Legal GK 4: On Telengana And Creation Of New States

How is a new state formed in India? Telengana was once just an idea, a new state proposed to be carved out of Andhra Pradesh. At that time we had published this article in A First Taste of Law. Since the blog has been shut down, we are republishing some of the good posts from A First Taste of Law. Hope you enjoy this.

Legal GK 4: On Telengana And Creation Of New States

The cry for separate Telangana state has been raised for quite some time, and it went very violent in 1960’s during Chenna Reddy’s time. However, the agitation stopped with a change in Chief Ministership and on a promise of development.

In the past few days, we have witnessed one of the biggest political dramas in AP. over Telengana. It is not that something like this has never happened before. The demand for Telangana has been going on for quite some time now, just like in the cases of Khalistan and Gorkhaland. However, this time around the Congress has agreed to the demand, at least momentarily. This has churned a lot of political debates, which makes certain trivia and few legal and constitutional issues important for those planning to write any sort of competitive exam that involves legal or constitutional or even plain GK. We are ready to help, as usual, and this post has been carefully researched and written by Anwesha Pal of the 4th year from NUJS.

Telangana or Telengana or Telingana is a region of Andhra Pradesh state in India. The region lies on the Deccan plateau to the west of the Eastern Ghats range. On December 9, 2009, the Government of India announced its decision to separate Telangana from Andhra Pradesh as a new state.

The separation of Andhra Pradesh itself from the Madras Presidency happened with the formation of The States Reorganisation Commission, constituted in 1956, which was assigned the task of demarcation on the basis of linguistic lines. Consequently, Andhra, Rayalaseema and Telengana fell within the larger Pradesh though there were dialect differences in between them.

The reasons such as educational disparities, irrigational disparities, unemployment, budget allocation, infrastructural issues arguably, have led to a proposition for a separate state of Telangana.There are certain special provisions enshrined in Constitution of India to cater to the needs of the state of Andhra Pradesh.

Article 371D talks about special provisions with respect to the state of Andhra Pradesh.
Here is the entire section, but it is enough to remember what this article generally talks about. No one will expect you to know this article in detail.

