Interpreting Contemporary India

By Prof. K. Nageshwar

This book is a collection of the authors editorials and articles, almost all of them originally published in The Hans India. It provides a perspective on contemporary political, economic, and social dimensions of India. It analyses current constitutional and legal questions, and the writer adopts a lucid journalistic style without compromising on academic flavor.

The tome offers insights into Indias human development challenges, foreign policy issues, environmental concerns, disaster management, etc. The authors comments and reflections on a diverse range of issues are logically presented to provide comprehensive information and interpretation of the current challenges and concerns of India.

Specifically, the subjects include multiple facets of India like democratic practice, secularism, separation of powers, reservations, welfare, legislations, political defections, gender question, education, taxation, inflation, planning, agrarian crisis, economic reforms, employment, marginalisation, climate change, etc.

The work will be immensely useful to a cross-section of readers, especially academics such as students preparing for various academic and competitive pursuits. Journalists can gain insight into how to write editorial and analyse news. The nature of subjects dealt with and the facile style of presentation makes it an interesting general reading for anyone who intends to take a peek into Indias current epoch.

• Language: English
• Publisher: AuthorHouse UK
• Release date: Nov 3, 2016
• ISBN: 9781524665319

Prof. K. Nageshwar

Prof. K. Nageshwar is the editor of The Hans India. He is also the editor-in-chief of HMTV. A professor in the Department of Journalism in Osmania University, Hyderabad, India, he is a prolific public speaker and writer. Additionally, he was an independent member of Legislative Council. He won the UGC Career Award in 1994.

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Published by AuthorHouse 10/31/2016

ISBN: 978-1-5246-6532-6 (sc)

ISBN: 978-1-5246-6533-3 (hc)

ISBN: 978-1-5246-6531-9 (e)

