ANDHRA PRADESH REORGANIZATION ACT, 2014 AND ITS

CONSTITUTIONAL INVALIDITY

N. Sasidhar

There is no object/purpose for enacting the AP reorganization Act, 2014:

After performing poorly in the 2009 assembly and Parliament elections, Sri K.
Chandrashekar Rao (KCR) undertook a fast unto death demanding the formation
of Telangana state. The fast continued for 9 days. Finally, then home minister Mr.
PC Chidambaram announced in the Lok Sabha that the process for the creation
of Telangana state had begun. (refer to the link
http://apnewslive.com/chidambarams-statements-on-telangana/ for
Chidambaram's statements on Telangana) He also stated that the state
assembly would be asked to make the resolution in support of the new
Telangana state formation which has not occurred subsequently. Within a few
months, the Sri Krishna committee was constituted with eminent personalities to
study the Telangana state demand and to recommend solutions. Before the Sri
Krishna committee/commission, one man Mr. Pranab Mukherjee committee was
appointed in the year 2004 to recommend a solution to the problem but it has
never given its report.

Sri Krishna committee was constituted by the union government of India on 3

February 2010 and it submitted its report on 30 December 2010 to the Ministry of
Home Affairs. After extensively visiting the Andhra Pradesh (AP) state, the Sri
Krishna committee (Refer
http://pib.nic.in/archieve/others/2011/jan/d2011010502.pdf ) said that Telangana
(excluding Hyderabad) on the whole is not backward economically in
development. Backward districts are there in all three regions and Rayalaseema
is comparatively lagging in overall development (page 445). It has identified the
following six possibilities (section 9.3.01) for solving the problem.

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 1. Maintain status quo
2. Bifurcation of the State into Seemandhra and Telangana; with Hyderabad
as a Union Territory and the two states developing their own capitals in
due course
3. Bifurcation of State into Rayala-Telangana and coastal Andhra regions
with Hyderabad being an integral part of Rayala-Telangana
4. Bifurcation of Andhra Pradesh into Seemandhra and Telangana with
enlarged Hyderabad Metropolis as a separate Union Territory. This Union
Territory will have geographical linkage and contiguity via Nalgonda district
in the south-east to district Guntur in coastal Andhra and via
Mahboobnagar district in the south to Kurnool district in Rayalaseema
5. Bifurcation of the State into Telangana and Seemandhra as per existing
boundaries with Hyderabad as the capital of Telangana and Seemandhra
to have a new capital
6. Keeping the State united by simultaneously providing certain definite
Constitutional/Statutory measures for socio-economic development and
political empowerment of the Telangana region-creation of a statutorily
empowered Telangana Regional Council.

The committee considered the above six possibilities and discussed their pros
and cons in detail. While proposing option-6 as the recommended solution (page
457) and it acknowledged that there will be certain difficulties in its
implementation, on balance, it was found the most workable option in the given
circumstances and in the best interest of the social and economic welfare of the
people of all the three regions. The core issue is one of socio-economic
development and good governance, the committee, keeping the national
perspective in mind, is of the considered view that this option stands out as the
best way forward. This option, thus, suggests a model that carries forward the
national goal of deepening and extending decentralization, and sustaining

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inclusive growth. It is hoped that the model suggested here would be useful in
addressing regional aspirations elsewhere in the country.

In its concluding remarks (Section 9.4.01), the committee strongly felt that
irrespective of the solution/option finally adopted, the government should
examine the recommendations expeditiously for taking further necessary action
in a time-bound manner. These suggestions have been made with a view to
providing good governance and ensuring equitable regional development. Time-
bound action is imperative as undue delay or tardiness in approach will only
further agitate the minds of the general public. Additionally, timely action will
satisfy people’s emotions and sentiments. The committee hopes that the
examination of its recommendations and implementation of the decisions taken
will get due and immediate attention.

Though the Sri Krishna committee made it very clear that quick action is the need
of the hour, the union government did not take any concrete action and allowed
the problem to linger till the middle of the year 2013. It appointed one man Mr.
AK Antony committee to examine the problem and it has not yet given its report.
Finally, the congress working committee (CWC) resolved in July 2013 to go
ahead with the formation of a new Telangana state by bifurcating the Andhra
Pradesh state. A group of ministers (GoM) comprising union cabinet ministers
was formed to frame the Andhra Pradesh reorganization bill rejecting the official
Sri Krishna committee report. GoM is not represented by anybody from the
undivided AP state or its legislatures or its ministers, etc. The bill prepared by the
GoM was approved by the union cabinet in December 2013 and forwarded to the
state assembly for its views by the president under Article 3 of the Constitution.

The bill sent to the state assembly was rejected in Toto on 30 January 2014 and
returned to the president of India. Union government introduced the rejected bill
by the state assembly in the Parliament and passed the bill on a vote of voice
even after asking by few members for voting to prove majority support in favor of

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the bill in the Lok Sabha. No Parliamentary sub-committee is formed to peruse
the bill as is the usual case before voting on bills of national importance. The bill
comes under the purview of the home ministry for which the vice president was
supposed to form the subcommittee of Parliament as per its standing rules. The
bill was introduced in the Lok Sabha on 12/2/2014 surreptitiously and passed by
the voice of vote in Lok Sabha on 18 February 2014 and in the Rajya Sabha on
20 February 2014. There was no discussion on the contents of the bill in both
houses of Parliament. Lok Sabha was dissolved on 22/2/2014 before the general
elections, 2014. The enactment of the Andhra Pradesh reorganization bill, 2014
was carried out by the ruling congress party with a political motive to take
advantage of the upcoming general elections in April 2014 without regard for the
Constitution and parliamentary practices.

There are demands going on for many other new states in India. Bundelkhand,
Harita Pradesh (Western UP), and Purvanchal (Eastern UP) regions of Uttar
Pradesh state have been demanding for separate states. Refer to the links
http://www.livemint.com/Politics/bi5bxtrbLCaEsdb98TXIPO/UP-assembly-
passes-resolution-to-break-up-state-into-four-pa.html ,
http://www.dnaindia.com/india/report-resolution-on-splitting-up-being-examined-
chidambaram-1619553 and http://www.samachar.com/Centre-returns-UP-split-
resolution-seeking-clarifications-and-dubbing-it-poorly-researched-
lmtwMzifejd.html . The UP state legislature on 21/11/ 2011 resolved in favor of
forming these separate states during the recent Ms. Mayavati rule and sent the
resolution for its implementation to the union government long back but no action
is taken by the union government till now. The bill was returned to the UP
government by the home ministry asking a few queries about the modalities of
the division process. It is against natural justice that UP shall be reorganized
before taking up the case of AP. In the case of the AP state, the division
modalities are framed by the union government in the form of the AP
reorganization bill 2013 contrary to the procedure followed for UP state

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reorganization where the UP state was consulted/asked to frame the details/draft
bill for its split. The union government followed different procedures/practices
simultaneously for the two states (UP and AP states) whose reorganization
process is ongoing concurrently.

Also when three new states Chhattisgarh, Uttaranchal and Jharkhand were
created, the union government waited to introduce the bills in the Parliament till
the undivided state assemblies passed the resolution in favor of the state
division. In the case of Jharkhand state formation, the union government sent the
bill a second time to the Bihar state assembly when it was rejected by the Bihar
assembly earlier. In the case of AP state reorganization, the union government
deviated totally from the established practice/convention and introduced the
rejected bill in the Parliament.

