Government as a Contracting Party

Sibani Panda, Research Associate

A Contract is an agreement enforceable by law which offers personal rights, and imposes personal obligations, which the law protects and enforces against the parties to an agreement. The general laws of contract is based on the conception, which the parties have, by an agreement, created legal rights and obligations, which are purely personal in their nature and are only enforceable by action against the party in default ((Moitra’s Law of Contract & Specific Relief; 5th ED; Page 4)).

Section 2(h) of the Indian Contract Act, 1872 defines a contract as “An agreement enforceable by law”. The word ‘agreement’ has been defined in Section 2(e) of the Act as ‘every promise and every set of promises, forming consideration for each other’. So contract is a promise enforceable by law and the promise may be to do something or to refrain from doing something. The making of a contract requires the mutual assent of two or more persons, one of them ordinarily making an offer and another one who is accepting. If one party fails to keep the promise, then the other is entitled to the legal recourse ((Contract.”Encyclopedia Britannica from Encyclopedia Britannica 2006 Ultimate Reference Suite DVD)).

A Government contract is a species of genus contract and is governed by Indian Contract Act, 1872. The Indian Contract Act, 1872 does not prescribe any form for entering into contracts. A contract may be oral or in writing. It may be expressed or be implied from the circumstances of the case and the conduct of the parties. Any contract to which Government is a party is considered to be a Government contract but the position is different in respect of Government Contracts in India. A contract entered into by or with the Central or State Government has to fulfill certain formalities as prescribed by Article 299 of the Indian Constitution.

In the case of State of Bihar v Majeed ((AIR 1954 SC 786)), the Hon’ble Supreme court held that “It may be noted that like other contracts, a Government Contract is also governed by the Indian Contract Act, yet it is distinct a thing apart. In addition to the requirements of the Indian Contract Act such as offer, acceptance and consideration, a Government Contract has to comply with the provisions of Article 299. Thus subject to the formalities prescribed by Article 299 the contractual liability of the Central or State Government is same as that of any individual under the ordinary law of contract.”

Article 299 lays down three conditions which the contracts made in the exercise of the executive power of the Centre or a State must fulfill to be valid:

  • The contract must be expressed to be made by the president or the Governor as the case may be;
  • These contracts made in the exercise of the executive power are to be executed on behalf of the President/Governor as the case may be; and
  • The execution must be by such person and in such manner as the President or the Governor of the case as the case may be, may direct or authorize.

There is hardly any distinction between a contract between private parties and Government contract so far as enforceability and interpretation are concerned yet some special privileges are accorded to the Government in the shape of special treatment under statutes of limitation ((Navrattanmal v State of Rajasthan , AIR 1961 SC 1704)). Some privileges are also accorded to Government in respect of its ability to impose liabilities with preliminary recourse to the courts. A private contract is only just to provide supplies or services but Government contract may provide livelihood and is an instrument for implementation of Governmental policies ((Ram Lal v State of Punjab AIR 1966 Pun 436)).

Though overriding the contractual obligations by a private party would amount to a breach of contract and render him liable for damages yet a similar Governmental step being necessary in public interest will not be wrongful and would not amount to a breach and will not render the Government liable to any damage. No party, once a contract is entered into, can change any provision of the contract. Such an act will result in breach of contract and can be a cause for damage ((Union of India V Anglo Afgan Agencies AIR 1968 SC 718)). However Government can unitarily at any point of time change the contract citing executive necessity.

PRINCIPLES UNDERLYING GOVERNMENT CONTRACTS

  • REASONABLENESS: The principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is projected by Article 14 and it must characterize every State Action, whether it be under the authority of law or in exercise of executive power without making of law. The state cannot , therefore , act arbitrarily in entering into relationship, contractual or otherwise with a third party, but its action must conform to some standard or norm which is rational an non- discriminatory. The action of the Executive Government should be informed with reason and should be free from arbitrariness. It is settled law that the rights and obligations arising out of the contract after entering into the same is regulated by terms and conditions of the contract itself ((Y.Konda Reddy v State of A.P.,AIR 1997 AP 121)). In a democratic society governed by the rule of law, it is the duty of the State to do what is fair and just to the citizen and the State should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demand ((M/s. Hindustan Sugar Mills v State of Rajasthan, AIR 1981 SC 1681)).
  • PUBLIC INTEREST: Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism ((Shri Sachidanand Pandey v State of W.B., AIR 1987 SC 1109)). State owned or public owned properties are not to be dealt with at the absolute discretion of the executive. Certain principles have to be observed in accordance with the public interest.
  • EQUALITY, NON-ARBITRARINESS:  Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is violative of Article 14. The principle of reasonableness is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omni-presence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14 ((Maneka Gandhi v Union of India, AIR 1978 SC 597)).
  • CONTRACTUAL LIABILITY: In order to protect the innocent parties, the courts have held that if government derives any benefit under an agreement not fulfilling the requisites of Article 299(1), the Government may be held liable to compensate the other contracting party under S.70 of the Indian Contract Act, on the basis of quasi-contractual liabilities, to the extent of the benefit received. Section 70 lays down three conditions namely:
    1. a person should lawfully do something for another person or deliver something to him;
    2. in doing so, he must not intend to act gratuitously; and
    3. the other person for whom something is done or to whom something is delivered must enjoy the benefit thereof.

