Many "integrationists" have recently taken up the refrain that Telangana state can be formed under article 3 only after article 371-D is amended or repealed. They further contend that article 371-D can be amended or repealed only under the provisions of article 368. This line of arguments is claimed to be the ultimate weapon (brahmastra) against Telangana formation.
Chief minister Nallari Kiran Kumar Reddy reportedly decided to seek a clarification on the status of 371-D from the central government.
Telugu Desham legislator Payyavula Keshav and YSR Congress politician Raghurama Krishnam Raju have separately approached the Supreme Court against the union cabinet's decision in favor of Telangana formation. These individuals as well as other anti-Telangana politicians are reported to pin their hopes on article 371-D to stall Telangana formation.
In a colorful article published by Sakshi, journalist ABK Prasad compares Andhra Pradesh (AP) to a "relationship of six knots", an allusion to the "three knots" of traditional south Indian marriage. Prasad writes article 371-D is a part of the seventh schedule and therefore its amendment requires two-thirds majority in parliament and ratification by half the states.
Advocate Ravi Shankar Jandhyala is reported to have pointed out that text of Article 371-D speaks generally about the State of Andhra Pradesh without reference to any particular region. He is said to have referred to Indira Gandhi's alleged observation that the article "was kept in the Seventh Schedule so that no unscrupulous Government or claimant would disturb the harmony of the state".
The momentum on this subject may have been fueled in part by the terms of reference (ToR) of Group of Ministers (GoM) setup by the central government to address issues arising from Telangana formation. ToR # 10 reads "Look into the issues arising out of the Presidential Order issued under Article 371-D of the Constitution consequent to the bifurcation and examine any other matter that may arise on account of bifurcation of the state of Andhra Pradesh and make suitable recommendations".
As one would expect, the contentions are not very clear. The "integrationists" are mixing up legal & political arguments. The matter is further obfuscated by the fact that people do not differentiate between article 371-D, six point formula (SPF), GO 610 and other related subjects. The fact that the debate is being played out in the midst of lay people adds to the soundbytes.
Methodology of this report
The following questions need to be answered in my considered opinion:
· Can the process of Telangana formation be stalled or withdrawn on the ground that article 371-D prevents it?
· Is article 371-D a part of the seventh schedule?
· What is the nature of the article 371-D?
· Is article 371-D intended to perpetuate AP with its current boundaries?
· What is the purpose of article 371-D?
· Does article 371-D override articles 3 & 4?
· Can article 371-D be amended/repealed only the provisions of article 368?
· Does article 371-D as it currently stands prohibit or forbid Telangana formation?
· Will article 371-D survive Telangana formation? If yes, to what extent?
My focus here is purely legal: I ignore political (or emotional) aspects totally. As per my usual practice, most of the sources are public domain.
Judicial interference with legislative process
It may be a good idea to start by acknowledging there are three branches of Government i.e. legislature, executive & judiciary. Legislature is generally held to be supreme among these in view of the fact that it represents the will of the people.
Can a court interfere with the legislative process? Halsbury's Laws of England, 4th edition, paragraph 832 states: "The legislative supremacy of Parliament implies not only the inability of the courts to question its power to enact in particular statutory provision, but also their duty to give effect as statutes only to, enactments answering that description. It follows that the courts can become concerned with the question whether a particular document which they are invited to apply has received the consents necessary to constitute it an Act of Parliament".
Lord Leslie Scarman wrote in Duport Steels Ltd v. SIRS, 1980: "We are to be governed not by Parliament’s intentions but by Parliament’s enactments".
Justice KM Yusuf of the Calcutta High Court relying on the above in Shyam Sundar Gupta v. Union of India and Ors, 1989 held the legislative competence of parliament must not be inferred at a stage when a matter is "under active consideration". He held: "I have no hesitation to hold that the Bill, presently before Parliament, if enacted and enforced and thereafter if it affects the federal structure and the framework of the Constitution then only the vires of the same can certainly be challenged in a Court of Law having jurisdiction and will be justiciable".
In other words, no court can or will entertain a prayer to stall or withdraw the process of Telangana formation on any grounds including the alleged conflict with article 371-D. Injunctive relief against a legislative process is neither possible nor reasonable. A plea against Telangana formation will be admissible only after the process is concluded.
Article 371-D & the seventh schedule
The seventh schedule of the Indian constitution consists of three lists. List I (union list) comes under the exclusive legislative jurisdiction of the parliament while list II (state list) falls under the domain of the state legislatures. Both the center and the states can legislate on matters of list III (concurrent list) while unlisted entries are treated at par with list I i.e. all residuary legislative rights vest with the parliament.
