THE HONOURABLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONOURABLE SRI JUSTICE SANJAY KUMAR Writ Petition No.33388 of 2013 05-3-2014 D.Suryanarayana and others... Petitioners Government of India rep. by its Cabinet Secretary Rastrapati Bhavan, New Delhi and others... Respondents COUNSEL FOR PETITIONERS : Sri B. Kanta Rao COUNSEL FOR RESPONDENT NOs.1 to 3: Sri Ponnam Ashok Goud, Assistant Solicitor General COUNSEL FOR RESPONDENT NO.4 : Government Pleader for General Administration Department HEAD NOTE: ?.CITATION:
1. AIR1993SC12672. AIR1987SC14543. AIR2014AP134. AIR1960SC51THE HON'BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.33388 OF2013ORDER
: (per the Hon'ble the Chief Justice Sri Kalyan Jyoti Sengupta) This writ petition has been filed seeking the following relief: "....to issue an appropriate Writ, Order or Direction more particularly one in the nature of Writ of Prohibition restraining the cabinet decision dated 03.10.2013 communicated through proceedings No.261/1/14/2013-Cab., Government of India (Bharat Sarkar) Cabinet Secretariat (Mantrimandal Sachivalaya), Rashtrapati Bhavan, dated 08.10.2013, to proceed further pursuant to the Congress Working Committee Resolution dated 30.07.2013 and to allow the Writ Petition.".
2. While looking at the cause title, we notice that the Government of India have been made a party respondent Nos.1 to 3, represented by three respective departments. First of all, the Government of India is not sui juris, rather Union of India is. We also notice that the Government of Andhra Pradesh have been made a party respondent No.4, which is not sui juris once again, rather State of Andhra Pradesh is.
3. Having regard to the allegations made in the writ petition which can be looked into by the Court of law and the prayer made above, we are of the view that respondent Nos.5 to 21 are absolutely unnecessary parties for they do not have anything to do with the issue of bifurcation of this State, as spoken of by the petitioners.
4. Although in the petition it has been stated that because of the agitation and counter-agitation in past and at present the issue of bifurcation has been taken up for consideration by the first respondent, we think those agitations and counter-agitations are not relevant at all for deciding in any issue by the Court of law. Whatever may be the basis, if any decision is taken by the appropriate authority, such basis is not justiciable nor entertainable by the Court, only the legality and validity of the decision would be looked into.
5. It appears in the petition that the history and formation of State of Andhra Pradesh was narrated and then subsequently history of creating Telangana State was also narrated. We think that those are not relevant at all for consideration. What is relevant for the purpose of decision of this Court, as it is culled out from the averments in the writ petition, is as follows. It is stated that after formulation of State of Andhra Pradesh, after adopting the provisions of Articles 3 and 4 of the Constitution of India read with State Reorganization Act, 1956 (hereinafter referred to as ".the SRC Act".) subsequent decision of bifurcation of undivided Andhra Pradesh is not tenable under the Constitution, particularly when Article 371-D was inserted in the Constitution of India and also the Sate of Andhra Pradesh was inserted in the First Schedule of the Constitution of India. It is further stated that the decision of the Central Government is 'law' within the meaning of the SRC Act and such law cannot be inconsistent with the provisions of Section 127 and 128 of the SRC Act. It is also stated that as per the second proviso mentioned in Article 3 of the Constitution of India, consent of State of Jammu and Kashmir is required going by the intention of the Constitution, and the consent of the State Assembly is required though it is mentioned as 'views', as there cannot be any discrimination between the States in the First Schedule of the Constitution of India as it is hit by Article 14 of the Constitution of India, which is one of the basic structure of the Constitution.
6. We have heard on the question whether this Writ Petition is to be admitted for final hearing on affidavit or not, and we decided to Rule on that point first, and accordingly we have invited the arguments.
7. Learned counsel for the petitioners submits as follows. As per Section 127 of the SRC Act, as the process of formation of State of Andhra Pradesh was finalized under Articles 3 and 4 of the Constitution of India and in view of overriding provision in Section 127 of the SRC Act, the executive or Parliament has no jurisdiction or power to unsettle final settled thing. Accordingly, the notification dt.8.10.2013 was published by respondent Nos.1 to 3 in accordance with the decision of the Cabinet Meeting on 3.10.2013 after taking note of the Home Ministry on the same very date, i.e.. 3.10.2013. Thus, Central Cabinet is proceeding arbitrarily and illegally to bifurcate the State of Andhra Pradesh on the ground of frantic regionalism. The same is patently in violation of law. He has referred to a decision of the Supreme Court on this point in the case of Raghunathrao Ganpatrao v. Union of India1.
