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telangana formation: is a resolution necessary?

Lawyer

Forum Moderator

Article 3 of the Constitution States:

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. 

Now my query is whether it is for the Parliament or the State Assembly to decide on the formation of new Telengana? 

 
Reply   
 

For the formation of a new state a resolution is not necessary in the state assembly. But for consensus parliament can refer to the state assembly for a resolution but it is not mandotary.

 

Parliament has right to introduce for new state formation bill in either of the houses of parliament on  recomendation of the President of India.

 
Reply   
 


ADVOCATE & DIRECTOR

 IT IS FOR THE PARLIAMENT TO DECIDE ABOUT THE NEW STATES, STATE IS NO WAY CONCERN EXCEPT  STAND OF OPINION EXPRESSION.

 
Reply   
 

 It is certainly for the parliament to decide .Constitution does not require Assembly resolutions to create a new state. Article 3 of constitution says "..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."

 
Reply   
 
Advocate.

Dear All,
Equivalent citations: 1960 AIR 51, 1960 SCR (1) 605
Bench: Das, S.K.
    PETITIONER:

BABULAL PARATE

Vs.

RESPONDENT:

THE STATE OF BOMBAY AND ANOTHER

DATE OF JUDGMENT:

28/08/1959

BENCH:

DAS, S.K.

BENCH:

DAS, S.K.

DAS, SUDHI RANJAN (CJ)

SARKAR, A.K.

WANCHOO, K.N.

HIDAYATULLAH, M.

CITATION:

1960 AIR 51 1960 SCR (1) 605

CITATOR INFO :

RF 1973 SC1461 (1945)

ACT:

States, Reorganisation of-Modification. of Bill by Parliament Such
modification, if must be refered to State Legislature-Constitution of India,
Art. 3, Proviso-States Reorganisation Act, 1956 (XXXVII Of 1956), s. 8(1).

HEADNOTE:

A Bill introduced in the House of the People on the report of the States
Reorganisation Commission and as recommended by the President under the proviso
to Art. 3 Of the Constitution, contained a proposal for the formation of three
separate units, viz., (1) Union territory of Bombay, (2) Maharashtra, including
Marathawada and Vidarbha and (3) Gujrat, including Saurashtra and Cutch. This
Bill was referred by the President to the State Legislatures concerned and their
views obtained. The joint Select Committee of the House of the People (Lok
Sabha) and the Council of States (Rajya Sabha) considered the -Bill and made its
report. Subsequently, Parliament amended some of the clauses and passed the Bill
which came to be known as the States Reorganisation Act, 1956. That Act by s.
8(1) constituted a composite State of Bombay instead of the three separate units
as originally proposed in the Bill. The petition , out of which the present
appeal has arisen, was filed by the appellant under Art. 226 of the Constitution
in the High Court of Bombay. His contention was that the said Act was passed in
contravention of the provisions of Art. 3 of the Constitution, since the
Legislature of Bombay had not been given an opportunity of expressing its views
on the formation of the composite State. The High Court dismissed the petition.

Held, that the proviso to Art. 3 lays down two conditions and under the second
condition therein stated, what the President has to refer to the State
Legislature for its opinion is the proposal contained in the Bill. On a true
construction, the proviso does not contemplate that if Parliament subsequently
modifies that proposal, there must be a fresh bill or a fresh reference to the
State Legislature.

The word 'State' in Art. 3 of the Constitution has obvious reference to Art. i
and the States mentioned in the First Schedule to the Constitution, and the
expression 'Legislature of the State' means the Legislature of such a State.
There are, therefore, no reasons for the application of any special doctrine of
democratic theory or practice prevalent in other countries in interpreting those
words; nor any justification for giving an extended meaning to the word 'State'
in determining the true scope and effect of the proviso.

77

606

The requirements of Art. IV, s. 3 of the American Constitu- tion are materially
different from those of the second proviso to Art. 3 Of the Indian Constitution
and, consequently, decisions based on the former are not in point.

State of Louisiana v. State Of Mississipi, (1905) 202 U.S. I and State of
Washington v. State of Oregon, (19O8) 2II U.S. 127, held inapplicable.

State of 'Texas v.. George W. White, (1869) 74 U.S. 700 referred to.