The jurisdiction and legislative powers of the center and states are outlined in article 246. This article together with the three lists is an exhaustive guide to the division of powers between the center and the states. It may be noted the state legislative jurisdiction is limited to its own boundaries.
The seventh schedule has been amended several times:
· Third amendment (1954) modified concurrent list entry 33
· Sixth amendment (1956) inserted union list entry 92A and modified state list entry 54
· Seventh amendment (1956) deleted union list entry 33 and state list entries 19, 20, 29 & 36. It also modified union list entries 32, 67 & 79, state list entries 12 & 24 and concurrent list entries 40 & 42
· Fifteenth amendment (1963) inserted union list entry 78
· Thirty second amendment (1973) modified union list entry 63
· Forty second amendment (1976) modified state list entries 1, 2 & 3 and deleted state list entry 11
· Forty sixth amendment (1982) inserted union list entry 92B and concurrent list entries 11A, 17A, 20A. It also modified state list entry 55 and concurrent list entry 25
A quick glance reveals none of the above changes is even remotely connected to article 371-D. Seventh schedule entries relating to public employment, education & administrative tribunals, the subject matters of article 371-D, have not been amended even once after the constitution came into effect. The claim article 371-D is a part of or otherwise impacts the seventh schedule is as far from reality as possible.
The confusion (or mischief) appears to be stem from union list entry 63. Section 4 of the thirty second amendment act states: "4. Amendment of Seventh Schedule. In the Seventh Schedule to the Constitution, in List I, in entry 63, for the words "Delhi University, and", the words, figures and letter "Delhi University; the University established in pursuance of article 371E;" shall be substituted".
While articles 371-D and 371-E both derive their existence from the thirty second amendment, the latter relates purely to the establishment of a central university in AP. As the relevant union list entry at that time referred to specific universities by name, this entry needed to be amended. Surely not the context to wax eloquently on harmony of the state and other high sounding platitudes, Mr. Jandhyala?
The nature of article 371-D
A plain reading of the article reveals it enables the president "by order" to make provisions related to public employment & education facilities for different regions in AP. Such orders may include several facets such as creating local cadres, local areas, administrative tribunals etc.
Article 371-D came into effect on July 1, 1974. Two presidential orders were issued under the article. An order relating to education admissions came into force in October 1974 while the second order regulating direct recruitment came into effect much later in October 1975.
Being an enabling provision by nature, article 371-D by itself does not have any effect unless the relevant presidential orders are issued. The provisions relating to public employment, for example, remained in abeyance for a full fifteen months. It may be noted the orders are of an executive nature and therefore can be amended (or withdrawn) without any legislative process. The various amendments (including the most recent "14f amendment") prove this beyond doubt.
Article 371-D & AP's "territorial integrity"
The concept of territorial integrity is derived from sovereignty. All jurists accept the position that Indian states do not have any sovereign powers.
Chief Justice Prahlad Gajendragadkar held in the Berubari Union presidential reference, 1960: "It may, therefore, be assumed that in construing Art. 3 we should take into account the fact that the Constitution contemplated changes of the territorial limits of the constituent States and there was no guarantee about their territorial integrity".
The oath of affirmation for a state legislator as prescribed by the third schedule paragraph B runs: "I, AB, having been elected (or nominated) a member of the Legislative Assembly (or Legislative Council), do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter". This is more or less the same as that of a parliament member. This proves adequately that states have no inherent rights of territorial integrity.
Even though perpetual existence of AP is clearly beyond the competence of article 371-D, let us still check if the article solely or even primarily intended to preserve AP in its current boundaries. This point can not be established by plain textual interpretation. Nowhere does the article (or the thirty second amendment) explicitly state this.
The purpose of article 371-D
The statement of objects & reasons of the thirty second amendment traces the history leading to the SPF evolution. It inter alia reads: "This Bill has been brought forward to provide the necessary constitutional authority for giving effect to the Six-Point Formula in so far as it relates to the provision of equitable opportunities for people of different areas of the State in the matter of admission to educational institutions and public employment and constitution of an Administrative Tribunal with jurisdiction to deal with certain disputes and grievances relating to public services".
In other words, the amendment's purpose is limited to SPF # 2-4. Article 371-E relates to the second leg of SPF # 2 while article 371-D covers the rest of the three points. The text of the relevant points is provided below in full. It is clear from the points that these do not seek to perpetuate AP's existence in any manner.
"(2) Institution of uniform, arrangements throughout the state enabling adequate preference being given to local candidates in the matter of admission to educational institutions and establishment of a new Central University at Hyderabad to argument the exiting educational facilities should be the basis of the educational policy of the state.