If under a contract with a government, a person has obtained any benefit, he can be sued for the dues under Section 70 of the Act though the contract did not confirm to Article 299 ((State of Orissa v Rajballav, AIR 1976 Ori 79))and if the Government has made any void contracts, it can recover the same under Section 65 of the Indian Contract Act ((Pannalal v Deputy Commissioner, AIR 1973 Sc 1174; see also Union of India v J.K Gas Plant, AIR 1980 SC 1330.)).

CONCLUSION:

States cannot act arbitrarily while entering into contractual relationship with a third party and the action of the State must conform to some standards which is rational and non discriminatory. The action of the Government should be informed with reason and should be free from arbitrariness. The states, while entering into contracts must comply with all the legal requirements fairly and without any unfair procedure, and its action is subject to judicial review under Article 14 of the constitution. The doctrine that the powers must be exercised reasonably has to be reconciled with the no less important doctrine that the Court must not usurp the discretion of the public authority which the Parliament has appointed to take the decision. Within the bounds of legal discretion is the area in which the deciding authority has genuinely free discretion. If it passes the boundary, then it acts ultra vires. The decisions which are extravagant or capricious cannot be legitimate. But if the decision is within the confines of reasonableness, it is no part of the Court’s function to look further into its merits.

Environmental protection and role of judiciary in India

Anshu Bansal, Research Associate

Can Judiciary manage the Environment?

The role of the judiciary is really important as the role of mitochondria of a living human cell. Had the judiciary turned the deaf ear towards environmental problems it could not be in any way came to celluloid ((Mohindra Kothi, Environmental Protection vis-à-vis Judicial Activism, Waila and OIDA International Journal of Sustainable Development  (2010).)).

It is true that the major compelling force behind number of legislations can be attributed to the active role played by judiciary. Indian judiciary is the first in the row who developed the concept of right to healthy environment as a part of life under Article 21 of our constitution ((Bhandu Mukti Morcha v. Union of India, 1984 (3) SCC 161.)). One significant contribution of judiciary is to create a link between fundamental duty and fundamental right. In the case of Subhash Kumar vs. State of Bihar ((AIR 1991 SC 420.)), it was said that the environmental protection which previously was a fundamental duty under article 51(A) also came as a fundamental right under article 21 of the constitution of India. In this context, Public Interest litigation has emerged as one of the major tool for development of environmental jurisprudence.

In another case ((1995 AIHC 4168)), high court directed the defendants to control the noise pollution occurring from the loudspeaker drums in order to keep right to life which include right to noise free environment intact. In addition to this, Court has also held that in matters of environment, the burden of proof will lie on the party that wants to change the status quo ((S.P. Sathe , Judicial Activism in India  (2nd edition).)). In the Bhopal gas tragedy, the Supreme Court formulated the doctrine of absolute liability for harm caused by hazardous and inherently dangerous industries by interpreting the scope of the power under Article 32 to issue directions or orders, whichever may be appropriate in appropriate proceedings. According to the court of law the power could be utilized for going new remedies and fashioning new strategies ((Rohan Bagai , Judicial Activism and environmental jurisprudence in India)).

Further, in 1998, the Indian Supreme Court, embracing its activist role, issued a controversial order suo moto mandating the conversion of the entire Delhi fleet of diesel-powered buses to compressed natural gas (CNG) ((Rosencranz, Armin, Delhi Pollution Case: The Supreme Court of India and the Limits of Judicial Power, 28 Colum. J. Envtl. L. 223 (2003).)). Steadfast resistance from the agencies responsible for enforcing the court order has raised serious questions about the wisdom of this decision. Many opponents have disputed the reliability and practicality of CNG, arguing that the technology is still in development, making the conversion both risky and costly ((Id.)).

Legislations  supporting judiciary to take the matter seriously

M.C Mehta has pioneered legal activism for environmental protection and is proof that one man can make a difference ((M.C Mehta Environmental Foundation (MCMEF).)). With the Supreme Court of India taking the lead, the centre of gravity of justice has now shifted from traditional individual locus standi to the community orientation of public interest litigation ((S.K.Aggarwal, Public Interest litigation in India: A Critique, I.L.I., 1985)).

