtain its prior consent. There has been no honest effort to encourage detailed discussion and negotiation among all stake-holders, and no effort to arrive at a negotiated settlement satisfactory to all regions.



It is such arbitrary actions with short-term electoral calculations in mind that created grave crises for the unity and integrity of the nation in the Punjab and Jammu and Kashmir in the 80’s.  Fundamentalist religious groups prone to violence and bloodshed were encouraged in the Punjab for partisan political gains, and Punjab and India paid a heavy price for  such a folly. Similarly, the elected Government was dismissed by engineering defections and on spurious grounds in Jammu and Kashmir in 1984, and subsequently an electoral alliance was forced on the unwilling regional party, National Conference, in 1987. As a result, terrorism reared its ugly head, and the nation continues to pay a heavy price.



If now, a new precedent is established by dividing Andhra Pradesh without the consent of the State Legislature, and without a negotiated settlement reached by all regions, it could lead to serious disaffection and maladjustment at the inter-state and national level. Such a precedent may eventually lead to division of any major State without the willing consent of the State and negotiated settlement of the stake-holders. The resulting linguistic disaffection, regional stresses, and maladjustment will eventually threaten national unity and integrity, and there is every danger that the Union will fall apart within a generation.



The way the President and Parliament handle the Andhra Pradesh issue will, in a fundamental sense, shape the future of the Union itself. This is a defining moment not for Andhra Pradesh alone, but for our federal Constitution and India itself.



Undoubtedly there is large support for the formation of Telangana state in the Telangana region outside the Greater Hyderabad city. Equally certainly, there is overwhelming opposition to division of the State in Coastal Andhra and Rayalaseema regions, and in Hyderabad city. It cannot be anybody’s case that status quo ante should, or can, be restored. But what is needed is not precipitate and arbitrary action by the Union, but pains-taking efforts to assist negotiated settlement reconciling all conflicting interests.  In a highly polarized situation like this, when about 30# people fervently want division, and about 70% of the people are vehemently opposed to division of the State, there  has to be a negotiated settlement satisfying all, or at any rate minimizing dissatisfaction to all. The Union cannot create a group of winners, and a much larger group of losers. That will be a recipe for disaffection, disharmony and threat to national unity.



If such a arbitrary decision by the Union becomes a precedent, any and every State could be divided or boundaries altered without the State’s consent, and without a negotiated settlement.  That will effectively convert States into municipalities, and India into a unitary State. Neither the Constitution makers, nor nation builders intended such an outcome. And India’s future will be in peril if such an effort is made to make the nation effectively unitary at this stage.



It is in critical moments like this that the President and Parliament have to act with great restraint, foresight and wisdom. The President is not only the head of the Republic, but he is also a part of the Parliament. The President is elected by members of both Houses of Parliament as well as members of State Legislative Assemblies. In a fundamental sense the President represents the nation – both Union and States – and is the final defender of the Constitution and federalism along with the Supreme Court. This is therefore a fit case where the President should exercise his constitutional duty independently before recommending introduction of any Bill to divide the State of Andhra Pradesh.



The leaders of Parliamentary parties too should act with clarity and wisdom, and with the knowledge that division of a State without the State’s consent and a negotiated settlement among all stake-holders converts the nation effectively into a unitary one, and every State of the Union will, in future, be vulnerable to unilateral action for short-term electoral expediency.



The Constitution, the President, the Parliament and the political parties will be put to a severe test in this case, and the way they respond to this challenge will shape the future of our Republic, and the future of federalism in India.


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