Sunday, July 31, 2011
Key to Telangana: Article 3, Part 2
In the previous article titled ‘Key to Telangana: Article 3’, I discussed how Article 3 of Indian Constitution makes it clear that the Indian Parliament is the sole authority on making a decision on a new state. The involvement of the State Assembly is confined to only presenting ‘its views’ within a certain specified period of time. Indian Parliament is not obligated to follow on the views of State Assembly. If the State Assembly votes negatively on the bill, or if the State Assembly does not express its opinion within the specified period of time, it could still be introduced in the Parliament after the expiry of the specified period.
Providing this clarity on Article 3 was necessary for the on-going struggle in Telangana because most of the Indian Cabinet ministers have been distorting the original definition, purport and intention of Article 3 and started to play games with Indian people saying that it is mandatory for Andhra Pradesh State Assembly to pass the resolution before it can be taken up by the Indian Parliament.
Not only did P Chidambaram, Home Minister of India, make the biggest blunder when he asked State Assembly of Andhra Pradesh to pass the resolution on formation of Telangana, other Cabinet Ministers kept repeating the lie. Veerappa Moily, Indian Minister of Law and Justice, says:
“How can Telangana be formed (like this). There is a procedure involved. The Bill cannot be taken up Parliament till it is passed by the Assembly. We have to create an atmosphere which cannot be created by confrontation. It has to be created by trust.”
When the Law Minister in the country starts distorting the legal system of the country you should strongly suspect if we can still trust the current leadership in this country to resolve this issue. The distortion was played up so much that entire Indian media, now even the international media, started to parrot the same lie. The lie has been repeated so many times that it is now passed on as truth. Till now, no serious journalist or columnist did his own research to find fault with the Cabinet Ministers’ comments on this issue.
After I published the previous article, certain questions were raised by observers as to why P Chidambaram referred the Telangana issue to the State Assembly to pass the resolution when the original interpretation of Article 3 did not specify it. A reference was cited to the immediate precedent – that of creation of Jharkhand out of Bihar, Uttarakhand out of Uttar Pradesh, and Chattisgarh out of Madhya Pradesh, in the year 2000 under NDA government, when the legislative houses of the respective states passed a resolution before the bill was passed in the Indian Parliament.
Was P Chidambaram just following the precedent set during creation of these three states? If so, what is anything wrong with what Home Minister did? Was he not right in following the right procedure?
Creation of Chattisgarh
According to the procedure prescribed in Article 3, a bill for creation of Chattisgarh was drafted by Union Government and then sent to Madhya Pradesh where it was unanimously approved. Both Congress and BJP, the leading national parties, supported the resolution in the State Assembly of Madhya Pradesh. The election manifestos of both Congress and BJP included demand for creation of separate Chattisgarh. The bill was then passed in both Lok Sabha and Rajya Sabha after which the President gave the consent, thereby creating new state of Chattisgarh on 1st November 2000.
The process was quite smooth because an ‘important factor leading to the creation of Chhattisgarh was that there was clear acceptance, within Chhattisgarh and outside that Chhattisgarh had a distinct socio-cultural regional identity that had evolved over centuries. A consensus had evolved and emerged on the distinctiveness of Chhattisgarh.’ The government website describes thus: ‘In a democratic polity, the people's demand has a high degree of legitimacy and weight. Therefore the people's demand voiced through democratic channels was heard and contributed immensely to the creation of Chhattisgarh.’
Creation of Jharkhand
The state of Bihar took the initiative in creation of Jharkhand when Jharkhand Area Autonomous Council was formed in 1995 comprising 18 districts. Coming under the pressure from Jharkhand Mukti Morcha (JMM) which supported Rashtriya Janata Dal (RJD) to form the government, Bihar adopted a resolution for creation of Jharkhand on 22 July 1997. However, a year later, Lalu Prasad Yadav of RJD reversed his earlier position. In the next election, RJD needed support from Congress to form the government. Congress extended the support on the condition that Jharkhand is formed. Lok Sabha passed the bill in the year 2000 though two key allies of NDA, and RJD and CPI-M opposing the bill after which the state of Jharkhand was formed on 15 November 2000.
Creation of Uttarakhand
State of Uttar Pradesh passed a motion demanding Uttarakhand on 12 August 1991. The Central Government under NDA drafted the bill in 1994 and through the President of India asked the state assembly to provide its opinion on various provisions of the bill. The State Assembly adopted a resolution for creation of Uttarakhand on 24 August 1994 with as nearly 26 amendments, including the one to exclude Haridwar from becoming part of the new state. It also excluded giving rights over many irrigation and power projects and natural resources. The State Assembly passed another motion on 24 April 1997. The bill for creation of Uttarakhand was passed in Lok Sabha on 1 Aug 2000 which negated some of the amendments made by the state assembly, like the which sought exclusion of Haridwar. The state of Uttarakhand was created on 9 November 2000.
