Expounding further on the ‘Telangana: No constitutional barriers’ in THE HINDU

Sujai Karampuri

It makes sense to decode and understand the article written by Sudhir Krishnaswamy, published in THE HINDU on 4 Jan 2014, because it makes a profound case for Telangana.

Recently the Seemandhra majority in the Andhra Pradesh State Legislature led by the incumbent Chief Minister Kiran Kumar Reddy has categorically stated that Parliament of India has to abide by the resolution of the State Assembly. In this respect they sought the intervention of Supreme Court and the President of India. The author while making a case for Union Government not to divest any of its power to alter the boundaries within the country to a State Government writes:

…should the President of India or the Supreme Court change the balance of power between the Union and the States in the process of State reorganisation by insisting on an affirmative State resolution under Article 3? There are three compelling reasons not to do so…

Each of the three reasons he provides requires an explanation:

Indian model is ‘holding-together federalism’

…first, India’s successful holding-together federalism model has helped us craft an enduring state-nation by allowing the Union to redraw State boundaries;

Unlike the models of United States and Switzerland, where the constituent units are sovereign and independent before they formed the federal unions, India is a ‘holding-together federalism’ as envisioned by the architects of Indian Constitution. India is rightly described as ‘indestructible union of destructible states’. While Union government can destroy or create states whereas the state government cannot destroy the Union. The States in India are not sovereign or independent in this model. The architects of our Constitution devised the Article 3 in the current fashion where the Parliament need not accept or act upon the views of the State Legislature. These powers of the Union Government to reorganize the boundaries within India were held up by the legal verdicts in case of Babulal Parate (1961) and Pradeep Chaudhary (2009). Using this definition of Article 3, India remained successful in ‘enduring the state-nation’ by redrawing State boundaries. The author clearly endorses the idea of vesting the entire power to alter the boundaries of the nation in the Union Government, and not in the State Government.

It is pretty clear why such vesting of all powers with Parliament and none of it with State Government makes make sense in case of India. Imagine a scenario wherein the current process of bifurcation of Andhra Pradesh held at ransom by the majority of Seemandhras is allowed to set a precedent whereby the State Legislature’s acceptance or rejection of the separation becomes binding on the Parliament as clearly expressed by the votaries of Samaikyandhra Movement, who wants to keep the state united against the overwhelming wishes of Telangana people. That would mean that a State has now powers to stop the bifurcation of a state, which also means, it has powers to alter the boundaries of India in future, which include other situations like admitting a new state or allowing a secession of a state or region from India.

It is not the formation of Telangana which poses the danger to the unity of this country, but the precedent of allowing Seemandhra majority to obstruct the formation of Telangana by making its resolution in Andhra Pradesh binding on the Parliament that directly leads to the disintegration of this country. In future, any state can pass a resolution to secede, like Jammu Kashmir or Nagaland, to make it binding on the Parliament. Or a state can pass a resolution to accept a new state, like Tamil Ealem of Sri Lanka by Tamil Nadu, to make it binding on the Parliament, and thereby plunging the nation into a war with another country.

Altering State boundaries is not a case for State negotiating its powers with the Union Government

…second, though we have crafted neutral constitutional rules to check partisan federalism in several cases, it is difficult if not impossible to do so in the context of State reorganisation.

While the author accepts in certain cases the intervention of Supreme Court and the President to create ‘neutral constitutional rules’ to balance the powers between the Union Government and the State Government, he rules out such a mechanism in case of altering the boundaries in India. In addition he points out that most of the negotiation with Union Government on protecting the State powers has come mostly from the opposition political parties, thereby indicating that there is a certain degree of political angle to this negotiation.

In the last three decades, the Supreme Court has intervened in at least three types of disputes to craft neutral constitutional rules that prevent partisan federalism: proclamation of regional emergencies or President’s Rule under Article 356; appointment of Governors and their exercise of executive power and to prevent the abuse of Union executive power to preserve law and order in the States. Despite the court’s intervention, partisan federalism has become ubiquitous in Indian constitutional culture.

In the last decade, on almost every issue on which federalism has been invoked by the States, it has been by parties in opposition to those at the Union government: the ostensibly federal division on the GST, NIA, CBI power, Lok Pal Bill, FDI in retail or the Communal Violence Bill is better explained by opposition party control over State units. However, we must be careful in characterising federalism in India as inexorably partisan in character, particularly in the realm of new State creation.

Just because it’s only the opposition parties which negotiate for powers with the Union Governments we should not quickly conclude that this federal negotiation is ‘partisan in character’, especially when it comes to the topic of new state creations. So in case of Telangana, the State of Andhra Pradesh seeking intervention from the Supreme Court or the President of India citing that the powers vested in the Union Government override those of the states has no merit.
Possible political benefits cannot stop the process of state reorganizations

Third, there is no limited set of constitutional principles that ex-ante justify the formation of States, as the primary justification for State formation is of an ex-post political character. In these circumstances it is best left to the political process to craft a resolution to competing group claims for political autonomy and statehood rather than the President or the Supreme Court to second-guess this process through constitutional rules.

By making it appear that the language is the only criterion for division of states in India, Seemandhras are trying to convince everyone in this country that the formation of Telangana is unjustified because it involves breaking up of a state that was formed on the basis on language. Sudhir Krishnaswamy clearly dismisses a single yardstick for creation of new states [emphasis mine].

…the Union’s capacity to shape State boundaries to respond to claims for political autonomy based on linguistic, ethnic, religious or tribal identities has arguably strengthened the capacity of the Indian federation to endure over the last 60 years.

While the state reorganization process of 1950s was somewhat based in linguistic divisions, though not entirely, because the SRC did not favor the formation of Maharashtra under the premise of Marathi language, the state formations of later decades were distinctly non-linguistic, like that of Punjab, which was actually based in religious division, though it was covered up as linguistic one to make it more palatable to Indian politics, whereas most of the state divisions in Northeast were based on ethnic lines. And the latest state formations of Chattisgarh, Uttarakhand, and Jharkhand by the NDA were based on regional and tribal identities.

And Sudhir Krishnaswamy makes it clear that there could be many articulated and unarticulated justifications for formation of a state, including reaping the likely political benefits by a political party. He dismisses any attempt into analyzing whether a mobilization for a new state is ‘legitimate political’ or a ‘partisan’ before the state formation, saying that there are clear constitutional guidelines to determine what constitutes a justified demand and what does not. Any justification or reaping the political benefits can be made only after the state is formed.

So, invariably States have emerged from legitimate demands for political autonomy anchored by political parties which either motivated or benefited from the creation of new States.

Political parties indeed move into claim the credit for such political process and attempt to reap the benefits from such state reorganizations, but such a motive on part of the national or regional parties does not necessarily invalidate the genuine and legitimate claim for political autonomy of a region. The author cites the examples of Punjab where Akali parties benefited from the ‘Sikh-majority Punjab state’ while Shiv Sena benefited from Marathi-speaking Maharashtra. Indeed, BJP sought electoral gains from the formation of Uttarakhand, Chattisgarh and Jharkhand.

Sudhir Krishnaswamy is very emphatic when it comes to keeping the current powers to reorganize the states with the Parliament without succumbing to the pressures from the State Government seeking intervention from the President or Supreme Court.

Any attempt, by the President or the Supreme Court, to constrain this Union power with new constitutional or political limitations may have a lasting impact on the future of the Indian federation.