17/03/10

why didn't the centre stick to its 'dharma'?

adithya krishna chintapanti, a lawyer, says:
When the Constituent Assembly was deliberating in November 1948 on the scope and content of Article 3, there was a proposal by Prof. KT Shah that the legislation constituting a new State from any region of a State should originate from the legislature of the State concerned. Had this procedure been approved, the power to decide the statehood of a region seeking separation would have been vested with the State legislature dominated by the elite of developed regions.

Opposing the same and using the then demand for an Andhra Province as an example, Shri K Santhanam stated as under: “I wonder whether Professor Shah fully realises the implications of his amendment. If his amendment is adopted, it would mean that no minority in any State can ask for separation of territory, either for forming a new province or for joining an adjacent State unless it can get a majority in that State legislature. I cannot understand what he means by “Originating”. Take the case of 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... (Pg.440, Vol. No. VII, CAD) Thus Article 3 emerged in its current form. It is the Constitutional intent that the will of the people of a region to form a separate State be the sole criterion for the Centre to initiate the process of State formation. This is the Constitutional benchmark for creating a new State for a region, as amply demonstrated in the deliberations of the Constituent Assembly and as reflected in the current phraseology of Article 3 of the Constitution of India.

There seems from the evidence of the general election (wherein the manifestos of all the political parties (except CPM) promised a separate State), the current united stand of the legislators from the Telangana region and the ongoing civil society agitation for a separate state in the Telangana region, that the constitutional prerequisite for the creation of a separate State has been satisfied in a manner far superior to anything the Justice Srikrishna Committee can do.

It is, however, alarming to read the Terms of Reference of the Committee, as announced on the 12th of February 2010. The very first point is “To examine the situation in the State of Andhra Pradesh with reference to the demand for a separate State of Telangana as well as the demand for maintaining the present status of a united Andhra Pradesh.” In fact, asking the committee to examine both the issues of the State of Telangana alongside maintaining the present status of united Andhra Pradesh would amount to subjecting the minority belonging to the Telangana region to the majoritarian vested interests, which is precisely what the founding fathers of the Constitution intended to avoid.

Had the Centre abided by the constitutional mandate, the said reference would have been: “Do the people of Telangana want a separate State?” and the ensuing consultative process, as foreseen in the subsequent terms of reference, would have been restricted to stakeholders and actors from Telangana alone.

The committee is but a smoke screen deployed by the Centre to duck its Constitutional Dharma, that is, to recognise the legitimate interests of the people of Telangana region seeking statehood and facilitate the State - formation process, by acting as a Constitutional guardian of the region in course of the said transition. [emphasis mine].
so, why did the centre duck its constitutional 'dharma'? it is all clearly laid out: the whole ground rules for creating a new state, so why did the centre not follow its mandate? i am genuinely curious, don't have any major dispute with this legal interpretation. why didn't everything fall into place as neatly as the lawyer says they should have?

7 comments:

Sridhar said...

"..would amount to subjecting the minority belonging to the Telangana region to the majoritarian vested interests.."

Kufr: Wouldn't the same apply to the muted minority within Telangana that do not want a separate state? Are there no vested interests in the majority of Telangana that are asking for a separate state?

Kiran said...

If t separatists can pick up a true fight with the center iam with them. But i doubt they are willing to do that as that may mean real sacrifices. They dont have any stomach for sacrifice or hunger for truth this movement is for their dora castiest profit.

ved said...

There are three arguments to refute Mr Chintapani's claims and his interpretation of the constitution:

1. Sridhar already mentioned above. Where do you draw the line? If the formation of the state is that simple (a region wants separate state) , people of Northern Andhra will chose separate state in a heart beat (not that it is good for them, but who cares about it. In their case even stats support their claim). In addition, 55% of the population in Hyderbad don't want separate state (this was a survey two years ago in AJ), and we hear that Rayalseeema doesn't want to be with rest of andhra. So by this line of argument, we can instantly have 4 new states. Is it the intention of the constitution - to balkanize India to the nth level?.

2. It is probably legitimate for the region to ask for separate state. But how the separation is done is a joint decision. In fact the group that is asking to opt out has to satisfy the apprehensions of the parent group. In the break up of Madras, in exchange for the new state, the party that asked for separation lost everything. This is the kind of checks and balances against item 1. This is how all joint partnerships work. Perhaps this is what the constitution is expecting - Negotiations and a final resolution from the assembly.

