Issue of Telangana and Federalism

The Hindu dated 28/10/2013 contains an article called “A challenge to Indian federalism”. I sincerely disagree with the views presented by its author and I really do not think that it is appropriate to invoke constitutional law doctrines and interpret them in a whimsical manner to justify his stand. I am not an expert in politics. Thus, I will restrict myself to the criticism of the legal propositions presented by Mr.Jayprakash Narayan.

First of all, I would like to make it clear that there is no straight jacket formula for interpreting the provisions of our Constitution. Resorting to the intention of the drafters is just one of the methods of interpretation. Other methods are looking into the text and structure of the constitution, looking into the judicial pronouncements, looking into socio-economic and political consequences of the interpretation (Constitution is a living and a dynamic document) and lastly, looking into the natural law or the basic structure or the higher law. Thus, using the intention of the drafters alone for interpreting the constitution is not a wise exercise to follow.

It is the text and structure of the constitution that should be given the utmost importance. And if any ambiguity persists in the text and structure of the constitution, only then the intention of the drafters and other such tools of interpretation be used. In fact, the best method to know the intention of the drafters is to look into the text of the constitution. It is what they wrote and it is what they precisely meant. The text mentioned in article 3 and article 4 is crystal clear. It leaves no room for ambiguity. The only rider is that such a Bill for forming new states must be 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. After fulfilling this requirement, our constitution makers have given a free hand to the Parliament in this regard.

Now, let us come to article 4. Article 4 further solidifies the intention of the drafters as mentioned in the article 3 of our constitution. Article 4 (2) states that “No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368”. Thus, it is clear that, any law made in this regard shall not be considered as an amendment to the constitution and there is no need for having a 2/3 majority to pass such a bill in the parliament. It can be passed by a simple majority.

If our constitution makers were so keen to make this alteration of states as a special or an exceptional provision, they could have stated it expressly in the constitution. For e.g. our constitution explicitly states that for altering the representation of states in Parliament “the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent” [Proviso to Article 368 (2)]. Thus, the intention of the drafters is clear here. They wanted the amendment in representation of states in the parliament to be a special process. Hence, they explicitly did so by mentioning it in the text of the constitution.

The Constitution Assembly Debates and other such documents must be read harmoniously with the text of the constitution. And such documents must be resorted to only when there is a clear ambiguity in the text of the constitution. In the present case, the article 3 and article 4 are crystal clear.

Accepting the recommendation of Finance Commission and formation of New States are two very different things. It is not the case that the government or the parliament accepts all the recommendations of the Finance Commission. It accepts only those recommendations which it finds worth implementing or accepting. By going into this debate, one could even say that today most of the functions of the finance commission are performed by a non-statutory and a non-constitutional body called the Planning Commission. But, let us not go into that debate.

Article 3 and Article 4 do not contemplate that prior consent of states be required while forming new states or altering the boundaries of an existing state. This thing is best left to the wisdom of our Parliament. This is precisely what the Constitution Makers meant.

Limited Sovereignty

It is not appropriate to invoke the doctrine of limited sovereignty here. Our constitution drafters never wanted the states to be sovereign in any manner. That is why, we adopted the phrase ‘Union of India’ rather than going for ‘Federation of India’ in the Constitution. Our model is very different from the US one. In USA, the states have their own Supreme Court, own Constitution. It is more federal in character than our constitution. Whereas, ours is essentially a Union of States. There is no right granted to the states to secede from the Union. Many constitutional law experts have termed our constitution as quasi-federal in character or having co-operative federalism. The states and the union must work harmoniously. And the manner they are to work is governed by the scheme envisaged in our constitution. The scheme regarding formation of new states is clearly mentioned in the constitution and the constitution has given an upper hand to the wisdom of the parliament in this regard.