The AP reorganization bill proposed by the union government was rejected by

the AP state legislature. No further consultation has been conducted to achieve
consensus between the AP state and the home ministry of the union
government. The union government went ahead to divide the state for taking
political gains just before the 2014 general elections. Ultimately, against the Sri
Krishna committee’s fundamental recommendation of taking quick action, the
government leisurely took three years and acted unilaterally in a hurry when
general elections were due in a few months with the intention of reaping political
gains by exploiting the people’s sentiments in Telangana region.

The division of AP state has caused a severe blow to the sentiments and
economic interests of people residing in the Seemandhra region and Hyderabad
(GHMC) city. The demand for a separate state was from the Telangana region
(excluding the GHMC area) and not from the Seemandhra region. From the
Andhra Pradesh reorganization Act, 2014, it looks like the Seemandra state is
formed as if they demanded a separate state by depriving it of the state capital
Hyderabad. Whereas, the Telangana region which demanded a separate state

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got unduly the capital/GHMC area which is against natural justice. The truncated
AP state without its capital has become economically unviable without assistance
from the union government and there is no stipulation (other than in the first year)
about giving adequate central funding in the reorganization act. The truncated AP
state is at the mercy of the union government’s assistance for its economic
survival and obligations to pay the debt burden passed on from the previous
undivided state.

Conclusion: The following legal points are to be noted from the above

Courts accept the official committee/ commission reports as facts and evidence.
In this case, the observations of the official Sri Krishna committee report are
admissible as facts and evidence. Refer to
http://www.caaa.in/Image/Interpretation%20of%20Statutes.pdf (Statement of
Objects and Reasons of an Act (page 29) as an internal aid in the interpretation
of the statute and Reports of Committees as evidence or facts, etc.)

There is no purpose and objective (as it is not stated in the bill sent for the views
of the state) in bifurcating the AP state which is beneficial to the state or the
nation.

The sequence of the events and the long procrastination in addressing the issue
by the union government, and following different procedures for each state
simultaneously deviating from the earlier established convention are clear proof
of ill motivation on the part of the ruling party at the center for political gains
which is against the constitutional spirit.

Articles 3 and 4:

Article 3 says Parliament may by law form a new state by separation of territory
from any state. Article 3 is just an enabling provision to alter boundaries/area of a
state or union territory and the relevant bill is to be framed as per Article 4 (1)

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which is without any ‘non-abstinence’ wording (i.e. notwithstanding anything in
this Constitution”). It means Parliament can pass such a bill within its ordinary
legislative powers provided all other relevant provisions of the Constitution are
also fulfilled. The basic intent of the proviso applicable to states in Article 3 is to
ascertain the constitutional validity of each section/clause of a proposed bill
before introducing in the Parliament particularly in case the proposed bill is
rejected completely or partly by the concerned state legislatures. Parliament is
not allowed to make any law under its legislative powers per Article 245 if there is
no such provision made in the Constitution. Parliament shall meet all the
precedent requirements (other provisions of the Constitution) to pass many/all
sections of the proposed bill. Article 1 of the Constitution says India shall be a
union of states which is elaborated under Parts V (The Union) and VI (The
States) of the Constitution. The federal character of India is explicitly enshrined in
Article 1 of the Constitution. Parliament is barred to make laws on the matters
enumerated in the State List and only states have exclusive power in respective
territories per Article 246 (3). Making ordinary laws on the matters enumerated in
the State List of the Constitution on a permanent basis under its legislative
powers is feasible only under Article 252 procedure with a prior resolution by
both houses of a state legislature. To create a legislative council of a newly
formed state also, Parliament shall take the prior approval of that state in
accordance with Article 169 procedure.

The proviso of Article 3 was amended by the Constitution (Fifth Amendment) Act,
1955. The actual proviso (before the amendment) in the original constitution was
as given below

“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
State or states specified in Part A and Part B of the first schedule or name or

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names of such states, the views of the Legislature of that State or as the case
may be, of each of the states both with respect to the proposal to introduce the
bill and with respect to the provisions thereof have been ascertained by the
President.”

It is very clear from the original Article 3 proviso that president shall ascertain the
suitability of the bill/proposal to recommend the bill for introduction in either
house of the parliament and also to ascertain the suitability of each of the
provisions in the bill. It means president shall himself satisfy that every provision
of the bill and finally the entire bill are constitutionally valid. The amended Article
3 in 1955 also did not negate the requirement of each section of the bill to comply
with other provisions of the Constitution though its text was modified and retained
this basic responsibility of the president to ensure that the proposed bill is fully
compliant with the provisions of the Constitution before recommending for the
approval of the Parliament or while giving assent to the bill passed by the
parliament with an ordinary majority. It is more important in the case of the AP
reorganization bill 2014 since the proposal/bill was totally rejected by the
legislature of the AP state.

An earlier case interpreting Article 3 of the Constitution by a five judges bench of

the SC is “Babulal Parate vs The State of Bombay And Another” on 28 August
1959. The background of the case is that the States Reorganisation Bill 1956
was introduced in the Parliament after taking the views of the concerned states
by the President. The Joint Select Committee of the Parliament proposed
modifications to the bill which was accepted and passed by the Parliament by
amending the bill. The modifications to the bill were substantial in effect. The
original bill proposed three separate units viz., (1) Union territory of Bombay, (2)
Maharashtra state, including Marathawada and Vidarbha, and (3) Gujrat state,
including Saurashtra and Kutch. The actual bill passed by the Parliament with the
amendment was a composite State of Bombay.

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The highlights of this judgment are as given below:

 As stated in Article 3, the proposal contained in the bill is adequate to be sent

to the concerned states for expressing their views.

 Article 3 shall not nullify any other provisions of the constitution such as
Articles 122 (1), 117 and 118 of the Constitution.

 There is no need of taking views of the concerned states again for amending
the bill introduced in the Parliament. However, such modification to the bill is
to be the subject matter of the original proposal.

The judgment of the above case is confirming that while passing a bill under
Article 3, the sections of the bill shall comply with all other provisions of the
Constitution such as Articles 169, 245, 246 (3), 252, etc.

Article 4 (2) states “No such law (law referred to Article 3) as aforesaid [Article 4
(1)] shall be deemed to be an amendment of this Constitution for the purposes of
Article 368”. The purpose of Article 368 is to amend by way of addition, variation,
or repeal of any provision of the Constitution by exercising its constituent powers
in a prescribed manner. Article 4 (2) permits only amendment to the Constitution
by ordinary legislation after adding/deleting/modifying the Constitution but does
not permit the enactment of a law without complying with the other relevant
provisions of the Constitution. Wherever the proposed bill per Article 4 (1) is
contradicting the provisions of the constitution, necessary mitigating amendments
are to be made to the constitution per Article 4 (2) so that all sections of the
proposed bill are consistent with the latest constitution. Otherwise, the contents
of the proposed bill are violating the constitution which is against constitutional
supremacy (i.e. a subordinate law is overriding the constitution).