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Contents

SECTION - I

The Constitutional and Legal Questions

1.    Constitutional Perspective on Secularism

2.    Parliament, State Legislature and Bifurcation

3.    Legislature or Judiciary: No Room for Supremacy

4.    Categorising SCs: To be or not to be

5.    The Muslim Reservation Question

6.    Bulls, Cocks and the Law

7.    Caste, Class and Reservations Law

8.    Defend the Constitution

9.    Disqualifying the Illiterate

10.    Revisit 10th Schedule

11.    Judicial or Executive: No tyranny of any Kind

12.    Political Parties and RTI

13.    Section 498-A: Compoundable or Non Compoundable

14.    Altering the Preamble

15.    Legalising Sex Trade

16.    Enacting Uniform Civil Code

17.    Gubernatorial Discretion

SECTION - II

The Political Landscape

1.    The Balance Sheet of India’s Independence

2.    Political Reservations for Women

3.    Go Beyond a Vacuous Homage

4.    Introspecting the Republic

5.    Whither Simultaneous Elections

6.    State and the Maoist

7.    Animal Farm Permeates Political Discourse

8.    Intolerance is not Indianness

9.    Kashmir Conundrum

10.    Characterising Sept’ 17

11.    Resolve Cauvery cauldron

SECTION - III

The Economic Issues

1.    The GST and its Concerns

2.    The Distorted Taxation

3.    Rethink GDP Concept

4.    Taming the Prices

5.    The Merger of Banks

6.    The Automation Challenge

7.    Stimulus or Stress?

8.    Many Unresolved Links in Interlinking Rivers

9.    The Problem of NPAs

10.    The challenges of Swiss Challenge

11.    Adieu, Plan panel!

12.    Revisiting Nehruvian model

13.    Budgets losing Sanctity

14.    Incubating Startups

15.    The Bullet Train Option

16.    Wither Luxurious India

17.    Monetising gold

18.    Remake Make in India

19.    The Agony of Tenant Farmers

20.    Pulses Problem

21.    The Question of Internet Pharmacy

22.    Tackling Agrarian Crisis

23.    Reforming Labour

24.    Market Mayabazaar

25.    Rupee Convertibility: Not yet Ripe

26.    India and the Global Oil Prices

27.    Taking flying to masses

28.    Tackling Black Economy

29.    Appraise the FRBM

SECTION - IV

Tracking Human Development

1.    Rethinking Job Strategy

2.    Re-engineer Engineering Education

3.    Empowering Women

4.    The Endangered Government Schools

5.    Whither Foreign Universities

6.    Missing daughter

7.    Business Schools Must Lead Industry

8.    Universities: Public or Private

9.    Curb the Ragging Menace

10.    Tighten School Safety

11.    Road to English Medium

12.    Innovating India

13.    Skilling India

14.    Higher Education: Challenges & Concerns

SECTION - V

The Social Milieu

1.    Cry of the Adivasi

2.    The Voice of the Oppressed

3.    Changing Face of Agricultural Labour

4.    Triple Talaq Debate

5.    Development & Displacement

6.    The Urbanisation Challenge

7.    Cities: Smart or Cryptic

8.    Quota in Private Sector

9.    Development Challenges & Left-Wing Extremism

10.    Appropriating Social Space

11.    Rekindle this Trueness of Faith

12.    Religion and the Reservations

13.    Policing Food Habits

14.    Travel, a Tryst with Death

15.    Move from Stars to Culture

16.    Reappraising Reservations

17.    Detention: Yes or No

18.    Don’t Punish the Tender

19.    Rampant Rural Deprivation

20.    India’s future is in Classrooms

21.    Regulate the Junk

22.    For a Land Use Policy

23.    Alarming State of Suffering India

SECTION - VI

The Environment Debate

1.    Bridge the Global Climate Divide

2.    Misplaced Triumphalism on the Climate Deal

3.    Shift from Fossils to Solar

4.    The Biological Colonialism

5.    Firing Crackers

6.    India’s Green Commitments

SECTION - VII

India and the Response to Disasters

1.    Mitigating the Drought Risks

2.    Averting Crowd Disasters

3.    The Challenge of Urban Flooding

4.    Beating the Heat Wave

5.    Prepare for Big Quakes

6.    Manage Monsoon

SECTION - VIII

India and the World

1.    India’s Balochistan Strategy

2.    The MTCR and India

3.    Exporting Missiles

4.    The Brexit and India, not to be Apocalyptic

5.    Rediscover Ocean Diplomacy

6.    Enduring Friendship with Russia

7.    India and Fed volatility

8.    India’s African Safari

9.    India’s Strong Case at UNO

10.    India’s Nepal Policy

11.    Talking Peace With Pakistan

12.    Whither Hot Pursuit

13.    Sino-Indian Partnership

14.    India’s Concerns over China

15.    Into the Strategic Embrace with US

16.    Volte-face on TFA

17.    India’s Surgical Diplomacy

18.    The BRICS Declaration

SECTION - IX

The Global Pointers

1.    Geopolitics of Coup in Turkey

2.    Let leave EU Inspire World to Introspect

3.    Reforming the Brettonwoods

4.    The South Asian Nuclear Question

5.    The Threat of Nuclear Terrorism

6.    Dawn of a New Era

7.    Guns over People

8.    Rich Gains in the Pipeline

9.    The US-Iran Deal

10.    Defeating ISIS

11.    Hope and Caution in Myanmar

12.    The Chinese Enigma

13.    Reform the UNO

14.    The West and the Terror

SECTION - X

The Miscellaneous

1.    The wonder that is Yoga

2.    India to Observe Universe

3.    Towards an Indian Space Shuttle

4.    The Indian GPS

5.    Glory of Space India

6.    Scramjet Success

7.    Abandoning Kohinoor

8.    Looming Threat of Zika

9.    Into the World of Eternal Dance

10.    The Magic of the Printed Word

11.    Tinkering with the Code of Life

12.    Reinvent Teacher

13.    Majestic Message from Ramayana

14.    Universal Relevance of Gandhism

15.    Need For More Districts

SECTION - I

The Constitutional and Legal Questions

1

Constitutional Perspective on Secularism

As India is poised to celebrate 70 years of Independence, we present here some pertinent views on challenges confronting the nation.

The Indian Constitution is both a legal and social document. It provides machinery for the governance of the country. It also contains the ideals expected by the nation. The political machinery created by the Constitution is a means to the achieving of this ideal. India’s challenge, as described by Jawaharlal Nehru, has been to build a secular state in a religious country.

The concept of secularism is embedded in our constitutional philosophy. India’s constitutional commitment to secularism emerged out of the freedom struggle. In 1908, Gandhiji wrote in Hind Swaraj: India cannot cease to be one nation, because people belonging to different religions live in it… In no part of the world are one nationality and one religion synonymous terms; nor has it ever been so in India.

