Monday, October 21, 2013

Article 371-D does not stop formation of Telangana

[Appeared in Asian Age and Deccan Chronicle on 21 Oct 2013, and in Andhra Jyothi on 22 Oct 2013; coauthored with Vinod Kumar]

The state of Andhra Pradesh was forged out of two culturally and historically disparate regions in 1956 under the premise of creating a single state for all Telugu speaking people.   Even before the formation of this state, it was articulated by the Fazal Ali Commission, and voiced explicitly through the fears of Telangana people, that a common language was not the only criterion for creating states.  There was a sane recognition, though in minority, that there existed other differences which warranted a region like Telangana to exist as a separate state overriding the emotive binding factor like language. 

To protect the interests of Telangana people against possible onslaught of more politically empowered, economically emancipated, and Telugu-English-educated people from Coastal Andhra, the Gentlemen’s Agreement of 1956 was created to facilitate the conditional merger of Telangana region with Andhra State.  The original Article 371 constituted Telangana Regional Committee along with protective Mulki Rules.

However, the experiences of the first fifteen years clearly established that the experiment called Andhra Pradesh was a dismal failure.   Driving the last nail into the coffin that buried the safeguards given to people of Telangana, Andhra Pradesh sought to remove Mulki Rules leading to a Telangana uprising in 1969 which was ruthlessly crushed.  

When the people of Telangana sought justice from Supreme Court in 1972 that upheld Mulki Rules, Andhra leadership launched a farcical movement for separate Andhra State.  Indira Gandhi, succumbing to the blackmail tactics of Andhra groups, passed the Mulki Rules (Repeal) Act of 1973 to overrule the Supreme Court decision removing the protective mechanisms for people of Telangana.  

Thereafter, as a conciliatory step towards protecting the interests of Telangana people, a diluted provision of Article 371-D was introduced through 32nd Amendment into the Indian Constitution in 1974 to empower the President of India to provide reservations to people of specific regions within the state of Andhra Pradesh in education and employment.  

Using the Article 371 of Indian Constitution, Union Government has created special provisions to protect the interests of people and resources of certain regions within a state and has been applicable to many states, including Punjab, Andhra Pradesh, Bombay State, Assam, Meghalaya, Nagaland, et al.  But upon reorganization of the states some of these protections have become irrelevant or redundant, like in case of state of Punjab that was bifurcated into Punjab Suba and Haryana Prant in 1966.   These two new states which did not need protections anymore after the separation were omitted from Article 371 through simple alteration of text as prescribed in the clause 26 of the Punjab State Reorganization Act.   The same procedure towards Article 371 was applied in the case of bifurcation of Bombay State and formation of Meghalaya out of Assam. 

Article 371 is a ‘temporary, transitional and special’ provision of Part XXI of Indian Constitution that does not interfere with nor override the powers of Parliament conferred by Article 3 to alter the boundaries of states in India.  The Parliament of India, while creating Telangana, is empowered to continue the protections provided by Article 371-D in the successor states.  It could be achieved through a simple clause in the upcoming Andhra Pradesh state reorganization act by introducing ‘State of Telangana’ into Article 371-D.  Or the Parliament could remove these provisions completely for the both the new successor states through the omission of ‘Andhra Pradesh’ from the same Article as was done in case of Punjab in 1966.

While altering boundaries and creating states, Article 4 of Indian Constitution allows the Parliament to make ‘supplemental, incidental and consequential’ provisions as necessary, as long as these provisions do not subvert the basic constitutional structure.

The current contention that Article 371-D would be a stumbling block in creation of Telangana is nothing but a red herring.  It is the last straw in the fight by Seemandhras that are opposing the formation of Telangana.  In the case of Mullaperiyar Environmental Protection Forum Vs. Union of India in 2006, which challenged the State Reorganization Act of 1956 on the grounds that it encroached upon legislative domain of a state legislature under entries of Seventh Schedule of Indian Constitution, the Supreme Court upheld the powers of Parliament to create new states observing that ‘the law-making power under Articles 3 and 4 is paramount and is not subjected to nor fettered’ by the lists of the Seventh Schedule.  

In addition to introducing Article 371-D in the Indian Constitution, the 32nd Amendment also introduced Article 371-E with the explicit purpose to establish Central University in Andhra Pradesh, and an amendment was made to include this university in the entry 63 of List I in the Seventh Schedule.  Therefore, the requirement of a constitutional amendment as raised by Seemandhra leaders in the current debates does not apply to Article 371-D.

