Article 3, "federalism" and the Bommai case

Background

The constitutional process of Telangana formation under article 3 is about to reach the final stage.

There is widespread speculation that Nallari Kiran Kumar Reddy (and other competing politicians/contractors) will mount a legal challenge to somehow stave off the inevitable. Assorted ambulance chasers, hoping perhaps to further either political fortunes and/or career opportunities, are trying to fish in the troubled waters. In a situation where Indian attorneys are not permitted to advertise, the alternate option of "arguing in the media" is nevertheless tempting.

It is not out of place to remember here that the anti-Telangana forces have huge resources (including perhaps the power of a cash rich state funded by Telangana surpluses) at their command. Some of them were able to mobilize the services of top notch (read highly paid) attorneys in frivolous litigation.

The article interpreting a federal Constitution provides some fodder for such legal misadventures. Arghya Sengupta and Alok Prasanna Kumar while repeating the bogey of "federal spirit" that hitherto was confined to motivated politicians, attempt a brave new uncharted approach.

The authors' contentions are summarized below:

·         The draft bill has been "decisively rejected" by both the state assembly & council

·         Article 3 proviso (and indeed the article itself) was introduced at a time when there was no real possibility of such a disagreement

·         This is no longer the case. The Indian federalism is changing as "aptly demonstrated by the curious situation of a Congress government at the State level defying its counterpart in power at the Centre"

·         Federalism is a part of the basic structure of the Indian constitution

·         The Supreme Court verdict in SR Bommai v. Union of India, 1994, is a game changer with a "deeper lesson"

·         The Bommai case together with AP assembly's "rejection" of the draft Telangana bill (along with other similar acts of defiance) call for a "reworked understanding of federalism"

To give Sengupta & Kumar their due, they agree an interpretation that holds the state legislature's views have no legal effect "may indeed be the position of the law as it stands today". Even when arguing for "new federalism", they concede the assembly's "views" are not "the last word on the matter. Such an inference would be plainly unconstitutional".

Their conclusion is however interesting: "However, it is necessary that the Central government be required in law to adequately take into consideration the reasons why the Andhra Pradesh Assembly rejected the Telangana Bill. This obligation should be discharged in writing, demonstrating a proper application of mind with accompanying reasons as to why each recommendation has been accepted or rejected. Without such consideration, the Andhra Pradesh Reorganization Bill, 2013, if passed, would seriously lack legitimacy and be inconsonant with the dynamic federal spirit of the Constitution".

As we know, the groups fighting Telangana have a limited time focus i.e. the next elections. They are primarily interested in holding off Telangana formation till the polls hoping that the situation will change at the hustling. Even if it does not change, they would have obtained a great deal of mileage from the "I stopped Telangana" campaign.

The authors have unwittingly played themselves into the hands of these anti-Telangana lobbies. Even assuming the recommendations do reach the cabinet, assessing and/or implementing these in the limited time available is not feasible. The concept of "new federalism" will be welcome ammunition in the hands of vested interests. We can confidently expect this will become one of the key focus areas in the "litigation swamp" before the appointed day.

Let us look at the legal & constitutional matters raised by the authors. The temptation to delve into the political sphere should be resisted though.

Basic structure

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 mentions supremacy of the constitution, republican and democratic form of government, secular character of the constitution, separation of powers between the legislature, the executive and the judiciary & federal character of the constitution as the essential features. This basic structure is held to be "built on the basic foundation, i.e., the dignity and freedom of the individual". The learned judge held the seventh schedule, representation of states in Parliament & the amendment process relating to specified matters "can rightly be said to involve the federal structure and the rights of the States". He reiterates this by stating the distribution of powers is "the essence of federalism".

It is worth noting that judges do not make laws. Therefore it is erroneous to conclude the basic structure doctrine became a law with this case. The doctrine should be understood as an interpretation of the constitution right from day one.