As the Supreme Court observed, The term ‘Secular’ has advisedly not been defined presumably because it is a very elastic term not capable of a precise definition and perhaps best left undefined. The apex court itself declared in no uncertain terms that secularism is part of the basic structure of the Constitution. As held by the Supreme Court in the famous Kesavananda Bharati case, even Parliament has no right to amend the basic structure of the Constitution.

Therefore, whatever may be the political machinations over it, secularism remains and shall remain the bedrock of Indian constitutional democracy. Dr B R Ambedkar said that Constitution is not a mere lawyer’s document, it is a vehicle of life, and its spirit is always the spirit of age. It is the spirit of Modern India, which has often found its expression in the form of judicial interpretation, especially as the ‘Basic Structure’ will act as the guiding force for the body politic to adopt this novel ideal.

More recently, an argument is advanced to state that secularism is the postscript of the Constitution introduced into it by the 42nd Amendment to the Constitution of India in 1976. This argument can even imply that the Constitution can be devoid of secularism in case the political establishment wishes it to be so. As the Supreme Court noted in SR Bommai vs. Union of India, 1994 (2) SCR 644, Notwithstanding the fact that the words ‘Socialist’ and ‘Secular’ were added in the Preamble of the Constitution in 1976 by the 42nd Amendment, the concept of Secularism was very much embedded in our constitutional philosophy …. By this amendment what was implicit was made explicit.

Secularism not irreligious

The true meaning of secularism as reflected in the Constitution of India is often misread to serve the political purpose. The major tirade against secularism is that it abrogates religion. This canard on secularism is intended to make it unpopular in a deeply religious society like ours. But, As Dr S Radhakrishnan, whose authority on religion is unassailable, rightly defined, the secularism is embedded in our constitutional values. When India is said to be a secular State, it does not mean that that we exalt irreligion. Indian State will not identify itself with or be controlled by any particular religion.

State and religion in the secular Constitution

The State is enjoined to accord equal treatment to all religions. But, these provisions of the Constitution by implication prohibit the establishment of a theocratic State and prevent the State from either identifying itself with or favouring any particular religion. The religious matters should, therefore, be regarded entirely as relating to the conscience of the individuals.

Justice Chinnappa Reddy, delivering Ambedkar Memorial Lecture on ‘Indian Constitution and Secularism’ has observed that: Indian constitutional secularism is not supportive of religion at all but has adopted what may be termed as permissive attitude towards religion out of respect for individual conscience and dignity…

More precisely, Article 27 provides that no person shall be compelled to pay any taxes, the proceeds whereof are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. This is an important article which prohibits the exercise of State’s taxation power if the proceeds thereof are intended to be appropriated in payment of expenses for the promotion and maintenance of any particular religion or religious denomination. That means that State’s revenue cannot be utilised for the promotion and maintenance of any religion or religious group.

The constitutional founding fathers clearly wanted the Indian State to be divorced from religion. In fact, the attempts to begin the Preamble of the Constitution by invoking God did not succeed in the Constituent Assembly. Members such as H V Kamath, Govind Malaviya and S L Saxena wanted to begin the Preamble to the Indian Constitution with the phrase ‘In the name of God.’ But, after a heated discussion, this proposal was put to vote and defeated. Pandit Kunjru said that, "we invoke the name of God, but I am bold to say that while we do so, we are showing a narrow, sectarian spirit, which is contrary to the spirit of the Constitution.

Secularism and religious freedom

The Supreme Court in the S R Bommai verdict elaborately dealt with the concept of secularism enshrined in the Constitution of India. The Preamble of the Indian Constitution itself spoke of liberty of thought, expression, belief, faith and worship. While granting this liberty, the Preamble promised equality of status and opportunity.

It also spoke of promoting fraternity, thereby assuring the dignity of the individual and the unity and integrity of the nation. While granting to its citizens liberty of belief, faith and worship, the Constitution abhorred discrimination on grounds of religion, etc. Not only in fundamentals rights (as has been discussed above) protected by the Right to Constitutional Remedies, but the Principle of Secularism has been incorporated (although implicitly) in the Directive Principles of State Policy (DPSP) and the Fundamental Duties as well.