Though the Article 3 of Indian Constitution clearly illustrates the procedure of originating the bill by the Central Government following which ‘views’ of a State Governments can be sought, the creation of the three states by NDA government followed different process, though arriving at the desired result.
In all the three state formations, the original states were quite amicable to the separation. Though there was opposition from the ruling party in the state in case of Jharkhand, and there were some reservations in case of Uttarakhand, the Union Government passed the bills in the Parliament to make way for creation of these three new states. These were the cases where the state governments cooperated with the central government in creation of the new states, sometimes urging the central government to take up separation.
Just because such an amicable situation was available in creation of these three states does not mean that every new state creation should expect same cooperation. It is a good time for us to understand the difference between a common practice and a legal procedure. Let me illustrate this with two examples.
Examples on change in standard operating procedure
There is a driver in US, Henry, who drives really fast, and is caught by the traffic police for speeding. Two times in a row, the cops let him go with a warning. So, when he is caught the third time, Henry insists that the cop should let him go with a warning. The cop says, ‘no way, I am giving you a ticket here’. The driver then cites the precedents of two other cops before him, demands that this cop should abide by the general practice already established. Henry demands the cop should let him go with a warning. In return, the cop explains that just because two cops before him were nice to give him a leeway and let him go with a warning does not make it the standard operating procedure. No matter how many instances there might be, thousands or millions, where cops let go of the speeding driver with a warning, the standard operating procedure of giving a ticket to a speeding driver does not change. It is still illegal to speed – that does not change.
The message is simple. No matter how many times the law enforcers give leeway and be nice to accommodate the wishes of the drivers, the law does not change. The standard operating procedure does not change because of precedents of leeway.
Let’s take a look at second example. In a country called Mondavia, it is a contempt of court when one doesn’t stand up when a judge enters the court. However, a new judge, Mikhail is quite relaxed about this rule, and allows people to sit through when he enters the court. People get used to this. One day, Mikhail retires and a new judge Nicholas enters the court. Nobody stands up. He charges them with contempt of court. The people cite the previous precedents to tell him that now the law has changed since Mikhail has allowed them sit through. Nicholas explains that a law does not change no matter how many times it is deviated to accommodate the perpetrator or the victim. If that deviation is asked into question, the original and prescribed legal method has to be followed. Only a verdict by a court of law on a legal case can reinterpret a law, but no amount of deviations on the implementations can reinterpret the law.
Legal Precedents on Article 3
Coming to creation of new states in India, every legal case in this country has only upheld the original interpretation of Article 3, while its deviations and accommodations have never been sanctioned legally as reinterpretations. In two legal cases concerning implementation of Article 3, the courts in India have emphasized that the Indian Parliament is the sole authority on demarcation of new states and that the views of State Government need NOT to be taken up in such decisions.
In the first case, Babulal Parante contested that the Legislature of Bombay had not been given an opportunity to express its view on the formation of two new states, Maharashtra and Gujarat. The High Court dismissed the petition. In this case, Babulal Parante v. State of Bombay, 1960, the court explains the provisions of Article 3 [emphasis mine]:
The period within which the State Legislature must express its views has to be specified by the President; but the President may extend the period so specified. If, however, the period specified or extended expires and no views of the State Legislature are received, the second condition laid down in the proviso is fulfilled in spite of the fact that the views of the State Legislature have not been expressed.
The intention seems to be to give an opportunity to the State Legislature to express its views within the time allowed; if the State Legislature fails to avail itself of that opportunity, such failure does not invalidate the introduction of the Bill.
Nor is there anything in the proviso to indicate that Parliament must accept or act upon the views of the State Legislature.
In another case, Pradeep Chaudhary questioned how Haridwar district (and not just the city) was included in Uttarakhand going against the resolutions and amendments made by State Assembly. The petitioners reasoned that Parliament could not make amendments to the original bill and that a new draft of the bill should have been sent to State Assembly before passing in the Parliament. In the case, Pradeep Chaudhary Vs. Union of India, 2009, the court explains Article 3 as thus [emphasis mine]:
Indisputably, only because one or the other view had been expressed in the State Legislature, the same would not be binding upon the Parliament even if its views were received in time. When, however, the views of the State Legislature were not received in time, the Parliament would be free to pass the Act in terms of the Bill or with amendment as it may deem fit and proper. A Bill has to be introduced in the Parliament. It is the Parliament's prerogative to place the Bill in either of the Houses, either in the same form or with amendments.