Bommai case

The celebrated Bommai case (SR Bommai v. Union of India, 1994) involved the invocation of article 356 ("president's rule) in six states. Three state governments (Karnataka, Meghalaya & Nagaland) had dismissed based on a governor's report claiming loss of majority.

Four BJP states (including UP where the dismissed Chief Minister did not file a legal challenge) were dismissed in the aftermath of the Babri masjid demolition. The center contended these states would not implement the ban (subsequently overthrown) against the RSS.

As all the cases related to article 356, they were tried together. The verdict was pronounced almost 5 years from the date of Bommai's dismissal. Interestingly enough, Bommai lost his Hubli (rural) seat by 3,000 votes in the elections held after his dismissal.

Six separate judgments were delivered on behalf of the nine judges. The verdict is briefly stated below. I ignore disagreements and nuances between the learned judges as it is not germane to the present exercise.

·         The powers conferred by article 356 are not absolute but conditional

·         The legal bar in article 74 (2) covers only the cabinet's advice but not the material leading to the executive decision

·         A proclamation under article 356 is not immune from judicial review covering the existence & relevance of material leading to the decision

·         If a petitioner makes out a strong prima facie case, the center is obligated to prove that the material existed and was relevant

·         Judicial review is not synonymous with justiciability

·         A dispute is justiciable if "judicially manageable standards" can be applied

·         An irreversible action (e.g. dissolving the assembly) may not be initiated unless Parliament approves the proclamation under 356 (4)

·         Any state acting in a manner that subverts/sabotages secularism is an adequate ground for invoking article 356 (1)

The honorable court held the proclamations in the first three cases held unconstitutional while the BJP state cases were found to be legal. However no relief was provided due to subsequent elections.

The case's significance stems from the following:

·         Eliminating arbitrariness from by insisting that the three conditions specified in 356 (1) must be complied with

·         Strict interpretation of "cannot be carried on in accordance with the provisions of this Constitution" in 356 (1)

·         Focus on "failure of constitutional machinery" in the article title

·         Application of the part title "emergency provisions"

·         Interpreting 356 (3) as an approval of the decision in accordance with the principle of legislative superiority

·         Freeing up the material behind the judicial review decision by narrowly interpreting "any, and if so what, advice" in 74 (2)

Federalism & the Bommai case

Justice PB Sawant (on behalf of Justice Kuldip Singh and himself) cited democracy & federalism as essential features and a part of the basic structure. He wrote: "The power vested de jure in the President but de facto in the Council of Ministers under Article 356 has all the latent capacity to emasculate the two basic features of the Constitution and hence it is necessary to scrutinize the material on the basis of which the advice is given and the President forms his satisfaction more closely and circumspectly. This can be done by the courts while confining themselves to the acknowledged parameters of the judicial review as discussed above, viz., illegality, irrationality and mala fides. Such scrutiny of the material will also be within the judicially discoverable and manageable standards".

Delving further into the principle of federalism, the honorable judge asserts "States have an independent constitutional existence and they have as important a role to play in the political, social, educational and cultural life of the people as the Union. They are neither satellites nor agents of the Centre".

Justice K. Ramawamy in his judgment held "distribution of the power of the State among its coordinate bodies" as the essence of federalism. He cites West Bengal v. Union of India, 1962, to the effect that "only those powers and authorities which are concerned with the regulation of local problems are vested in the State and those which tend to maintain the economic nature and commerce, unity of the nation are left with the Union".

Justice BP Jeevan Reddy (on behalf of Justice SC Agrawal and himself) held federalism "broadly indicates a division of powers". He rightly points out "No two federal constitutions are alike" and reminds India is "not a case of independent States coming together to form a Federation as in the case of USA".

The learned judge looks at various constitutional provisions to arrive at the view Founding Fathers wished the center should be strong. While concluding so, he cautions this "does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme".

