Yet to pass legal muster

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  • Published 19.02.14

New Delhi, Feb. 18: The Lok Sabha today passed the Telangana bill by a voice vote on the assumption that only a simple majority is needed for such legislation.

The bills that created Jharkhand, Uttarakhand and Chhattisgarh, too, were passed by a simple majority 14 years ago.

But the absence of strife then on a scale that is being witnessed now appeared to have drawn attention away from a detail: the Constitution does not specifically say that a simple majority is sufficient to create a state.

Besides, Andhra Pradesh enjoys a special status provided by a provision in the Constitution.

The two factors — the absence of an unequivocal assertion in the statute that a simple majority is sufficient and an opinion that carving up Andhra involves an effective constitutional amendment —are now raising questions whether today’s vote will pass the test of law.

If it is established that the division of Andhra involves amending a constitutional provision, the bill will require two-thirds, not simple, majority of the members present and voting in the House.

Article 3 of the Constitution gives Parliament power to carve out any new state, unite two existing states or change boundaries. But it does not spell out whether the consent of the state is required or the nature of the vote.

The article sets two conditions. One, the bill should be introduced on the recommendation of the President. Two, the bill should have been referred by the President to the state legislature for “expressing its views”.

The Andhra House had sent back the Telangana bill with the recommendation that it be rejected. The Union government pressed ahead with the bill because the statute does not say that the views of the state legislature have to be accepted.

If the Centre has used the silence to push ahead, others can cite similar silence on the nature of the vote to insist that a two-thirds majority is needed.

What lends weight to such a stand is Article 371D that was inserted in 1972. The Telangana regions enjoy preferential recruitment in government jobs and admissions in educational institutions under this article that specifically deals with Andhra.

A difference of opinion had cropped up within the government. Sources told The Telegraph that attorney-general G.E. Vahanvati felt that the bifurcation bill could not be introduced without a prior amendment to the Constitution.

Vahanvati had taken the stand that since Andhra enjoyed the special status provided by Article 371D, there has to be a constitutional amendment.

However, Union law minister Kapil Sibal demurred, a source said. The minister was of the view that the power of Parliament to make laws under Article 3 “traverses over all legislative subjects as are necessary for effectuating a proper re-organisation of the states”, the source added.

As the Supreme Court had dismissed several PILs against the bifurcation recently, an impression has set in that the bill has passed legal muster.

But the court did so because it can stay or quash a decision only when it becomes an act, not when it is a bill which is the prerogative of the legislature. The bill will become an act or law only after both Houses of Parliament pass it and the President gives his assent.

The petitions were turned down because they were “premature” and a bench had said the court could be approached “at an appropriate time”, which means after the bill is passed.

A legal challenge later is not ruled out, which can settle the question whether a constitutional amendment is mandatory to create a state and whether the new states formed earlier will require a fresh legislative baptism.