AP 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, KCR
undertook fast unto death demanding 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 creation of Telangana state had
begun.

(refer

the

link

http://apnewslive.com/chidambarams-statements-on-

telangana/ for Chidambaram's statements on Telangana) He also stated that
state assembly would be asked to make resolution in support of the new
Telangana state formation which has not occurred subsequently. Within few
months, Sri Krishna committee was constituted with eminent personalities to
study the Telangana state demand and to recommend the solutions. Before Sri
Krishna committee / commission, one man Mr. Pranab Mukherjee committee was
appointed in the year 2004 to recommend solution to the problem but it has
never given its report.
Sri Krishna committee was constituted by the 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 AP state, 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 the three regions and
Rayalaseema is comparatively lagging in overall development (page 445). It has
identified following six possibilities (section 9.3.01) for solving the problem.
1. Maintain status quo

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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 Telangana region-creation of a statutorily
empowered Telangana Regional Council.
The committee considered above six possibilities and discussed their pros and
cons in detail. While proposing option-6 as 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 being 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 of sustaining inclusive growth. It is hoped that the

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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
provide good governance and to ensure 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 the 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 Sri Krishna committee made very clear that quick action is the need of
the hour, central 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 new Telangana state by bifurcating the Andhra
Pradesh state. Group of ministers (GoM) comprising cabinet ministers were
formed to frame the Andhra Pradesh reorganization bill rejecting the official Sri
Krishna committee report. 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 on January 30, 2014 and
returned to the President of India. President recommended the rejected bill by
the state assembly for passing in to law in the parliament. No parliamentary subcommittee is formed to peruse the bill as is the usual case before voting of the
bills of national importance. The bill comes under the purview of the Home

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ministry for which 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 voice of vote in Lok Sabha on 18
February 2014 and in the Rajya Sabha on 20 February 2014. There was not
much discussion on the contents of bill in both houses of the Parliament.
Parliament was prorogued on 22/2/2014 sine die before the general elections,
2014. The enactment of Andhra Pradesh reorganization bill, 2014 was carried out
by the ruling congress party with political motive to take advantage in the
upcoming general elections in April, 2014 without regards for the constitutional
and parliamentary practices.
There are demands for many other new states in India. Bundelkhand, Harita
Pradesh (Western UP), Purvanchal (Eastern UP) regions of Uttar Pradesh state
have

been

demanding

for

separate

states.

Refer

the

links

http://www.livemint.com/Politics/bi5bxtrbLCaEsdb98TXIPO/UP-assemblypasses-resolution-to-break-up-state-into-four-pa.html

,

http://www.dnaindia.com/india/report-resolution-on-splitting-up-being-examinedchidambaram-1619553

and http://www.samachar.com/Centre-returns-UP-split-

resolution-seeking-clarifications-and-dubbing-it-poorly-researchedlmtwMzifejd.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 Central Government long back but no
action is taken by the central government till now. The bill was returned to the UP
government by Home ministry asking few queries about the modalities of the
division process. It is against the natural justices that UP shall be reorganized
before taking up the case of AP. In case of AP state, the division modalities are
framed by central government in the form of AP reorganization bill 2013 contrary
to the procedure followed for UP state reorganization where UP state was
consulted / asked to frame the details / draft bill for its split. The union

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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 case of Jharkhand state formation, Union government sent the bill
second time to the Bihar state assembly when it was rejected by the Bihar
assembly earlier. In case of AP state reorganization, Union government deviated
totally from the established practice/convention and introduced the rejected bill in
the Parliament.
The AP reorganization bill proposed by the central government/President was
rejected by the AP state legislature. No further consultation has been conducted
to achieve consensus between the AP state and home ministry of Central
government. The central government went ahead to divide the state for taking
political gains just before the 2014 general elections. Ultimately, against the Sri
Krishna committee fundamental recommendation of taking quick action, the
government leisurely took three years and acted unilaterally in hurry when
general elections were due in 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 severe blow to the sentiments and economic
interests of people residing in Seemandhra region and Hyderabad (GHMC) city.
The demand for separate state was from the Telangana region (excluding GHMC
area) and not from Seemandhra region. From the Andhra Pradesh reorganization
Act, 2014, it looks that Seemandra state is formed as if they demanded separate
state by depriving it the state capital Hyderabad. Whereas, the Telangana region
which demanded for separate state got unduly the capital/GHMC area which is
against natural justice. The truncated AP state without its capital has become
economically unviable without the assistance by union government and there is

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no stipulation (other than in first year) about giving adequate central funding in
the reorganization act. The truncated AP state is at the mercy of 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 to be noted from 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.

