By
Madabhushi Sridhar - Hyderabad
Published: 17th November 2013 10:15 AM
In the wake of the Union cabinet’s decision to bifurcate Andhra
Pradesh, Article 3 of the Constitution has become the central point of
debate over the ‘federal’ character of the Constitution. India is an
indestructible union of destructible states. It is Indian Union and not a
federation similar to the United States of America. If any thing, it is
a quasi-federation or cooperative federation or a federation which
turns ‘unitary’ during emergency or when needed. While some criticised
Article 3 as a departure from federal character, the AP High Court came
up with a sharp analysis to say that Article 3 reflects federal
character of the Constitution.
FORCES AT WORK: It is ironical that some forces opposed to bifurcation are using all the three estates (Executive, Legislature and Judiciary) besides the fourth (media), which is being used, abused and misused profusely, just to further their ‘real estate’ interests in Hyderabad and, for that, to stall formation of state of Telangana.
The PIL by an anti-Telangana advocate was planned to be the weapon to stop bifurcation, but with the merits of judgment crisply drafted by two judges with clear vision of constitutional scheme, it turned out to be facilitative weapon for countering the forces against Telangana. Mr PV Krishnaiah, a senior advocate, filed a PIL seeking a writ of mandamus restraining the President of India from exercising constitutional power under Article 3 in pursuance of any recommendation by the Union Cabinet on bifurcation. The petitioner also wanted declaration that Article 3 and Constitution (V Amendment) 1955, which modified earlier provision to the present text of Article 3, as unconstitutional alleging that it violated the basic structure and preamble of the Constitution.
BASIC STRUCTURE: The basic question is whether Article 3 will hit any basic structure theory of the Constitution because it did not provide for any role to the Legislative Assembly of the state concerned in its division. Chief justice Kalyan Jyothi Sengupta and justice KC Bhanu of the High Court answered: “We think ‘no’ for the simple reason that Article 3 has been designed in such a way that enables Parliament essentially to maintain the concept of federalism as it provides for separating or joining for reorganization of states. 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 the basic structure of the Constitution.”
While refusing to hold that Article 3 hits the basic structure, the division bench held that Article 3 itself was part of the basic structure. “By no stretch of imagination can it be said that Article 3 is violating the basic structure even if we assume that it is liable to be challenged.” The bench has further laid down that “a plain reading of the provision, the legislature has merely made a provision regarding methodology with regard to formation of new states and alteration of areas, boundaries or names of existing states.”
The bench explained, “With the insertion of Article 3, no portion of the Constitution, much less any portion which relatable to basic structure, has been affected.”
MECHANISM: The court explained the mechanism provided by Article 3. A bill has to be prepared for creating a new state for introducing in either House of Parliament on the recommendation of the President and again, if the proposal contained in the bill affects the area, boundaries or name of any of the states, the bill has to be referred by the President to the legislature of that state for expressing its views.
This ‘safeguard measure’ in the form of proviso was inserted to avoid any complaint of exercise of unbridled power of Parliament and the recommendation of the President and obtaining views of the state legislature concerned were sought to be made an essential part of this exercise of Parliament. Finally, the High Court said that it could not review and rethink or probe the mind of the legislature simply because it is not within its jurisdiction and only Parliament can think of it with compliance. “We are of the view that recommendation of the President and obtaining views of the state concerned are sine qua non.”
PRESIDENT’S POWER: On whether the court can restrain the President from recommending a bill on Telangana, it said: “The President, being de jure head of the country, is constitutionally deemed to be the wisest citizen of the country and can think whether any recommendation should be given or not. No one can presume that Parliament or the President or state Assembly will act unconstitutionally. The President can, under no circumstances, be restrained by any court of law, Parliament or executive. He is absolutely free to act in terms of the provisions of Article 3.”
The writer is a professor at NALSAR University of Law, Hyderabad
FORCES AT WORK: It is ironical that some forces opposed to bifurcation are using all the three estates (Executive, Legislature and Judiciary) besides the fourth (media), which is being used, abused and misused profusely, just to further their ‘real estate’ interests in Hyderabad and, for that, to stall formation of state of Telangana.
The PIL by an anti-Telangana advocate was planned to be the weapon to stop bifurcation, but with the merits of judgment crisply drafted by two judges with clear vision of constitutional scheme, it turned out to be facilitative weapon for countering the forces against Telangana. Mr PV Krishnaiah, a senior advocate, filed a PIL seeking a writ of mandamus restraining the President of India from exercising constitutional power under Article 3 in pursuance of any recommendation by the Union Cabinet on bifurcation. The petitioner also wanted declaration that Article 3 and Constitution (V Amendment) 1955, which modified earlier provision to the present text of Article 3, as unconstitutional alleging that it violated the basic structure and preamble of the Constitution.
BASIC STRUCTURE: The basic question is whether Article 3 will hit any basic structure theory of the Constitution because it did not provide for any role to the Legislative Assembly of the state concerned in its division. Chief justice Kalyan Jyothi Sengupta and justice KC Bhanu of the High Court answered: “We think ‘no’ for the simple reason that Article 3 has been designed in such a way that enables Parliament essentially to maintain the concept of federalism as it provides for separating or joining for reorganization of states. 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 the basic structure of the Constitution.”
While refusing to hold that Article 3 hits the basic structure, the division bench held that Article 3 itself was part of the basic structure. “By no stretch of imagination can it be said that Article 3 is violating the basic structure even if we assume that it is liable to be challenged.” The bench has further laid down that “a plain reading of the provision, the legislature has merely made a provision regarding methodology with regard to formation of new states and alteration of areas, boundaries or names of existing states.”
The bench explained, “With the insertion of Article 3, no portion of the Constitution, much less any portion which relatable to basic structure, has been affected.”
MECHANISM: The court explained the mechanism provided by Article 3. A bill has to be prepared for creating a new state for introducing in either House of Parliament on the recommendation of the President and again, if the proposal contained in the bill affects the area, boundaries or name of any of the states, the bill has to be referred by the President to the legislature of that state for expressing its views.
This ‘safeguard measure’ in the form of proviso was inserted to avoid any complaint of exercise of unbridled power of Parliament and the recommendation of the President and obtaining views of the state legislature concerned were sought to be made an essential part of this exercise of Parliament. Finally, the High Court said that it could not review and rethink or probe the mind of the legislature simply because it is not within its jurisdiction and only Parliament can think of it with compliance. “We are of the view that recommendation of the President and obtaining views of the state concerned are sine qua non.”
PRESIDENT’S POWER: On whether the court can restrain the President from recommending a bill on Telangana, it said: “The President, being de jure head of the country, is constitutionally deemed to be the wisest citizen of the country and can think whether any recommendation should be given or not. No one can presume that Parliament or the President or state Assembly will act unconstitutionally. The President can, under no circumstances, be restrained by any court of law, Parliament or executive. He is absolutely free to act in terms of the provisions of Article 3.”
The writer is a professor at NALSAR University of Law, Hyderabad
Source: The New Indian Express