It is pertinent to point out here that the two provisions under Article 226 and 32 of constitution of India which provides gate for filing Public Interest Litigation or Writ petition in the High court and Supreme Court respectively are the two eyes of the judiciary. The increasing scope of these Articles is the immediate effect of various litigations filed in the respective court.  Under the banner of Public Interest Litigation (PIL) and the enforcement of fundamental rights under the Constitution, the higher courts have tried to rebalance the distribution of legal resources, increase access to justice for the disadvantaged, and imbue formal legal guarantees with substantive and positive content ((Chandra Pal, Environmental Protection And Emerging Trends In Judicial Responses, Central India Law Quarterly)).

However, constitution of India is not the only legislation which aids the activism of judiciary. There are other legislations which also provide for a platform for judicial intervention and aid judiciary to take the matter seriously. They are:

  • Civil procedure code which contains specific provisions which enabled two or more persons having a legitimate interest in the subject matter to seek remedy through court. The first one is under section 91 which provides for remedy for performing public wrong and another one is under section 92 which deals with remedying breaches of public trusts.
  • Under I.P.C ((Chapter XIV Sections 268 to 294A)), Chapter XIV (Sections 268 to 294A) provides provisions to punish the person who pollutes environment.
  • Chapter X, (Sections 133 to 146) and Chapter XI of Cr.P.C. also provides provisions for granting punishment to those who damage environment.

International conventions which support judiciary to take requisite actions

  • United Nations in its International Conference (1972) laid down its agenda as “to defend and improve the human environment for a present and future generation has become an imperative goal for mankind”. This Conference at Stockholm became the turning point for the development of environmental Jurisprudence.
  • Then there is the General Assembly Resolution in 1972 ((General Assembly’s Resolution of 5th December 1972, designating June 5th as World Environmental Day)), emphasizing the need for the active cooperation among the states in the field of human environment.
  • Earth Summit: The document produced at the Earth Summit has 40 chapters having 800 pages. Agenda 21 – a comprehensive programme of action for global action in all areas of sustainable development was also adopted.

Striking the balance between various rights of the citizen of India

It is the conflicting rights of the citizens which make it difficult for the state to strike a balance between various rights associated with different groups of people. For instance, under the right to life, drinking water is one of the fundamental requirements, but simultaneously the State is obliged to preserve the ground water or to restrict the use so that it can be prevented from being wasted. One the one hand, State has an obligation to protect the forest but at the same time it is also obliged to protect the tribal people whose livelihood is based on forest. State is bound to close down those industries, which are hazardous for the environment, but at the same time has to keep in mind the livelihood of the people who work there ((Supra note 1.)). In the Recent Lok Sabha Debate in Feb., 2013 it was discussed that development should not be at the cost of forests; development should not be at the cost of tribals.  Even the Tribal Affairs Minister has written to the Environment Minister saying that the Forests Rights Act is being violated in giving environmental clearance ((Discussion on the Motion of Thanks on the President’s Address to both Houses of Parliament assembled together on 21.02.2013, moved by Shri P.C. Chacko and seconded by Dr. Girija Vyas available at http://www.indiankanoon.org/doc/70144574/)).

Hence, it is indeed a difficult task to strike a balance between various rights related to different groups of people. It requires active participation of all the inhabitants. It is needed that people first make themselves acquainted with the prospective impact of the degradation of environment. Judicial activism can indeed play a pivotal role in curbing commercial problems. In addition to this inclusion of definition of pollution into international crime to ascertain individual criminal liability will lead to reduce in irresponsible and dangerous behaviour of the communities towards environment ((Id.)).

However, the judiciary sometimes is also criticized for acting beyond its limit which is termed as judicial over-activism. Justice Srikrishna is of the view that in the name of judicial activism, modern judges in India had abandoned the traditional role of a neutral referee and have increasingly resorted to tipping the scales of justice in the name of distributive justice ((Discussion regarding need for harmonious functioning of three organs of State – Legislature, Judiciary and Executive,( 3 December, 2007) available at http://www.indiankanoon.org/docfragment/854333/?formInput=Judicial%20activism%20)). But author beg to differ here because in the current scenario, it won’t be possible for judges to act as a neutral referee. In order to keep pace with the changing scenario, it is needed that judiciary should itself play an active role. Judicial legislation is a tool which had served is still serving and is expected to serve in the future as a major reason behind many environment friendly legislations.

Telangana : At 67, was India prepared to divide?

Author: Ekagra Jain, Research Associate

The Benefits, Repercussions and Consequences of a New State with respect to the current Indian scenario

To protect the unity and integrity of India, Article 2 & 3 of the Constitution of India vests the power to create new states in the Parliament, which may pass law on the subject. The Parliament is also empowered to alter the boundary of any state and even change the name of the state.

