India is described as ‘an indestructible Union of destructible States’ i.e., the Union Government can destroy the States whereas the States cannot destroy the Union. The territorial integrity or continued existence of any State is not guaranteed.
Political will and Parliament Bill are enough for the formation of Telangana State as per the constitutional procedures and requirements. It doesn’t even need the consent of Andhra Pradesh Assembly.
Powers of Union to form new States
Article 3 of the Constitution confers extra ordinary power on the Parliament to merge or separate States at its will. Article 4 declares that laws made for formation of new States under Article 3 are not to be considered Constitutional Amendments under Article 368. This implies that such laws can be passed by a simple majority and by the ordinary legislative process.
Article 3 makes it clear that the Bill for separation must be sent to the State legislature (Andhra Pradesh legislature in the case of Telangana) for its views alone. The Parliament is not bound by the views of the State legislature and it may or may not accept the views of the State. Only in the case of Jammu and Kashmir, the consent of the State is required, in all other states; consent of the State is not required. In the event of President’s Rule, the President can suspend the Assembly and Parliament assumes all the powers of the State and the Assembly’s views, even in case of Jammu and Kashmir, its consent is not necessary.
Prior resolution by the Assembly is also not required. The NDA Government managed to get it before the Bill (not after as in the usual cases) for Chhattisgarh and Jharkhand as Digvijay Singh’s Congress Government ruled Madhya Pradesh and Rabri Devi’s RJD Government ruled Bihar. Uttaranchal was not an issue as Uttar Pradesh was under the BJP rule. These were the only cases of prior resolution.
The Bill for the purpose of the creation of new State can be introduced in either house of the Parliament on the recommendation of the President which in turn means recommendation of Union Government as President acts on the advice of the Union Government. The Bill approved by Parliament (both the houses by Simple Majority) would change those Schedules to suit the new State. The schedules likely to be changed in the case of formation of Telangana State are
· First Schedule à Names of the States and their territorial jurisdiction
· Fourth Schedule à Allocation of the seats in the Rajya Sabha to the States
After effects of the passage of Andhra Pradesh Reorganization Bill
1. Separate Assemblies would be convened after the Bill is passed and all MLAs will retain their tenure. The Legislative Council will continue only for the residuary State with MLCs elected only from its regions.
2. High Court: - Either the Andhra Pradesh High Court can become common High Court for Andhra Pradesh and Telangana or a new High Court for Telangana can be created. Looking at the current state of affairs with lawyers violently divided over regional divides, formation of common High Court might be difficult and it might affect the affairs of Judiciary. So, it would be ideal for the Bill to create Telangana High Court at Hyderabad and specify the location of the High Court of the residuary Andhra Pradesh.
NOTE: Only the Parliament has the powers to create new High Courts.
3. Every Statutory Commission, Authority or any other body in the existing State shall continue in the residuary State. They will also exercise their jurisdiction over newly formed State for a maximum period of 2 years. However, the new State can constitute a separate Public Service Commission or any other body at any time.
4. Distribution of revenues to the respective States applies to the total amount payable and due by the Centre to the parent State. It does not apply to State revenues which will accrue to the successor States based on the principle of territoriality.
5. The allocation of assets and liabilities of joint projects of Srisailam and Nagarjuna Sagar may be fixed either by agreement between the two States or if the agreement is not possible, by the Central Government. Independent boards shall be set up to manage the projects which will distribute the water and power equitably to the two States.
The shares of Krishna and Godavari waters have already been allocated by the Bachawat Tribunal in 1976 to Telangana and Seemandhra and there is nothing to dispute here.
6. Article 371 (D)
Article 371 (D) was enacted to implement the Six – Point formula to safeguard Telangana interests. Since Article 371 (D) will no longer be required for the Telangana State, its subsection (9) which refers to Telangana State can be deleted. Article 371 (D) may be useful for the residuary Andhra Pradesh State to ensure justice between coastal Andhra and Rayalaseema regions.
7. Common Capital
The most important is the common capital issue for a maximum of 10 years. It is inconceivable that the residuary Andhra Pradesh State can be ruled for 10 years from a Capital which is 200 – 1000 km from its districts.
Similar buildings and institutions can be made available for the Government of residuary Andhra Pradesh in Hyderabad on terms and tenure to be agreed between the successor States. The Government offices of the residuary Andhra Pradesh in Hyderabad will have the same privileges and security as the offices of the Government of India. According to all Reorganization Acts, the successor States will be responsible for Law and Order in their territories.
The procedure of reorganizing States is clear and set over time and tested in the Supreme Court. The Andhra Pradesh Reorganization Bill needs to cover the above points and ensure that no further litigation or tension arises between the successor States.
Seemandhra leaders who have knowledge of the creation of Andhra State in 1953 and Andhra Pradesh State in 1956 are aware of the issues and need to explain to their masses that the Telangana demerger is only a reverse repeat with variations.