(3) Subject to the requirements of the state as a whole, local candidates should be given preference to specified extent in the matter of direct recruitment to (i) non-gazetted posts (other than in the Secretariat. Offices of Heads of Department, other State level offices and institutions and the Hyderabad City Police) (ii) corresponding posts under the local bodies and (iii) the posts of Tahsildars, Junior Engineers and Civil Assistant Surgeons. In order to improve their promotion prospects, service cadres should be organized to the extent possible on appropriate local basis up to specified gazetted level, first or second, as may be administratively convenient.
(4) A high power administrative tribunal should be constituted to deal with the grievances of services regarding appointments, seniority, promotion and other allied matters. The decisions of the tribunal should ordinarily be binding on the state government. The constitution of such a tribunal would justify limits on recourse to judiciary in such matters".
The purpose of article 371-D thus clearly emerges as follows:
· Enabling the definition of local areas
· Enabling preferential reservations to local candidates in admission to public educational institutions
· Enabling the organization of local cadres in public service
· Enabling the allocation of public servants to the appropriate local cadre
· Enabling preferential reservations to local candidates in direct recruitment of public servants
· Enabling the fixation of extent & modalities of such preferential reservations
· Enabling the setting up of administrative tribunals in service matters
The so called "open list" and the "exempted cadres" are features arising from the presidential orders issued pursuant to article 371-D. As we saw earlier, these may be modified or rescinded through executive action. These can therefore be not regarded as the raison d'être of article 371-D.
Please see my blog post titled Central institutions in Hyderabad & the "presidential order" for some other aspects relating to SPF & the presidential order on local cadres.
Article 371-D vs. articles 3 & 4
Issue 1 of Mullaperiyar Environmental Protection Forum v. Union of India & Ors, 2006 read: "Whether Section 108 of the States Reorganization Act, 1956 is unconstitutional"? The plaintiff contended the section encroached on Kerala's entry 17 rights.
Rejecting the plaintiff's contention, Chief Justice Yogesh Kumar Sabharwal held: "The creation of new States by altering territories and boundaries of existing States is within the exclusive domain of Parliament. The law making power under Articles 3 and 4 is paramount and is not subjected to nor fettered by Article 246 and Lists II and III of the Seventh Schedule". He further ruled "The power of Parliament to make law under Articles 3 and 4 is plenary and traverse over all legislative subjects as are necessary for effectuating a proper reorganization of the States".
In an interesting observation, Justice Sabharwal wrote: "The new State owes its very existence to the law made by the Parliament. It would be incongruous to say that the provision in an Act which gives birth to a State is ultra vires a legislative entry which the State may operate after it has come into existence".
The present context is somewhat similar. AP itself is a creation of parliament's exercising of powers under article 3. Article 371-D while not derived from AP legislation would not have come into existence but for the creation of AP by the very same parliament. To that extent it can be treated as a creation of article 3. Claiming it has overriding powers over its creator is therefore equally incongruous.
In Maharashtra v. Narayan Shamrao Puranik and Ors, 1982, one of the issues raised was whether section 51 (3) of the States Reorganization Act, 1956, continued to be valid. The Bombay High Court had earlier held the section was transitory. Justice Ananda Prakash Sen of the Supreme Court overturned the ruling holding inter alia: "The Act is a law under Art. 3 for the reorganization of the States. Art. 4 of the Constitution provides that the law referred to in Art. 3 may contain "such supplemental, incidental and consequential provisions as Parliament may deem necessary" Under the scheme of the Act, these powers continue to exist by reason of Part V of the Act unless Parliament by law otherwise directs".
The historic case Kesavananda Bharati Sripadagalvaru and Ors v. Kerala and Anr, 1973, is best celebrated for its "basic structure" doctrine. This embodies the principle that certain features of the Indian constitution lie outside the amendment powers of article 368. Chief Justice Sarv Mittra Sikri (who coincidentally delivered the unanimous judgment upholding Mulki rules just a few weeks later) mentioned supremacy of the constitution, republican & democratic form of government, secular character, separation of powers among the legislature, executive & judiciary, federalism and dignity & freedom of the individual as the essential features of the constitution. While the basic structure was not given a final definitive shape in this case, the direction pointed to a sea change in the annals of Indian jurisprudence.
The overriding powers claimed for article 371-D are based on the non obstante section 10: "(10) The provisions of this article and of any order made by the President thereunder shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force".
Supreme Court in P. Sambamurthy & Ors v. Andhra Pradesh & Anr, 1986, struck down section 5 of article 371-D. Chief Justice PN Bhagwati delivering the unanimous judgment held: "The Proviso to Clause (5) of Article 371-D is therefore clearly violative of the basic structure doctrine" as the tribunals envisaged failed to meet the judicial review powers vested in the high courts under articles 226 & 227.