This article is four folded. Firstly, it discusses on what the constitution speaks as to what is the process of bringing into existing a new state. Secondly, it debates on the issue of the new state being formed that is Telangana and whether it is a controversial issue and what is the inside story behind it. Thirdly, why is the need of a new state still been arising after Independence has also been discussed in length. Fourthly, this article debates on the need of certain parameters or benchmarks for the formation of a new state.

How can a new State come into existence?

The first step that needs to be done in this process involves a bill pertaining to the matter which needs to be referred by the President to the legislature of the affected state so that the legislature can express its views within a certain period. After ascertaining the views of the State Government, a resolution is tabled before the assembly and if the resolution is passed by the State Assemblies, it has to pass a bill in respect of creation of a new state. Finally, a separate bill on the matter needs to be brought to the Parliament on the recommendation of the President which needs to be passed by a two-third majority and ratified by the President and thus the new state is formed. Before drafting the Bill, a commission can be appointed by the centre to fix boundaries and for sharing waters, facilitating other guarantees and location of capitals, High Courts and all other requirements of the States to be formed. The President may recommend the Bill, on the advice of the Union Council of Ministers only on receipt of report of the Commission.

The Telangana Issue

History

The State Reorganisation Committee was formed in 1953 to recommend the reorganization of state boundaries ((State Reorganisation-History of India, http://www.indiansaga.com/history/postindependence/reorganization.html‎)). The Committee, when looking into the details of Andhra Pradesh and Telangana was not in total favour of an immediate merger with Andhra Pradesh and stated that it was primarily on the people of Telangana to take a decision on their future ((Para 382 of the State Reorganisation Commission Report, 1955)). Despite having opposition for the merger continued for it, the Chief Minister of Hyderabad passed a resolution on 25 November 1955. The resolution provided certain safeguards to Telangana and its people. The resolution stated that the development of that area would be deemed to be special charge, and that certain priorities and special protection will be given for the improvement of that area, such as reservation in services and educational institutions on the basis of population and irrigational development to the people of Telangana. The resolution was also formulated into an agreement on 20th February, 1956. The agreement which is termed as the “Gentlemen’s Agreement” had the objective to bring the less developed region of Telangana on par with the rest of the State. Andhra Pradesh was formed in 1956 as India’s first linguistic state ((Report of Committee for Consultations on Andhra Pradesh- December 2010)).

Since then, several agitations and movements have been done pertaining to cancellation of amalgamation between Telangana and Andhra and for the creation of a separate state in 1969, 1972 and 2000 ((Ramachandra Guha, The Hindu,”Living together,separately”, 30th January 2013         http://www.thehindu.com/opinion/lead/living-together-separately/article4358004.ece)). The Telangana movement gained widespread political recognition and was spread all over India pertaining to creation of a new state. On 9th December 2009, the process of formation of Telangana state was announced by the Government of India ((NDTV, “Telangana cleared as 29th State”, 31st July, 2013 www.ndtv.com/blog/…/telangana-cleared-as-india-s-29th-state-398466‎)). This announcement had violent protests and several members of Legislative Assembly and politicians had given their resignations on hearing the announcement. The resulting agitation which posed a serious law and order problem in the state in the late 2009-10, eventually led to the constitution of the Srikrishna Committee ((Supra Note 3)).

The Srikrishna Committee in its report stated that, “After considering all aspects, the Committee found the balance tilting in favour of keeping the state united, though some valid and strong reasons that had continued to cause discontent in Telangana region since its merger indicated that the demand for separation was also not entirely unjustified ((Sri Krishna Committee Report- Page 7 Point 4)).” Soon after considering the report of the Sri Krishna Committee, the government of India passed a resolution of creation of Telangana.

 “Mother India gives birth to her 29th baby at the age of 66” ((The Times of India, 31st July, 2013)), read the front line of the Times of India Edition dated 31st July, 2013. The Government of India has passed the resolution of creation of a new state Telangana separate from the state of Andhra Pradesh.

According to estimates, the way to Telangana being a separate state is however subject to a 7 months duration which includes the following 12 processes:

  • Refer the new-state proposal to the existing Andhra Pradesh state legislature.
  • Preparation of a Cabinet note at the Centre, based on the existing state government’s proposal.
  • A newly constituted Group of Ministers (GOM) at the Centre to examine the economic issues arising from the move to create Telangana.
  • Preparation of a Cabinet note at the Centre, along with a re-organisation bill, based on advice from the GOM.
  • Central Cabinet’s approval for Telangana state bill and recommendation to the President of India to refer the draft bill to the existing Andhra Pradesh legislature.
  • President’s recommendation.
  • State Assembly and Legislative Council’s consideration of the bill.
  • Vetting of the bill by the Ministry of Law at the Centre.
  • A Central Cabinet note, along with the vetted bill, to be approved by the Cabinet.
  • Notice for the introduction of the vetted bill to be given by the Home Ministry to the Lok Sabha and Rajya Sabha
  • Passing of the bill by the Lok Sabha / Rajya Sabha by a simple majority.
  • President’s assent, after the bill is passed by both Houses of Parliament.