http://www.caaa.in/Image/Interpretation%20of%20Statutes.pdf

Refer

to

(Statement of

Objects and Reasons of an Act (page 29) as an internal aid in interpretation of
the statute and Reports of Committees as evidence or facts (page 29), etc.)
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 ruling party at the center for political gains which is
against the constitutional spirit.
Article 3 proviso:
Article 1 of the constitution says India shall be union of states. Article 3 proviso
applicable to states says that president shall recommend bill to introduce in the
parliament after obtaining the views of the state legislature. There is no proviso
applicable to union territories. If the basic intent of the proviso applicable for
states (i.e accepting the views / resolution of the state assembly by the president/
union government) in Article 3 is not considered, there is no purpose / meaning of
taking the state assembly views. Article 3 has undergone constitutional
amendments in 1955 (constitutional amendment act 5), 1956 (constitutional
amendment act 7) and 1966 (constitutional amendment 18). The constitutional
amendment act 18 included reorganization of union territories with different
procedure from that of states. The extant proviso applicable to states in Article 3
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would become superfluous / redundant if the views expressed by the states are
not accepted. 'Word by word' meaning of this proviso shall not be interpreted
instead the actual intent of the article 3 proviso must be considered. The
complete meaning of the proviso shall be considered without separating the
content in to independent sentences. When there is ambiguity in the plain
meaning, the legislative intent or Rule of Reasonable Construction of the proviso
shall be considered by the court.
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.” ……….

Federal character of the Indian democratic republic is one feature of its basic
structure. It is also reflected in Article 1. The above SC judgment rules that
parliament is not empowered to change the federal character of the nation. If
article 3 proviso applicable to states is mere insignificant clause and parliament

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can divide a state using this article without obtaining the state consent under its
legislative power which the ruling party generally enjoys, parliament can destroy
any state of Indian union. If article 3 proviso is of no significance, there is no
difference in application of article 3 between a state and a union territory.
Parliament's unlimited and unfettered power under Article 3 is directly in conflict
with Article 1 and basic foundation and structure of the constitution. Parliament
may, under articles 3 & 4, can merge all the states & union territories in to one
state or convert all the states in to union territories wiping out gradually
the federal nature of the constitution. This tendency of the executive and
legislature wings is to be nipped in the bud by the Supreme Court.
In case it is need of the hour to form many new states in the country, an official
states reorganisation committee (as done earlier in the year 1956) should have
been appointed by the central government to bring out the aspirations of the
various sections of the people and genuine need for the formation of new states
in the entire country. Dignity and freedom of individual is the basic foundation of
the Indian constitution. Honourable Supreme Court ruled that the basic
foundation cannot be destroyed in any form of amendment to the constitution.
Selectively creating new states for political aspirations of political parties in the
country is against the dignity and freedom of many sections/people of the Indian
society which is multi ethnic, multi linguistic, multi religious, etc.

AP

reorganisation act, 2014 passed by simple majority by the Parliament without
taking consent of the AP state assembly is unconstitutional and against the basic
foundation and structure of the constitution.
Conclusion: The complete meaning of the proviso shall be considered without
omitting the content partly. When there is ambiguity in the plain meaning, the
legislative intent or Rule of Reasonable Construction of the proviso shall be
considered

by

the

court.

(Refer

page

18

http://www.caaa.in/Image/Interpretation%20of%20Statutes.pdf

8 of 19

of

the

link)

President role under Article 3:
Article 3 makes President role as pivotal as he is to recommend for introducing
the bill in the either house of the parliament for enactment. It is the only case
where president is recommending the bill to the both houses of the parliament.
Though government can introduce any bill through its members of both houses, a
bill under article 3 can be introduced only on the president’s recommendation.
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 A r t i c l e
constitution
indexenglish.htm

60

of

the

Indian

http://lawm in.nic.in/ol wing/coi/coi-english/coi) a solemn obligation to preserve, protect and defend

the constitution. In the case of the prime minister / union minister / others of
India, 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 constitution by the president has a constitutional
consequence of impeachment ( r e f e r 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 ) .
Under Article 74, the president generally shall abide by the aid and advice of the
council of ministers. While discharging his duty under article 3, 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,
attorney general of India, etc), he should apply his mind and examine whether
the proposed bills (under Article 3) are within the constitutional limitations and
constitutionally permissible. Especially, president's power under article 3 is a
power coupled with 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

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article 368) for reconsideration to both houses with his recommendation under
article 111.
Article 143, gave power to president to consult Supreme Court 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 Supreme Court under article 143 treating the case as
disagreement between two constitutional entities (union government and state
government) before making his recommendation to introduce the bill in the
parliament.
The meaning of word "recommend" or "recommendation" used in Article 3 has
specific meaning. It imposes a constitutional obligation on the part of the
president in exercising the power which is not discretionary to him.
The Supreme Court (SC) bench has made clear the meaning and nature of the
word "recommend" or “recommendation” in the ‘Three Judges Case’ (refer the
link http://en.wikipedia.org/wiki/Three_Judges_Cases and its references) In these
cases, the Supreme Court 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. …