In the DPSP, the Articles of 38, 39, 39A, 41 & 46 not only attempt to promote equal opportunity for growth and sustenance for all, but these principles, coupled with the most basic objective of the state, the doctrine of ‘Parens Patriae,’ promote secularism in all of its forms. Although not justiciable but the onus of maintaining the cordial atmosphere among all the religions and caste, creed and sex is also the responsibility of the citizens as per the Fundamental Duties, especially according to Articles 51A(b), 51A(e) & 51A(f).

Our Constitution does not prohibit the practice of any religion either privately or publicly. Article 25 provides, subject to public order, morality and health, that all persons shall be entitled to freedom of conscience and the right to profess, practise and propagate religion. The Constitution clearly prohibits discrimination on the basis of religion. For instance, Article 29 inter alia provides that no citizen will be denied admission into an educational institution maintained wholly or partly from State funds on grounds only of religion, etc.

Contours of religious freedom

One cannot ignore the Constitutional contours of the religious freedom. As Justice Chinnappa Reddy, argued, ….There, even while recognising the right to profess and practise religion, etc., it has excluded all secular activities from the purview of religion and also of practices which are repugnant to public order, morality and health and are abhorrent to human rights and dignity, as embodied in the other fundamental rights guaranteed by the Constitution.

Even the apex court clarified the limits of religious freedom in a secular constitution. The Supreme Court of India in a significant judgment in Adi Saiva Sivachariyargal Nala Sangam & ors. Versus The Government of Tamil Nadu & Anr said, …while the right to freedom of religion and to manage the religious affairs of any denomination is undoubtedly a fundamental right, the same is subject to public order, morality and health and further that the inclusion of such rights in the Constitution will not prevent the State from acting in an appropriate manner, in the larger public interest…

The often quoted argument is that courts have no role in religious matters as Article 26 of the Indian Constitution provides for religious freedom. But, the ecclesiastical jurisprudence rejects this argument. The Supreme Court repeatedly held the view that a religious institution has freedom to manage its own affairs in matters of religion. But this right guaranteed under Article 26 of the Constitution of India cannot be either absolute or arbitrary. Such freedom is confined to essential elements of a religious practice as stated by the apex court judgments in cases like Sri Venkataramana Devaru and Others Vs. State of Mysore and Others and Durgah Committee, Ajmer and another Vs. Syed Hussain Ali and others.

Justice Gajendragadkar was of the view, "……. that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26.

Unless such practices are found to constitute an essential and integral part of a religion, the claim for the protection under Article 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other. The Supreme Court explicitly reiterated the Court’s power to decide on what constitutes an essential religious practice.

Therefore, the religious institutions, organisations or their believers cannot claim supremacy or immunity from the tenets of secular Constitution of India in the name of faith and the constitutionally sanctioned freedom to pursue, propagate it. But, this is not to argue that secular institutions like courts or government can always interfere in religious affairs. The observations made in the minority view in the Supreme Court judgment in Commissioner of Police and Others Vs. Acharya Jagadishwarananda Avadhuta and Another are worth mentioning here.

The para 57 of the said view reads as follows: "The exercise of the freedom to act and practise in pursuance of religious beliefs is as much important as the freedom of believing in a religion…. there are some forms of practicing the religion by outward actions which are as much part of religion as the faith itself.

The freedom to act and practise can be subject to public order, health and morality and to other provisions in Part III of the Constitution. However, in every case the power of regulation must be so exercised with the consciousness that the subject of regulation is the fundamental right of religion, and as not to unduly infringe the protection given by the Constitution.

Further, in the exercise of the power to regulate, the authorities cannot sit in judgment over the professed views of the adherents of the religion and to determine whether the practice is warranted by the religion or not. That is not their function." The freedom of religion under Articles 25 and 26 of the Constitution is not only confined to beliefs but extends to religious practices and hardly requires reiteration. However, Right of belief and practice guaranteed by Article 25 is subject to public order, morality and health and other provisions of Part III of the Constitution.

Public order will be in jeopardy if in a diverse religious society, various religious bodies give unlimited interpretation of the religious freedom enshrined in the Constitution of India. As Pratap Bhanu Mehta points out in ‘Passion and Constraint: Courts and the Regulation of Religious Meaning’ in Rajeev Bhargava’s (ed) ‘Politics and Ethics of the Indian Constitution (Oxford University Press, 2008), in most constitutional settings, courts have to determine whether or not a policy places a substantial burden on the free exercise of religion.