It is not correct to contend that the word 'Bill' in the proviso must be
interpreted to include an amendment of any of the clauses of the Bill or at
least a substantial amendment thereof, and that any proposal contained in such
amendment must be referred back to the State Legislature. Such an interpretation
of Art. 3 will nullify the effect of Art. 122(1) and is untenable in view of the
provisions in Arts. 117 and 118 of the Constitution.

Although the formation of a composite State in terms of s. 8 of the Act was
without doubt a substantial modification of the proposal as originally contained
in the Bill, it could not be said that the said modification was not germane to
the subject matter of the original proposal or was a direct negative thereof, so
as to be beyond the scope of an amendment.

T. H. Vakil v. Bombay Presidency Radio Club Ltd., (1944) 47 Bom. L.R- 428,
applied.

Therefore, the Act could not be held to have been enacted in violation of Art. 3
Of the Constitution.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 342 of 1956. Appeal from
the judgment and order dated September 14,1956, of the Bombay High Court, in
Special Civil Application No. 2496 of 1956.

R. V. S. Mani, for the appellant.

C. K. Daphtary, Solicitor-General of India, B. Sen, and R. H. Dhebar, for
the respondents.

1959. August 28. The Judgment of the Court was delivered by

S. K. DAS J.-This is an appeal on a certificate granted by the High Court
of Bombay under Art. 132 (1) of the Constitution, and the question involved in
the appeal is the true scope and effect of Art. 3 of the Constitution,
particularly of the proviso thereto as it stands after the Constitution (Fifth
Amendment) Act, 1955,

607

On December 22, 1953, the Prime Minister of India made a statement in
Parliament to the effect that a Commission would be appointed to examine "
objectively and dispassionately'-' the question of the reorganisation of the
States of the Indian Union " so that the welfare of the people of each
constituent unit as well as the nation as a whole is promoted ". This was
followed by the appointment of a Commission under a resolution of the Union
Government in. the Ministry of Home Affairs, dated December 29, 1953. The
Commission submitted its report in due course and on April 18, 1956; a Bill was
introduced in the House of the People (Lok Sabha) entitled The States
Reorganisation Bill (No. 30 of 1956). Clauses 8, 9 and 10 of the said Bill
contained a proposal for the formation of three separate units, namely, (1)
Union territory of Bombay ; (2) State of Maharashtra including Marathawada and
Vidharbha; and (3) State of Gujurat including Saurashtra and Cutch. The Bill was
introduced in the House of the People on the recommendation of the President, as
required by the proviso to art. 3 of the Constitution. It was then referred to a
Joint Select Committee of the House of the People (Lok Sabha) and the Council of
State (Rajya Sabha). The Joint Select Committee made its report on July 16,
1956. Some of the clauses of the Bill were amended in Parliament and on being
passed by both Houses, it received the President's assent on August 31, 1956,
and became known as the States Reorganisation Act, 1956 (37 of 1956) hereinafter
called the Act. It is necessary to read here s. 8(1) of the Act which instead of
constituting three separate units as originally proposed in the Bill constituted
a composite State of Bombay as stated therein.

" S.8 (1): As from the appointed day, there shall be formed a new Part A
State to be known as the State of Bombay comprising the following territories,
namely :- - (a) the territories of the existing State of Bombay, excluding-

608

(i) Bijapur, Dharwar and Kanara districts and. Belgaum district except
Chandgad taluka; and

(ii) Abu Road taluka of Banaskantha district; (b) Aurangabad, Parbhani,
Bhir and Osmanabad districts, Ahmadpur, Nilanga, and Udgir taluks of Bidar
district, Nanded district (except Bichkonda and Jukkal circles of Deglur taluk
and Modhol, Bhiansa and Kuber circles of Modhol taluk) and Islapur circle of
Boath taluk, Kinwat taluk and Rajura taluk of Adilabad district, in the existing
State of Hyderabad,

(c) Buldana, Akola, Amaravati, Yeotmal, Wardha, Nagpur, Bhandara and
Chanda districts in the existing State of Madhya Pradesh;

(d) the territories of the existing State of Saurashtra; and

(e) the territories of the existing State of Kutch; and thereupon the
said territories shall cease to form part of the existing States of Bombay,
Hyderabad, Madhya Pradesh, Saurashtra and Kutch, respectively."