8. He contends that all the first four respondents are 'State' within the meaning of Article 12 of the Constitution of India. The notice issued by the Cabinet Secretary on 8.10.2013 is a 'law' within the meaning of Section 2(h) of the SRC Act, the definition of which is very wide in nature. Therefore, the provisions of Article 13(3)(a) of the Constitution of India are attracted in this case. In this connection, he has referred to a decision of the Supreme Court rendered in the case of Utkal Contractors & Joinery (P) Ltd. v. State of Orissa2 wherein it was held that no Act of Parliament or the Legislature of a State and no provision in such Act shall be invalid after giving assent to the Act by the President of India. The State of Andhra Pradesh was created or re- organized following the procedure contemplated under Article 3 of the Constitution of India. The territories mentioned in Part II of the SRC Act were merged in the territory of Andhra State and after passing resolutions of both Andhra State and Hyderabad State Assemblies with 2/3rd majority, the Parliament of India has approved the transfer of the territories in Section 3 of Part II of the SRC Act and thus the State of Andhra Pradesh was formed from the appointed date of 1.11.1956 and then the State of Andhra Pradesh was included as item No.1 of the First Schedule of the Constitution of India. Like other States formed under the SRC Act, action of bifurcation of Andhra Pradesh for bifurcation for formation of Telangana State is patently in violation of Sections 127 and 128 of the SRC Act as these legal provisions shall have overriding effect irrespective of any inconsistency contained in other Law. Thus, the Parliament or the State Legislature or the State Executive has no jurisdiction to breach this law. When the provisions of the SRC Act are so clear without any ambiguity, the issuance of notification dt.8.10.2013 by respondent No.1 is not sustainable and liable to be set aside.
9. It is contended that second proviso to Article 3 of the Constitution of India has provided that the Parliament has no power and jurisdiction for introduction of bill providing for increasing or diminishing the area of State of Jammu and Kashmir or altering the name or boundary of the State, without consent of the Legislature of that State. The said second proviso was added by the Constitution (Application to Jammu and Kashmir) Order of 1954, para 2(2), dated 14.5.1954. The State of Jammu and Kashmir was included in the First Schedule of the Constitution of India, under Articles 1 and 4 of the Constitution of India vide serial No.15 in the First Schedule. The constitutional intendment was to give a permanent status to the States inserted in First Schedule to the Constitution of India and without the consent and approval of the State Assembly such State cannot be bifurcated. Any discrimination between the States in the First Schedule will attract Article 14 of the Constitution of India, which is one of the basic structure of the Constitution of India.
10. Learned Assistant Solicitor General of India appearing on behalf of respondent Nos.1 to 3 contends that the prayer made in the writ petition is not justiciable, nor the allegations made in the petition or submissions made in support of the allegations orally by the learned counsel for the petitioners are not at all tenable under the law.
11. After hearing both the learned counsel, we first consider the prayer made in the writ petition. After examining the prayer and going by the language mentioned therein, it is difficult for us to understand what the petitioners want to make out. However, we take note of the substance of the prayer that the Cabinet decision dt.3.10.2013 should not be given effect to.
