By: Kartik Sharma
The creation of the independent Indian state was an unprecedented event in history. This nascent nation had to be steered through the vagaries of threatening forces. A transformative vision encompassing a unique version of federalism was instituted as the basis of our Constitution. The Union Government was vested with powers to form, divide, and reorganize states as per the ever-changing needs under Article 3 of the Constitution. As a consequence of this, several states were reorganised and new states came into existence throughout post-independence history.
The most striking aspect of Article 3 is the non-requirement of the consent of the concerned state(s) to the particular legislation. The President is only bound to refer the Bill to the states to ascertain their views, and the views have to be expressed within a period per the President’s discretion. The Supreme Court has reaffirmed the primacy of the Parliament in this domain through Babulal Parate v. the State of Bombay. The SC noted that the chance given to the State to express its views is just an opportunity with the time frame at the discretion of the President. Even if the state doesn’t revert, the condition is fulfilled. Furthermore, ‘the court observed that there is no express mention in the Article that the modified proposal has to be sent back again to the State legislature’. I argue that the court committed an error by denying the right of states to have the modified proposal sent back for consultation. In case of multiple possible interpretations, constitutional provisions have to be interpreted liberally to uphold reasonability and prevent injustice. In the case of Article 3, the Court shouldn’t have denied the states their right when the same has not been expressly prohibited in the provision.
The immense power vested with the Union Parliament creates an imperative for a framework of a judicial inquiry into the constitutional validity of reorganizations. This expediency materialized recently in light of the abrogation of Article 370 entailing the bifurcation of Jammu and Kashmir. Its constitutional validity is under challenge before the Supreme Court. This blog shall explicate a three-step test to determine the constitutional validity of the reorganizations. This analytical framework shall resonate with the ‘manifest arbitrariness’ doctrine propounded in Shayara Bano v. Union of India and the doctrine of proportionality, which has now become a staple of the Indian judiciary.
FIRST PRONG: LEGITIMATE PURPOSE AND GUIDING PRINCIPLE
The first level of scrutiny would be a determination of the legitimate purpose and guiding principle behind the reorganization. A brief segues into political history: the Dhar commission set up in 1948 had rejected language as the commanding factor owing to secessionist concerns. This rejection was reiterated in the report of the 1948 JVP Committee. However, the Union government was forced to create Andhra state, the first state to be reorganized on linguistic lines, due to widespread agitation. This created a ripple effect across India and finally, a States Reorganization Commission (hereinafter SRC) was set up in 1953. The commission acknowledged the urgency of settling the linguistic question and creating enduring and rational political units. SRC listed the following considerations: Unity and Security of India; Language and Culture; Financial factors; Regional Planning and Balanced Economy. National security was placed at the top with an equilibrium between regional sentiments and national spirit. The SRC opined that Linguistic homogeneity was an important factor but overriding importance shall not be attached to it. However, it is amply clear that the force behind the 1956 Reorganization Act was language.
The formation of Chhattisgarh, Jharkhand, and Uttarakhand in 2000 and of Telangana in 2014 is a deviation from the linguistic preoccupations in the preceding reorganizations. It is noteworthy how the demand for Jharkhand was rebuffed in 1955 on grounds of a lack of a cogent tribal identity and language. The SRC had recommended the formation of Telangana for an interim period on grounds of administrative convenience. The 1956 Reorganization Act, however, created a united Andhra state. If linguistic homogeneity was the ultimate solution, the demand for Telangana would never have risen again. These new states were a response to economic backwardness and alleged internal colonialism. There were disparities in the accrual of developmental benefits within the larger state. For instance, the people of the Uttarakhand region in erstwhile Uttar Pradesh cried neglect at the hands of the state government. The geographical region fell short of the optimal socio-economic indices. A similar argument of exploitation by dominant elites ushered in the rallying call for Jharkhand formation.
