Tuesday, September 24, 2013

Formation of Telangana: No need for consent from AP State Assembly

Many elected leaders hailing from Seemandhra are under the false impression that they can scuttle the process of formation of Telangana by passing a negative resolution or delaying their consent when the draft bill for State Reorganization Act is sent to the Andhra Pradesh State Assembly for their consent.   Since Seemandhras form a majority in the State Assembly they believe they can stall the formation of Telangana.   Their belief is misguided and not based in ground realities.

Sensing this kind of danger, wherein the majority region in the state could thwart any attempt by the minority region from aspiring to form a separate state, the Indian Constitution has provisioned Article 3 in the current form, whereby the State Assembly is allowed to ‘express its views’ without any binding nature within a certain specified period of time.  The Indian Parliament is entitled to reorganize the state with or without the consent of the State Assembly, with or without considering the suggestions made by the State Assembly, and also without waiting for the State Assembly to respond beyond the specified expiration date.  If for some reason, the State Assembly is not in session or is dissolved, like in President’s Rule, the Parliament could still go ahead and reorganize the states. 

The reasons for such a provision where in only the Indian Parliament is given the exclusive right to reorganize state boundaries are quite evident from precedents in our history.  The original answers are found in the Constituent Assembly Debates (CAD) of 1948.  There was a proposal by Prof. KT Shah that the legislation for creating a new state out of any region of an existing state should originate from its State Assembly.   K Santhanam opposed such a proposal citing the then demand for Andhra Province out of erstwhile Madras State as an example.  He said: “I wonder whether Professor Shah fully realizes the implications of his amendment. If his amendment is adopted, it would mean that no minority in any State can ask for separation of territory, either for forming a new province or for joining an adjacent State unless it can get a majority in that State legislature.”

He went onto describe the then current demand of Andhras to form a state of their own. 

He added, “Take the case of the Madras Province for instance. The Andhras want separation. They bring up a resolution in the Madras Legislature. It is defeated by a majority. There ends the matter. The way of the Andhras is blocked altogether. They cannot take any further step to constitute an Andhra province… Instead of democracy we will have absolute autocracy of the majority in every province and State”.

Eventually, the draft proposed by Dr. Ambedkar was adopted for Article 3, thereby allowing creation of nearly 15 other states in India, including Andhra State in 1953.  It has been clearly established that it is the constitutional intent that the will of the people of a region to form a separate State is the sole criterion for the Indian Parliament to initiate the process of State formation.

Recently, some of the Seemandhra politicians referred to Amendment 5 made to the Article 3.  Contrary to the hopes of Seemandhras, this amendment actually confers more power to the Indian Parliament to decide on state reorganization.  Article 3 is modified so that Indian Parliament is not held to ransom by a State Assembly either by sending negative opinions or by creating indefinite delays while providing its opinions.  Through this amendment the President of India refers the bill to a State Assembly so that it can ‘express its views’ instead of waiting forever to be ‘ascertained’ of the views of the State Assembly.   
It also puts a time limit by which State Assembly has an option to provide its views or not.   According Durga Das Basu, “If however, a State Legislature does not express its views within the time specified by the President, he may recommend the introduction of the Bill without obtaining the views of such State”.

The consent of a state is not required for altering the state boundaries.  Indian Parliament is not bound to accept or act upon the views of State Legislature even if received in time.  Durga Das Basu further clarifies: “The acts specified in the Article can be done only by legislation by Parliament and not by the Executive without the sanction of Parliament.”  That means President of India cannot stall or make changes to the Act as believed by Seemandhras.  

In 1960, when Maharashtra and Gujarat were formed, a petition was filed by Babulal Parante in High Court of Bombay, in which he expressed his contention that the Legislature of Bombay had not been given an opportunity of expressing its views on the formation of the composite State.  The High Court dismissed the petition saying that State Legislature has to express its views within the specified period by the President.  If the specified period specified expires and no views of the State Legislature are received then the Indian Parliament can proceed with enacting the Act for formation of new States.  The High Court observes that “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.”  And the High Court clearly mentions: “Nor is there anything in the proviso to indicate that Parliament must accept or act upon the views of the State Legislature.”

In 2009, Pradeep Chaudhary questioned how Haridwar district 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 it in the Parliament.   The court observes: “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… It is the Parliament's prerogative to place the Bill in either of the Houses, either in the same form or with amendments”.

It further observes: “The term ‘consultation’ means differently in different context… ‘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.”

Also, it is to be noted that two successor states, Punjab and Haryana along with a union territory of Chandigarh were created out of erstwhile Punjab State in 1966 when the state was placed under President’s Rule.  In 1970, Manohar Lal filed a petition challenging the Act which was passed by the Indian Parliament without referring the bill to the State Legislature which was in suspension following the imposition of President’s Rule in the state.   The court found no warrant for his contention and upheld the powers of Parliament to reorganize an existing state even when State Assembly stands dissolved under President’s Rule. 

