Saturday, January 04, 2014

Now, For New 'Telangana State': No Constitutional Barriers

By M H Ahssan | INN Live

CONSTITUTIONAL ANALYSIS We must preserve the Union power to redraw State boundaries unfettered by new constitutional restraints as the flexibility to create suitable state-nation arrangement has sustained Indian federalism.

Now that the proposal for a new Telangana state has entered the legislative stage, in the State Assembly and subsequently Parliament, the constitutional question will take centre stage: does the absence of a supporting State Assembly resolution for the creation of a new Telangana state, an outcome which remains likely, render a parliamentary amendment unconstitutional? In this analysis I show that this constitutional question sits at the fault lines of two conflicting constitutional impulses on federalism in India: first, the imperative of crafting an accommodating state-nation and second, to guard against the excesses of venal partisan federalism. 
On balance, I conclude that the absence of a State Assembly resolution is not a constitutional barrier to the creation of Telangana. We must preserve the Union power to redraw State boundaries unfettered by new constitutional restraints, imposed either by the President or the Supreme Court, as the flexibility to create suitable state-nation arrangements has sustained Indian federalism and political unity.

Legal argument against creation
The constitutional legal argument against the creation of Telangana rests on the claim that a State Assembly to which the President refers a Bill to alter State boundaries under the proviso to Article 3 must consent to this proposal for it to be constitutionally valid. As has been pointed out in the opinion columns of this paper, this argument faces a significant hurdle. The Supreme Court has repeatedly clarified that while the State Assembly’s resolution is an important procedural requirement under Article 3, a negative vote or a failure to vote on the referred Bill does not impose substantive constraints on the Union power to enact such legislation.

In Babulal Parate (1959) a five-judge Constitutional Bench of the Supreme Court confronted the political jostling around the status of Bombay in Maharashtra and Gujarat. The President had referred a Bill to the State Assembly, which proposed a three-way split between Gujarat, Maharashtra and a Union Territory of Bombay. After the State Assembly approved this Bill, it was amended by Parliament to include Bombay within the State of Maharashtra — a not so insignificant change! Despite the significant unilateral alteration by Parliament, the Supreme Court concluded that this was not a sufficient reason to strike down the Union law as the States had no rights under the Indian Constitution. 

This view of the role of State legislatures where State boundaries are altered has been reaffirmed recently in Pradeep Chaudhary (2009) where the final Union law creating Uttaranchal State included the entire Haridwar district while the one approved by the State Assembly included only Haridwar city. Hence, we are in no doubt that even if the Andhra Pradesh Legislative Assembly rejects or refuses to pass this resolution, this will not be a constitutional barrier to the creation of the Telangana State unless the Supreme Court changes its interpretation of Article 3.

Hence, the constitutional argument against the creation of the Telangana State is not about what the law is but what it should be. There is nothing in the text of the proviso to Article 3 to indicate that Parliament must accept or act upon the views of the State legislature. Further justification for such a view should be understood to be the result of the embrace of a particular type of federalism: a holding-together federalism that adopts state-nation strategies. 

In Babulal Parate, the court observed that: “None of the constituent units of the Indian Union was sovereign and independent in the sense the American colonies or the Swiss Cantons were before they formed their federal unions. The Constituent Assembly of India, deriving its power from the sovereign people, was unfettered by any previous commitment in evolving a constitutional pattern suitable to the genius and requirements of the Indian people as a whole. Unlike some other federal legislatures, Parliament, representing the people of India as a whole, has been vested with the exclusive power of admitting or establishing new States, 

increasing or diminishing the area of an existing State or altering its boundaries, the Legislature or Legislatures of the States concerned having only the right to an expression of views on the proposals.” As Stepan, Linz and Yadav show, in a federation of this type, the Union’s capacity to shape State boundaries to respond to claims for political autonomy based on linguistic, ethnic, religious or tribal identities has arguably strengthened the capacity of the Indian federation to endure over the last 60 years. Any attempt, by the President or the Supreme Court, to constrain this Union power with new constitutional or political limitations may have a lasting impact on the future of the Indian federation.

However, it appears that the state-nation and holding together federalism justification for the Union power to create new States does not take the problem of political partisanship seriously enough. As many commentators have argued, the Congress party may well be endorsing the Telangana state to secure partisan electoral gains. So should the President of India or the courts intervene to craft neutral constitutional rules that prevent the federal constitutional arrangements being exploited for partisan political considerations?

In the last three decades, the Supreme Court has intervened in at least three types of disputes to craft neutral constitutional rules that prevent partisan federalism: proclamation of regional emergencies or President’s Rule under Article 356; appointment of Governors and their exercise of executive power and to prevent the abuse of Union executive power to preserve law and order in the States. Despite the court’s intervention, partisan federalism has become ubiquitous in Indian constitutional culture. 

In the last decade, on almost every issue on which federalism has been invoked by the States, it has been by parties in opposition to those at the Union government: the ostensibly federal division on the GST, NIA, CBI power, Lok Pal Bill, FDI in retail or the Communal Violence Bill is better explained by opposition party control over State units. However, we must be careful in characterising federalism in India as inexorably partisan in character, particularly in the realm of new State creation.

Legitimate & partisan mobilisation
The diverse range of political mobilisation that gives rise to State reorganisation claims in India alerts us to the analytical problems of distinguishing between legitimate political mobilisation and partisan mobilisation. While linguistic State reorganisation in the early decades of the Republic is now construed as legitimate constitutional redrawing of boundaries there is no doubt that several regional party formations benefited from this process: the Dravidian parties in Tamil Nadu and the Shiv Sena are prominent examples. 

The Akali parties benefited from the creation of a Sikh majority Punjab state and as Louise Tillin (Remapping India, 2013) persuasively shows, the Bharatiya Janata Party’s political interests were critical to the formation of the States of Uttaranchal/Uttarakhand, Jharkhand and Chhattisgarh. So, invariably States have emerged from legitimate demands for political autonomy anchored by political parties which either motivated or benefited from the creation of new States.

Is the movement for the creation of a Telangana state an exception to this historical pattern? There is one issue on which the Justice B.N. Srikrishna Committee Report is emphatic and clear: that the political demand for a Telangana state is perceived as legitimate due to the persistent underdevelopment of these regions. The Gentlemen’s Agreement settled in 1956 devised statutory means to eliminate under-representation and underdevelopment in the Telangana region. Article 371-D was introduced in 1973 to formalise the Six-Point Formula through a non-territorial asymmetric arrangement to reserve jobs and educational opportunities to people from the region. 

The failure of these statutory and constitutional arrangements led to the present demand for a new State. While the Telangana Rashtra Samiti and the Congress may potentially benefit from the formation of a new State, only those who pay no heed to the facts would claim that this is the only motivation for the state of Telangana. The present division in the Andhra Pradesh Assembly on the Telangana Bill is unambiguously along regional and not party lines.

So, to conclude, should the President of India or the Supreme Court change the balance of power between the Union and the States in the process of State reorganisation by insisting on an affirmative State resolution under Article 3? There are three compelling reasons not to do so: first, India’s successful holding-together federalism model has helped us craft an enduring state-nation by allowing the Union to redraw State boundaries; second, though we have crafted neutral constitutional rules to check partisan federalism in several cases, it is difficult if not impossible to do so in the context of State reorganisation. 

Third, there is no limited set of constitutional principles that ex-ante justify the formation of States, as the primary justification for State formation is of an ex-post political character. In these circumstances it is best left to the political process to craft a resolution to competing group claims for political autonomy and statehood rather than the President or the Supreme Court to second-guess this process through constitutional rules.
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