Tuesday, February 4, 2014

A Constitutional Crisis

With the Andhra Pradesh Assembly, possibly in its last sitting in history, rejecting the draft Andhra Pradesh (Reorganization) Bill and returning it to the President, a serious constitutional question comes to the fore. Media channels report that the Union Cabinet has cleared the final bill to be introduced in the short Budget Session of Parliament this month, also the last session for this Lok Sabha.

The question is - can the nation's Parliament reorganize states when the State Assembly does not want it to? In other words, what is the relationship between the Union and its states. On the face of it, the Constitution is clearly biased in favor of the Union - Parliament alone has the power to reorganize states and the role of the Assembly is simply to give its views, which are in no way binding on Parliament. Of course, to what extent can Parliament can simply ignore the Assembly is something that the Supreme Court has never had to decide - at best, in cases challenging the reorganization of Bombay State, the Court held that amendments to the reorganization bill need not be referred to the Assembly.

But one thing that must be kept in mind is that a literal interpretation of the Constitution has never been the way such issues have been dealt with in India. The Supreme Court itself described it as a "living Constitution," whose interpretation depends on the social and political nature of the country at the time - something not unusual in major constitutional democracies, as we have seen with the US Supreme Court making and overturning decisions in its 200+ year history. Therefore, to believe that if and when the Bill is challenged in the courts, it will sail through by a literal interpretation would be wrong.

Has the country changed, in terms of Center-State relations? Quite certainly: when the Union was created, the most important goal was to unite the disparate states and prevent any further partition of the subcontinent. This phase is generally called Strong Center-Weak States. Indira Gandhi's politics, in which Chief Ministers were virtually faxed down from Delhi, was perhaps the strongest example of this. However, today, things have changed greatly. This era can be called Strong Center-Strong States. Although the Constitution has not been amended to strengthen the federal structure, the coalition era in politics can done that in any case. States today have a strong say in what the Central Government does, this is undeniable. Even in something such as foreign relations, which is the sole prerogative of the Center, states have begun to have a say.

Therefore, to believe that States have no say in their very existence would be an anachronism. The federal structure of the country is a part of the Constitution's basic structure. If the Center can change States by absolutely ignoring the States, is that an unacceptable weakening of that structure, something that even Parliament cannot do? That will be an interesting question that will be answered in the next few days.

On that note, it might be noted that passing a Reorganization Bill in a vote-on-account session is morally wrong - it is wrong to hoist the complex issues that are sure to arise from this on the next Government.

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