Conclusion: As the proposed AP reorganization bill 2014 was completely rejected

by the state legislative houses, it means there is no acceptance by the state to

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bifurcate the state into two new states. Then the president/union government
shall get the proposed bill and each of its sections/clauses checked/ascertained
whether each section of the proposed bill is complying with various provisions in
the Constitution. In a federal setup where distinct powers are given to the states
(States List and other provisions in the Constitution), Parliament has no authority
to make laws on such matters. When a state is to be bifurcated, its assets,
capital city location (including outside its territory) and governance, liabilities,
state owned/controlled corporations, departments, institutions, water resources,
mineral resources, etc are falling within the purview of the State List and
Parliament is not entitled to pass a law without taking prior consent of such a
state. Many sections of the AP reorganization act 2014 introduced in the
Parliament are not conforming to the Constitution. Those sections of the
proposed bill which attract the compliance of Articles 246 (3), 252, 169, 262, 371
E (10), etc are not constitutionally valid without the consent of state legislatures
even after making them part of the Constitution invoking Article 4 (2). When
these sections are deleted from the bill, it will become infructuous, specious, and
not feasible to implement bifurcation of the state leading to a constitutional crisis
that is to be averted by the president as his fundamental duty. Actually, the views
taken from the state legislature is a formal negotiation process between a state
and the Union of India, and revised bills by the Union of India through the
president of India may be sent to the state legislature till all the disagreements
are sorted out mutually so that the state can accord approval to the final
proposed bill.

AP reorganization act, 2014 is violating the basic structure of the

Constitution

If there are no limits on the power of the Parliament under Article 3, as

considered by the Parliament and the president of India while passing the AP
reorganization bill, 2014 under its legislative powers applying Article 4, it is

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against federalism which is part of the basic structure of the Constitution as ruled
by the Supreme Court (SC) in the case ‘Kesavananda Bharati ... vs State of
Kerala And Anr on 24 April 1973’. SC ruled that the Parliament may amend any
article of the Constitution but cannot change the federal character (part of the
basic structure) of the Constitution.

Supreme Court in Kesavananda Bharati v. State of Kerala, (AIR 1973 SC 1461,

refer to http://www.indiankanoon.org/doc/257876/ ), ruled in Part III (paras 316 &
317) of the judgment as given below:

…….”316. The learned Attorney-General said that every provision of the

Constitution is essential; otherwise it would not have been put in the Constitution.
This is true. But this does not place every provision of the Constitution in the
same position. The true position is that every provision of the Constitution can be
amended provided in the result the basic foundation and structure of the
Constitution remains the same. The basic structure may be said to consist of the
following features:

(1) Supremacy of the Constitution;

(2) Republican and Democratic form of Government.

(3) Secular character of the Constitution;

(4) Separation of powers between the Legislature, the executive and the
judiciary;

(5) Federal character of the Constitution.

317. The above structure is built on the basic foundation, i.e., the dignity and
freedom of the individual. This is of supreme importance. This cannot by any
form of amendment be destroyed.” ……….

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Article 3, if empowering Parliament, can destroy any state when not subject to
any parameters or conditions laid down for the exercise of that power. It is
settled law that all powers have legal limits.

If Articles 3 & 4 give Parliament limitless power without guidelines, such

unconditional power in any organ of the state, especially Parliament, is a serious
threat to federalism, a basic structure of the constitution.

Parliament's unlimited and unfettered power under Article 3 is directly in conflict

with Article 1 which says that India shall be a union of states. Parliament may,
under Articles 3 & 4, can convert a state into a union territory or merge all the
states & union territories into one union territory or convert all the states in
to union territories wiping out gradually the federal nature of the
constitution. It can also make laws on the matters enumerated in the State List
on the pretext of changing a state boundary or its area or its name. This
tendency of the executive and legislature wings is to be nipped in the bud by SC.

Article 1 (1) of the Indian Constitution says that India shall be a "Union of States",
which is elaborated under Parts V (The Union) and VI (The States) of the
Constitution. It is the interpretation given by Pandit Jawaharlal Nehru to Article 1
(1) or federalism in the constituent assembly discussions (Volume VII, 15
November 1948). Article 1 (3) says the territory of India comprises the territories
of the states, the union territories, and other territories that may be acquired. The
concept of union territories was not there in the original version of the
Constitution but was added by the Constitution (seventh amendment) Act, 1956.
Article 366(30) also defines union territory as any union territory specified in the
First Schedule and includes any other territory comprised within the territory of
India but not specified in the First Schedule. In the Constitution wherever it refers
to Territories of India, it is applicable to the whole country including union
territories. Where it refers to only India, it applies to all states only but not to
union territories because India is a union of states. Thus, citizenship (part II),

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fundamental rights (part III), directive principles of state policy (part IV), judiciary
role, the union territories (part VIII), Article 245, etc. apply to union territories as it
refers specifically to the Territories of India. The executive power of the Union
(i.e. union of states only) rests with the president of India with jurisdiction over
territories of states only. The president of India is also in parallel the chief
administrator of union territories as per Article 239. The union public service
commission's (UPSC) role does not apply to union territories of India as it refers
to India only in Part XIV.

The supreme power is accorded to the president per Article 240 (2) in regulating
the affairs of all the union territories, except Chandigarh, NCT and Puducherry,
including powers to override the laws made by Parliament and the constitution of
India.

When a state is converted fully or partly into an union territory, people of such
union territory lose the right under Article 1 to have a self-ruled local government
which they were enjoying earlier. They lose the government employment
opportunities both locally and rest of India as they are not eligible for UPSC
appointments under Part XIV of the Constitution. People from other states would
be posted in the government offices in their area. If Article 240 (2) is applicable,
they are not eligible for fundamental rights including right to life and are totally at
the whims and fancies of the president. Their constitutional status can be similar
to animals on a permanent basis. Article 3 clubbed with Article 240 (2) is totally
against the basic foundation and structure of the Constitution and the identity of
its people. The dignity and freedom of individuals which are the basis/foundation
of the Constitution can be fully restricted by the monarch called the President of
India.

The federal character of the Indian democratic republic is one feature of its basic
structure of the Constitution. The above SC judgment rules that Parliament is not
empowered to change the federal character of the nation. If Article 3 proviso

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applicable to states is mere insignificant clause as a procedural matter only and
Parliament can divide a state using this Article, under its legislative power which
the ruling party/alliance generally enjoys, without obtaining the prior consent of a
state, Parliament can destroy any state of the Indian union. If the Article 3 proviso
is of no legal significance, there is no difference in the application of Article 3
between a state and a union territory.

In the case of “Mangal Singh & Anr vs Union Of India” on 17 November, 1966,
the five judge bench of SC stated that the law so made under Article 4 (1) may
also make supplemental, incidental and consequential provisions which would
include provisions relating to the setting up of the legislative, executive and
judicial organs of a State essential to the effective State administration under the
Constitution, expenditure and distribution of revenue, apportionment of assets
and liabilities, provisions as to services, application and adaptation of laws,
transfer of proceedings, and other related matters. These provisions can also
violate/modify the provisions of the Constitution on a temporary/permanent basis
(without incorporating them in the Constitution also) per Article 4 (2). Making laws
not consistent with Constitution and implementing such laws is not permitted by
Article 4 (2) and it permits only modifications to the Constitution by a simple
majority. This is nothing but diluting the supremacy of the Constitution where
India is a constitutional democracy and not a parliamentary democracy. As any
ruling party can misuse for political gains, malafide intentions, etc, the unfettered
powers given to the Parliament per Article 4 (2) without applying its constituent
powers per Article 368 are against the basic structure and foundation of the
Constitution. Since a subordinate law such as AP reorganization act, 2014 using
Article 4(1) is overriding the Constitution when all the required amendments are
not made per Article 4 (2) to the Constitution, it is against the supremacy of the
Constitution. There shall not be a law outside the Constitution which is overriding/
superior to the Constitution. Every law enacted by the Parliament shall derive its

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legality/power from the Constitution only. So the above judgment of SC dated 17
November 1966 is no more valid.