What is interesting is that the above verdict also discusses the issues which are extremely relevant to the current issue of Telangana.
The term `consultation' means differently in different context. While a power to introduce the Bill is kept with the Parliament, consultation with the State Legislature although is mandatory but its recommendations were not binding on the Parliament. `Consultation' in a case of this nature would not mean concurrence. It only means to ask or seek for the views of a person on any given subject. The views of the State Legislature certainly would be taken into consideration but the same would not mean that the Parliament would be bound thereby.
One court ruling made it clear that it is not binding on the Indian Parliament to wait for the State Assembly to provide its views; and the other made it clear that the Parliament could override the suggestions made by the State Assembly, thereby clearly establishing an interpretation that while a resolution from a State Assembly is desired it is not mandatory.
But since the creation of these last three states, Chattisgarh, Jharkhand and Uttarakhand, involved passing of resolution by State Assembly before creation of the bill, is it now the standard operating procedure?
Can deviations in procedure change the law?
The question we have in front of us is that of legality, as to whether a change in the procedure as a precedent changes the law and its prescribed legal steps. While a new verdict of a court can reinterpret the law, no change in the operating procedures by the offices of the government can change the law. A law can be legally interpreted only in a court of law, not by the officers in duty or the government offices. A law can be changed or introduced only in the Indian Parliament; it cannot be modified or created by the operating procedures adopted by the government offices. With these key understandings, we have to take a look at interpretation of Article 3.
In case of Jharkhand, Chattisgarh and Uttarakhand, the original states approved creation of new breakaway states. Therefore, it became easy to pass a resolution in the State Assembly first, though it is not a prescribed step in implementation of Article 3. The passing of the bill in State Assemblies made it easier for the Union Government to introduce the bill in Lok Sabha and Rajya Sabha, but it did not reinterpret Article 3 or modify it. It was a matter of convenience. Such a convenient step could have been ignored or completely rejected and still the final result could be achieved.
So, we should take a look at a case when the original state had a dissenting voice, when they did not agree upon creation of new state. That happened in the case of Maharashtra and Gujarat out of Bombay State and the creation of Andhra State and Tamil Nadu out of Madras State. Article 3 was debated and discussed by the architects of Indian Constitution to get the desired shape in the present form taking into account the cases where the original state does not approve of division of the state. That is what the law is all about. When signing a legal agreement, the lawyers take into account the cases where both parties do not agree and consider those situations to define the various clauses. When both parties agree, there is no need to refer to the legal agreement. But when the parties do not agree, that’s when we refer to the clauses in the agreement to find the way out. Even if the both parties do not agree, the clauses of the agreement will dictate the outcome. That’s exactly the case with Telangana.
Telangana is a case when the parties do not agree. Therefore, the standard operating procedure needs to be invoked. The convenient procedure that was adopted in creation of three states in year 2000 cannot be applied here.
Disputes invoke original interpretation of law
If ever P Chidambaram invoked the convenient procedure, giving him the benefit of doubt that he thought all the groups in Andhra Pradesh were in agreement, he should have later on realized his folly by December 23, because it was quite evident by then that there was immense opposition from Seemandhra. The standard operating procedure as described by the legal system of the country has to be resorted to when a conflict arises.
Nobody looks at a will or a legal document if all parties agree to a step and go about following it. Legal cases arise only in disputes. Such a dispute arose between Seemandhras and Telangana. That’s when the legal documents are referred to. And the legal document and precedents are quite unequivocal on this. The Home Minister of India should have corrected his steps to resort to actual and standard operating procedure, which clearly illustrates that it is the Parliament which is the sole authority on creation of new states and that a resolution from State Assembly does not stop or stall the creation of Telangana.
Instead, the Home Minister continues to refer to the convenient procedure as it if it is the rule, when it is not, to make a mockery of Indian constitution and its architects, and the law of the land. Insisting that State Assembly of Andhra Pradesh should pass the resolution to start the process of creation of Telangana is tantamount to rubbishing Article 3 of Indian Constitution. It is like arguing that police officer should still issue a warning and not give a ticket for speeding, and that everyone in the courtroom can still continue to sit while the judge enters the court.
If the common man of the country misinterprets the law, it is understandable, though not pardonable. Ignorance of law is not even condoned by the court. But when the Home Minister and other cabinet ministers resort to such misinterpretation, it is sheer insanity, it is downright criminal, it is miscarriage of justice, which leads to trauma to 40 million people, results in 600 deaths, and spurs a large scale mass movement affecting millions of people.
The question that is posed to us is: who is going to pay for this subversion of legal procedures in this country?