Justice S. Ratnavel Pandian outlines the conflicts during the constituent assembly debates between those who favored a strong center and those fighting for state rights. He describes the constitution finally derived as a compromise. He reiterates his agreement with Justice Reddy's reasoning (apart from agreeing with his verdict totally).

Justice AA Ahmadi writes: "our Founding Fathers appear to have leaned in favor of a strong Centre while distributing the powers and functions between the Centre and the States. This becomes obvious from even a cursory examination of the provisions of the Constitution". He delves into the constitution making process to conclude: "The scheme for the distribution of powers between the Union and the States was largely maintained except that some of the subjects of common interest were transferred from the Provincial List to the Union List thereby strengthening the administrative control of the Union".

Justice Jagdish Saran Verma (on behalf of Justice Yogeshwar Dayal and himself) focuses exclusively on justiciability.

State formation & the Bommai case

Justice Ramaswamy delves into the process of state formation at some depth noting: "Under Articles 2 and 4 the significant feature is that while the territorial integrity of India is fully ensured and maintained, there is a significant absence of the territorial integrity of the constituent States under Article 3". He cites Berubari Union presidential reference, 1960 as well as two other cases in this regard.

The learned judge in his conclusion states: "Federalism envisaged in the Constitution of India is a basic feature in which the Union of India is permanent within the territorial limits set in Article 1 of the Constitution and is indestructible. The State is the creature of the Constitution and the law made by Articles 2 to 4 with no territorial integrity, but a permanent entity with its boundaries alterable by a law made by Parliament".

Justice Reddy (on behalf of Justice Agrawal and himself) writes: "Above all, Article 3 empowers Parliament to form new States out of existing States either by merger or division as also to increase, diminish or alter the boundaries of the States. In the process, existing States may disappear and new ones may come into existence". He also holds: "The only requirement, in all this process, being the one prescribed in the proviso to Article 3, viz., ascertainment of the views of the Legislatures of the affected States". He cites two previous cases including Berubari Union.

While Justice Pandian does not touch the subject, his "agreement with the reasoning given by" Justice Reddy presumably extends to state formation too.

Justice Ahmadi goes into the matter at some depth observing "it becomes clear that Parliament has the right to form new States, alter the areas of existing States, or the name of any existing State. Thus the Constitution permits changes in the territorial limits of the States and does not guarantee their territorial integrity". Regarding the proviso in article 3, he states: "All that the proviso to Article 3 requires is that in such cases the President shall refer the Bill to the Legislatures of the States concerned likely to be affected "to express their views". Once the views of the States are known, it is left to Parliament to decide on the proposed changes. Parliament can, therefore, without the concurrence of the State or States concerned change the boundaries of the State or increase or diminish its area or change its name. These provisions show that in the matter of constitution of States, Parliament is paramount".

Bommai case in the present context

A brief study of the two previous sections reveals the following:

·         Four of the nine judges defined "federalism" in the context of distribution of powers

·         These judges specifically covered the constitutional provisions relating to state formation

·         The learned judges expressed no contradiction between articles 1-4 on the one hand & federal character on the other

·         Justice Pandian implicitly endorsed Justice Reddy's view

·         Justice Sawant (and Singh) looked at federalism only from the 356 angle

·         Justice Verma (and Dayal) took no part in the debate on federalism

Justice Ramaswamy provides an interesting example of the center's transgressing into the domain of the states: "Centre directs a non-Hindi-speaking State to adopt Hindi in the Devanagari script as State language, though predominantly 95% of the population does not know Hindi, nor has need to adopt it as lingua franca, the violation of the directives does not entail imposition of President's rule".

Justice Reddy (and Agrawal) cautioned that "courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States".

State formation in India

The very first part of the constitution relates to "Union and its territory". This part includes the following articles:

·         Article 1 (Name and territory of the Union) states that "India, that is Bharat, shall be a Union of States" and proceeds to list the territorial extent of the country.