Supremacy of the Constitution is also undermined by the unconstitutional acts of

the president, etc. Also keeping such a major issue unresolved (more than eight
years) or treating the matter as a routine legal case is also casting doubts on the
application of “separation of powers between the legislature, the executive and
the judiciary” which is also a feature of the basic structure of the Constitution.

The preamble of the constitution declares the characteristic nature of India

whereas Article 38 fixed the goal to be achieved by the country, Article 38 (1) of
the constitution says that

“The State shall strive to promote the welfare of the people by securing and
protecting as effectively as it may a social order in which justice, social, economic
and political, shall inform all the institutions of the national life.”

Dr. Ambedkar while discussing Article 38 (Volume VII dated 19 December, 1948,
Constitutional assembly debates) stated that

… “The word 'strive' which occurs in the Draft Constitution, in judgment, is very
important. We have used it because our intention is even when there are
circumstances which prevent the Government, or which stand in the way of the
Government giving effect to these Directive Principles, they shall, even under
hard and unpropitious circumstances, always strive in the fulfillment of these
Directives. That is why we have used the word 'strive'. Otherwise, it would be
open for any Government to say that the circumstances are so bad, that the
finances are so inadequate that we cannot even make an effort in the direction in
which the Constitution asks us to go.”….

Per Article 37, the judiciary should not enforce/impose on the state the
implementation of the principles of the Directive Principles of State Policy (Part IV

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of the Constitution). It does not mean that Part IV is entirely non judice. When
any of the executive wings, legislative wings, and all other institutions of the
national life may not be striving to achieve a social order in which justice is
prevailing with respect to social, economic, and political aspects in all spheres of
national life, whereas the actual efforts of such institutions are contrary to the
objectives stated in Article 38 (1), SC is empowered to nullify such laws and
punish such individuals who have committed violations of the Constitution or
dereliction of duties for implementing laws to undermine the already achieved
progress consistent with the specified objectives in Article 38. Such deterrent
actions by the SC would discourage violations of the Constitution including Article
38 where the supremacy of the Constitution and the separation of powers
(between the legislature, the executive, and the judiciary) are part of the basic
structure of the Constitution and also the Article 50 of the Constitution.

Justice delayed is justice denied. From the above basic intention (Article 38) of
the Constitution, the judiciary/SC shall take all steps without any compromise and
delay to render prompt justice on issues where the legislature and executive
wings of the state/country are violating the Constitution including its basic
foundation and structure with impunity and immunity.

Conclusion: The AP reorganisation act, 2014 passed by a simple majority in the

Parliament without taking consent of the AP state assembly is unconstitutional
and against the basic foundation and structure of the Constitution. To shorten the
continuation of unconstitutional laws made by the Parliament or legislature of a
state, the SC should pronounce, where interpretation of the Constitution is
involved, needed guidelines to resolve all types of cases as soon as possible and
not at the discretion of the chief justice of India.

Article 4 (2) was superseded by the 24th constitutional amendment, 1971 to

Article 368 by introducing Article 368 (1)

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There are a few articles [Articles 4 (2), 169 (3)-1962, 239A2-1962, 244A4, 256
(1)c, 356 (1)c, para 7(2) of Schedule V and para 21(2) of Schedule VI] in the
Constitution which permit amendments to the Constitution by ordinary legislation
in addition to Article 368 procedure. Article 4 (2) is invoked to amend the
Constitution when a law is enacted under Article 2 or 3 for the marginal,
incidental and the consequential provisions. However, Article 4 (2) is superseded
by the 24th amendment in the year 1971 to Article 368. Article 368 (1) says that
“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.” Thus
there is only one procedure for bringing an amendment (including of marginal
nature) to the Constitution which is the procedure given in Article 368 (2).

Section 1 of Article 368 is loaded with “Non-obstante” clause wording

“Notwithstanding anything in this Constitution” (Refer
http://www.academia.edu/2590285/Non-Obstante_Clause ) which will override
any other article inconsistent / contradicting it. Whereas Article 4 (2) says “no
such law framed under Article 4 (1) shall be deemed to be an amendment of this
Constitution for the purposes of Article 368.” The 24th amendment in the year
1971 to Article 368 clearly laid down the procedure to be followed for any
amendment to the Constitution notwithstanding anything elsewhere in the other
Articles of the Constitution. So Article 368 (1) makes provisions of Article 4 (2)
invalid and not applicable anymore when the proposed law/bill under Articles 3 &
4 mandates an amendment to the Constitution. Deemed constitutional
amendments passed by ordinary legislation of the Parliament are no more valid
after the 24th constitutional amendment in the year 1971.

The objective of the 24th Constitution amendment, 1971 is to amend Article 368
suitably for the purpose and make it clear that Article 368 provides for
amendment of the Constitution as well as procedure therefor. The title of Article

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368 (Power of the Parliament to amend the Constitution and procedure therefor)
is also amended accordingly to indicate its sole validity and the only applicable
procedure for the Constitutional amendment. Refer to the link
http://indiacode.nic.in/coiweb/amend/amend24.htm for statement of objects and
reasons of 24th Constitution amendment, 1971.

Conclusion: Article 368 (1) is an incontrovertible point of law to prove that the
passing of AP reorganization act, 2014 by simple majority/vote of voice applying
invalid/void Article 4(2) is a violation of the Indian Constitution. The supplemental,
incidental, and consequential provisions made in AP reorganization act, 2014 are
not valid when contradicting other explicit provisions of the Constitution per
Article 245. Incorporating laws inconsistent with the Constitution in the bill
referred to Article 3 is also invalid.

Constituent power vs legislative power

Article 368 (1) was added by the 24th constitutional amendment in the year 1971.
The validity of this amendment is upheld by the SC in Kesavananda Bharati v.
State of Kerala, (AIR 1973 SC 1461, refer to
http://www.indiankanoon.org/doc/257876/ ). Article 368 (1) says that Parliament
has constituent power to amend any provision of the constitution. Constituent
power means power to frame the Constitution and modify the Constitution by
addition, variation or repeal of any provision of the Constitution. It is different from
constituted power or legislative power. The constituent assembly is an
empowered body to frame the Constitution with its entities such as Parliament,
union/executive, judiciary, states, etc. In the Indian Constitution after adopting the
Constitution, Parliament has both constituent and constituted / legislative powers
with different sets of enacting procedures. Constituted power or legislative power
conferred upon the Parliament by Article 245, is subject to provisions of the
Constitution in making legislation. Whereas constituent power of the Parliament
is applicable only under Article 368 to amend the Constitution.

