The decision to divide Andhra Pradesh
raises important questions about federalism and the nation’s future. This is
the first time in India that a state is sought to be divided without the
consent of the State legislature, and without a negotiated settlement among
stakeholders and regions, and in the face of public opposition.
All major federal democracies have in
their Constitutions the provision that a state cannot be divided or merged with
another state without its prior consent. This is the essence of federalism.
Article
3
India’s Constitution-makers gave much
thought to the issue of formation of new states and reorganisation of states.
The Drafting Committee and the Constituent Assembly were aware of the
circumstances prevailing at that time. India witnessed Partition,
accompanied by violence, bloodshed, and forced mass migration. In addition,
there were several kinds of States — Parts A, B and C — and there was need to
reorganise all states and integrate the 552 princely states. If the consent of every State or Unit was a precondition to altering the
boundary, reorganisation would have become an excruciatingly difficult
exercise. Consequently, the final text of Article 3 as promulgated provided for
the President’s recommendation and ascertaining the views of the state
concerned both with respect to the proposal to introduce the Bill and with
respect to the provisions thereof.
Our nation-builders were wise in
drafting the Constitution to suit our requirements. More important, successive
governments have wisely applied Article 3 in dealing with states. While prior
consent of the state was not necessary under the Constitution, in practice
every state has been formed with prior consent, in most cases after a detailed,
impartial examination by an independent commission. Only in the case of Punjab,
there was no legislature at the time of dividing the State in 1966. But there
was a broad consensus among stakeholders and no opposition.
So far, Parliament and governments
have acted with restraint and wisdom in dealing with boundary issues and
formation of states. They rejected the notion that anything could be done to
alter boundaries, provided it is not expressly prohibited by the Constitution.
While prior consent of the state legislature is not mandatory, in practice care
has been taken to obtain consent, or to act only on the express request of the
state. The 1956 reorganisation was based on the fundamental principle of
language; there was broad national consensus on the issue.
Articles 3 & 4 in their present
form are enabling
provisions empowering Parliament to act in an exceptional situation when
national interest warrants it, or to
settle marginal boundary disputes between states when they are recalcitrant and
efforts to reconcile differences and arrive at a settlement fail. The framers
of the Constitution did not intend to give Parliament arbitrary powers to
redraw boundaries; nor did successive Parliaments and governments act
unilaterally or arbitrarily without consent, broad consensus or negotiated
settlement.
Even after 1987, in every case of
state formation, the consent of the state legislature was obtained. The broader
principle of federalism and the willing consent of constituent units and their
people has been deemed to be necessary before a state is formed or a territory
merged, unless overwhelming national interest demands action by Parliament. The
procedure was observed in creating Jharkhand, Uttaranchal and Chhattisgarh in
2000.
Dr. Ambedkar said in his reply to the
debate in the Constituent Assembly on states’ rights: “The… charge is that the Centre has
been given the power to override the States. This charge must be admitted. But
before condemning the Constitution for containing such overriding powers,
certain considerations must be borne in mind. The first is that these
overriding powers do not form the normal feature of the Constitution. Their use
and operation are expressly confined to emergencies only”.
It is this spirit that informed the
actions of the Union government and Parliament over the past six decades. There
were blemishes in the application of Article 356 earlier. But over the past two
decades Indian federalism has matured a great deal. The Supreme Court, in
Bommai (1994), made Article 356 more or less a “dead letter” — as Dr. Ambedkar had hoped. Though the Finance Commission’s
recommendations are not binding on Parliament and government, those of every
Finance Commission in respect of devolution of resources have been accepted and
implemented. Since the report of the Tenth Finance Commission, there has been
greater transparency in devolution: most of the tax revenues of the Union are
being treated as the divisible pool, and a fixed proportion of it is shared
with states as decided by the Finance Commission. States are now more in
control of their economic future.
Limited
sovereignty
This does not mean states can act as
they please, or that their territorial integrity is inviolable. There is one
nation and one citizenship, and the nation’s territorial integrity is
paramount. However, within that overarching framework, states exercise limited
sovereignty, and the federal spirit informs the operation of the Constitution.
The Constitution did not intend to make India a unitary country with states
functioning as municipalities, their survival dependent on the will and whim of
the Union government. Nor did the operation of our Constitution over the past
63 years suggest a de facto unitary state. In fact, federalism has been
deepening in India, in keeping with global trends.
The determined efforts of the Union
government and its oft-repeated declarations that Andhra Pradesh will be
divided irrespective of the legislature’s views, pose a grave danger to
federalism and unity. Andhra Pradesh was formed with the prior consent of the
Andhra State Legislature, and the Hyderabad State Legislature. When two popular
movements for the state’s division were launched in the three regions — in
Telangana in 1969-70, and in Coastal Andhra and Rayalaseema in 1972-73 — the
Union government encouraged all regions to arrive at a negotiated settlement.
Corresponding constitutional provisions were put in place to safeguard the
interests of all regions. An explicit and implicit compact was made by the
Union with the people of Andhra Pradesh to the effect that the State would
remain united. It is on this basis that people migrated on a large scale to the
other regions and to the capital, Hyderabad, and built their lives, livelihoods
and the State’s economy. In this backdrop, any redrawing of boundaries would
need another agreement arrived at by the affected parties through patient
negotiation. The Union has a seminal role in helping reconcile conflicting
interests harmoniously. Parliament can act only on the basis of such an
agreement, consensus and consent. Any other approach would be ham-handed,
arbitrary and uneven, and run counter to the principles and practice of
federalism as they have evolved under Indian conditions.
The way the President and Parliament
handle the Andhra Pradesh issue will, in a fundamental sense, shape the future
of the Union itself. This is a defining moment not for Andhra Pradesh alone,
but for our federal Constitution and India itself.
If such an arbitrary decision becomes
a precedent, any and every state could be divided or boundaries altered without
consent, and without a negotiated settlement, that will effectively convert
states into municipalities, and India into a unitary state. Neither the
Constitution-makers nor nation-builders intended such an outcome. And India’s
future will be in peril if such an effort is made to make the nation
effectively unitary at this stage.
In critical moments like this the President and Parliament have to
act with restraint, foresight and wisdom. The President is not only the head of
the Republic, he is also a part of Parliament. The President is elected by
members of both Houses as well as members of State Assemblies. In a fundamental
sense the President represents the nation — both Union and states — and is the
final defender of the Constitution and federalism along with the Supreme Court.
This is therefore a fit case where the President should exercise his
constitutional duty independently before recommending introduction of any Bill
to divide the State of Andhra Pradesh.
Leaders of parliamentary parties too
should act with clarity and wisdom, and with the knowledge that division of a
state without its consent and a negotiated settlement among all stake-holders
converts the nation effectively into a unitary one. Every state will, in
future, be vulnerable to unilateral action for short-term electoral expediency.
The Constitution, the President,
Parliament and the political parties will be put to a severe test in this case,
and the way they respond to this challenge will shape the future of our
Republic, and the future of federalism in India.
( Jayaprakash Narayan )
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