·         Article 2 (Admission or establishment of new States) reads "Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit".

·         Article 2A relating to Sikkim's association with India was repealed after Sikkim was admitted to the union

·         Article 3 (Formation of new States and alteration of areas, boundaries or names of existing States) provides the Parliament the necessary powers to form states and/or alter area/boundary/names of states

·         Article 4 (Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and consequential matters) provides the necessary powers to Parliament

Article 3 is reproduced in full below:

Parliament may by law:

(a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State;

(b) increase the area of any State

(c) diminish the area of any State

(d) alter the boundaries of any State

(e) alter the name of any State

Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.

Explanation I: In this article, in clauses (a) to (e), "State" includes a Union territory, but in the proviso, "State" does not include a Union territory

Explanation II: The power conferred on Parliament by clause (a) includes the power to form a new State or Union territory by uniting a part of any State or Union territory to any other State or Union territory

Article 3 is the successor of section 290 of the Government of India Act, 1935. It is titled "Creation of new Provinces and alterations of boundaries of Provinces" and constitutes one of the two sections of the part labeled "New Provinces and alterations of boundaries of Provinces".

Section 290 of the 1935 Act is reproduced in full below:

(1) Subject to the provisions of this section, His Majesty may by Order in Council:

(a) create a new Province

(b) increase the area of any Province

(c) diminish the area of any Province

(d) alter the boundaries of any Province

Provided that, before the draft of any such Order is laid before Parliament, the Secretary of State shall take such steps as His Majesty may direct for ascertaining the views of the Federal Government and the Chambers of the Federal Legislature and the views of the Government and the Chamber or Chambers of the Legislature of any Province which will be affected by the Order, both with respect to the proposal to make the Order and with respect to the provisions to be inserted therein.

(2) An Order made under this section may contain such provisions for varying the representation in the Federal Legislature of any Governor's Province the boundaries of which are altered by the Order and for varying the composition of the Legislature of any such Province, such provisions with respect to apportionments and adjustments of and in respect of assets and liabilities, and such other supplemental, incidental and consequential provisions as His Majesty may deem necessary or, proper

Provided that no such Order shall vary the total membership of either Chamber of the Federal Legislature.

(3) In this section the expression "Province" means either a Governor's Province or a Chief Commissioner's Province.

Comparing article 3 with its predecessor, it incorporates the following important changes:

·         Section 390 required the views of the Indian government & the central legislature to be obtained. This provision is redundant in the post-independence context

·         Section 390 required the views of the provincial government & legislature in certain cases. Article 3 restricts this to the legislature alone

·         Section 390 required the ascertainment of views on both the "order" itself and its provisions. Article 390 does not make this distinction

The second change is interesting. It appears the Founding Fathers wanted the legislature, not the Government, to express its views.

Conclusions

Let us first check if the inclusion of federalism in the basic structure relates in any way to article 3. The Bommai case judgment (and Chief Justice Sikri's verdict in the Kesavananda Bharati case) leads to the following irresistible conclusions:

·         The federal character of our constitution (a more appropriate term than "federalism") is a part of its basic structure

·         The majority of the judges in the Bommai case (as well as Chief Justice Sikri earlier) clearly defined federalism as non-intrusion into the state's domain

·         The learned judges specifically considered the state formation provisions and expressed no contradiction between this & the basic structure

·         Article 3 relates to Part-I (Union and its territory) that by definition can only be vested with the center

·         Article 3 (and its predecessor in the 1935) confer absolute powers unlike the conditional powers of article 356 (and section 93)

·         Not a single item in the state or concurrent lists is even remotely connected to state formation

·         The Indian constitution does not envisage dual control on any power

·         Formation of new states per se does not violate the basic structure as it does not directly enable the center to usurp any of the state powers

·         The powers delegated to the states under the constitution are merely distributed among the successors in the modified territorial extent

·         Sections violating the basic structure (e.g. the extraordinary powers to the governor) can be struck down without invalidating the reorganization

Did the Founding Fathers not envisage a situation where the state could "reject" the draft bill? This does not carry much weight considering the following:

·         India was in political turmoil in 1935 when section 290 came into force. It is inconceivable the colonial powers did not visualize any opposition to their policies.