The Sambamurthy case is interesting on two angles:
· Transition of the basic structure doctrine from "article 368 based amendment" to inviolability. This is a welcome sign of the doctrine's evolution over the years.
· The non obstante section 10 did not prevent the decision. This is not surprising given that articles 226 & 227 are essential to the preservation of the basic structure and thus override formal non obstante sections. This can additionally be used to infer that article 371-D does not form a part of the basic structure.
The non obstante section 10 requires the provisions of the article (and resulting presidential orders) to have effect not withstanding any other constitutional provision or law. While this is subservient to the basic structure doctrine as established in the Sambamurthy case, it is adequate if the seven "purposes" listed in the previous section are not disabled.
As we saw earlier Justice Sikri opined that federal structure is a part of the constitution's basic structure. Though India is not a true federation of states, the federal principle (e.g. distribution of powers) is an important feature of the constitution. The center's powers to admit/create/modify states is derived from articles 2-4. There is a thus a reasonable ground to treat these articles as a part of the basic structure. When (if) this conclusion is reached, article 371-D will be totally powerless against articles 3 & 4.
Telangana formation & article 371-D
There are two possible options for the formation of Telangana. The first would be to amend article 371-D as a part of the reorganization act. This is possible under article 4 (produced in full below):
"4. (1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary.
(2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368".
Section 85 of the Bombay Reorganization Act, 1960, made two incidental changes to article 371. Section 71 of the North-Eastern Areas (Reorganization) Act, 1971, changed article 371-B. Several similar supplemental, incidental and consequential amendments were incorporated during every reorganization.
Section 13 of the Punjab Reorganization Act, 1966, assigned 54 assembly seats to Haryana against the "not less than sixty prescribed by article 170 (1). This was contested in Mangal Singh & Anr v. Union of India, 1966. Justice JC Shah delivering the unanimous judgment wrote: "On the plain words of Art. 4, there is no warrant for the contention advanced by counsel for the appellants that the supplemental, incidental and consequential provisions, which by virtue of Art. 4 the Parliament is competent to make, must be supplemental, incidental or consequential to the amendment of the First or the Fourth Schedule".
The learned judge further observed: "Power to reduce the total number of members of the Legislative Assembly below the minimum prescribed by Art. 170 (1) is, in our judgment, implicit in the authority to make laws under Art. 4. Such a provision is undoubtedly an amendment of the Constitution, but by the express provision contained in cl. (2) of Art. 4, no such law which amends the First and the Fourth Schedule or which makes supplemental, incidental and consequential provisions is to be deemed an amendment of the Constitution for the purposes of Art.368". In other words, the act informally but effectively amended article 170 (1).
In view of the above, Telangana formation is possible by amending article 371-D formally or otherwise through the powers of article 4. The non obstante section 10 would not be able to prevent this as long as the seven stated purposes are not disabled. Even this condition would be unnecessary if article 3 is treated as a part of the basic structure.
The second option (perhaps the path of least resistance) is to let article 371-D unchanged during the reorganization process. The fate of article 371-D under this scenario is examined in the next section.
Post-Telangana article 371-D
It is an accepted position that a law (whether a piece of legislation or an executive order) would continue to be valid in the entire original territorial jurisdiction unless repealed or modified by a competent authority. If this were not so, states would need to reintroduce every single legislation and executive order every time administrative boundaries change. The obvious exception to this principle is situations where a law (or its parts) is inherently repugnant to the changed circumstances e.g. an AP coastal fishing regulation would be inapplicable in Telangana.
Article 371-D would therefore continue to apply unless amended. Section 1 of the article reads: "(1) The President may by order made with respect to the State of Andhra Pradesh provide, having regard to the requirements of the state as a whole, for equitable opportunities and facilities for the people belonging to different parts of the state, in the matter of public employment and in the matter of education, and different provisions may be made for various parts of the state".
The term "Andhra Pradesh" obviously refers to the state as it existed in 1974. Therefore the article would continue to be valid for both the successor states of Telangana and residual AP. The presidential orders too would continue to be valid within both states without territorial overlap. Telangana public servants would be organized into two local areas & cadres while the residual state will stay content with the other four zones. State level institutions in each state would continue to be governed in the same way as before. The exempted cadre (e.g. secretariat staff) would be organized in both states i.e. Paruchuri Ashok Babu would be eligible to continue at the residual AP secretariat wherever it is located.
What if Telangana or residual AP wants to change any of the terms of the presidential orders? For example Telangana may desire to opt out of article 371-D. Similarly residual AP may wish to local areas to be reorganized?
The solution is simple: through presidential order! Pass a resolution in the relevant assembly and forward it to the president for implementation. Article 371-D places no restriction on the number of orders as long as there is no contradiction between the various orders.