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

Presidential reference to

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 of India can be forced to testify before the SC judges bench for his
actions and its constitutional validity. He needs to resign his job on moral grounds
if the court finds him faulty/biased in protecting the constitution by recommending
the bill for approval by the both houses and later permitting it to become law by
not sending it back under Article 111.
Why the bill recommended by President to the parliament is not the same
bill sent to state assembly for its views earlier
The Andhra Pradesh Reorganisation Bill, 2014 (Bill No. 8 of 2014)
(http://reorganisation.ap.gov.in/downloads/8_2014_LS_ENG.pdf ) is containing
the

statement

of

objects

and

reasons

(page

49)

but

(http://reorganisation.ap.gov.in/downloads/APReorganisationBill.pdf

the

bill

the Andhra

Pradesh reorganisation bill, 2013) sent to state assembly for its view is not
containing the same. This statement of objects and reasons is very important
document to understand the reasons for bifurcation of the state. The first two
paras of this statement by the central government is given below
The creation of a separate State of Telangana for the betterment of the social,
economic, political and other aspirations of the people of that region has been a long
standing demand. Pursuant thereto, the Government of India on 9th December, 2009
announced that the process for formation of a separate State of Telangana would be
initiated. After wide-ranging consultations on 3rd October, 2013, the Government of India
decided to bifurcate the existing State of Andhra Pradesh.
2. The Andhra Pradesh Reorganisation Bill, 2014 seeks to give effect to the aforesaid
decision. It aims at reconstituting the existing State of Andhra Pradesh into two separate
States, namely the State of Andhra Pradesh and the State of Telangana. The proposed

11 of 19

reorganisation will meet the democratic aspirations of the people of Telangana region
and ensure peace, goodwill, progress and prosperity among all the sections of the
people of both successor States.

The above statement is not declaring the fact that AP state assembly has
rejected the bill earlier in Toto when it was sent for state assembly for its views. It
is also not mentioning the recommendations of the official Sri Krishna committee
report which recommended option 6 (i.e. Keeping the State united by
simultaneously providing certain definite Constitutional/Statutory measures for
socio-economic development and political empowerment of Telangana regioncreation of a statutorily empowered Telangana Regional Council) in the best
interest of the social and economic welfare of the people of all the three regions.
It clearly indicates that the Andhra Pradesh Reorganisation Bill, 2014 was
introduced not for the socio, economical & political development of the all regions
of undivided AP state but for reaping political benefits before the general and AP
state assembly elections. The recommendation of official Sri Krishna committee
report is contradicting the claims of union government given in the ‘statement of
objects and reasons’ attached to the Bill. Since it is contradicting the official Sri
Krishna committee report, the ‘statement of objects and reasons’ is not made
available willfully to the state assembly while seeking its views on the state
bifurcation.
http://www.egazette.nic.in/WriteReadData/2014/158325.pdf

The

AP

reorganization Act, 2014 as notified in the Gazette dated 1/3/2014 after the
approval of the parliament has undergone changes (ref section 3, part II of the
act).
The SC verdict on Babulal Parate vs Bombay state, 1959 (refer to link
http://www.indiankanoon.org/doc/690805/ ) was about the changes to the ‘state
reorganization committee report (SRC 1956)’ by parliament during its
deliberations/proceedings while enacting in to law under article 4 (1) of the
constitution. The verdict does not say that union government / president can
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recommend a different bill to the parliament for making in to law. The SRC
bill/report accepted by the states was introduced in the parliament under article 3
by the president without any conflict with the views of state assemblies. This SC
verdict upholding the right of parliament to modify the proposed bill for passing in
to law under article 4 is no way connected to AP reorganization Act, 2014. Strictly
speaking, the bill drafted based on official Sri Krishna committee report should
have been sent by the president to AP assembly for expressing its views under
Article 3 of the constitution. After taking the views of AP state assembly, if the
President / union government wants to recommend / introduce in the parliament
a draft bill in line with the views expressed by state assembly, it is not violation of
the Article 3. When the bill is sent to parliament on the recommendation of the
president, parliament is empowered to amend the bill as deemed necessary by it
for making in to law under Article 4 (1) as ruled by SC in Babulal Parate vs
Bombay state, 1959 case.
Here the recommendations of official Sri Krishna committee represented by
eminent people from all disciplines, was set aside by the central government.
After three years, the group of ministers (GoM) identified by the Union
government have drafted a bill in a partisan way for reaping political gains to the
ruling party in the general elections & AP state assembly elections. The rejected
bill by the state assembly was introduced in the parliament by the president
without taking the legal opinion of Supreme Court. Parliament passed the bill in
to law within few days of its introduction without examining the contents of the bill
by its panel on home affairs / subcommittee and detailed discussion during the
parliamentary proceedings. The procedure followed by the union government in
AP state bifurcation which is entirely different from the states reorganization in
the year 1956 (Fazal Ali committee) where an official committee was formed,
state assemblies consents were obtained for the bill and the same bill was
recommended & introduced by the president in the parliament. Later, the

