Is Assembly Resolution Mandatory to Create New States?
-By Subhash Chandra.
They say a lie repeated a thousand times will pass off as truth. The same thing seems to be happening in the case of Telangana state formation. Opponents of Telangana have been repeatedly issuing false statements that a resolution of Andhra Pradesh state assembly is mandatory for formation of Telangana. This is nothing but a blatant lie.
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Part 1
THE CONSTITUTION OF INDIA
(As Modified upto the 1st December 2007)
THE UNION AND ITS TERRITORY
Article 2. Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit.
Article 3. Formation of new States and alteration of areas, boundaries or names of existing States.
Parliament may by law—
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;
increase the area of any State;
diminish the area of any State;
alter the boundaries of any State;
alter the name of any State:
4[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 1***, 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.]
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Part 2
What the fathers of our Republic and authors of its Constitution said about Article 2 and 3 (1948, Constituent Assembly):
The Honourable Shri K. Santanam explains Article 3 thus: “Mr. Vice-President, 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. On the other hand, as re-drafted by the Honourable Dr. Ambedkar, if the Andhras fail to get a majority in the legislature, they can go straight to the President and represent to him what the majority did in their case and ask for further action removing the block in the way of a province for them. If they are able to convince the President, he may recommend it and either the Government of India may themselves sponsor legislation for the purpose or any private Member or a group in the Central legislature can take up the question.”
Pandit Hriday Nath Kunzru : “the consent of the States should not be necessary for a re-organisation of their territories. Consultation with them should be quite enough.”
Pandit Thakur Dass Bhargava : “…every part of India should be given this facility, that, should it decide to secede from one part and to accede to another, then there should be no impediment in its way. If the people of an area want separation, then the right of self-determination should be given to them.”
Prof. K. T. Shah: “if anypart of a big province wants to break away then the only course before it is to bring the matter before the Members.But by doing so the very purpose would be defeated because the majority would always reject such a proposal. I would like the Congress Government to respect the wishes of the areas, which desire to separate from any province and that no hurdles are placed in their way; on the other hand, all legal aid should be given for the formation of a new province. No provincial legislature would agree to the separation of apart, and the representatives of the affected area will be so influenced that they would not be able to give free expression to their views. Parliament, and not the President, should have the right to determine the matter after taking into account the opinion of the people of the area concerned and of the vote of the provincial legislature. It is therefore necessary that every Member of the parliament should have the right to give notice of such a bill. Views of the provincial legislature may be taken but the changes should be effected in accordance with the wishes of the people of the area, who want separation. If this is not done then the principle of self-determination would be nowhere. We used to hear that after the attainment of Swaraj the right of self-determination would be given to all. Views of the legislatures may be invited, and may be taken into consideration; but the determining factor should be the vote of the people of the area, which wants to separate. ”
Prof. Shibban Lal Saksena: “the President after he receives notice of such a motion from any Member will try to take the opinion of the area concerned and then, of course after consulting his Ministry, give his recommendation for moving the Bill probably if the President feels that the people of an area – the majority of them – are of the opinion that they would be happier if they go to some other State or Province, he would advise the Prime Minister, and probably the Prime Minister also will agree with him that the motion should be allowed and that Parliament should be allowed to discuss the question. I think that gives full liberty and opportunity to every area which desires a change of boundaries.”
Shri R. K. Sidhwa: “View means “observations, consent means unanimity and decision on a matter…. I feel that in the case of the states, it is very necessary that their views should be obtained rather than consent ”
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Part- 3
Babulal Parante v. State of Bombay, 1960 AIR 51, 1960 SCR (1) 605
In this case, the court explains the provisions of Article 3:
The period within which the State Legislature must express its views has to be specified by the President; but the President may extend the period so specified. If, however, the period specified or extended expires and no views of the State Legislature are received, the second condition laid down in the proviso is fulfilled in spite of the fact that the views of the State Legislature have not been expressed.
The intention seems to be to give an opportunity to the State Legislature to express its views within the time allowed; if the State Legislature fails to avail itself of that opportunity, such failure does not invalidate the introduction of the Bill.
Nor is there anything in the proviso to indicate that Parliament must accept or act upon the views of the State Legislature.