12. The issue of power to bifurcate the State was dealt with by this Court extensively in the case of P.V. Krishnaiah v. Union of India3 and in paragraphs 9, 10 and 11 of the said report, this Court explained the position of law, which is set out hereunder: ".9. Article 3 of the Constitution reads as follows. '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.' Article 3 in our view has empowered Parliament to regulate and preserve Federalism as enshrined in the Constitution. In that sense, it is one part of basic structure of the Constitution. On a plain reading of the proviso, it appears that with the insertion thereof, the Legislature has merely made a provision regarding methodology with regard to formation of new States and alteration of areas, boundaries or names of existing States. According to us, with the insertion of the aforesaid proviso, no portion of the Constitution, much less any portion which relatable to basic structure, has been affected. It provided the following mechanism. A Bill has to be prepared for any of the purposes as above for introducing in either house of the Parliament on the recommendation of His Excellency the President and again if the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has to be referred by His Excellency 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. Therefore, while making reference in ascertaining the views of State legislature before recommending the introduction of bill in Parliament by His Excellency, the President, the time has to be fixed for expressing the views. In our opinion, this safeguard measure has been provided by inserting the proviso in order to avoid any complaint of exercise of unbridled power of Parliament. According to us, the recommendation of the President and obtaining views of the State legislature concerned are sought to be made an essential part of this exercise of Parliament. This has not been left with Parliament alone and it has been made collective participation of Constitutional Authorities. This Court cannot review and rethink or probe into the mind of the Legislature, simply because it is not within the jurisdiction of this Court. It is for the Parliament and the Parliament alone can think of it with compliance as above. We are of the view that recommendation of President and obtaining views of State concerned are sine qua non (See Babulal Parate v. The State of Bombay4). Anything short of these two, exercise of Parliament can be judicially reviewed by the Constitution Court. We rather hold, providing this machinery before introduction of the Bill to give effect to Article 3, is absolutely scientific and logical. His Excellency the President of India being de jure Head of the country, is Constitutionally deemed to be a wisest citizen of the country and he can with his experience think whether any recommendation should be given or not. Accordingly, we hold that this amendment does not hit any portion of basic structure of the Constitution of India and the same is valid.
10. The next portion of the prayer is that the Union of India be restrained from initiating any action in pursuance of Article 3 of the Constitution of India for bifurcation of State of Andhra Pradesh and formation of a new State of Telangana, without enacting any law.
11. This prayer, in our view, cannot be entertained by this Court because the action for creation or bifurcation of any State has to be made within the provisions of Article 3 of the Constitution of India. A specific mechanism has been provided therein. Article 3 of the Constitution of India provides for preparation of a Bill. Therefore, a Bill has to be prepared by the concerned Ministry as per the procedure of legislative business. How the Court can restrain the Union of India which is responsible for preparation of the Bill from acting under the Constitution, is beyond our comprehension. Such an order cannot be passed by this Court following the one of the basic structure of the Constitution, namely separation of power. It is the supreme power of the Parliament which has been given by the Constitution to act under Article 3 of Constitution of India as judiciary and executive can act within their own fields to the mutual exclusion of others, meaning thereby neither judiciary nor executive can create any new State. Therefore, this Court cannot pass such an order. It is too early to say in which manner and how this has to be done. Nothing has been stated in the petition that anyone is proceeding contrary to the provisions of Article 3 of the Constitution of India. Direction sought against Union of India is to consider for making any legislation or issuing executive instructions prescribing guidelines, modalities for exercising power under Article 3 of the Constitution of India, particularly forming new States before initiating any action under Article 3 of the Constitution of India for bifurcation of State of Andhra Pradesh. We think that in which way the Parliament will proceed in the matter and Union of India will proceed in the matter cannot be told by anyone and it is for the Union of India, then Parliament, President of India and lastly the State Legislature. They can proceed in their own way. The Court cannot give any direction. Whether the modalities and guidelines could be prepared first, thereafter Bill should be introduced or vice versa, is not for the Court to give direction. It is for them to take action. Therefore, such prayer cannot be entertained by this Court. In view of the aforesaid decision, we do not want to repeat that with whom the power to bifurcate a State is vested.
13. According to us, an order or a decision can be challenged before Court of law when it has got its effect of finality, meaning thereby once decision is taken the same is capable of being executed and implemented instantly without anything further to be done. In this case, the Cabinet had taken a decision for bifurcation and such decision is not a final one as it is incapable being implemented instantly. Finality will reach if the same is considered by His Excellency the President of India and is referred to the concerned State Assembly by His Excellency the President of India, for obtaining views thereon. On receipt of the views, His Excellency the President of India is to recommend either in favour or against the Bill and then the Bill has to be placed before the Houses of Parliament. If such Bill is accepted with requisite number of majority of the Houses, and converted the same into an Act and assented to by His Excellency the President of India, followed by a Notification, it assumes the character of finality. Therefore, the decision taken by the Cabinet does not have the character of finality, so much so it can be challenged before Court of law. Therefore, we hold that the prayer mentioned in the writ petition is not at all entertainable.
14. Since some other legal points have been raised in this matter in relation to bifurcation, taking note of the arguments of the learned counsel for the petitioner, we feel it expedient to discuss and decide the same.
