Even before Delhi has come out with its final word on Telangana, interested parties on both sides of the divide are engaged in studying legal procedures that need to be followed for creating a separate State.
What has set off this activity was the recent statement by AICC general secretary Digvijay Singh that a Constitutional amendment may be required if two states were carved out of Andhra Pradesh and this primarily pertains to Article 371 (D) under which certain special provisions have been made for Telangana region in the wake of the earlier statehood agitation back in 1960s in matters relating to employment and education.
While Articles 2-4 of the Constitution are for creation of States, the family of Articles 371/371 A to I contains temporary and special provisions for various states. The question is whether these latter provisions can be set aside by the legislative power emanating from Articles 2-4 of the Constitution. United State protagonists are understood to have obtained a detailed opinion from a well-known advocate of the Supreme Court.
The crux of Article 371 (D) amendment brought in at that time makes it clear that “the provisions of this Article and of any order made by the President thereunder shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force.”
Largely relying on this, the Supreme Court advocate seems to have opined that Article 371 (D) contains an overriding provision and thereby, overrides the rest of the Constitution including Articles 2-4. As such, a simple substitution and succession provision “will not subserve the purpose of Article 371 (D) which needs to be rediscussed and amended by Parliament.
By raising this question, united AP campers hope that they would be able to create impediments in the formation of Telangana as any Constitutional amendment would require 2/3rd support in both Houses of the Parliament.
However, advocates on the T side point out that on many occasions in the past, Article 371 was amended whenever new States were created - Bombay Reorganisation Act of 1960 when Maharashtra and Gujarat were formed or in 1971 when Article 371 (B) was amended by the North Eastern Areas (Reorganisation) Act. Their argument is that if Telangana is carved out under Articles 2-4, Article 371 (D) pertaining to special provisions for this region becomes redundant as it is just an enabling provision empowering the executive just to make an order.
According to them, 371 (D) allows President to pass orders from time to time to meet any conflict that arises out of the situation in a United Andhra Pradesh in order to protect the interests of Telangana. Therefore, when the State of Telangana itself is carved out, this becomes irrelevant.
Jurists are also discussing the possible scenario in the event of Andhra Pradesh Assembly not being convened by the Cabinet if the majority ministers are against division of the State or if most of them resign as they are threatening to do. The role of the Assembly comes into play when the President refers the decision of the Union Cabinet to the state legislature. According to Article 3 of the Constitution, reorganizing states is the plenary power of Parliament which may by law a) form a new state by separation of territory from any state or by uniting two more states b) increase the area of any state: c) diminish the area of any state: d) alter the boundaries of any state: d) alter the name of any state. It states that no bill for the purpose shall be introduced in either Houses of Parliament except on the recommendation of the President and unless where the proposal affects the area, boundaries or name of any of the states, the bill has to be referred by the President to the Legislature of that state for “expressing its views thereon within such period as may be specified.”
While this means that reference to a State is a must, the opposition of such state does not matter. Likewise, if the Assembly does not convey its opinion to the President within the period specified in the reference, it will be deemed that the legislature has no opinion to offer.