  1. The president may by order made with respect to the state of Andhra Pradesh provide, having regard to the requirements of the state as a whole, for equitable opportunities and facilities for the people belonging to different parts of state, in the matter of public employment and in the matter of education, and different provisions may be made for various parts of the state
  2. An order made under clause (1) may, in particular,
    (a) require the state Government to organize any class or classes of posts in a civil service of, or any classes of civil post of state and allot in accordance with such principal and procedure as may be specified in the order the persons holding such post to the local cadres so organized;
    (b) Specify any part or parts of the state which shall be regarded as the local area
    (i) For direct recruitment to posts in any local cadre (whether organised in pursuance of an order under this article or constituted otherwise) under the State Government;
    (ii) For direct recruitment to posts in any cadre under any local authority within the State; and
    (iii) For the purposes of admission to any University within the State or to any other educational institution which is subject to the control of the State Government;
    (c) Specify the extent to which, the manner in which and the conditions subject to which, preference or reservation shall be given or made
    (i) In the matter of direct recruitment to posts in any such cadre referred to in sub-clause (b) as may be specified in this behalf in the order;
    (ii) in the matter of admission to any such University or other educational institution referred to in sub-clause (b) as may be specified in this behalf in the order, to or in favour of candidates who have resided or studied for any period specified in the order in the local area in respect of such cadre, University or other educational institution, as the case may be
  3. The President may, by order, provide for the constitution of an Administrative Tribunal for the State of Andhra Pradesh to exercise such jurisdiction, powers and authority including any jurisdiction, power and authority which immediately before the commencement of the constitution (Thirty-second Amendment) Act, 1973 , was exercisable by any court (other than the Supreme Court) or by any tribunal or other authority as may be specified in the order with respect to the following matters, namely:
    (a) appointment, allotment or promotion to such class or classes of posts in any civil service of the State, or to such class or classes of civil posts under the State, or to such class or classes of posts under the control of any local authority within the State, as may be specified in the order;
    (b) seniority of persons appointed, allotted or promoted to such class or classes of posts in any civil service of the State, or to such class or classes of civil posts under the State, or to such class or classes of posts under the control of any local authority within the State, as may be specified in the order;
    (c) such other conditions of service of persons appointed, allotted or promoted to such class or classes of civil posts under the State or to such class or classes of posts under the control of any local authority within the State, as may be specified in the order
  4.  An order made under clause (3) may
    (a) authorise the Administrative Tribunal to receive representations for the redress of grievances relating to any matter within its jurisdiction as the President may specify in the order and to make such orders thereon as the Administrative Tribunal deems fit;
    (b) contain such provisions with respect to the powers and authorities and procedure of the Administrative Tribunal (including provisions with respect to the powers of the Administrative Tribunal to punish for contempt of itself) as the President may deem necessary;
    (c) provide for the transfer of the Administrative Tribunal of such classes of proceedings, being proceedings relating to matters within its jurisdiction and pending before any court (other than the Supreme Court) or tribunal or other authority immediately before the commencement of such order, as may be specified in the order;
    (d) contain such supplemental, incidental and consequential provisions (including provisions as to fees and as to limitation, evidence or for the application of any law for the time being in force subject to any exceptions or modifications) as the President may deem necessary
  5. The order of the Administrative Tribunal finally disposing of any case shall become effective upon its confirmation by the State Government or on the expiry of three months from the date on which the order is made, whichever is earlier: Provided that the State Government may, by special order made in writing and for reasons to be specified therein, modify or annul any order of the Administrative Tribunal before it becomes effective and in such a case, the order of the Administrative Tribunal shall have effect only in such modified form or be of no effect, as the case may be
  6. Every special order made by the State Government under the proviso to clause (5) shall be laid, as soon as may be after it is made, before both Houses of the State Legislature
  7. The High Court for the State shall not have any powers of superintendence over the Administrative Tribunal and no court (other than the Supreme Court) or tribunal shall exercise any jurisdiction, power or authority in respect of any matter subject to the jurisdiction, power or authority of, or in relation to, the Administrative Tribunal
  8.  If the President is satisfied that the continued existence of the Administrative Tribunal is not necessary, the President may by order abolish the Administrative Tribunal and make such provisions in such order as he may deem fit for the transfer and disposal of cases pending before the Tribunal immediately before such abolition
  9. Notwithstanding any judgment, decree or order of any court, tribunal or other authority,
    (a) no appointment, posting, promotion or transfer of any person
    (i) made before the 1st day of November, 1956 , to any post under the Government of, or any local authority within, the State of Hyderabad as it existed before that date; or
    (ii) made before the commencement of the Constitution (Thirty second Amendment) Act, 1973 , to any post under the Government of, or any local or other authority within, the State of Andhra Pradesh; and
    (b) no action taken or thing done by or before any person referred to in sub-clause (a), shall be deemed to be illegal or void or ever to have become illegal or void merely on the ground that the appointment, posting, promotion or transfer of such person was not made in accordance with any law, then in force, providing for any requirement as to residence within the State of Hyderabad or, as the case may be, within any part of the State of Andhra Pradesh, in respect of such appointment, posting, promotion or transfer.
  10. 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.

The 32nd Amendment (1973) made certain changes in the Aricle-371D of the Constitution and provided certain reservation and facilities for the people of Telengana in Andhra Pradesh. It also authorised the President to establish a Central university in Andhra pradesh and the expenses of the same would be available from the University Grants Commission. Constitution (32nd Amendment) Act, 1973 also implemented a 6-point program for Andhra Pradesh.

Formation of a new state:

The formation of a new State in India usually has to follow a procedure as has been laid down under Article 3 of the Constitution of India. Article 3 has been quoted thus.
3. Formation of new States and alteration of areas, boundaries or names of existing States.—Parliament may by law—
(a) form a new State by 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;
(b) increase the area of any State;
(c) diminish the area of any State;
(d) alter the boundaries of any State;
(e) alter the name of any State:
Provided 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.
Explanation I.—In this article, in clauses (a) to (e), “State’’ includes a Union territory, but in the proviso, “State’’ does not include a Union territory.
Explanation II.—The power conferred on Parliament by clause (a) includes the power to form a new State or Union territory by uniting a part of any State or Union territory to any other State or Union territory.