Public interest versus religious freedom

The wording of Articles 25 and 26 (the provisions related to religious freedom), said Marc Galanter (Law and Society in Modern India, Oxford, 1997), establishes primacy of public interest over religious claims and provides a wide scope for governmentally sponsored reforms.

This is evident from the SC judgments on eviction of religious places obstructing public utilities like roads. The religious institutions oppose such eviction in the name of their religious freedom. But, the Supreme Court in 2013 said, Public road is not anyone’s property. Each citizen had a right to use the road and that right cannot be interfered with or impeded by constructing a temple, mosque, church or gurudwara or by installing the statue of a public figure.

The Supreme Court said that unauthorised religious structures near drains and on roads were an insult to God. Everyone has the right to walk. God never intended to obstruct the path meant for the people. Why shouldn’t these structures go? said a bench of Justices Gopal Gowda and Arun Misra, hearing a petition on the matter. The apex court had in September 2009 ruled no unauthorised construction shall be permitted in the name of temple, church, mosque or gurdwara on public streets, public parks or places.

The Patna High Court in Rajendra Singh vs. The State of Bihar & Ors, 2013 has remarked, … Illegal erection of such places of worship is sought to be justified on the ground that citizens have a right to erect such places of worship at any place because of the freedom enjoyed under the Constitution. This is a misconception, and while every citizen has freedom to practice his own religion or faith, he has no right to erect structures in the name of religion in an unauthorised manner on public land and public road. The Constitution respects religion but not its exploitation for self-aggrandisement of any kind.

Religious bigotry, secularism and Constitution

Quite often religion and religious bigotry are considered synonymous. But, fundamentalist view of religion is anathema to true religion. Secularism abhors the fanatic and chauvinist aspects of religion but, not the religion as a social institution. At least, the Indian Constitutional view of secularism does not do so.

Even the Supreme Court rejected the rigid and obscurantist view of religion. In the Adi Saiva Sivachariyargal Nala Sangam judgment, it summarises the true character of Hinduism. It said, …Hinduism, as a religion, incorporates all forms of belief without mandating the selection or elimination of any one single belief. It is a religion that has no single founder; no single scripture and no single set of teachings. It is the collective wisdom and inspiration of the centuries that Hinduism seeks to preach and propagate…

2

Parliament, State Legislature and Bifurcation

There has been an intense debate on the constitutional aspects surrounding the bifurcation of Andhra Pradesh. The prominent politico-constitutional question often was raised is with regard to the role of Parliament and the state legislature in the process of bifurcation. An artificial cleavage was sought to be created between political constitutionalism and legal constitutionalism though the constitutional position is not only clear but has been upheld time and again by the apex court while adjudicating many cases over the past five decades. The first question is on Article 3 of the Constitution. There is a demand to review Article 3, claiming that it goes against federalism. The dilution of federalism is a political question. The political process operates on what the Constitution says today, not on what the Constitution should have been. During the seven decades of post-Independence Indian history there has been an intense battle in the political and legal spheres on many constitutional provisions that strengthen the unitary character of the polity. These debates have led to a proper interpretation. The classic example is that of Article 356. But, barring a few court cases, no serious debate has ever been initiated on amending Article 3 of the Constitution, which clearly keeps the power to bifurcate in the exclusive domain of Parliament. The Constitution accords Parliament unequivocal and unambiguous powers in this regard. The Supreme Court of India has repeatedly upheld this in its judgments between 1959 and 2009. The state legislature was accorded only a consultative role. This is a constitutional reality, evident from a plain reading of the relevant provisions of the Constitution.

Article 3 of the Constitution says:

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.

Article 3 makes three things clear: (1) A state is bifurcated by an Act of Parliament and Parliament only. (2) Before enactment by Parliament, the President has to refer the draft bill to the legislature. (3) The legislature has to express its views. Therefore, seeking the views of the legislature to be affected is mandatory for Parliament before bifurcating a state. But the views of the legislature are not binding on Parliament. Parliament can make a law bifurcating a state in whatever manner it deems fit, independent of whatever may be the views expressed by the concerned legislature. The legislature was given only a consultative role. Any argument that such a provision goes contrary to federalism is a political question which needs to be settled through the political process. The constitutional interpretation of Article 3 cannot be determined by political arguments.