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The SC declared in the case ‘A. K. Roy, Etc vs Union Of India And Anr on 28
December, 1981’ that the constituent power, (i.e. the power to amend any
provision of the Constitution by way of an addition, variation or repeal as defined
by section 1 of Article 368) must be exercised by the Parliament itself in
accordance with the procedure laid down in Article 368 (2) and cannot be
delegated to an outside agency. (refer to http://indiankanoon.org/doc/875590/ ).
The relevant excerpts (pages 311 & 312 of the original) from the judgment are
given below:

……. The argument is that the constituent power must be exercised by the
Constituent body itself and it cannot be delegated by it to the executive or any
other agency. For determining this question, it is necessary to bear in mind that
by 'constituent power' is meant that power to frame or amend the Constitution.
The power of amendment is conferred upon the Parliament by Article 368 (1),
which provides that the Parliament may in exercise of its constituent power
amend by way of addition, variation or repeal any provision of the Constitution in
accordance with the procedure laid down in that Article. The power thus
conferred on the Parliament is plenary subject to the limitation that it cannot be
exercised so as to alter the basic structure or framework of the Constitution. It is
well settled that the power conferred upon the Parliament by Article 245 to make
laws is plenary within the field of legislation upon which that power can operate.
That power, by the terms of Article 245, is subject only to the provisions of the
constitution. The constituent power, subject to the limitation aforesaid, cannot be
any the less plenary that the legislative power, especially when the power to
amend the constitution and the power to legislate are conferred on one and the
same organ of the State, namely, the Parliament. The Parliament may have to
follow a different procedure while exercising its constituent power under Article
368 than the procedure which it has to follow while exercising its legislative
power under Article 245. But the obligation to follow different procedures while
exercising the two different kinds of power cannot make any difference to the

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width of the power. In either event, it is plenary, subject in one case to the
constraints of the basic structure of the Constitution and in the other, to the
provisions of the Constitution.

The contention raised by the petitioners, that the power to appoint a date for
bringing into force a constitutional amendment is a constituent power and
therefore it cannot be delegated to an outside agency is without any force. It is
true that the constituent power, that is to say, the power to amend any provision
of the Constitution by way of an addition, variation or repeal must be exercised
by the Parliament itself and cannot be delegated to an outside agency. That is
clear from Article 368 (1) which defines at once the scope of the constituent
power of the Parliament and limits that power to the Parliament. ……..

Conclusion: From the above, any legislation to amend the Constitution (including
of marginal nature) by the Parliament under any other provision other than Article
368 is invalid. The legislative power conferred to the Parliament by Article 4 with
a less stringent enactment procedure (simple majority of Parliament members
present and voting in each house of Parliament or joint sitting of both houses
under Article 108) is not constitutionally valid to amend the Constitution including
Schedules I and IV. Thus the provision under Article 4 (2) of the Constitution is
void after the addition of Article 368 (1) by the 24th constitutional amendment in
the year 1971.

President’s role under Article 3:

Article 3 makes President’s role as pivotal as he is to recommend for introducing

the bill in either house of the Parliament for enactment. It is the only case where
the president is recommending a bill other than money bills to the Parliament for
passing a bill.

The president’s oath of office differs from the other’s oath of office. The
president's oath of office places ( r e f e r t o A r t i c l e 6 0 o f t h e I n d i a n

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constitution http://lawmin.nic.in/olwing/coi/coi-english/coi-
indexenglish.htm ) a solemn obligation to preserve, protect and defend
the Constitution and the law. In the case of the prime minister / union minister /
others except judges and governor of a state, the oath of office is to uphold the
sovereignty and integrity of India (refer Schedule 3 of the
Constitution). Further, the Constitution has laid down that any violation of
the Constitution by the president has a constitutional consequence of
impeachment ( r e f e r t o A r t i c l e 6 1 o f t h e C o n s t i t u t i o n ) p r o v i d e d
two thirds of the member of both houses of Parliament
d e c i d e s s o . However, the president may indulge in constitutional violations in
cahoots with the ruling party/alliance of the union government to safeguard
himself against impeachment proceedings. President violating Constitution is
against the supremacy of the constitution which is a basic feature/structure of the
constitution.

Under Article 74, the president generally shall abide by the aid and advice of the
council of ministers. While discharging his duty, the president is not bound by
the aid and advice of his council of ministers in case the bill is violating the
Constitution. President being under oath to protect, preserve and defend the
Constitution and being common head of all the constitutional entities (union
government, state governments, union territories, Parliament [as per Article 79
president is part of Parliament], judiciary, election commission, CAG, the attorney
general of India, etc), he/she should apply his mind and examine whether a
proposed bill (under Article 3) is within the constitutional limitations and
constitutionally permissible. Especially, the president's power under Article 3 is a
power coupled with the duty to recommend the bill after he is fully satisfied in
upholding the Constitution for introducing the bill in the Parliament. President can
also send back the passed bill (except the constitutional amendments under
Article 368 and money bills) for reconsideration to both houses with his
recommendation under Article 111.

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Article 143, gave the power to the president to consult SC for legal advice (in
addition to legal advice by the AGI under Article 76) in fulfilling his constitutional
duties and obligations. In the case of AP reorganisation act, the bill proposed by
the union government was rejected by the state government. President is bound
to take the opinion of SC under Article 143 treating the case as a disagreement
between two constitutional entities (union government and a state government)
before making his recommendation to introduce the bill in the Parliament.

The meaning of the word "recommend" or "recommendation" used in Article 3

has a specific meaning. It imposes a constitutional obligation on the part of the
President in exercising power which is not discretionary to him.

The SC bench has made clear the meaning and nature of the word "recommend"
or “recommendation” in the ‘Three Judges Case’ (refer to the link
http://en.wikipedia.org/wiki/Three_Judges_Cases and its references) In these
cases, the SC has extensively reviewed the meaning of the word
"recommendation" in the context of Judges' appointments and transfers with
following concluding observations as given below.

….7. The views of the Judges consulted should be in writing and should be conveyed to
the Government of India by the Chief Justice of India along with his views to the extent
set out in the body of this opinion.

8. The Chief Justice of India is obliged to comply with the norms and the requirement of
the consultation process, as afore stated, in making his recommendations to the
Government of India.

9. Recommendations made by the Chief Justice of India without complying with the
norms and requirements of the consultation process, as afore stated, are not binding
upon the Government of India. …

Conclusion: The same interpretation / procedure / meaning (Refer to link and its
references http://www.indiankanoon.org/doc/543658/ Presidential reference to

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SC on the judges appointment) shall be applicable to the president also under
Article 3 while giving his recommendation to preserve, protect and defend the
Constitution under the obligation of oath (Article 60). President has not consulted
SC and AGI for legal opinion at the time of recommending or assenting the bill.

Whether the rejected bill by state assembly is introduced in the Parliament

without the recommendation of the President.

Article 255 (c) of the Constitution permits waiver of the prior recommendation by
the president to introduce a bill in the Parliament provided final consent is
accorded by the president after the bill was passed by the Parliament. In this
case, the responsibility of passing the bill conforming to the Constitution lies also
with the speaker of the Lok Sabha and the chairmen of the Rajya Sabha/vice
president of India as well. In case of doubt and objections by Parliament
members during the discussions, the speaker/vice president may refer to the
standing committee of members of Parliament on the subject matter to aid and
advise on the introduced bill in detail for its objectivity, purpose and validity. Per
Article 111 of the Constitution, president shall also send back the bill with his
recommendations to cure defects of the bill wherever violating the provisions of
the Constitution or instruct to approve the bill under Article 368 procedure or with
prior approval of the state legislature.