Therefore, there are various difficulties that need to be tackled before Telangana is declared as a state. The Telangana Rashtiya Samiti (TRS) which has been continuously debating for years regarding the new state haven’t been celebrating yet because the bill still needs to be approved by the seal of the Indian Parliament.

Is Building of Telangana: A Controversial Decision?

The controversial decision to build up a new state of Telangana has made many people stand up for the change they thought to bring it on for many years. While the government has approved the idea, the critics fear that the country’s unity will be dismantled. The way things have started to proceed with different regions asking the states of their own, the structure of Indian Federalism seems to be at a big risk. The protests and demands for creation of new states have been carried on by a variety of groups from several years. A variety of protests have been for various concerns which include ethnic, linguistic and economic concerns. Roshan Giri who has been fighting for a separate state since 1907 announced a general strike on 3rd August, 2013 and has stated that, “If there is to be the state Telangana, there must also be the state Gorkhaland ((Anwar Ashraf & Priya Esselborn, DW, “New Indian State sends a dangerous signal”, 01st August, 2013, http://www.dw.de/new-indian-state-sends-a-dangerous-signal/a-16991867)).” Mr. Roshan Giri, who has been a part of the Gorkhas freedom movement, wants a separate state for the Nepalese seeking minority in the Darjeeeling area of the state of West Bengal. Another example of a movement has been the movement to create a state called Vidarbha which would include the disadvantaged region of Maharashtra ((The Hindu, ‘Now demand for Vidarbha State gains momentum’, 30th July 2013, http://www.thehindu.com/news/national/other-states/now-demand-for-vidarbha-state-gains-momentum/article4969520.ece)). The Bodoland tribe in Assam has also been demanding its separate state despite immense autonomy being enjoyed by it ((Arkadripta Chakraborty, Tehelka, “After Telangana, Bodoland demand intensifies’, 3rd August, 2013 http://www.tehelka.com/after-telangana-bodoland-demand-intensifies/)). The former chief minister of Uttar Pradesh, Mayawati had already proposed the division of Uttar Pradesh into four states during her time in office. There is also a demand for the creation of Bundelkhand which would comprise of some of the poorest districts of Uttar Pradesh and Madhya Pradesh. If Telangana is accepted, there are no operative reasons to deny the formation of the following states stated above.

The Inside Story

Many politicians and journalists have been discussing on what could be the inside story for promotion of Telangana as a state. The newspaper weekly Tehelka’s Editor Ashok Malik has stated that “The Telangana decision can’t be left to the UPA’s electoral gambles ((Ashok Malik, Tehelka, http://www.tehelka.com/the-telangana-decision-cant-be-left-to-the-upas-electoral-gambles/#)).” The editor even stated that the reason which can be attributed to the creation of India’s 29th state could be that the Congress party could persuade the Telangana Rashtriya Samiti (TRS) into an alliance for the 2014 General Election.

The formation of the state ‘Telangana’ does send a dangerous signal to the Indian unity. Analyst and Policy advisor K.G. Suresh of New Delhi believes that the cultural, ethnic and religious diversity is a huge challenge for the world’s largest democracy within its 1.2 billion people. According to him, the decision of the Central Government truly reflects that it is ‘weak’. The problem that he stated was that in earlier days, the party ruling in the Centre also had powers in the state which ensured stability but in the modern times, this trend has changed. Now, the parties ruling in the centre do not mostly rule in the states. The state is mostly governed by regional coalition partners who have a strong base in their respective states which makes the Central Government to be dependent upon them. The decision of formation of Telangana into a state has been seen as a Political move and critics believe its formation is being based on political calculation ((The Hindu, ‘Decision to form Telangana is a political one, not final yet’, 9th August, 2013,  http://www.thehindu.com/news/national/andhra-pradesh/decision-to-form-telangana-is-a-political-one-not-final-yet/article5006354.ece)). According to K.G. Suresh, making this decision leaves a bad aftertaste because it is all about votes at the end. He states that making such a crucial decision before 7-8 months of the election surely indicates a total political move despite having legitimate interests because even the Congress party cannot visualize what is going to happen in the near future. He alarms this as a red signal as it gives hope to any kind of movement with interests created out of thin air ((Supra Note 10)).

Why is the need of a state arising?

If the administration in a state suffers from large inefficiencies, what is the guarantee that it will become competent by merely creating a smaller state ((Rakesh Hooja, Business Standard- “Does India need small states?”, 3rd November 2011,  http://www.business-standard.com/article/opinion/does-india-need-smaller-states-111112300035_1.html))?