·         Constituent assembly debates clearly establish the conflict was foreseen. Mr. K. Santhanam stated: "Take the case of the Madras Province for instance. The Andhras want separation. They bring up a resolution in the Madras legislature. It is defeated by a majority. There ends the matter. The way of the Andhras is blocked altogether. They cannot take any further step to constitute an Andhra province".

·         Congress secured only 152 of the 375 seats in the 1951 Madras elections. Prof. NG Ranga (whose Rajyasabha speech is cited by Sengupta & Kumar) was himself a prominent opposition leader

·         A speech in 1955, that too by an individual who was not a member of the constituent assembly, can offer no clue on the alleged 1949 "thought shortfall" of the Founding Fathers

Even assuming arguendo the contingency of "rejection" was not contemplated, should courts try to fill the alleged gap? Let us also temporarily ignore the fact an original provision of the constitution can be amended only by Parliament and is immune from judicial pronunciations (to the extent of the original text).

Justice Ramaswamy considers the question in the very same Bommai case. The learned judge held: "Though it is settled law that in working the law and finding yearning gaps therein, to give life and force to the legislative intent, instead of blaming the draftsman, the courts ironed out the creases by appropriate technique of interpretation and infused life into dry bones of law. But such an interpretation in our respectful view is not permissible, when we are called upon to interpret the organic Constitution and working the political institutions created therein".

He goes on to observe: "Where the language of a statute is clear and unambiguous, there is no room for the application either of the doctrine of casus omissus or of pressing into service external aid, for in such a case the words used by the Constitution or the statute speak for themselves and it is not the function of the court to add words or expressions merely to suit what the court thinks is the supposed intention of the legislature".

The language of article 3 is unambiguous and clear. There is no doubt what the key terms (Parliament, law, state, territory, area, boundary, legislature & views) mean. The Parliament is given absolute power in the matter of state formation. The proviso merely requires the state legislature views be ascertained. The fact that a proviso is not a condition is widely accepted by every expert.

Article 3 does not consider the possible outcomes from the process of ascertaining views. The only prudent course for any court to pursue is to deduce the Founding Fathers did not deem it necessary to consider the probable outcomes.

Finally let us take a look at the relevance of the alleged "rejection" by the state legislature

·         The resolution alleged to have been moved by Nallari Kiran Kumar Reddy was proposed under rule 77 of the Rules of Procedure and Conduct of Business in AP assembly

·         The resolution was claimed to have introduced under his official capacity as the leader of the house even though it was not discussed at any cabinet meeting

·         Rule 77 requires ten days notice unless waived explicitly by the speaker

·         When the assembly is considering a communique from the President, normal business rules are not applicable

·         A resolution under rule 77 needs to be read by the proposer and duly seconded

·         A discussion is mandatory on such resolutions

·         The procedure adopted by Nadendla Manohar followed none of the requirements

·         The resolution was neither read by the proposer nor seconded

·         No discussion was permitted

·         The entire process was completed in a matter of two minutes

·         The text of the resolution is not available till date

·         The fact that the resolution was raised after the conclusion of the debate on the draft reorganization bill prevents it from being considered as the view of the legislature

Let us summarize the findings:

·         Speculating the Founding Fathers did not envisage the likely outcomes of "ascertainment of views" is unnecessary, unfounded & invalid

·         Bommai case is irrelevant to the context of state formation

·         The alleged resolution is not equivalent to "rejection" of the draft bill

·         The recommendations made by Sengupta & Kumar are unnecessary in the light  of the above

I rest my case. I will be pleased to answer any questions anyone may have.