Article 51A (a) of the Constitution mandates every citizen of India to abide by the
Constitution as part of fundamental duties. The prevention of insults to national
honour act, 1971 was passed by the Parliament to convict and punish the
citizens including the president, the vice president, the speaker of Lok Sabha, the
governor of a state, etc whoever indulges in contempt (whether by words, either
spoken or written, or by acts) of the Constitution of India or any part thereof, shall
be punished with imprisonment for a term which may extend to three years, or
with fine, or with both. Violation of the Constitution knowingly is an act of
indulging in contempt of the Constitution with certainty. When courts declare an

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act/deed of the president or the vice president or the speaker of the Lok Sabha is
a violation of the Constitution or ultra vires and such court verdict is nothing but
found guilty or convicted without any punishment under the Prevention of insults
to national honour act, 1971. Then, they lose their requisite qualification (qualified
to be chosen as Lok Sabha or Rajya Sabha members) to continue in the
designated posts. Per sections 7 & 8(k) of the Representation of the people act,
1951, a person is disqualified automatically from being a Lok Sabha or Rajya
Sabha member upon convicted of an offense punishable under section 2 of the
Prevention of insults to national honour act, 1971. Article 71 (1) states that all
doubts and disputes arising out of or in connection with the election of a
president or vice president shall be inquired into and decided by the SC whose
decision shall be final. A mere doubt about the requisite qualification of the
president or vice president to continue in office is enough for the SC to probe (on
its own or on receiving a petition or during this case proceeding) and if found
guilty president or vice president shall relinquish from their posts. The probe can
be taken up by SC separately on an immediate basis or as a part of this case.

Per Article 361 (2 and 3) of the Constitution, the president of India and governor
of a state cannot be subjected to criminal prosecution in any court and subjected
to arrest or imprisonment during their term of office. SC probing the requisite
qualification requirements per Article 71 (1), to ascertain the eligibility of the
person to continue to hold the office of the president, is not a criminal proceeding
against the president. Upon relinquishing from the office of the president, criminal
proceedings can be initiated in a court to award the punishment under the penal
code and the Prevention of insults to national honour act, 1971.

A governor of a state shall also protect, defend and preserve the Constitution and
the law to abide by his oath of office per Article 159 of the Constitution similar to
the oath of office of the president under Article 60. When found guilty of violating
the Constitution, a governor of a state shall also be recalled by the president as

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he is holding office during the pleasure of the president per Article 156 (1) of the
Constitution. Appointment to an office at the pleasure of the president means a
person selected to serve an office by the president at the sole selection or
discretion of the president. Otherwise, the president is liable for disqualification
under Article 71(1), the Prevention of insults to national honour act 1971, and the
Representation of the people act, 1951 as the president is bound to protect,
defend and preserve the Constitution and the law under Article 60 of the
Constitution. A governor of a state is also liable to undergo punishment for
violating the Constitution after he relinquishes the office under the Prevention of
insults to national honour act, 1971, and the applicable penal code.

Under Article 361 (1) of the Constitution, though the president or governor of a
state cannot be summoned for questioning except on the voluntary willingness to
testify in the court in support of his/her controversial deeds, the unconstitutional
decisions taken by the president would be declared invalid by the courts as
clarified by the SC in the case Rameshwar Prasad & Others vs Union of India &
An Other on 24 January 2006. The case would be decided by the courts based
on the facts furnished by the union government for the role of president.

Whether the rejected bill by the state assembly is the same as the bill
introduced in the Parliament

Though there were many reports in the media that the modified bill was
introduced in the Parliament by the president, it appears that the rejected bill by
the AP assembly was only introduced in the Parliament additionally with the
statement of objects. However, there is a difference between the Act notified in
the Gazette of India after the consent of the president and the bill that was
introduced in the Lok Sabha by the home minister. The following addition was
made to section 3 of the Act

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… (but excluding the revenue villages in the Mandals specified in G.O.Ms. No.
111 Irrigation & CAD (LA IV R&R-I) Department, dated the 27th June, 2005 and
the revenue villages of Bhurgampadu, Seetharamanagaram and Kondreka in
Bhurgampadu Mandal) …

The bill was first passed by the Lok Sabha without the live telecast of the
session. Eyewitnesses say that the bill was declared by the speaker as passed
on a vote of voice without any amendment motion when the house was not in
order and under pandemonium. The request by the members for voting in the
house to prove the majority in support of the bill has been refused by the speaker
of the Lok Sabha. The role played by the then-speaker of Lok Sabha is to be
enquired by the SC by examining the video and audio recordings of the session,
and other records from the secretariat of the Lok Sabha to judge the
unconstitutional role played by the then-speaker of Lok Sabha. If the then-
speaker of Lok Sabha is found guilty of declaring a bill passed falsely without
actually getting the bill approved by the majority of members present, she shall
be awarded punishment under applicable criminal law and the Prevention of
insults to national honour act, 1971.

The bill with false approval later was sent by the speaker of Lok Sabha to the
Rajya Sabha for approval. The then chairman of Rajya Sabha did not send the
bill for aid and advise of the standing committee on matters of home ministry
even after many members expressed that the bill is unconstitutional during the
discussion prior to the voting on the bill without any motion of amendment. The
bill was passed by the Rajya Sabha by a vote of voice without any amendment.
The chairman of the Rajya Sabha with a malafied motive conducted the session
to get the bill passed by the Rajya Sabha in a hurried manner uncalled for
without ascertaining the constitutional validity of the bill under ordinary legislation.
If the then-chairman of Rajya Sabha is found guilty by the SC for his
unconstitutional deeds in getting the bill passed without ascertaining its

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constitutional validity, he shall be awarded punishment by SC under applicable
criminal law and the Prevention of insults to national honour act, 1971.

It is of utmost importance to find out how the defective bill introduced in the Lok
Sabha got changed without passing any amendment motion and whether the bill
got a formal approval of the Lok Sabha against the claims of the speaker. Later
the falsely approved bill was accorded the assent by the president for gazette
notification without sending back the bill with a recommendation to cure defects
of the bill wherever violating the provisions of the Constitution and approve the
bill under Article 386 procedure. The then-president of India, then-speaker of Lok
Sabha and then-vice president are guilty of violating the Constitution to attract
disqualification for continuing in office including suitable punishment.

The unconstitutional role played by the President of India & Governor of

the state during the president’s rule from 1/3/2014 to 1/6/2014

Article 356 (1)c states that “president may by proclamation make such incidental
and consequential provisions as appear to the president to be necessary or
desirable for giving effect to the objects of the proclamation, including provisions
for suspending in whole or in part the operation of any provisions of this
constitution relating to any authority or body in the state.”

President rule was imposed (

http://www.egazette.nic.in/WriteReadData/2014/158316.pdf ) on 1/3/2014 (on the
same day gazette notification (GO) announcing the bifurcation of the state was
issued) in the undivided AP state when the Chief Minister resigned and refused
to act as caretaker chief minister in protest against the unconstitutional method of
bifurcating the state in spite of the bill had been rejected by the state assembly.
The GO proclaiming president rule is not indicating the object of the president
rule proclamation. However, It is declaring that the operation of the listed

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provisions of the Constitution in relation to that State is hereby suspended,
namely:–

so much of the proviso to Article 3 as relates to the reference by the President to

the Legislature of the State, etc for giving effect to the objects of this
proclamation.

The first term of the president’s rule got elapsed after two months automatically
in the absence of its approval by both houses of the Parliament or the council of
states (Rajya Sabha) when the Lok Sabha is dissolved per Article 356 (3).