The bogey that Article 371-D would obstruct the formation of Telangana has been deliberately created and propagated by Seemandhra leaders only to give a false hope to the activists of Samaikyandhra agitations that there is still some chance to keep the state united, but it has no legal merit whatsoever.


  1. ఇంకా చెప్పాలంటే, ఒక వేల 371-D తొలగించటం కష్టం అయితే (అవ్వదు), మిగిలిన ఆంధ్ర ప్రదేస్ రాష్ట్రాన్ని పేరు మార్చేసి సీమాన్ద్రను కూడా కొత్త రాష్ట్రంగా ప్రకటిస్తే సరి. ఆంధ్రప్రదేశ్ అనే రాష్ట్రమే లేకుంటే 371D అనేది రాజ్యాంగంలో అలా ఉన్చేసినా పర్వాలేదు. సీమంద్ర్ నాయకులు అతి తెలివి తేటలు చూపిస్తే, అక్కడ కేంద్రంలో వారు తిరిగి చుక్కలు చూపించగలరని మీకు ఇప్పటికే అర్థం అయ్యి ఉండాలి.

  2. I laugh at your ignorance.. I laugh at your attitude as if you are a constitutional expert. 371-D needs changes if we want local reservations in Telangana.

    1. Phaniraj:
      Are you referring to a change in Article 371D through reorganization bill (which requires simple majority) or through a constitutional amendment (which requires 2/3 majority)?

      [The above articles attempts to bring clarity between these two.]

    2. Sujai,

      My comment was to GreenStar.
      I said constitution changes needed for 371D in order to provide local reservations for Telangana. Green Star was saying to change the name of AP as Seemandhra or something. That would not solve the problem. And in addition to this, AP has to be given another Central University or 371E needs to be changed which needs 2/3 majority. For 371-D 50% majority should be sufficient as 371-D is not a part of 7th Schedule as claimed by some Seemandhra leaders.

  3. My take on article the 371-D debate:

  4. K but this issu was soluction was a gom's

  5. The complete judgment in PV Krishnaih's PIL is now available.

    A quick analysis:

    Is article 3 a part of the basic structure? The honorable court tilted to this view opining "Article 3 in our view has empowered Parliament to regulate and preserve Federalism as enshrined in the Constitution. In that sense, *it is one part of basic structure* of the Constitution".

    Can the court interfere with the state formation process? The court declined to do so holding: "How the Court can restrain the Union of India which is responsible for preparation of the Bill from acting under the Constitution, is *beyond our comprehension*. Such an order cannot be passed by this Court following the *one of the basic structure of the Constitution, namely separation of power*".

    On the contention that the non-obstante section 10 of article 371-D overrides articles 3 & 4, the learned judges observed: "Therefore, according to us, subject matter of this Article will have the overriding effect over *similar or corresponding subject matter* of any provision of Constitution or laws. For example, provisions of Articles 15 and 16 of the Constitution of India. In other words, it will have overriding effect in the same area and field and *not in different field*".

    The honorable court was skeptical about the contention that 371-D is a part of the basic structure: "How far Article 371D of the Constitution of India, which has been brought into existence *by way of amendment*, can stand to the test of theory of basic structure is also debatable".

    The contention that Telangana formation will frustrate the objective of article 371-D was found to be of no merit. "The petitioner submits that in the event the State is bifurcated in exercise of power of Article 3 of the Constitution of India, then the object as enshrined in Article 371D will be frustrated and rendered nugatory. We *do not find any merit* in this submission".

    The assertion that Telangana formation is not legal as long as article 371-D was dismissed as being absurd. Excerpt from the judgment:

    "The petitioner then argued that so long as Article 371-D is in force, no steps can be taken under Article 3 of the Constitution for forming a new State. Such argument is *absolutely absurd*. As we have already indicated that Article 3 operates in one particular field and this power is *originally given* by the framers of the Constitution to the Parliament by the Constituent Assembly and such power *cannot be abrogated or cannot be put on hold* at the instance of any citizen of India. Accordingly, we are unable to accept this contention that operation of Article 3 will remain suspended so long as Article 371-D is in force and is not amended. It is *an absurd proposition* suggested by the petitioner".


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