Constitution insists on Assembly resolution

The provision being an "essential feature" and "basic structure" of the Constitution, any action taken under this Article is "justiciable"; i.e. subject to judicial scrutiny.

The Supreme Court Bench, comprising Justice H.L.Dattu and Justice Madan B.Lokur said, “We do not know the mind of the State Legislature or Parliament and they will do. It is premature. We decline to entertain the petition. However, we clarify that all legal issues raised in the petition are kept open to be argued in appropriate petitions at appropriate stage."

Opinions of lawyers and jurists in A.P. are divided on the same regional basis - Seemandhra and Telangana. In the same issue of The Hans India, Madabhushi Sridhar has advanced a powerful legal argument in favour of creation of Telangana.

There are conflicting opinions regarding the nature of discussions to be held in the Legislative Assembly and the nature of the power vested in Parliament. Under such circumstances it is customary to revert to the discussions of the Constituent Assembly. The Constitution is not a static document but a dynamic testament. It is well known that the Draft Constitution was given wide publicity. Several organisations and individuals, including non-members sent their opinions. They were discussed, debated and adapted, wherever necessary with alternations and additions in the Constituent Assembly. On Article 3, Notes were sent by the West Bengal Legislative Assembly, members Pattabhi Sitaramaiah and others (Durga Bai, Keskar, T.T.Krishnamachari, Thakurdas Bhargava, Ananthasayanam Ayyangar, and K.Santhanam), Sachidanda Sinha and a non-member, Atul Chandra Gupta, (a practicing advocate of the Calcutta High Court).

Here is an extract of the notes sent On March, 24 and 25, 1948, by Alladi Krishnaswamy Ayyar. Member of the Drafting Committee:

"................ Article 3 under head (a) deals with separation of territory and the union of two or more States or part of States: Under heads a(b) and (c) with increasing and diminishing the area of a state: Under (d) and (e) with altering the boundaries and the name of a State.

"The condition requisite for the exercise of the power of separation as provided for in clause (a) (i) .............

"In dealing with the article, while on one hand it may be conceded that, having regard to the fact that the provinces of India as at present constituted are not based on any constitutional principle and therefore an easy method of the realignment of State must be provided for, it is also necessary that some kind of fixity must be given to the different units consistently with the federal principle, as otherwise the area of the State will be in a state of perpetual flux. The power, if once exercised, is not even exhausted under the terms of this section.

"If my suggestion is accepted that the representation must be by a majority of the member of the Legislature of the Sates, affected by proposed law, then clauses (a) (ii) and b will be unnecessary.

"In this connection it may be pointed out that there does not seem to be any point in merely providing for a representation of the majority of the representatives of the territory in clause ( a) (i) and for obtaining the views of the legislature as a body in clauses (a) (i) and (ii).

" If for any reason , the above suggestion is not accepted, I would very much prefer the Draft as passed in the Constituent Assembly being retained, which is to the following affect :

“The Parliament of the Union may, with the consent of the Legislature of every State whose boundaries are affected thereby, create, etc.

(The framing of the Constitution of India, by B.Shiva Rao, a Member of the Assembly Vol IV Page: 11, 12 and 13.)'.

Every one of the notes was particular about the role to be played by the State Legislature. Thus it is clear that the founding fathers of the Constitution were bent upon vesting legitimate powers in the State Legislatures. The rights cannot be negotiated. After all, they are the ultimate beneficiaries/sufferers/losers.

The said provision being an "essential feature" and "basic structure" of the Constitution, any action taken under this Article is "justiciable"; i.e. subject to judicial scrutiny.

Admittedly there are demands for more than twenty five states. When the demand for Telangana is conceded why not other states - Gurkhaland, Vidarbha, Bodoland, Saurasthra, Kodagu, etc. In all these demands, the parent state retains the capital, and the ceding region will opt for a new capital. In spite of this, why select Telangana alone for a preferential treatment and discrimination against other regions. There is no guarantee that there will be no more demands for creation of more States. Ignoring/rejecting other demands amount to hostile discrimination; thus attracting the attention of these aggrieved regions and driving them to invoke the Article 14.

An unending discussion is going on about the fate of Article 371 D. There is no unanimity among two lawyers on the interpretation of any law; more so regarding this provision.

In the process of division, there is a contention about the pre-1956 position, which is the dead line: Revenue districts as on today or the pre-1956. If it is pre-1956, famous pilgrimage centre of Bhadrachalam should secede to the East Godavari district in Seemandhra. It is not known whether the Group of Ministers will come out with a lasting solution. It is well known that Mahabubnagar is the second most backward district in Telangana. Hence, It is also possible that the districts of Telangana may again find, intra-regional imbalance among themselves and seek remedy through the courts: Judiciary is the last bastion of the democracy.

In sum, the division of A.P. is opening the flood gates of litigation; creating it a lawyer's paradise. Hence the only just alternative is to appoint a Second States Reorganisation Commission with a clear reference and understanding that it shall be the final. Once for all the political map of India shall be settled as a basic structure of India.

The author is an advocate and President. Gadicharla Foundation, Andhra Pradesh Library Association