There have been so much political demands for the creation of new states. There are surely emotional considerations for the same like cultural, language, religion and economic necessities and administrative ease. The most important point to this answer has not yet been answered. What the politicians have been visioning upon is additional posts of power such as Chief Minister or Ministers, leaders of the opposition, Assembly speakers and so on. The Government servants have been viewing it as the additional posts of Chief Secretaries, Secretaries, Chief Engineers and Director Generals of Police. The fact that needs to be taken into consideration is that carving out the new states should not be supported just on the basis of political sentiments but what needs to be looked is whether the creation of a new state will be beneficial in the near future or not. A question while formation of a new state that needs to be answered is whether the creation of a smaller state will result in better administration or not.

Arguments in Favour

The arguments in favour of the division of states have been that the new states will receive more funds from the centre which they would not have received comparatively when they were a part of the larger state. The living conditions can be improved through a new capital city. The span of control of state-level functionaries can be reduced through which the quality of governance can be improved. The education facilities can be improved. Certain arguments have been that the problems which could not have been solved before when they were part of a larger state can be solved now being a smaller state.

Arguments in Disagreement

The size of a state is not an integral factor for determining whether a state will perform well in the future or not. States like Gujarat and Kerala have shown that development is just not limited to size rather it’s the diverse talent available within the state’s population coupled with the leadership qualities and effective governance that determines how a state could perform well in comparison to the other states. For developing a state with infrastructure, estimates show that more than a decade is required to set up as time, money and efforts are integral factors for the formation of same. A small state is also going to face up difficulties with respect to human as well as natural resources available to it. The difficulties that it may face include the potential to regenerate resources internally. Another critical factor is that the states will be dependent on the Centre for financial transfers and centrally sponsored schemes. Certain small states like Uttarakhand have an annual growth rate of 9.31 percent but the fact is that Uttarakhand has joined the Special Category state which gets 70 percent of its funds from the Centre ((Dhurjati Mukherjee “Formation of Telangana: Small states in the offing?”, 29th December, 2009, http://www.infa.in/index.php?option=com_content&task=view&id=1401&Itemid=41)). The formation of new states is also opposed on the ground that there may be impediments in the growth of interstate trade and other economic activities, as large number of local taxes may be introduced by these states.

Need for Benchmarks for Formation of a New State

Article 3 of the Constitution of India has vested in the Parliament the power to form new states and alteration of areas, boundaries and names of the existing states which may pass the law on this subject. However, what the Constitution which is termed as the Supreme law of the land fails to answer is the criteria or the parameters which need to be taken into consideration while forming a new state. The Parliament has been given exclusive power but the basic deficiency which persists in the Constitution is regarding the guidelines which need to be there for the formation of new state.

Ideally, a policy decision should have some benchmark or should set a precedent for the future. The decision on Telangana reflects a different view in this matter. There is a lot of ambiguity with the decision being taken up by the Centre taking into consideration the parameters being taken up for statehood. The Motilal Nehru Committee Report of 1928 stated that the formation of new states must be on a linguistic basis. According to the report, major languages constitute the base for the formation of states and also affect the cultural base of life ((G.P. Singh, Principles of Statutory Interpretation, 312 (Wadhwa and Company, Law Publishers 8th ed. 2001) (1966).)). The Indian National Congress had accepted this proposal. The first State Reorganisation committee had made the use of language for formation of states. The second criteria which was formulated for creation of a new state was ethnicity. For the breakup of Assam in 1970s and the breakup of Chattisgarh and Jharkhand in 2000, the reason attributed to the same is the logic of ethnicity. So the two main benchmarks for formation of new states was language and ethnicity and these should act as precedents for the future.

The benchmark that the states are now focussing on considering is regarding Administrative ease. For example, the division of Uttar Pradesh into four daughter states is because of the administrative ease that it will provide.

According to the Judges S.H. Kapadia and K.S. Radhakrishnan, the division of the state is a political question. Senior Advocate Harish Salve submitted that, “Power under Article 3 and 4 is the solemn constitutional power and it is obvious that no constitutional power can be exercised arbitrarily and at will without there being a fundamental constitutional paradigm or basis to the exercise of power ((The Hindu, “Telangana apolitical issue, not Constitutional :Supreme Court”, 20th August, 2010, http://www.thehindu.com/news/national/andhra-pradesh/telangana-a-political-issue-not-constitutional-supreme-court/article584120.ece)).” He said the manner in which the entire matter relating to creation of a new state was being dealt with proved that there was no established principle for the government to act on such issues.

