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The constitutional process in the formation of a new State.

ARTICLE 2 of the Indian Constitution reads: “Parliament is empowered to enact a law to admit into the Union, or establish, new States ‘on such terms and conditions as it thinks fit’.”

The power to admit new States into the Union, under this provision, is considered very wide because its exercise is often guided by complex political factors. The decision to separate Telangana from Andhra Pradesh stemmed from a resolution passed by the Congress Working Committee (CWC), which was preceded by agreement within the United Progressive Alliance’s coordination committee on July 30. Both the CWC and the UPA coordination committee are political bodies and their decisions are naturally outcomes of discussions among leaders belonging to the ruling coalition. The factors relied on by these leaders for their decisions may not be of judicially manageable standards.

However, the Supreme Court held in a case in 1993 that Article 2 does not confer on Parliament “an unreviewable and unfettered power immune from judicial scrutiny”. The court said: “The power is limited by the fundamentals of the Indian constitutionalism and those terms and conditions which Parliament may deem fit to impose cannot be inconsistent and irreconcilable with the foundational principles of the Constitution and cannot violate or subvert the constitutional scheme. This is not to say that the conditions subject to which a new State or territory is admitted into the Union ought to be exactly the same as those that govern all other States as at the time of the commencement of the Constitution.”

The court made these observations in the context of Sikkim’s merger with India to form a new State, but they are relevant in the creation of a new State out of an existing State. Article 3 enables Parliament to effect by law reorganisation inter se of the territories of the States constituting the Indian Union. Thus, Parliament may by law form a new State by the 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. The law so made under Articles 2 and 3 may alter or amend the First Schedule of the Constitution, which sets out the names of States and the description of territories, and the Fourth Schedule, which allots seats to States in the Rajya Sabha.

The purpose of both Articles 2 and 3 is to provide for an easy and simple method of reorganisation of States, rather than through an amendment to the Constitution. The proviso to Article 3, however, says 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, 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.

The announcement that a new State of Telangana will be created out of Andhra Pradesh has led to doubts whether the present Andhra Pradesh Assembly, which has a substantial section of members opposed to the creation of Telangana, will approve the Bill to be referred by the President for the purpose. As the proviso to Article 3 only requires “expression of views” on such a Bill by the parent Assembly, it is clear that its consent is not at all required for Parliament to pass the necessary legislation to set up the new State. At the time of reorganisation of States, there was a genuine apprehension that some big States would oppose territories being taken away from them so as to constitute new States or to be merged with other States. Therefore, the consent of the States to reorganisation was not made mandatory, even though absence of such consent is contrary to the federal principle.

The Supreme Court held in 1960 in a case relating to the formation of Maharashtra and Gujarat: “All that is contemplated is that Parliament should have before it the views of the State legislatures as to the proposals contained in the Bill and then be free to deal with the Bill in any manner it thinks fit, following the usual practice and procedure prescribed by and under the rules of business.”

In the case of Telangana, one additional factor has given rise to misgivings whether a constitutional amendment may be necessary to create the new State. Article 371D, which deals with special provisions relating to Andhra Pradesh, was inserted by the Constitution (32nd Amendment) Act, 1973. This was to guarantee that in matters of public employment and education, equitable opportunities would be provided for the people of the Telangana region. Article 371E was also inserted to enable Parliament to provide for the establishment of a university in the State of Andhra Pradesh. These two Articles were incorporated in 1973 so as to tide over the crisis following the agitation demanding the creation of Telangana, as the people of the Telangana region sought major concessions to tentatively defer their agitation for a separate State.

The head note of Article 371D states: “Special Provisions with respect to the State of Andhra Pradesh”. With the coming into being of Telangana and Seemandhra, this Article will become redundant as the State of Andhra Pradesh will cease to exist. Constitutional experts are of the view, therefore, that the process of creating the new States of Telangana and Seemandhra will not necessitate a constitutional amendment for the purpose of repealing Article 371D and that such an amendment can be brought forward later.