Separate Telangana is not in the hands of UPA
Article 368 Power of Parliament to amend the Constitution and procedure therefor
Art. 368 (2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:
Provided that if such amendment seeks to make any change in -
(a) article 54, article 55, article 73, article 162 or article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article,
the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
Article 368(2)(d) of the Constitution removing other sub-clauses in Article 368:
Art. 368 (2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:
Provided that if such amendment seeks to make any change in the representation of States in Parliament the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
Now what the Constitution means by the phrase “representation of States in Parliament”? It means, the number of States in the country that send people’s representatives to Parliament. For instance the number of States in the Country is 29 as on date, and by forming a separate State of Telangana, the number of States in the Country will increase to 30. Then it means A. formation of separate State (of Telangana) needs Constitution amendment B. the amendment seeks to make change in the representation of States in Parliament. That is why if any new State has to be formed or any State has to be deleted (because of identifying that State as an Independent Nation by India) from the “representation of States in Parliament”, the following procedure has to be adopted.
A. The Bill for formation of separate State has to be passed in each House of Parliament (both Loksabha and Rajyasabha) by a majority of the total membership of each House and by a majority of not less than two-thirds of the members of that House present and voting.
B. Such Bill needs ratification by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures.
C. After completing the two steps (A & B) mentioned above, the Bill has to be presented to the President of India for his assent.
After reading this, one can understand that Separate Telangana is not in the hands of UPA because it not only requires, 2/3rd majority of the MPs in each House of Parliament (Quorum being more than half of the Total membership of each House), and also it requires resolutions by at least 15 State legislatures of India agreeing for the formation of separate State if the total number of States in the country is 30.
Nothing in Constitution is untouchable for the purpose of Amendment
There is controversy between Judiciary and Parliament regarding the Judgment delivered by Supreme Court in the case of Keshavananda Bharati Vs. State of Kerala, saying “the basic structure of the Constitution” cannot be altered. After having read the controversy between Legislature and Judiciary regarding the amendments the Legislatures make and the argument of Judiciary that the “basic structure of Constitution cannot be altered”, if one goes through Article 368 of Indian Constitution it would be surprising to note that “nothing in Constitution is untouchable for the purpose of Amendment including Fundamental rights of Citizens”. One also gets the impression that the Judiciary is wrong in saying the “basic structure of Constitution cannot be altered”.
Article 368 Power of Parliament to amend the Constitution and procedure therefor
(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.
Read above Article 368 (1) which says, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. One side this provision (Art.368-1) clearly says, any provision of Constitution can be amended by way of addition, variation or repeal other side the Supreme Court says, the basic structure of the Constitution cannot be altered. One gets impression, such judgment is inconsistent with the Spirit of Article 368(1) of Indian Constitution. There is no need of any further explanation as to what the authors of Constitution meant by “addition, variation or repeal of any provision of Constitution” it is as clear as spoon feeding. Certain Amendments are difficult to make because they also require the resolutions from more than half of State legislatures apart from 2/3rd majority of both Houses of Parliament (the quorum being not less than half of the Total number of members of each House). More than that the procedure of Amendment nothing in Article 368 has suggested that there isn’t any part (including fundamental rights of Citizens) that cannot be amended by Parliament.
It is very interesting to note that even Fundamental rights are not beyond the power of Parliament for the purpose of amendment. Read Article 13(4) which says : (4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.
We will find similar provision or clause in Article 368 (3) which says : (3) Nothing in article 13 shall apply to any amendment made under this article.
And what is there in Article 13? Let us see.
Article 13 Laws inconsistent with or in derogation of the fundamental rights
(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part (Part III, Fundamental rights), shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise required, - (a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
(b) "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.
How one should interpret Article 13(4) or 368(3), if it be seen in the light of Article 13 (1 – 3) of Constitution? One side Article 13 (2) says, the State shall not make any law which takes away or abridges the rights conferred by this part (this part means Part III Fundamental rights) and any law made in contravention of this clause shall, to the extent of the contravention, be void. The other side, Article 13(4) says, nothing in Article 13 shall apply to any amendment of this Constitution made under Article 368. It means that even Part III Fundamental rights can be changed or amended!
Fundamental rights contain important provisions relating to Article 14 Equality before law, Article 15 Prohibition of discrimination on grounds of religion, race, caste, s*x or place of birth, Article 16 Equality of opportunity in matters of public employment, etc. etc. upto Article 35 of Indian Constitution.
In other words, the Constitution can be amended in such a way that India can be changed to a Theocratic State like Pakistan by repealing the provisions of Article 15 of Indian Constitution!! Article 358 (5) again reiterates :
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.
And another point to be noted is it is easier to create “Hindu Rashtra” because of Article 13(4) and Article 368(3), than forming “Separate Telangana State”. The reason is it only requires approval of 2/3rd majority of each House of Parliament (quorum being not less than half of the total membership of each House) for the Amendment of Part III Fundamental rights which also include the Right to practise any Religion of Choice (Article 15). But to make a separate Telangana State, we have to follow the procedure in Article 368 (2) (d) Representation of States in Parliament, which requires, apart from the approval of both Houses of Parliament in above fashion, the resolutions by more than half of the number of State legislatures in Indian Union to that effect.