President again issued the illegal proclamation imposing president rule (

http://www.egazette.nic.in/WriteReadData/2014/159233.pdf ) w.e.f 1/5/2014. This
GO also does not indicate the object of the president rule proclamation in the
state but suspended the constitutional right of the state under Article 3 (as relates
to the reference by the President to the Legislature of the State) for giving effect
to the objects of the proclamation imposing president rule. During the period of
the second time president’s rule, president issued an ordinance (
http://www.egazette.nic.in/WriteReadData/2014/159646.pdf ) on 29/5/2014
amending the AP reorganization act, 2014. On 1/6/2014, three days after issuing
an ordinance amending the AP reorganization act 2014, president has
withdrawn the president’s rule (
http://www.egazette.nic.in/WriteReadData/2014/159680.pdf ) in the state of
Telangana.

Under Article 123, ordinances can be issued during the recess of the Parliament
by the president only when he is forced by circumstances to take immediate
necessary action otherwise government functioning would get affected adversely
with the existing laws that are found inadequate. From the above acts of the
president, it is very clear that one of the motives of the president & the Union
government is to bring an amendment to the AP reorganization act, 2014 without

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giving an opportunity to the new states to express their views on transfer of some
area from Telangana state to residual AP state. This was done during the
unconstitutional imposition of the president’s rule for the second time which is
nothing but an extension of the president’s rule beyond two months’ duration
without taking Rajya Sabha’s approval. President has violated the Constitution by
imposing the president’s rule and has taken away unlawfully the right of the
states to express their views under the proviso of Article 3 by issuing an
ordinance a few days before revoking the president’s rule.

Being a protector and defender of the Constitution, the president’s role is

contrary to the Constitution from the act of recommending/consenting the
rejected AP reorganization bill, 2014 to bringing the ordinance on the same act.
Suspending the right of the state under Article 3 as permitted under 356 (1) c is
stated as a means to achieve the object of president rule proclamations. Article
123 (3) declares any ordinance issued by the president is void if the Parliament is
not competent to enact it into law under the Constitution. In this case, the
ordinance issued by the president during the unconstitutional president’s rule
between 1/5/2014 to 1/6/2014 in the undivided AP state is illegal as the
Parliament under Article 4 can pass the ordinance in to law only after fulfilling the
Article 3 proviso applicable to states. A law cannot be made under Article 4
without taking reference to Article 3 (in this case) which was suspended in the
proclamation of the president while declaring the president’s rule in the undivided
state.

If the re-imposition of the president’s rule under Article 123 in a state by

presidential proclamation is constitutionally justified, the president or union
cabinet can impose perennially president’s rule (under Article 123) in a state or
all states by repeatedly extending the president’s rule after every two months
without taking Parliament’s approval. This is totally against the federal character
of the Constitution and the rule of law in a constitutional democracy.

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As stated in the proclamation of the president’s rule, the governor’s role is made
null except for retaining the post for future purposes if any. Under Article 357
during the president’s rule, Parliament has not conferred on the president the
power of the Legislature of the State to make laws and to authorize the president
to delegate the power so conferred to any other authority/governor to be
specified by him. During the second time president’s rule, which was
unconstitutional, many gazette orders (GO) were issued in violation of the
constitution by the governor (in his name) of the state which have become a
bone of contention between the two new states. Under Article 159, the
governor’s primary role is to preserve, protect and defend the Constitution and
the law. These GOs issued by the governor are null and void as the second-term
president’s rule is unconstitutional. (G.O.Ms.No. 24 dated: 29-05-2014, Transfer
of Anantapur and Kurnool Districts from CPDCL to SPDCL in accordance with
the provisions of AP Reorganisation Act, 2014: GO Ms No.25 Dated :29-05-2014,
Creation of GENCO for Telangana in accordance with provisions of AP
Reorganization Act, 2014: G.O.Ms.No.20 Dated:08.05.2014, Amendment to the
Third Transfer Scheme for allocation of power to 4 Distribution companies: etc.)
Moreover these GOs are supposed to get prior approval from the Parliament
under Article 356(1)b during the president’s rule.

President taking away the constitutional rights of the Legislature of a State under
Article 356 (1) c, is an amendment to the Constitution on a limited period basis.
After the 24th amendment to the Constitution, any amendment to the Constitution
shall be passed under Article 368 procedure. However, president’s rule can be
proclaimed under Article 356 and the president can assume to himself all or any
of the functions of the government of the State and all or any of the powers
vested in or exercisable by the governor or any authority or body in the State
other than the Legislature of the State under Article 356 (1)a. Under Article 356
(1)b, the powers of the Legislature of the State shall be exercisable by or under
the authority of Parliament. Thus president and Parliament can take care of the

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normal functions of the state government during the president’s rule. Declaring
the object publicly of the presidential proclamation is mandatory for suspending
the constitutional rights of the state when Article 356 (1) c was valid prior to the
24th amendment to the Constitution. The main object of the president’s rule was
to bypass the Article 3 proviso in bringing an amendment to the AP
reorganization act, 2014 first by an ordinance during the president’s rule. Thus
president violated the Constitution repeatedly as given below

 Recommending at his discretion the rejected bill by the state legislature

without following the norms fixed by the SC.
 Giving assent to the AP reorganization act, 2014 passed under legislative
powers of the Parliament against the requirement under the constituent
powers of Article 368 with prior approval of the state legislatures.
 Imposition of the president’s rule for the second time after the first one
lapsed automatically for want of Parliament’s approval. Being the foremost
defender and protector of the Constitution, he/she shall make a good
assessment of the situation (with the aid and advice of AGI, SC, election
commission, etc) and would have acted in such a way that would not lead
to a constitutional breakdown in the country/a state.
 Issuing ordinance bringing an amendment to the unconstitutional AP
reorganization act, 2014 under a superseded Article 356 (1)c by Article
368 (1). Article 123 (3) declares any ordinance issued by the president is
void if the Parliament is not competent to enact it into law under the
Constitution. Also Article 3 application had been suspended in the
presidential proclamation and an ordinance was issued during the
president’s rule invoking Article 3 (suspended in the earlier presidential
proclamation) which is a blatant violation of the Constitution.

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  The state governor / president has issued many GOs unlawfully during the
second time president’s rule without taking consent from the Parliament
under Article 357.

Conclusion: If all the above acts of the president are perused carefully, it is clear
that the president wanted to recommend a substantially modified bill (other than
the bill earlier sent to the undivided AP assembly) to the Parliament but did not
want to send back to the undivided AP state assembly for expressing its views
afresh as per Article 3. But he achieved the modified/intended act ultimately by
bringing ordinance during the president’s rule by repeatedly violating the
Constitution. Thus president acted in a way committing total dereliction of his
duties without showing regard to the Constitution & its rule of law which he is
supposed to be its protector and defender.

The then president, vice president, speaker of Lok Sabha, and the Governor of
AP state are no more in their posts and they can be given punishment if found
guilty of violating the Constitution. The then president has died but his Padma
Vibhushan title can be stripped for violating the Constitution.

Also, SC should give detailed guidelines/clarifications in line with the Constitution

to issue ordinances, proclamations of the president’s rule by the president, and
the declaring objectives of such proclamations publicly.

The points which need constitutional amendments

Strictly speaking, the entire bill shall be passed under constitutional amendment
with ratification by at least 50% of the states of India, making it a part of the
Constitution, since Article 4(2) is no more valid and many of the sections in the
proposed bill are the matters enumerated in the State List. The following
provisions in the AP reorganization bill 2014 shall attract specifically the
constitutional amendments under Article 368 procedure.

