29-1-2010
I OBTAINED THE COPY OF
ADDITIONAL SOLICITOR GENERAL OF INDIA
MOHAN PARASARAN
NOTE TO VEERAPPA MOILY
ON TELANGANA
R RAJAGOPALAN
DELHI
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ADDITIONAL SOLICITOR
GENERAL MOHAN PARASARAN
PRESIDENTIAL REFERENE TO
SUPREME COURT IS THE BEST OPTION
TO SOLVE TELANGANA
On crucial issue of Telangana when Law Minister
Veerappa Moily asked a note from Mohan Parasaran
additional solicitor general, a two pages notes
was prepared by Parasaran and submitted to
Law Minister on December 11, 2009
NOTE
As at present the situation in the State of Andhra Pradesh, particularly in Hyderabad is very volatile, passions are running very high between protagonists who want separation and creation of a separate Telengana State and those who want to maintain status-quo.
In my humble and considered perception, the situation has to be tackled both from a legal as well as practical point of view. Priority should be towards cooling down the tempers and not further escalating the situation for some more time.
There are various options which can be weighed but from amongst the options available a Presidential Reference under Article 143 to the Hon’ble Supreme Court seeking its advice / opinion appears to be a good and reasonable way out.
Article 143 of the Constitution of India is very appropriate to be invoked under the present circumstances. Article 143 (1) refers to the Power of President to consult Supreme Court is as follows:
“If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.”
In exercise of the powers under Section 143 (1) it is open to the President and aid and advice the Cabinet to refer any issue which involve substantial question of law or fact which is of such nature and is of such public importance expedient enough to warrant appeal to Supreme Court. It maybe stated that Article 143 does not deal with the jurisdiction of the Supreme Court but of the power of the President. It does not refer to any adjudication at all but with consultation. Adjudication advisory opinion involves no “lis”, but since it has the seal of the Supreme Court it would give lot of confidence to citizens at large. Though it may be argued that reorganisation of States or formation of new State by separating a territory from any State is purely a political decision for which the Court may refuse to answer the reference under Article 143, nevertheless that being a political issue has overwhelming public interest overtones. That argument in my view can be countered. The discretion not to answer the reference cannot be capriciously exercised, and only in the rarest of the circumstances, the court would be justified in refusing to answer the reference as pointed out in Federal Court in Reorganisation of Lands and Buildings, AIR 1943 Federal Court 13.
In the reference made by the President in respect of the Ayodhya dispute, the court refused to answer the reference because of the fact that the Government proposed to use court’s opinion in the reference as basis for negotiations between parties and the Government did not propose to settle the dispute on the basis of opinion. Further the court felt that its opinion may incur criticism of one or both the communities whose interests are involved on the ground of not being heard or involved to put in evidence. The court is refused to answer the reference and held that it would be justified in not answering the reference where it is invited to decide the question which could only be decided on expert evidence. Refer Dr M Ismail Faruqui & ors v. UOI & Ors (1994) 6 SCC 360. However the facts of the present case vastly differ from the scenario in Ayodhya. This matter does not involve any disputed questions of title nor does it involve any hearing of parties for the purpose of analysing evidence. This matter would involve constitutional and a federal questions of fundamental importance, which were discussed and considered and were also noticed in some judgments including the judgment of the Supreme Court in the matter of The Director of Industries & Commerce, Vs. V. Venkata Reddy and Others, (1973) 1 SCC 99, which is as follows:
“7. The conditions as they prevailed in the Hyderabad State have been summarised by Madhava Reddy, J., in his judgment in the Full Bench, and we may usefully reproduce this summary here :
Hyderabad State was one among the several other Princely States of India. Due to Political conditions and Historical reasons the State remained isolated. There were no adequate Educational facilities afforded to the People of the State, in the result, there were very few opportunities available to the people of the Region to enter public service in competition with others from outside the State. Another contributing factor in this behalf was the use of Urdu, which was not the language of nearly ninety per cent of the people, as the Official Language in the entire administration of Hyderabad state. Similar conditions prevailed in a few other states as well. So much so, that these people were not in a position to compete with others in the matter of employment even in their own state, if no protection was afforded to them in this be-half on the basis of residence within that State.
In view of these conditions, Madhava Reddy, J., further stated that "the Constituent Assembly while guaranteeing fundamental rights in the matter of employment under the State, took notice of this vast disparity in the development of various States and felt it imperative to continue that protection in the matter of employment afforded on the basis of residence within the State and made provision under Article 33(b) of the Constitution for the continuance of those laws.
8. A few more historical facts may also be noticed here. The States Re-organisation Commission set up by the Central Government recommended the disintegration of the Hyderabad State and suggested the continuance of the Telengana region of the Hyderabad State as a separate State. However, an agreement was reached by the elders of the Andhra & Telengana Regions, among whom were the Chief Minister and the Dy. Chief Minister of the State of Andhra and the Chief Minister, Revenue Minister and the some other Ministers of the Hyderabad State amongst whom one later became the first Chief Minister and most others members of the first Council of Ministers of the State of Andhra Pradesh with a view to allay the fears of the people of this underdeveloped Region and to reserve to them the benefit of securing employment in the Region on the strength of their residence. For safeguarding their legitimate interests in certain matters the formation of a Regional Standing Committee of the State Assembly consisting of the members of the State Assembly of this Region was also agreed upon.
9. We may mention that in this agreement in Clause B Domicile Rules were dealt with as follows :
B. A temporary provision will be made to ensure that for a period of five years. Telengana is regarded as a unit as far as recruitment to subordinate services in the area is concerned; posts borne on the cadre of these services may be reserved for being filled by persons who satisfy the domicile conditions as prescribed under the existing Hyderabad Rules.
10. Parliament, in effect, gave statutory recognition to this agree-by making the necessary Constitutional amendment in Article 371 providing for the Constitution of the Telengana Regional Committee. The Constitution (Seventh Amendment) Act, 1956. inter alia, substituted a new Article 371 for the old. the relevant part of which reads as follows :
371. Special provision with respect to the States of Andhra Pradesh. Punjab and Bombay.-(1) Notwithstanding anything in this Constitution, the President may, by order made with respect to the State of Andhra Pradesh...provide tor the Constitution and functions of regional committees of the Legislative Assembly of the State, for the modifications to be made in the rules of business of the Government and in the rules of procedure of the Legislative Assembly of the State and for any special responsibility of the Governor in order to secure the proper functioning of the regional committees.
11. The State of Andhra Pradesh was reconstituted on November 1. 1956. “
Therefore, an important Federal question which would arise for consideration is when this very exercise having been undergone several times and merely because this controversy continued for several years, would there be any justification for Parliament / Government to once again resort to a second State Reorganisation? In my view, important Federal questions does arise under the Constitutional scheme in the matter of creation of new states and this matter involves interpretation of Constitution as well and particularly the scope of Article 3 of the Constitution of India. In my view a reference to the Hon’ble Supreme Court may cool down the tempers for the time being. A reference to the Hon’ble Supreme Court would normally be pending for atleast a couple of years by which time so many developments may take place to improve the situation from a political perspective. Even assuming the Supreme Court refuses to answer the reference after two years, things would have by that time changed like as in Ayodhya and the Government can in the meanwhile think of some other suitable alternatives in the eventuality of the Supreme Court refusing to answer the reference.
The draft questions for reference has to be carefully drafted and formulated in close coordination with the Law Ministry/Legislative Department.
MOHAN PARASARAN.
Additional Solicitor General
Govt of India.
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