The appointed day from which the new State of Bombay came into existence
was defined in the Act as meaning November 1, 1956. But before that date, to
wit, on September 12, 1956, the appellant herein filed a petition under Art. 226
of the Constitution in the High Court of Judicature at Bombay in which he
alleged, in substance, that the formation of the composite State of Bombay as
one unit instead of the three separate units as originally proposed in the Bill
contravened Art. 3 of the Constitution, inasmuch as the Legislature of the State
of Bombay had no opportunity of expressing its views on the formation of such a
composite State. The appellant asked for a declaration that s. 8 and other
consequential provisions of the Act were null and void and prayed for an
appropriate writ directing the State Government of Bombay and the Union
Government not to enforce and implement the same. This writ petition was heard
by the Bombay High Court on September 14, 1956, and by its judgment of even
date, the High

609

Court dismissed the petition, holding that there was no violation or
contravention of Art. 3 of the Constitution. The appellant then obtained the
necessary certificate under Art. 132(1) of the Constitution, and filed his
appeal in this Court on October 18, 1956 on the strength of that certificate.

Now, it is both convenient and advisable to read at this stage Art. 3 of
the Constitution, as amended by the Constitution (Fifth Amendment) Act, 1955,
the alleged violation of which is the main ground of attack by learned counsel
for the appellant.

" Art. 3: 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; and (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. " It is clear that by
its substantive part the Article gives a certain power to Parliament, viz., the
power to make a law in respect of any of the five matters mentioned in cls. (a)
to (e) thereof. This power includes the making of a law to increase the area of
any State; diminish the area of any State; and alter the name of any State. The
substantive part is followed by a proviso, which lays down certain conditions
for the exercise of the Power. It states that no Bill for the purpose (the word
" purpose " obviously has reference

610

to the power of making law in respect of the matters mentioned in the
substantive part) 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. Thus, the proviso lays down two conditions: one is that no
Bill shall be introduced except on the recommendation of the President, and the
second condition is that where the proposal contained in the Bill affects the
area, boundaries or name of any of the States, the Bill has to be referred by
the President to the Legislature of the State for expressing its views thereon.
The period within which the State Legislature must express its views has to be
specified by the President; but the President may extend the period so
specified. If, however, the period specified or extended expires and no views of
the State Legislature are received, the second condition laid down in the
proviso is fulfilled in spite of the fact that the views of the State
Legislature have not been expressed. The intention seems to be to give an
opportunity to the State Legislature to express its views within the time
allowed; if the State Legislature fails to avail itself of that opportunity,
such failure does not invalidate the introduction of the Bill. Nor is there
anything in the proviso to indicate that Parliament must accept or act upon the
views of the State Legislature. Indeed, two State Legislatures may express
totally divergent views. All that is contemplated is that Parliament should have
before it the views of the State Legislatures as to the proposals contained in
the Bill and then be free to deal with the Bill in any manner it thinks fit,
following the usual practice and procedure prescribed by and under the rules of
business. Thus the essential content of the second condition is a reference by
the President of the proposal contained in the bill to the State Legislature to
express its views. thereon within the time allowed. It is worthy of note, and
this has been properly emphasised in the judgment of the High

611

Court, that what has to be referred to the State Legislature by the
President is the proposal contained in the Bill. The proviso does not say that
if and when a proposal contained in the Bill is modified subsequently by an
amendment properly moved and accepted in Parliament, there must be a fresh
reference to the State Legislature and a fresh bill must be introduced. It was
pointed out in the course of arguments that if the second condition required a
fresh reference and a fresh bill for every amendment, it might result in an
interminable process; because any and every amendment of the original proposal
contained in the Bill would then necessitate a fresh Bill and a fresh reference
to the State Legislature. Other difficulties might also arise if such a
construction were put on the proviso; for example, in a case where two or three
States were involved, different views might be expressed by the Legislatures of
different States. If Parliament were to accept the views of one of the
Legislatures and not of the other, a fresh reference would still be necessary by
reason of any amendment in the original proposal contained in the Bill.