Scope of the Legislature

The Supreme Court itself has defined the meaning of the word expression of its views in the case – The Supreme Court, Civil Original Jurisdiction. Transfer Case (Civil) No 62 of 2002 (Arising out of Writ Petition No 43094 of 2000) Pradeep Chaudhary and Ors….Appellants vs. Union of India and Anr…Respondents. The judgment said as follows:

….While a power to introduce the Bill is kept with the Parliament, ‘consultation’ with the State Legislature although is mandatory but its recommendations were not binding on the Parliament. ‘Consultation’ in a case of this nature would not mean concurrence. The Parliament would not be bound by the views of the State Legislature and even in a case where substantive amendment is carried out, the amended Parliamentary Bill need not be referred to the State Legislature again for obtaining its fresh views….

The respective roles of Parliament and the state legislature figured even in the constitutional debates. Should the prior consent of the affected legislature be insisted upon? This was even debated in the Constituent Assembly. An amendment was adopted making the role of the concerned state legislature merely consultative. A perusal of the constitutional debates on Article 3 reveals this:

In the case of Provinces all that is necessary is consultation. Consent is not required. All that the President is called upon to do is to be satisfied, before making the recommendation, that their wishes have been consulted. With regard to Indian States, the provision is that there shall be consent. The distinction is based upon the fact that, so far as we are at present concerned, the position of the Provinces is different from the position of the States. The States are sovereign States and the provinces are not sovereign States. While in the case of the Indian States, it is appropriate, in view of the fact that sovereignty remains with them that their consent should be obtained… (The then provinces now indicate States. The princely states were then referred to as Indian States).

But, this argument given in regard to consultation and consent is valid even today. Consent is required only when the states retain sovereignty. In modern India, sovereignty lies with the people of the Union of India. In fact, this distinction was further clarified by the Supreme Court of India in its judgment in the case – Babulal Parate vs The State of Bombay and Another, 28 August 1959. The judgment said:

…Article 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…

The Constitution stipulates that the proposal for bifurcation should be first referred to the affected legislature for expression of its views. However, Parliament need not necessarily proceed as per the views of the state legislature. Parliament can even amend the original proposal and adopt it. Even these amendments need not be referred again to the state legislature. This constitutional position, upheld by Supreme Court in case related to Mumbai state reorganisation in 1959 and Uttar Pradesh state reorganisation in 2009, has only articulated the paramount power of Parliament in this regard. The Supreme Court in the Babulal Parate case said:

…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. 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 ex-pressed 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.

Further elaborating on this, the Supreme Court in Pradeep Chaudhary and Others vs Union of India case said:

…indisputably, only because one or the other view had been expressed in the State Legislature, the same would not be binding upon the Parliament even if its views were received in time. When, however, the views of the State Legislature were not received in time, the Parliament would be free to pass the Act in terms of the Bill or with amendment as it may deem fit and proper. It is the Parliament’s prerogative to place the Bill in either of the Houses, either in the same form or with amendments…

Even the commentators on the Constitution of India have also held the same view. In Durga Das Basu’s Commentary on the Constitution of India (2009: 467), it is stated:

It has been ruled by the Speaker of the House of the People that the Bill having once been referred by the President to the State Legislatures concerned and thereafter duly introduced in Parliament, amendments seeking to make provisions different from those contained in the Bill as introduced and thereby affecting the area, boundaries or names of the State are in order and are not ultra vires of the Constitution. These amendments are not required to be referred again to the State Legislature concerned nor are any fresh recommendation of the President necessary for their consideration.

Article 3 and Federalism

The most important criticism of Article 3 is that it violates federal principles. It is true that the context in which the final form of Article 3 has evolved is completely different. At the time of drafting the Constitution the nation faced a serious challenge to its unity and integrity. The states were in a very fluid form necessitating a remapping of India. But, the question today is whether it is advisable to accord such paramount power to Parliament in relation to the bifurcation of states. But, surprisingly no serious effort was ever made to redefine Article 3. Can we invoke the principles of federalism when it comes to the bifurcation of states? Bifurcation affects the relationship between two regions of a united state, whereas federalism refers to the relationship between the centre and the states.

The other school of thought is that if a minority territory within a united state wants to be separated, the mandatory consent