Role of State Legislature

Now the question remains that whether a resolution by the State Legislature is mandatory to form a new State or not, and whether the Parliament is bound to accept the resolution of a State in the formation of a new State. The resolution by the State legislature is not mandatory, but the President must refer the Parliament Bill to the concerned State to express their views. Moreover, the Parliament may disregard the will of the State and may only hear its views as mandated by the Constitution. Thus it is the Parliament that is playing the vital role here, rather than the State Legislature.

However, in the recent past if one studies the issue of separation of States on the basis of socio-cultural identity and linguistic grounds, the issues of states of Jharkhand and Chattisgarh are sure to be of prime focus.

The most recent case under Article 3 being that of inclusion of Haridwar in the new Uttaranchal State, later named Uttarakhand. A bench of Justices S.B. Sinha and Cyriac Joseph put the seal of legality over inclusion of Haridwar in Uttarakhand, ruling that parliament, under Article 3 of Constitution, is supposed to merely consult the assemblies of the affected states and need not concur with their views or opposition to the alteration of their boundaries or reduction in their territory. The bench gave its ruling dismissing a lawsuit by a group of Haridwar residents who had challenged Section 3 of the Uttar Pradesh Reorganization Act, 2000, which provided for inclusion of Haridwar town and the entire district in the new Uttaranchal state, later named Uttarakhand, ignoring an Uttar Pradesh assembly resolution to the contrary. The apex court ruled: “The power to introduce the bill (to create a new state) is with parliament. Consultation with the (affected) state legislature, though is mandatory, its recommendations are not binding on parliament.” This observation of the Court merely reiterates the careful examination of Article 3.

Remember that Sikim as a state was acceded to India by a constitutional amendment in 1975.

Conflicts in the past over formation of new states in India

In the past India has witnessed many conflicts regarding the formation of new states. The issue of Khalistan is one such example. In India all states were created on the language basis but Punjab was not declared a Punjabi State. Sikhs started demanding for a Punjabi state and Sikhs launched a peaceful morcha. Nehru strongly opposed the movement.

Another example is that of Gorkhaland. On April 6, 1947 two Gorkhas, Ganeshlal Subba and Ratanlal Brahmin, members of the undivided CPI (Communist Party of India) submitted a quixotic memorandum to Jawaharlal Nehru, the then Vice President of the Interim Government for the creation of Gorkhasthan – an independent country comprising of the present day Nepal, Darjeeling District and Sikkim (excluding its present North District) in the line of Pakistan.

Then during the ‘80s Subash Ghising raised the demand for the creation of the state of Gorkhaland to be carved out of the hills of Darjeeling and areas of Dooars and Siliguri Terai contigious to Darjeeling, with a large population of ethnic Gorkhas. The Gorkhaland movement took a violent turn in the 1980s when Gorkha National Liberation Front (GNLF) issued a violent demand for statehood, which led to the death of over 1200 people. This movement culminated with the formation of Darjeeling Gorkha Hill Council (DGHC) in 1988.

Fragmentation of states: whose interest does it serve?

In conclusion it can only be observed that instead of promising a separate state for each ethnic group, the Government should majorly focus on the development of the concerned regions. The Telangana issue has been an agenda on the political manifestos of almost all the political parties of Andhra Pradesh. The Congress and TDP are sitting on the fence on the issue, while the BJP with the Left parties are in favour of Telangana, demanding its formation.

It was the death of Potti Sriramulu which forced Nehru’s hand into acceding to the demand of creating states based on language. Now Andhra Pradesh itself is being driven to fragmentation by the Telangana movement. If the Centre accedes to the division of Andhra Pradesh it will definitely open floodgates of such demands. It will increase the number of capitals and ministers in the country, but there is serious doubt about what development will take place. Take a look at Jharkhand if you want to know what I am talking about.

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