We are referring to these difficulties not because we think that a forced
meaning should be given to the words of the proviso to avoid certain
difficulties which may arise. We are of the view that the words of the proviso
are clear enough and bear their ordinary plain meaning. According to the
accepted connotation of the words used in the proviso, the second condition
means what it states and what has to be referred to the State Legislature is the
proposal contained in the Bill; it has no such drastic effect as to require a
fresh reference every time an amendment of the proposal contained in the Bill is
moved and accepted in accordance with the rules of procedure of Parliament. That
in the present case the States Reorganisation Bill was introduced on the
recommendation of the President has not been disputed; nor has it been disputed
that the proposal contained in the Bill was referred to the State Legislatures
concerned and their views were received, According to learned counsel for

612

the appellant, however, this was not enough compliance with the second
condition of the proviso. He has put his argument in several ways. Firstly, he
has contended that the word " State " in Art. 3 should be given a larger
connotation so as to mean and include not merely the geographical entity called
the State, but its people as well: this, according to learned counsel for the
appellant, is the " democratic process " incorporated in Art. 3 and according to
this democratic process, so learned counsel has argued, the representatives of
the people of the State of Bombay assembled in the State Legislature should have
been given an opportunity of expressing their views not merely on the proposal
originally contained in the Bill, but on any substantial modification thereof.
Secondly and following the same line of argument, he has contended that the word
" Bill " should be given an extended meaning so as to include any amendment, at
least any substantial amendment, of the proposal contained in the Bill; and
thirdly, he has contended that in the present case the formation of a new Bombay
State as one unit was so different from the three units originally proposed in
the Bill that it was not really an amendment of the original proposal but a new
I proposal altogether for which a fresh Bill and a fresh reference were
necessary.

We proceed now to consider these contentions. It is necessary to state at
the outset that our task is to determine on a proper construction the true scope
and effect of Art. 3 of the Constitution, with particular reference to the
second condition laid down by the proviso thereto. We bring to our task such
considerations as are germane to the interpretation of an organic instrument
like the Constitution; but it will be improper to import into the question of
construction doctrines of democratic theory and practice obtaining in other
countries, unrelated to the tenor, scheme and words of the provisions which we
have to construe. In plain and unambiguous language, the proviso to Art. 3 of
the Constitution states that where the proposal contained in the Bill affects
the area, boundaries or name of any of the States, the Bill must be referred by
the 613

President to the Legislature of the State for expressing its views. It
does not appear to us that any special or recondite doctrine of " democratic
process " is involved therein. Learned counsel for the appellant has invited our
attention to Art. IV, s. 3, of the American Constitution which says inter alia
that " no new State shall be formed or erected within the jurisdiction of any
other State, nor any State be formed by the junction of two or more States or
parts of States without the consent of the Legislatures of the State concerned
as well as of the Congress." That provision is quite different from the proviso
we are considering: the former requires the consent of the State Legislature
whereas the essential requirement of our proviso is a, reference by the
President of the proposal contained in the Bill for the expression of its views
by the State Legislature. For this reason we do not think that the decisions
relied on by learned counsel for the appellant (State of Louisiana v. State of
Mississipi (1), and State of Washington v. State of Oregon(1)) are in point. The
expression I State' occurs in Art. 3, and as has been observed in the State of
Texas v. George W. White (3), that expression may have different meanings: it
may mean a territorial region, or people united in political relation living in
that region or it may refer to the government under which the people live or it
may even convey the combined idea of territory, people and government. Article 1
of our Constitution says that India is a Union of States and the States and the
territories thereof are specified in a Schedule. There is, therefore, no
difficulty in understanding what is meant by the expression 'State' in Art. 3.
It obviously refers to the States in the First Schedule and the I Legislature of
the State' refers to the Legislature which each State has under the
Constitution. That being the position we see no reasons for importing into the
Construction of Art. 3 any doctrinaire consideration of the sanctity of the
rights of States or even for giving an extended meaning to the expression I
State' occurring therein. None of the constituent units of the (1) (1905) 202
U.S. 1. (2) (1908) 211 U.S. 127. (3) (i869) 74 U.S. 700.

78

614

Indian Union was sovereign and independent in the sense the American
colonies or the Swiss Cantons were before they formed their federal unions. The
Constituent Assembly of India, deriving its power from the sovereign people, was
unfettered by any previous commitment in evolving a constitutional pattern
suitable to the genius and requirements of the Indian people as a whole. Unlike
some other federal legislatures, Parliament, representing the people of India as
a whole, has been vested with the exclusive power of admitting or establishing
new States, increasing or diminishing the area of an existing State or altering
its boundaries, the Legislature or Legislatures of the States concerned having
only the right to an expression of views on the proposals. It is significant
that for making such territorial adjustments it is not necessary even to invoke
the provisions governing constitutional amendments.