Through a historical overview, it becomes apparent how the various reorganizations were grounded in a multitude of considerations. The dominant factors varied over certain phases: in 1956, it was linguistic homogeneity; in 2000 and 2014, differentiated development concerns were the raison d’etre of the states. These guiding principles are analogous to legitimate purposes. The judiciary ought to scrutinize the purported aim behind the reorganization while judging its constitutionality. It is the state’s onus to present forth a proper and compelling purpose behind the drastic decision. It cannot be given carte blanche to formulate policies that are excessive and disproportionate and do not align with a coherent and legitimate aim. This is similar to the formulation of the principle of Manifest Arbitrariness: “Manifest Arbitrariness, therefore, must be something done by the legislature capriciously, irrationally or without adequate determining principle”. In light of emerging standards like proportionality, a culture of justification has been engendered and the state has been put under scrutiny in cases involving fundamental rights. Similarly, the reorganisation of states is a species of legislative decisions that have phenomenal consequences for a large section of people, all at once. This assumes more significance in light of the complexity and nuances of these factors involved. For instance, public wishes are not some discrete, ossified factor in itself but are intimately related to questions of administrative convenience, economic welfare, etc.
SUITABLE MEANS: THE “NEXUS” PRONG
The court should also critically examine whether the impugned reorganization has a rational nexus to the legitimate state aims. The government has to justify its rationale behind taking the particular step. This inquiry can entail the perusal of similar case studies from India and abroad. The reason this step holds importance is because of the lessons from history. Taking the example of Punjab, the reorganization of 1965 was presented as a decision premised on the interests of Punjab and that of the nation. This reorganization was supposed to have alleviated the communal tensions brewing in the air of Punjab. However, Punjab was ultimately plagued with the Khalistani insurgency in the 80s, and several developmental, and infrastructural issues persist to this date. For Jharkhand, the goal was to ensure the political-economic emancipation of the tribals. However, the state never really took off, owing to multiple factors including fractured tribal identities and political instability. In such crucial issues, the governments are prescient and resourceful enough to at least gauge the political consequences of such decisions.
FINAL PRONG: NECESSITY AND IMPACT
The final facet of the inquiry should entail an adjudication on the necessity of the measure coupled with an impact assessment. It has to be shown that the government was left with no other way to achieve the aims it wanted. The impugned redrawing of boundaries can only be held as constitutional if the state had exhausted all other options and no other less restrictive recourse existed. The impact-based assessment involves two facets of balancing: balancing the benefits intended to be derived out of the measure with the ramifications on the stakeholder states; and the intra-balancing of the interests of various states. The first component is similar to the last stage of the proportionality analysis: proportionality strictu sensu or balancing. Such a reckoning of potential as well as the actual impact of decisions on society is integral to manifest arbitrariness doctrine as well. The second facet is imperative for preventing inter-state disputes from festering in the future. In the case of AP State Council of Higher Education v. UOI, the SC had to adjudicate on the question of the division of the assets of the Andhra Pradesh Council of Higher education between Andhra Pradesh and the newly formed Telangana State. The court noted the gravity of issues like bifurcation and how such sensitive matters entail a proper balancing act between the stakeholder states.
Even though S.R. Bommai v. UOI recognized Federalism as an essential part of the basic structure of our Constitution, there is an imperative for the judiciary to rise to the task of upholding it in reality. The absence of emphasis on the territorial integrity of states in our polity cannot be an excuse to dismiss the states as mere administrative units that can be altered at the whims and fancies of governments. The decisions taken way back in the 1950s and 60s can still be given the benefit of doubt since the nation was in a nascent phase. However, the same trend of deference cannot be allowed to persist. In UOI v Mohit Minerals, the Court had cautioned against the employment of ‘quasi-federal’ as an excuse to run over states’ rights wherever they have been granted. In my opinion, the reorganisation of states is one domain where the center cannot be allowed to ride roughshod. In Mullaperiyar Environmental Protection Forum v. UOI, the SC highlighted the paramount nature of laws made under Articles 3 and 4. They are unfettered by legislative competency and no law made under Article 4 is deemed to be an amendment. Therefore, the unique nature of law-making in the context of state reorganization is clear. The judiciary ought to play a greater role here since the question of people’s welfare, human rights, etc. is involved.
 GoI, States Reorganisation commission – Report – India – 1955 ((1955), Government of India Press) pt 1 ch 2.
 ibid pt 1 ch 3.
 ibid pt 2 ch 3.
 Aparna Chandra, ‘Proportionality in India: A bridge to Nowhere?’ (2020) 3(2) Oxford Human Rights Hub Journal 56.
(Kartik is a law undergraduate at National Law School of India University, Bengaluru. The author may be contacted via email at email@example.com)
Cite as: Kartik Sharma, ‘Reorganisation of States: Carving a Space for Judicial Review’ (The RMLNLU Law Review Blog, 08 November 2022 <https://rmlnlulawreview.com/2022/11/08/reorgasnisation&judicialscrutiny/> date of access.