15. Now, we consider whether the aforesaid Cabinet decision can be taken to be a decision and order within the meaning of Section 2(h) of the SRC Act, which is quoted hereunder: ".2(h). 'Law". includes any enactment, ordinance, regulation, order, bye- law, rule, scheme, notification or other instrument having the force of law in the whole or in any part of the territory of India". Here, it is contended that the aforesaid Cabinet decision is an order. We are unable to accept that it is an order within the meaning of Section 2(h) of the SRC Act, as we have already noticed that it is one of the stages for reaching the finality of the bifurcation Bill and consequently Act. The 'order', in our view, should be meant and be read which has got an effect of finality for which no further steps are required to be taken by any agency. Thus, the contention of the petitioners is overruled.
16. Accordingly, overriding effect as mentioned in Sections 127 and 128 of the SRC Act do not and cannot arise. First of all, there is no law as yet within the meaning of Section 127 of the SRC Act. We quote Sections 127 and 128 of the SRC Act hereunder for complete understanding of the issues raised. ".127. Effect of the provisions of the Act inconsistent with other laws. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law.
128. Power to remove difficulties. If any difficulty arises in giving effect to the provisions of this Act, the President may by order do anything not inconsistent with such provisions which appears to him to be necessary or expedient for the purpose of removing the difficulty.". The aforesaid provisions, in our view, contemplate any law subsisting which is inconsistent with the provision of the SRC Act. It is totally absurd to suggest that by the aforesaid provisions of the SRC Act, power of the Parliament under Articles 3 and 4 of the Constitution of India can be taken away. Such an argument or concept is to be rejected as being unconstitutional. In our view, this argument itself is contrary to the constitutional provisions and should not be taken note at all.
17. We also reject the contention that as once the State of Andhra Pradesh has been re-organized with merger of Hyderabad State, further division or bifurcation is not permissible. The provisions of Article 3 of the Constitution of India are complete answer to this misconceptual contention. We quote the provisions of Article 3 of the Constitution of India. ".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.". It will appear from above provision that even if newly organized State can be split. It may be possible in future, if situation so warrants, the State of Telangana and the State of Andhra Pradesh can be re-united, as it appears from the language of Article 3(a) of the Constitution of India that by uniting two or more States or parts of States or by uniting any territory to a part of any State, a State can be formed. Therefore, we are unable to hold that once the State has been reorganized under the SRC Act, the same cannot be splitted or re- organized thereafter. Going by the aforesaid provision, it is always open for the Parliament with the mechanism contained in Article 3 of the Constitution of India, a State can be bifurcated or united or re-organized or re-united.
18. The next contention taken, of course, vaguely is that in the case of State of Jammu and Kashmir consent of State Assembly is required whereas in case of other States consent is not required and thereby discriminatory treatment has been meted out under Article 14 of the Constitution of India. In our opinion, State of Jammu and Kashmir stands on a different footing from other States, as has been accepted by the Constitution of India itself (vide Article 370 of the Constitution of India). The Constitution (Application to Jammu and Kashmir) Order, 1954 has been issued in exercise of the powers conferred by clause (1) of Article 370 of the Constitution by the President of India. Article 370(1)(d) of the Constitution provides as follows: ".370. Temporary provisions with respect to the State of Jammu and Kashmir.- (1) Notwithstanding anything in this Constitution, - (a) ... ... ... (b)... ... ... (c) ... ... ... (d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify.". Therefore, the aforesaid provision for obtaining consent of State of Jammu and Kashmir has been made by way of modification and exception of the proviso to Article 3 of the Constitution of India. The non obstante clause in Article 370 of the Constitution makes it clear that it has got overriding effect to other provisions of the Constitution.
19. The judicial pronouncement settled that discernible classification is permissible under Article 14 of the Constitution of India. Because of historical and political reasons, the State of Jammu and Kashmir has been classified with an intelligible differentiation and which distinguishes from other States. Therefore, this discrimination cannot be said to be violative of Article 14 of the Constitution of India.
20. Thus, we do not find any merit in this matter. Accordingly, we dismiss this writ petition without admitting the same. Consequently, miscellaneous petitions in this matter are also dismissed. _______________________ K.J.
SENGUPTA, CJ _______________________ SANJAY KUMAR, J053.2014