Court upholds President power to split AP

By S A Ishaqui

Hyderabad, Nov 7: The AP High Court on Wednesday stated that that there was no nexus between Article 371D and Article 3 of the Constitution.

A division bench headed by Chief Justice Kalyan Jyoti Sengupta held that the President can under no circumstances be restrained by any court and not even by Parliament. The court dismissed a public interest litigation opposing the decision of the Centre to bifurcate AP.

Article 371D, a Constitutional amendment, ensures equitable opportunities for people belonging to different regions of the state in the matter of public employment and education. Article 3 deals with the Centre’s power to create new states.

Citing the prayer of petitioner P.V. Krishnaiah, an advocate, to restrain the President from exercising his power under Article 3 of the Constitution, in pursuance of any recommendation made by the Union Cabinet regarding bifurcation of the state, the Chief Justice said, “We think this prayer cannot be entertained by the court at all, as it is an absolute constitutional power of the President, as enshrined in the Constitution.”

The court made it clear that “the President was absolutely free to act in terms of the provisions of Article 3.”

Next: Court can’t give direction on Article 371D, says CJ

In a detailed order, Chief Justice Kalyan Jyoti Sengupta discussed the various contentions of the petitioner as far as Article 371D was concerned. The petitioner argued that as long as the Article is in force, the Union of India has no authority or power under Article 3 of the Constitution to bifurcate the existing state of AP and form proposed new state of Telangana.

Article 371D was introduced by the Centre by amending the Indian Constitution during the formation of Andhra Pradesh state to ensure equitable opportunities and facilities for the people belonging to different parts of the state in the matter of public employment and education.

The Chief Justice refuted the contention by saying that “according to us, this provision does not have any nexus as to the subject matter of Article 3 of the Constitution, which operates in different field, question of overriding effect or inconsistency as argued does not arise”.

The petitioner contended that in the event the state is bifurcated in exercise of power of Article 3 of the Constitution, then the object as enshrined in Article 371D will be “frustrated and rendered nugatory”.

Answering the above contention, Justice Sengupta said, “We do not find any merit in this submission. We are of the view that the whole object of introducing this Article is to provide safeguard measures in the interest of the region of AP.”

He said on a plain reading of the provision, it appears that the special provision has been made in order to give a special privilege to Andhra Pradesh and it does not transpire that this was intended to give any overriding effect over other provisions of the Constitution.

The Chief Justice held that in the event of bifurcation, ultimately, it was for Parliament to take measures for re framing the same provision with suitable amendment or deleting altogether. He ruled that it was a consequential measure if necessary and it was not for the Court to say.

Elaborating on his opinion, Justice Sengupta said that the powers of the President and all organs of state concerned will certainly look into this matter and it was their anxiety and they will act and no one can presume that the Parliament or the President or state Assembly will act unconstitutionally.

He said that “we are of the view that Article 3 of the Constitution operates in a different field and for different purpose and there is no nexus even remotely with each other. Even they have no quarrel with each other”.

Mentioning the apprehensions of the petitioner, the Chief Justice said, “We think that in which way the Parliament and Union of India have proceeded in the matter cannot be told by anyone and it is for the Centre, then Parliament, President and lastly the state legislature. They can proceed in their own way. The Court cannot give any direction.”