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The central government on Thursday evening took the first significant step towards creation of a separate Telangana state from out of Andhra Pradesh and decided that Hyderabad will be the joint capital of the two states for 10 years.
The next step in the process would be to send the Cabinet note for an opinion before the state assembly. Seema-Andhra are determined to create a mess in the assembly and ensure that a negative opinion is given.
Meanwhile, there are several doubts in people’s minds regarding the constitutional provisions on the formation of Telangana.
Rediff.com’s Vicky Nanjappa spoke to several legal and constitutional experts on the issue.
Who decides on the formation of a state?
The most important aspect in the formation of any state is the passage of the Bill in Parliament. The decision on forming a separate state is derived more out of political will.
Regarding Telangana there is absolutely no constitutional requirement for any consent by the Andhra Pradesh assembly.
Article 3 of the Constitution gives the power to form a new state. The bill needs to be introduced in either Houses of Parliament on the recommendation of the President of India.
Is there a need for a constitutional amendment?
There is no need for a constitutional amendment while forming Telangana. When Article 3 was drafted the princely states were not included. This was mainly because the States Reorganisation Committee was working on forming states on linguistic lines.
In this respect, Parliament was given the power to reorganise a state which meant that it could enact a law to reorganize the existing states by separating new state out of territories of the existing states, or by uniting two or more states or parts of states, or by uniting any territory to a part of any state, or by altering their boundaries, or by separating territory from, or increasing or diminishing the area of, or by changing the name of, a state.
Can the Andhra Pradesh assembly derail Telangana formation?
Many still believe that the Andhra Pradesh assembly can defeat the process.
In Telangana’s case, the legislation comes under Article 3 (a) in which the Parliament seeks to form a state by separating it from an existing territory. What needs to be taken into consideration while effecting this provision is that the bill needs to be passed in Parliament on the recommendation of the President.
While it states that the Bill shall be referred to the legislature of the state it is still a matter of procedure and not considered to be mandatory. Procedural law is not an obstruction, but is said to be an aid to the Centre in order to facilitate the process.
Article 3 states that the intention of referring the Bill to the state legislature is to give the state assembly an opportunity to express its views. However, it also states that the Parliament is not bound to accept or act upon the views of the state legislature.
Further, Article 3 also states that if once the Bill is referred to the state legislature and then the Parliament decides to amend the same, then it need not be referred once again to the state assembly.
What happens during a President’s rule?
If the state legislature is suspended by the President, then there is nothing that states that the opinion of the assembly ought to be sought. One such example was in 1966 when the Punjab Reorganisation Act was passed when the state assembly was under President’s rule.
In Telangana’s case, the Bill will however be referred to the state assembly since it involves carving out a new state from an existing boundary. Such a referral becomes mandatory since it alters the borders of Andhra Pradesh.
But the law clearly states that the President need not decide based on the opinion of the state legislature. In case there is no response from the state assembly after the referral then the President can go ahead with the formation of a new state. The time limit for a response in such cases is fixed by the President of India.
What is the Supreme Court’s take on Telangana?
The Supreme Court decision on this issue was adjudged by a bench comprising Justice S H Kapadia and Justice K Radhakrisha. The bench said that there is no larger constitutional question that arises on this issue and that the division of the state is a political question that we cannot answer.
While refusing to lay down guidelines for the government on this issue, the bench, however, stated that if a law is proposed to carve out a new state then the matter would be looked into afresh by the Supreme Court. The petitions were withdrawn following this order.