The precedents from our history have made it amply clear that it is not binding on the Indian Parliament to wait for the State Assembly to provide its views; that the Parliament could override the suggestions made by the State Assembly; and that while a resolution from a State Assembly is desired it is not mandatory. 

In case of Telangana, Indian Parliament could pass the bill with or without the consent of Seemandhras, overriding the resolution or a suggestion made by State Assembly of Andhra Pradesh, with State Assembly in session or in dissolution.   And Indian Constitution and the legal precedents have made established this. 

Formation of Telangana is an idea whose time has come.  It is undeniable eventuality. 

Therefore, it is prudent on part of Seemandhras not to obstruct creation of Telangana by turning hostile to its cause.  Since we cannot choose our neighbors we need to learn to live with each other as new states.  Seemandhras should realize that it is in the best interests of both the new states to accept inevitable and welcome the change.  Instead of fighting against formation of Telangana, Seemandhras should prepare their people to accept it.  Moreover, they should focus their energies towards building a better and harmonious Seemandhra which will live on friendly terms with the new state of Telangana.


  1. Some people are saying that it is unconstitutional if the state is divided without State assembly's approval.

    In that case, Andhra Pradesh formation itself unconstitutional because Hyderabad assembly didn't officially approved for Andhra Pradesh formation. So no need for demerging process as AP formation is itself illegal. In that case Seemandhra will get get anything from either from Telangana or from Central. Screwed with there own logic.

  2. Assembly resolutions can be contradictory. For example, AP assembly can pass a resolution calling for Kurnool as capital of residuary state and another one for Vijayawada. How can the center fulfill both?

    1. Decision on capital city is not part of the reorganization bill. The state can decide its capital.

  3. Is it constitutional then that the region having the capital city want a separate state thereby forcing the poeple who doesn't want to be divided to go for a new capital.

    1. Yes. Article 3 of the Indian Constitution does not differentiate between territories having a capital city and territories that do not. Your point that creating Telangana with Hyderabad is unconstitutional is actually unconstitutional as it violates the Fundamental Rights guaranteed by the Indian Constitution.

    2. Is it constitutional then that the region having the capital city want a separate state thereby forcing the poeple who doesn't want to be divided to go for a new capital.

      Yes. Division of state as per Article 3 does not take into consideration whether the region which seeks separation has a capital city in it or not.

      For example, SRC of 1950s did not recommend the bifurcation of Bombay State. However, Maharashtrians launched a movement - they wanted to be separated from Gujarat. And they had the capital city Bombay with them.

      Similarly, Meghalaya sought separation from Assam. Shillong was the capital city of Assam - but was in Meghalaya. After two years of joint capital, Assam built a capital in Dispur.

  4. Hi Sujai,

    I am a long time reader of your blog, although I am from a Andhra family (Born and Raised in Hyderabad) I have slowly changed my position from' why the need for telangana ?' to 'yes telangana should be given if the people want it' .Your blog was in part responsible for me to change my view,You also seem to write the blog so that people who are not aware of the aspirations of the people from telangana become aware of the issues.

    However, I am puzzled as to why you ignore the political context and the political compulsions that resulted in Congress going ahead with the decision for telagana,and also the polictical compulsions in postponing telangana.

    And since you are following the movement more closey you should also give us(the general readers) a view point from the political angle as well.

    keep up the good work.

    1. Politically Andhra Pradesh is quite volatile now. It is very fluid. I am no expert on the politics but here is my commentary.

      In Telangana it is pretty clear that YSRCP is out. And also Naidu is out. TDP of Telangana has to become independent of Naidu if they want to be still relevant.

      Can't say whether TRS will merge with Congress. But TRS-Congress combine will sweep the elections.

      I am not really sure how it is going to work out in Seemandhra. We have YSRCP and TDP trying to cash in. It all depends on who establishes himself a hero of Seemandhras - I think the race is still on.

      Congress is hoping that YSRCP is going to win there - there is a good chance that YSRCP will join Congress.

  5. All the Congress Seema Andhra leaders are playing a well chalked out game plan. They know T is inevitable. They know Hyd is going to go with T. They have already been convinced by the center promising something else. We will know that in due course of time. They are just fooling everyone around. If they had really been hurt, story would have been different and there would have been bloodshed :)

    1. Now Kiran Kumar Reddy has been asked to die as a martyr. He will be sacked for condemning the high command and will be turned a hero of sorts in SA. Game on.

  6. If BJP give support to TDP in United AP,the following LokSabha seats as follows:-
    IF BJP not supported TDP in loksabha elections,seats like-


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