The efforts of the Union government to divide Andhra Pradesh irrespective of the State legislature’s views, pose a grave danger to federalism and unity.
The decision to divide Andhra Pradesh raises important questions about
federalism and the nation’s future. This is the first time in India that
a state is sought to be divided without the consent of the State
legislature, and without a negotiated settlement among stakeholders and
regions, and in the face of public opposition.
All major federal democracies have in their Constitutions the provision
that a state cannot be divided or merged with another state without its
prior consent. This is the essence of federalism.
Article 3
India’s Constitution-makers gave much thought to the issue of formation
of new states and reorganisation of states. The Drafting Committee and
the Constituent Assembly were aware of the circumstances prevailing at
that time. India witnessed Partition, accompanied by violence,
bloodshed, and forced mass migration. In addition, there were several
kinds of States — Parts A, B and C — and there was need to reorganise
all states and integrate the 552 princely states. If the consent of
every State or Unit was a precondition to altering the boundary,
reorganisation would have become an excruciatingly difficult exercise.
Consequently, the final text of Article 3 as promulgated provided for
the President’s recommendation and ascertaining the views of the state
concerned both with respect to the proposal to introduce the Bill and
with respect to the provisions thereof.
Our nation-builders were wise in drafting the Constitution to suit our
requirements. More important, successive governments have wisely applied
Article 3 in dealing with states. While prior consent of the state was
not necessary under the Constitution, in practice every state has been
formed with prior consent, in most cases after a detailed, impartial
examination by an independent commission. Only in the case of Punjab,
there was no legislature at the time of dividing the State in 1966. But
there was a broad consensus among stakeholders and no opposition.
So far, Parliament and governments have acted with restraint and wisdom in dealing with boundary issues and formation of states. They rejected the notion that anything could be done to alter boundaries, provided it is not expressly prohibited by the Constitution. While prior consent of the state legislature is not mandatory, in practice care has been taken to obtain consent, or to act only on the express request of the state. The 1956 reorganisation was based on the fundamental principle of language; there was broad national consensus on the issue.
So far, Parliament and governments have acted with restraint and wisdom in dealing with boundary issues and formation of states. They rejected the notion that anything could be done to alter boundaries, provided it is not expressly prohibited by the Constitution. While prior consent of the state legislature is not mandatory, in practice care has been taken to obtain consent, or to act only on the express request of the state. The 1956 reorganisation was based on the fundamental principle of language; there was broad national consensus on the issue.
Articles 3 & 4 in their present form are enabling provisions
empowering Parliament to act in an exceptional situation when national
interest warrants it, or to settle marginal boundary disputes between
states when they are recalcitrant and efforts to reconcile differences
and arrive at a settlement fail. The framers of the Constitution did not
intend to give Parliament arbitrary powers to redraw boundaries; nor
did successive Parliaments and governments act unilaterally or
arbitrarily without consent, broad consensus or negotiated settlement.
Even after 1987, in every case of state formation, the consent of the
state legislature was obtained. The broader principle of federalism and
the willing consent of constituent units and their people has been
deemed to be necessary before a state is formed or a territory merged,
unless overwhelming national interest demands action by Parliament. The
procedure was observed in creating Jharkhand, Uttaranchal and
Chhattisgarh in 2000.
Dr. Ambedkar said in his reply to the debate in the Constituent Assembly
on states’ rights: “The… charge is that the Centre has been given the
power to override the States. This charge must be admitted. But before
condemning the Constitution for containing such overriding powers,
certain considerations must be borne in mind. The first is that these
overriding powers do not form the normal feature of the Constitution.
Their use and operation are expressly confined to emergencies only”.
It is this spirit that informed the actions of the Union government and
Parliament over the past six decades. There were blemishes in the
application of Article 356 earlier. But over the past two decades Indian
federalism has matured a great deal. The Supreme Court, in Bommai
(1994), made Article 356 more or less a “dead letter” — as Dr. Ambedkar
had hoped. Though the Finance Commission’s recommendations are not
binding on Parliament and government, those of every Finance Commission
in respect of devolution of resources have been accepted and
implemented. Since the report of the Tenth Finance Commission, there has
been greater transparency in devolution: most of the tax revenues of
the Union are being treated as the divisible pool, and a fixed
proportion of it is shared with states as decided by the Finance
Commission. States are now more in control of their economic future.
Limited sovereignty
This does not mean states can act as they please, or that their
territorial integrity is inviolable. There is one nation and one
citizenship, and the nation’s territorial integrity is paramount.
However, within that overarching framework, states exercise limited
sovereignty, and the federal spirit informs the operation of the
Constitution. The Constitution did not intend to make India a unitary
country with states functioning as municipalities, their survival
dependent on the will and whim of the Union government. Nor did the
operation of our Constitution over the past 63 years suggest a de facto unitary state. In fact, federalism has been deepening in India, in keeping with global trends.
The determined efforts of the Union government and its oft-repeated
declarations that Andhra Pradesh will be divided irrespective of the
legislature’s views, pose a grave danger to federalism and unity. Andhra
Pradesh was formed with the prior consent of the Andhra State
Legislature, and the Hyderabad State Legislature. When two popular
movements for the state’s division were launched in the three regions —
in Telangana in 1969-70, and in Coastal Andhra and Rayalaseema in
1972-73 — the Union government encouraged all regions to arrive at a
negotiated settlement. Corresponding constitutional provisions were put
in place to safeguard the interests of all regions. An explicit and
implicit compact was made by the Union with the people of Andhra Pradesh
to the effect that the State would remain united. It is on this basis
that people migrated on a large scale to the other regions and to the
capital, Hyderabad, and built their lives, livelihoods and the State’s
economy. In this backdrop, any redrawing of boundaries would need
another agreement arrived at by the affected parties through patient
negotiation. The Union has a seminal role in helping reconcile
conflicting interests harmoniously. Parliament can act only on the basis
of such an agreement, consensus and consent. Any other approach would
be ham-handed, arbitrary and uneven, and run counter to the principles
and practice of federalism as they have evolved under Indian conditions.
The way the President and Parliament handle the Andhra Pradesh issue will, in a fundamental sense, shape the future of the Union itself. This is a defining moment not for Andhra Pradesh alone, but for our federal Constitution and India itself.
If such an arbitrary decision becomes a precedent, any and every state
could be divided or boundaries altered without consent, and without a
negotiated settlement, that will effectively convert states into
municipalities, and India into a unitary state. Neither the
Constitution-makers nor nation-builders intended such an outcome. And
India’s future will be in peril if such an effort is made to make the
nation effectively unitary at this stage.
In critical moments like this the President and Parliament have to act
with restraint, foresight and wisdom. The President is not only the head
of the Republic, he is also a part of Parliament. The President is
elected by members of both Houses as well as members of State
Assemblies. In a fundamental sense the President represents the nation —
both Union and states — and is the final defender of the Constitution
and federalism along with the Supreme Court. This is therefore a fit
case where the President should exercise his constitutional duty
independently before recommending introduction of any Bill to divide the
State of Andhra Pradesh.
Leaders of parliamentary parties too should act with clarity and wisdom,
and with the knowledge that division of a state without its consent and
a negotiated settlement among all stake-holders converts the nation
effectively into a unitary one. Every state will, in future, be
vulnerable to unilateral action for short-term electoral expediency.
The Constitution, the President, Parliament and the political parties
will be put to a severe test in this case, and the way they respond to
this challenge will shape the future of our Republic, and the future of
federalism in India.
(The writer is president of the Lok Satta Party. He is at drjploksatta@gmail.com)
Source: The Hindu