While establishing criteria, the government needs to look into the matter that it is not necessary that division of states into small units would make them work well. Small states like Goa had to face massive challenges and had their ups and downs whereas some like Haryana have been successful. Jharkhand was removed from Bihar under the assumption that it was being exploited by Patna. Over the years, Bihar has shown a tremendous development and Jharkhand has become India’s basket case. Small states are easier to govern but larger states have their own advantages as well.

The parameters regarding the establishment of Telangana still hold some ambiguity. This paper debates on the need of setting up certain benchmarks for the formation of states. A bench comprising of S.H. Kapadia and K.S. Radhakrishnan after dismissing the petitions which were filed when the agitations of the Telangana issue were at heights regarding certain guidelines which needs to be formulated have stated that, “Till date, no law has been proposed for the purpose of carving out of the state and as and when something is enacted, it will be open for the petitioners to approach the court ((Ibid)).”

Author’s view

As the paper discusses, there needs to be criteria and benchmarks need to be setup for the formation of new states. For the following purpose to achieve there needs to be setting up of Second State Reorganisation Committee. The Second State Reorganisation Committee will create criteria/benchmarks, only on the fulfilment of which new states should be created. It should look into the details regarding the new states which should be taken into consideration and should accept the formation of only those states which have been based on the benchmarks created by the Committee. The proposal made by the State Reorganisation Committee should be passed by the State Legislative Assemblies and a separate bill should also be passed in the Centre. The president needs to give consent to it. It should also formulate plans on how it is going to be developed and the future developments and accomplishments which the new state wishes to achieve should be pinned down and efforts to accomplish the same should be made. The financial constraints should also be discussed at length as how the state is going to receive its funds and till what limit will the funds be provided by the Centre. There should be also discussion as to how the Infrastructure, water-sharing facilities, agro-climatic conditions, quality and topography, socio-cultural factors, natural and human resource availability, density of population, means of communication, existing administrative culture and effectiveness of its district and regional administrative units will be dealt with and provisions for future contingencies should also be made. An appropriate architecture as to how schools, hospitals and other entities will be created and the amount of money and time that it will require should also be taken into consideration.

In short, formation of a new state is a critical issue and research for the formation of the same needs to be done in length. Political sentiments should not act as centre stage demanding the creation of new state where there is no justification for the same. All issues stated above should be discussed in length and then only the decision should be taken.

Preamble of Indian Constitution and its Significance

Author: Aditya Singh, Research Associate

The Preamble to the Constitution is the lodestar and guides those who find themselves in a grey dealing with its provision.

According to the canons of statutory interpretation, the proper function of a Preamble is to explain certain facts which are necessary to be explained before the enactments contained in the Act can be understood. In short it contains a recital of the facts or state of the law for which it is proposed to legislate by the statute, the object and policy of the legislation and evils or inconveniences it seeks to remedy ((Re Berubari Union, AIR 1960 SC 845)). But though it is a recital of some inconveniences, it does not exclude others, for which remedy is given by the enacting parts of the statute. Hence, where the language of the enacting section is clear and unambiguous, ((Bhim Singhji v. Union AIR 1981 SC 234))the terms of the Preamble cannot qualify or cut down the enactment.

Hence the court may look into the object as recited in the Preamble when a doubt arises in its mind as to whether the narrower or the liberal interpretation ought to be placed on the language used in an enacting provision of the Constitution, which is capable of bearing both the meanings ((Id)). The preamble provides a key to unlock and explore the spirit of our Constitution ((Dr. Anil Kumar Mohapatra, Basic Objectives and Values of Indian Constitution, available at: http://orissa.gov.in/e-magazine/Orissareview/2011/Jan/engpdf/31-37.pdf)). Without it, a proper appreciation of the objectives and values that find place in our Constitution seems a remote possibility. Therefore, it is essential to turn to the various expressions contained in the Preamble for a better understanding and interpretation of the Indian Constitution ((Supra 4)).

In sum, the Preamble shows the general purpose behind the several provisions of the Constitution but, nevertheless, it is never regarded as a source of any substantive power ((Re Berubari Union, AIR 1960 SC 845))or limitation ((Id)).

We, the People of India

It is the resolve of the people if India to constitute India into Sovereign, Democratic, Republic. From the Preamble of the Constitution it is clear that the framers attached importance to the sovereignty of the people ((Motilal v Uttar Pradesh Government AIR 1951 ALL 257)). The ideas reassert the sovereignty and paramountcy of the people’s will over everything. The idea of republic indicates the representative character of its sovereign democracy. It means that the absolute power vested in the people of India under the Constitution is to be exercised by them through their duly elected representative in the various union and states legislatures ((Ram Nandan v State AIR 1959 ALL 101)).

Sovereignty

Sovereignty means the independence authority of a State. It has two aspects, external and internal.