In a situation where the group asking for separation becomes completely hostile like T vaadis and don't want to negotiate with parent group, you have to engage an arbitrator. The arbitrator provides conditions for the separation, and details what the separate group has to do. The arbitrator can also provide alternatives for continuing the partnership.

This is exactly what SKC is going to do. It won't say 'yes' or 'no'. It will say if separation has to happen, these are the compensations, guarantees and safe guards for the other people. As an alternative option, it will look at the grievances of all people, and come with a formula on how the interests of all people can be protected in the united state.

It is utter nonsense to say that the party asking for separation is the only main stake holder in the arbitration.

3. How does the Centre know the will of the people? Only assembly is the legal ambassador of the people. Centre can only listen to what assembly is saying. Centre has no legal authority to accept the position of individuals or group of representatives from the assembly. Centre cannot interpret manifestos or elected representative's private and public stances. Everything has to coalesce into an assembly resolution to have a legal binding on the Centre. That is exactly what is meant by the will of the people has to originate from the assembly. On the question of how does minority can ever over rule majority and get the new state, well, this is answered by point 2 above. It is through the democratic process of negotiation and arbitration with parent entity.

Reality said...

Centre has the power to create new states without any regard to the what the respective assemblies say. Constitution gave this right to centre. But that doesnt mean centre will exercise its power blindly. The spirit behind this article is to give power to the center with the assumption that center will act as a fair judge in case of any dispute.

On Dec 9 , center acted with haste and took a wrong decision. Now it has rectified its mistake and appointed SKC to get a fair solution based on facts and not rhetoric. Centre should have done this exercise before making Dec 9th statement.

Anyway , andhra leaders have to take more blame than center. Didnt they think about the future consequences when they had a tie up with TRS? What were they doing to counter the propaganda of TRS and other separatist outfits.?

kuffir said...

sridhar,

yes, it does.

kiran,

'If t separatists can pick up a true fight with the center iam with them.'

yes. i have always talked about it-- but, as you said, they're not talking about any broad structural change. only about an increased share in power for a few among them.

ved,

that's a very detailed analysis. thank you very much.

reality,

'But that doesnt mean centre will exercise its power blindly.'

but the centre was prepared to exercise its power blindly, as on 9th december.

but you've also arrived at the same question, as i have. which is: why did the separatists assume that they only had to make a case, in a very legal sense, at the centre (like in a district magistrate's court etc? what made them think that?

அரவிந்தன் said...

In legal terms, Art. 3 gives the centre a right to create a new state without the consent of the state legislature. It doesn't impose a duty upon the centre to create a new state under any circumstances. As a result, contrary to what Chintapanti says, there is no constitutional mandate to create a new state simply because some of the people of that region want one. There's a constitutional power, but nothing in the constitution obliges the centre to exercise that power when the majority demand it, or at all.

The reason behind this isn't so much about the centre being a fair judge. It's more that the one of the principles behind the Constitution was to create relatively weak states and a relatively strong centre. As a result, states have very few rights against the centre: centre-state relations in general are characterised by the grant of discretionary powers to the centre, with few checks or even guidelines for their exercise (Article 356 is the best known example, but there are plenty of others). Article 3 is simply part of that framework. There very likely was an assumption that the centre would act sensibly in exercising these powers, but in the interests of India as a whole, not just in the interests of the state or region in question.

Kuffir-garu, on your last comment, I don't think the separatists ever thought they simply had to make a case to the centre and the rest would follow. They've more or less refused to make such a case when they've had the opportunity (their reaction to the Srikrishna Commission being a case in point), and their tactics have mainly involved political pressure rather than legal pressure. As I see it, statements like the one you quoted in this post are simply rhetoric. Much like they use questionable statistics rhetorically, they use questionable legal arguments rhetorically. I don't think they really believe these arguments any more than they believe the statistics they trot out to the press. If they did, they'd be filing writ petitions before the Supreme Court.

kuffir said...

அரவிந்தன்,

'There's a constitutional power, but nothing in the constitution obliges the centre to exercise that power when the majority demand it, or at all.'

yes, that's a neat understanding.

'As a result, states have very few rights against the centre: centre-state relations in general are characterised by the grant of discretionary powers to the centre, with few checks or even guidelines for their exercise (Article 356 is the best known example, but there are plenty of others).'

veru true.

'I don't think they really believe these arguments any more than they believe the statistics they trot out to the press. If they did, they'd be filing writ petitions before the Supreme Court.'

thanks for sharing your views on the situation. they're very helpful.

 
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