The second line of argument presented on behalf of the appellant is that
the word I Bill' in the proviso must be interpreted to include an amendment of
any of the clauses of the Bill, at least any substantial amendment thereof, and
any proposal contained in such amendment must be referred to the State
Legislature for expression of its views. We do not think that this
interpretation is correct. Wherever the introduction of an amendment is subject
to a condition precedent, as in the case of financial bills, the Consti- tution
has used the expression I A bill or amendments', e.g. in Art. 117. No such
expression occurs in art 3. Secondly, under Art. 118 Parliament has power to
make rules of its own procedure and conduct of business, including the moving of
amendments etc. Rule 80 of the rules of procedure of the House of the People
(Lok Sabha) lays down the conditions which govern the admissibility of
amendments to clauses or schedules of a Bill, and one of the conditions is that
an amendment shall be within the scope of the Bill and relevant to the subject
matter of the clause to which it relates. Article 122 (1) of the Constitution
says that the validity of any proceedings in Parliament shall not be called in
question on the ground of any alleged

615

irregularity of procedure. In view of these provisions, we cannot accept
an interpretation of Art. 3 which may nullify the effect of Art. 122, an
interpretation moreover which is based not on the words used therein but on
certain abstract and somewhat illusory ideas of what learned counsel for the
appellant has characterised as the democratic process. We recognise that the
formation of a new composite State of Bombay as in s. 8 of the Act was a
substantial modification of the original proposal of three units contained in
the Bill. That, however, does not mean that it was not a proper amendment of the
original proposal or that the State Legislature had no opportunity of expressing
its views on all aspects of the subject matter of the proposal. The High Court
rightly pointed out that in the debates in the State Legislature several members
spoke in favour of a composite State of Bombay. The point to note is that many
different views were expressed in respect of the subject matter of the original
proposal of three units, and as a matter of fact it cannot be said that-the
State Legislature had no opportunity of expressing its views in favour of one
composite unit instead of three units if it so desired. It cannot be said that
the proposal of one unit instead of three was not relevant or pertinent to the
subject matter of the original proposal. ID T. H. Vakil v. Bombay Presidency
Radio Club Ltd. (1), a decision on which learned counsel for the appellant has
relied, the question arose of the power of the chairman of a club to rule an
amendment out of order. It was said therein that (1) an amendment must be
germane to the subject-matter of the original proposition and (2) it must not be
a direct negative thereof. Judged by these two conditions, it cannot be said
that the proposal of one unit instead of three was not germane to the subject-
matter of the original proposal or was a direct negative thereof. We are unable,
therefore, to accept the third contention of learned counsel for the appellant
to the effect that the formation of a new Bombay State as envisaged in s. 8 of
the Act was so completely divorced from the proposal contained in

(1) (1944) 47 Bom. L.R. 428.

616

the Bill that it was in reality a new bill and therefore a fresh
reference was necessary.

It is advisable, perhaps, to add a few more words about Art. 122(1) of
the Constitution. Learned counsel for the appellant has posed before us the
question as to what would be the effect of that Article. if in any Bill
completely unrelated to any of the matters referred to in Cls. (a) to (e) of
Art. 3 an amendment was to be proposed and accepted changing (for example) the
name of a State. We do not think that we need answer such a hypothetical
question except merely to say that if an amendment is of such a character that
it is not really an amendment and is clearly violative of Art. the question then
will be not the validity of proceedings in Parliament but the violation of a
constitutional provision. That, however, is not the position in the present
case.

For these reasons, we hold that there was no violation of Art. 3 and the Act or
any of its provisions are not invalid on that ground.

The appeal accordingly fails and is dismissed with costs. Appeal dismissed.

Total likes : 1 times

 
Reply   
 
Law Officer

I'm agree with Mr. Reddy

 
Reply   
 

Article 4 of the constitution says state  reorganization can not be construed as constitutional amendment. Article 371d.10 says, irrespective of any other section/article in the constitution, 371d stays in effect.  these two are mutually contradictory. Can any learned lawyers enlighten us regarding this issue? I mean, which provision supersedes which? Can a law with simple majority in the house set aside a constitutional amendment?

 
Reply   
 
Law practiece

As per art.3 resolution is may not be necessary.  But But the resolution is necessary, if the president following equity and good conscience. 

 
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