The external sovereignty of India means that it is not subject to the control of any other State or external power; and secondly, that it can acquire foreign territory and also cede any part of the Indian territory, subject to limitations (if any) imposed by the constitution ((Maganbhai v. Union of India (1970) 3 SCC 400)). From the internal standpoint it means that is has the power to legislate on any subject only to the federal division of legislative powers and other limitations imposed by the Constitution, e.g., the fundamental rights ((Synthetics and Chemical Ltd. v. State of U.P., (1990) 1 SCC 109)).

One of the corollaries emanating from the doctrine of sovereignty is that of parens partiae. It means that it has the power and obligation of the sovereign to protect the rights and privileges of its citizens. The doctrine can be invoked both in international as well as domestic courts, in order to vindicate the rights of the aggrieved citizens who are unable to enforce their rights ((Charan Lal Sahu v. Union of India (1990) 1 SCC 613)). In India, though the doctrine of parens partiae is not embodied in any express provision of the constitution, it has been derived from the Preamble, read with the Directive Principles in Articles 38, 39 and 39A ((Id)). The only limits to the exercise of this power by the legislature are the fundamentals rights and other constitutional limitations ((Id)).

Liberty, Equality and Fraternity

Liberty should be coupled with social restraint and subordinated to the liberty of the greatest number for common happiness ((S.S. Bola v. B.D. Sardana (1997) 8 SCC 522)). Our constitution attempts to strike a balance between individual liberty and social control ((Commissioner of Police v. Acharya Jagdishwasananda Avadhuta, (2004) 12 SCC 770)). Under the Indian Constitution, while basic liberties are guaranteed and individual initiative is encouraged, the state has got the role of ensuring that no class prospers at the cost of other class and no person suffers because of drawbacks which are not his, but social ((M. Nagraj  v. Union of India (2006) 8 SCC 212)).

Equality is considered to be the essence of modern democratic ideology. The Constitution makers placed the ideals of equality in a place of pride in the Preamble. All kinds of inequality based on the concept of rulers and the ruled or on the basis of caste and gender, were to be eliminated. All citizens of India should be treated equally and extended equal protection of law without any discrimination based on caste, creed, birth, religion, sex etc.

Similarly equality of opportunities implies that regardless of the socio-economic situations into which one is born, he/she will have the same chance as everybody else to develop his/ her talents and choose means of livelihood.

Fraternity assures the dignity of the individual and the unity and integrity of the nation. Finally, it is the spirit of brotherhood that is emphasised by the use of the term “fraternity” in the Preamble. India being a multilingual and multi-religious state, the unity and integrity of the nation can be preserved only through a spirit of brotherhood that pervades the entire country, among all its citizens, irrespective of their differences.

Secular

The word secular was inserted into the Preamble by the 42nd amendment act of 1976, during the Emergency. It implies equality of all religions and [religious tolerance]. India therefore does not have an official state religion. Every person has the right to preach, practice and propagate any religion they choose. The government must not favor or discriminate against any religion. It must treat all religions with equal respect. All citizens, irrespective of their religious beliefs are equal in the eyes of law. No religious instruction is imparted in government or government-aided schools. Nevertheless, general information about all established world religions is imparted as part of the course in Sociology, without giving any importance to any one religion or the others. The content presents the basic/fundamental information with regards to the fundamental beliefs, social values and main practices and festivals of each established world religions. The Supreme Court in S.R Bommai v. Union of India held that secularism was an integral part of the basic structure of the constitution.

Democratic

India is a democracy. The people of India elect their governments at all levels (Union, State and local) by a system of universal adult franchise; popularly known as ‘One man one vote’ ((Available  at: http://download.nos.org/srsec317newE/317EL17.pdf)). Every citizen of India, who is 18 years of age and above and not otherwise debarred by law, is entitled to vote. Every citizen enjoys this right without any discrimination on the basis of caste, creed, colour, sex, religion or education.

Republic

As opposed to a monarchy, in which the head of state is appointed on hereditary basis for a lifetime or until he abdicates from the throne, a democratic republic is an entity in which the head of state is elected, directly or indirectly, for a fixed tenure ((Available at: http://www.csmantra.com/Polity/preamble-to-the-constitution/Republic.html)). The President of India is elected by an electoral college for a term of five years. The post of the President of India is not hereditary. Every citizen of India is eligible to become the President of the country.

Conclusion

The Preamble of the Constitution of India is one of the best of its kind ever drafted. Both in ideas and expression it is a unique one. It embodies the spirit of the constitution to build up an independent nation which will ensure the triumph of justice, liberty, equality and fraternity. One of the members of the Constituent Assembly (Pundit Thakur Das Bhargav) rose to poetic heights when he said, “The Preamble is the most precious part of the Constitution. It is the soul of the Constitution. It is a key to the Constitution. It is a jewel set in the Constitution.”