Polavaram: A bundle of violations

The Government of India is indulging in such a bundle of violations using its brute majority without considering an alternative design. But, the Parliament before taking up the bill on the Andhra Pradesh State Reorganisation (Amendment) Act should have consulted the affected legislature. The Act is also a violation of the Delimitation Act. The people of the seven mandals transferred will not be represented in both the Parliament and the Legislature. Besides they fall in a Scheduled Area – it is mandatory to obtain the consent of Gram Sabhas before taking up any development activities in the Scheduled Areas

The controversial Andhra Pradesh State Reorganisation (Amendment) Act was passed by the Parliament amidst severe protests. This bill aims at transferring seven mandals of Khammam district to Andhra Pradesh. It is to facilitate the construction of Polavaram project as these mandals fall under the area to be submerged. The Telangana state witnessed a bandh in protest. The state government of Telangana said it would approach the Supreme Court. The Chief Minister, K Chandrasekhar Rao, is reportedly consulting constitutional experts in this regard.

Thus, the Polavaram now turns into a legal battle once again. Besides the politics associated with it and the subsequent emotions largely tied to the reorganisation of the state rather than any intended benefits, the new enactment raises several constitutional and legal questions. In fact, several members expressed such a concern even in the Parliament. But, the Speaker reportedly said that constitutional questions would be adjudicated by the judiciary and she was concerned with the business of the house. But such a position, if taken by the presiding officer of Parliament, goes against the spirit of the Constitution. It is true that Parliament or state legislature in India does not enjoy absolute power. Even the Parliament cannot make a law that goes against the basic structure of the Constitution.

It is also true that the constitutional courts alone are the competent authority to decide on the constitutionality of any law. But, this theory of separation of powers does not mean a legislature can transact business in an unconstitutional manner leaving the question always to the courts to adjudicate. Every constitutional office is expected to exercise the powers conferred on it by the Constitution only in a constitutionally appropriate manner. Therefore, the Parliament also is not expected to pass a law contrary to the constitutional provisions. Such an attitude by the executive or the legislature results in an unnecessary and frequent confrontation between them and the judiciary.

The Andhra Pradesh State Reorganisation Amendment Act is a clear violation of the Article 3 of the Constitution. This Article deals with the formation of a new state or altering the boundaries of a state. According to this provision of the Constitution, the Parliament has paramount power in this regard. But, the Parliament before taking up this bill should have before it the opinion of the affected legislature or legislatures. Such an opinion should be obtained through a Presidential reference. This is what the provision to the Article 3. The Supreme Court in over four decades of jurisprudence ranging from the Pradeep Chaudary case to Mulla Periyar case upheld this key proviso to the Article 3 of the Constitution.

The consent of the affected legislature is not mandatory. But, the legislature should, however, be consulted. The consultation of the affected legislature is not a superficial provision. Dr B R Ambedkar himself expressed the opinion in the Constituent Assembly debates that such a process of consultation is a substantial provision. The Andhra Pradesh State Reorganisation Amendment Act was not sent to the Telangana and the Andhra Pradesh legislatures for expression of their opinion. Though the Parliament need not necessarily go with any such opinion, the consultation process should, however, be completed. This constitutional mandate is now not fulfilled, thus rendering the amendment act a clear violation of the Article 3 of the Constitution.

However, the supporters of this bill may argue that this is only an amendment act and is not the main act. But, this argument does not stand scrutiny and is factually incorrect. The Andhra Pradesh State Reorganisation Act was passed by the 15th Lok Sabha whereas the present amendment bill is passed by the 16th Lok Sabha. Thus this bill should also follow the same procedure laid down in the provision to the Article 3 of the Constitution. This Amendment Act is certainly not a sequel to the original Act. It is not, to borrow the phrase used in the Article 4 of the Constitution, a supplemental or incidental or consequential measure.

It is surprising that those who argued for the consent of the affected legislature before Parliament passing the Reorganisation Act are now stating that even consultation of the affected legislatures is not required. The Constitutional provisions should not be held hostage to the partisan interests.

The Andhra Pradesh Reorganisation Amendment Act is also a violation of the Delimitation Act. The Parliamentary and the Legislative constituencies are delineated by the Delimitation Act and can therefore not be changed now. But, the seven mandals which are now transferred from Telangana to Andhra Pradesh fall in the Bhadrachalam, Pinapaka and Ashwaraopeta constituencies of Telangana State Legislative Assembly. These mandals will not be immediately submerged. Therefore, there will not be any immediate relocation. Thus the people of these seven mandals will not be represented in both the Parliament and the Legislature. Their elected representatives will be in the Telangana legislature while they will be located in the Andhra Pradesh state. It is not possible to allow the MLAs of these three constituencies to sit in the legislatures of Telangana and Andhra Pradesh as their electorate fall in both the states. The Amendment Act was enacted without effecting a change in the composition of the Assembly constituencies.

These mandals also fall in a Scheduled Area. The people living in the Scheduled Areas have special privileges under the Constitution. But, once they are relocated, their habitat will lose the Scheduled status. The deprivation of such Constitutional privileges of nearly two lakh to be displaced people was not addressed yet. The PESA Act that extends the Panchayati Raj provisions to the Scheduled Areas make it mandatory to obtain the consent of Gram Sabha before taking up any development activities in the Scheduled Areas.

But, no such resolutions were obtained. On the contrary, the Tribal Gram Sabhas resolved against the construction of Polavaram based on the present design. Finally, the construction of Polavaram project is a violation of the recommendations of the empowered committee appointed by the Supreme Court, the Environmental Assessment Act, their Rehabilitation Acts passed by both Parliament and the state legislature of the undivided Andhra Pradesh. These acts call for following the alternate design even if the benefits are partially or fully realised. The alternate design proposed for Polavaram claims that the same benefits will accrue to Andhra Pradesh without such colossal human loss. The Government of India is indulging in such a bundle of violations using its brute majority without considering an alternative design.