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Modifications to Article 371 D & E:

Section 10 of Article 371D stipulates that the provisions of Article 371D and of
any order made by the president there under shall have effect notwithstanding
anything in any other provision of this Constitution or in any other law for the time
being in force.

Article 371 D & E constitutional amendment was made on 1/7/1974 whereas the
provisions of Article 4 are extant without amendment from the original
Constitution of the year 1950. So the later amendment (section 10 of Article 371
D) would be valid in case of conflict between Article 4 (2) vs Article 371D & E.

Common Capital city:

There is no provision of common capital city or capital of one state in another

state territory in the Constitution. It shall call for constitutional amendments under
Article 368 in case to be implemented. The responsibility to protect the residents
of common capital of both states is given to common governor of both states is
curtailing the constitutional powers of Telangana state. Earlier, similar type law is
made applicable to the state of Arunachal Pradesh by inserting Article 371H in
the Constitution as an amendment to the Constitution.

Item no. 63 of Union List in Seventh Schedule:

The reference given to Article 371E is to be deleted as the established central

university at Hyderabad is no more in Andhra Pradesh state. It is now located in
Telangana state after the state bifurcation.

Interstate River waters sharing:

Brijesh Kumar tribunal (KWDT II) is extended under Part IX of AP reorganization
bill 2014 with the terms of reference to make a project-wise specific allocation, if
such allocation has not been made earlier and to determine an operational

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protocol for project-wise release of water in the event of deficit flows. Whereas
River waters use/harnessing is included in the states jurisdiction (entry 17 of the
state list, Schedule 7 of Indian Constitution). Union of India has no right to
interfere with the constitutional powers of a state government to deny the
freedom a state government has in using its water resources including interstate
rivers (in this case Krishna & Godavari rivers) in a manner it likes as long other
states existing interests are not affected. Please refer
to http://en.wikipedia.org/wiki/Interstate_River_Water_Disputes_Act for more
information. If the union government wants to take away the right of the state
government in using interstate river waters, it calls for constitutional amendments
under Article 368 procedure. Also, the tribunal is not formed by making an
amendment to the ‘Interstate river waters dispute act, 1956’ since a tribunal is to
be constituted under this Act upon the request of at least one riparian state of an
interstate river basin. Earlier, such amendment to this Act was made to constitute
a river water tribunal for water allocation from Ravi and Beas rivers under
Longowal and Rajiv Gandhi pact. In the absence of any amendment to the
‘Interstate river waters dispute act, 1956’ to include the above tribunal, formation
of such tribunal for deciding the rivers water allocation (both Krishna and
Godavari rivers since the earlier common tribunal was formed by the Union of
India for water allocation of these rivers) is violation of Article 262 and
unconstitutional.

Public interest:

Per Article 282, the Union or a state may spend its revenues and borrowings for
any public purpose as per the division of powers between states and the Union
per Article 246. Public purpose is entirely different from public interest. Public
interest is a popular demand from all sections of the people without any
opposition to the demand from any of the stakeholders such as people affected

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by the scheme/project by losing their immovable properties, deprived of existing
lively hoods, forced to resettle elsewhere, etc.

In section 90 of the AP Reorganization Act, 2014, the Union has taken control,
regulation, and development of the Polavaram irrigation project as a necessity
under public interest. It is nothing but misuse of s.no 56 of the union list in the
constitution to claim right over the state jurisdiction of an irrigation project per
entry 17 of the state list, schedule 7 of the Indian Constitution by wrongly
applying public interest. Public Interest is served whenever a change is preferred
by all stakeholders to the status quo ex-ante. In "ex-ante" approach, the change
is not evaluated after the fact but assessed before the fact without knowing
whether one would actually benefit or suffer from it. That means nobody
(including forcefully displaced people, owners of immovable assets, etc.) shall be
a loser or dissatisfied at the time of making a law/decision in the public interest.
Refer to https://en.wikipedia.org/wiki/Public_interest for more information.

A scheme or project requirement under national interest can be established per

Article 249 only by passing the proposal by two-thirds majority in the Rajya
Sabha in its favor. The scope and definition/applicability of public interest vs
public purpose and its dos and don’ts should be clarified by the SC since the
Polavaram irrigation project is similar to any other irrigation project executed by
the Union or a state where the people are forcefully displaced and the owners of
immovable assets located in the project submergence area are dissatisfied with
the compensation offered to them (i.e. below the permitted compensation as per
land acquisition laws) and suffering from the difficulties during the project
construction for not providing proper rehabilitation measures promptly by the
Union/AP state. The project lacks merit totally on the grounds of public interest
since other state governments (Odisha and Chhattisgarh including Telangana)
are also not happy with the project. The project falls under the category of public
purpose and not public interest. Per Article 31 (2), no property shall be

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compulsorily acquired or requisitioned save for a public purpose and save by
authority of a law where transfer and alienation of agricultural land are under
state jurisdiction per item 18 of the sate list in the Constitution.

The articles of the Constitution containing the word ‘public interest’ are being
misused by the Union of India to grab the powers of states and restrict the
fundamental rights [Articles 22 (6), 31A (b) and 31A (c)] of the people. Polavaram
project declared as a national project under public interest is one such example
invoking item 56 of the union list in the seventh schedule of the constitution. It is
the only multipurpose irrigation project being executed by the Union as a national
project branding its requirement under public interest but being actually executed
similar to a national project under any public purpose by the Union. The aim of
the Union is to usurp the property right of the project maliciously from the state
government by invoking public interest on false grounds. The Polavaram
project’s development, and its control and regulation by the Union, claimed under
public interest, shall be declared by the SC as ultra vires or unconstitutional.
However, the project shall continue to be constructed as a national project with
total project funding borne by the Union similar to other national projects.

The status of Article 3 after the 24th Constitution amendment, 1971 to

Article 368:

It is not possible to make changes to Schedules 1 and 4 of the Constitution with

an ordinary majority by the Parliament when Article 4(2) is superseded by Article
368 (1). When a state is to be bifurcated into a few states or its boundary is to be
altered without its consent, it is possible only under Article 368 procedure with
ratification by at least 50% of the states of India. In the case of a union territory,
Article 368 procedure without ratification by states is adequate.

In case the state that is to be bifurcated or its boundary to be altered is agreeing

to such alterations in its area, Article 252 procedure can be adopted to avoid

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ratification of at least 50% of the states in Article 368 procedure. Initially, at least
two states can pass a resolution per Article 252 permitting Parliament with a
special majority per Article 368 to bifurcate respective states after the approval of
such bifurcation bill with an ordinary majority by the State Legislative Assembly
and State Legislative Council (if any). Later whenever needed, other states can
also endorse the Parliament per Article 252 to bifurcate the state or change its
boundary.

However, the motives behind the alterations to a state or a union territory

boundary shall be to strive for a social order in which justice is prevailing with
respect to social, economic, and political aspects in all spheres of national life per
Article 38 and the preamble of the Constitution. A commission of experts from
each sphere may also be formed to enquire and establish the net gains with
respect to prevailing social justice, economic justice, and political justice for
making alterations to a state boundary. The 24th Constitution amendment, 1971
to Article 368 effectively prevented alteration of state boundaries by misusing
Articles 3 and 4 by ruling political party/alliance (with a simple majority in the
Parliament) for political gains and malafide motives. Judiciary (SC) in a
constitutional democracy has full powers to nullify/repeal such unconstitutional
acts of the Parliament if negating or undermining the already achieved social
order per Article 38.

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