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parliamentary committee formed to deliberate on the bill has amended the bill
which was subsequently passed in to law by the parliament.
Thus president violated article 3 by not sending the bill in line with the official Sri
Krishna committee report, by not furnishing the objects & reasons for proposing
the Bill to the state assembly for its views and subsequently recommending the
rejected bill by state assembly to the parliament for consideration.
Conclusion: In the case of AP reorganization, the union government’s unilateral
action without any regards for opinion of the state government violated the
federal structure of India and sovereignty of the state government. The sole
purpose of AP reorganization act is for reaping political gains at the cost of
national interest by creating strong antinational sentiments among the people of
the aggrieved area. The AP reorganization act 2014, instead of solving the
problem amicably among its people, had stoked or hurt the basic sentiments of
the AP people as it was evident from the results of Seemandhra and Hyderabad
area election results
Article 4 (2) superseded by 24th constitutional amendment, 1971 to Article
368 by introducing section 368 (1)
There are few articles {articles 4 (2), 169 (3)-1962, 239A2-1962, 244A4-1969,
para 7(2) of Schedule V and para 21(2) of Schedule VI} in the constitution which
permit deemed amendments to the constitution, in addition to article 368. Article
4 (2) is invoked when a law is enacted under Article 2 or 3 for the marginal,
incidental and the consequential provisions needed for changing boundary of a
state

or

union

territory.

However

Article

4

(2)

is

superseded

by

the 24th amendment in the year 1971 to Article 368 (Power of Parliament to
amend the Constitution and Procedure there for). 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

14 of 19

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 (Power of Parliament to amend the Constitution and
Procedure

there

for)

loaded

“Notwithstanding

with

“Non

obstante”

anything

clause

wording

in

this

Constitution” (Refer http://www.academia.edu/2590285/Non-Obstante_Clause )
which will override any other clause inconsistent / contradicting it. Whereas
Article 4 (2) says that marginal, consequential and incidental provisions framed
under Article 4 (1) shall be deemed amendments for the purpose 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 not
withstanding anything elsewhere in the other articles of the constitution. So
Article 368 (1) makes provisions of Article 4 (2) invalid /not applicable any
more when the proposed law/bill under Article 3 & 4 mandates amendment to the
constitution. Deemed constitutional amendments are no more valid after the 24 th
constitutional amendment in the year 1971.
The objective of the 24th constitution amendment, 1971 is to amend article 368
suitably

for

the

purpose

and

makes it clear that article 368

provides for

amendment of the Constitution as well as procedure there for. The title of the
Article 368 is also amended accordingly to indicate its sole validity and the
applicable only one procedure for the constitutional amendment. Refer 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 incontrovertible point of law to prove that passing of
AP reorganization act, 2014 by simple majority / vote of voice under invalid article
4(2)

is

against

the

Indian

constitution.

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(Also

refer

to

the

link

http://en.wikipedia.org/wiki/Amendment_of_the_Constitution_of_India

about

amendments to the Indian constitution)
Constituent power vs legislative power
Article 368 (1) was added by the 24 th constitutional amendment in the year 1971.
The validity of this amendment is upheld by the Supreme Court 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 which is an empowered body created by
the constitution such as parliament, executive, judiciary, etc. In Indian
constitution, parliament has both constituent and constituted / legislative powers
with different set of enacting procedures. Constituted power or legislative power
conferred upon the parliament by article 245, is subject to provisions of the
constitution in making legislations. Whereas constituent power of the parliament
is applicable only under article 368.
Supreme Court in Kesavananda Bharati case, ruled in Part VIII (para 506) of the
judgment as given below:
…….. (c) The expression "amendment of this Constitution" does not enable Parliament to
abrogate or take away, fundamental rights or to completely change the fundamental features of
the Constitution so as to destroy its identity. Within these limits Parliament can amend every
article.
(d) The Constitution (Twenty-fourth Amendment) Act, 1971, as interpreted by me, has been
validly enacted.
(e) Article 368 does not enable Parliament in its constituent capacity to delegate its function of
amending the Constitution to another legislature or to itself in its ordinary legislative capacity.

16 of 19

(f) Section 2 of the Constitution (Twenty-fifth Amendment) Act, 1971, as interpreted by me, is
valid.
(g) Section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971 is void as it delegates
power to legislatures to amend the Constitution. …….

The Supreme Court 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 original) from the judgment is 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
constituent power under Article 368 than the procedure which it has

while
to

exercising
follow

its
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
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.

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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 constitution (including of
marginal nature) by the parliament under any other provision other than article
368 is invalid. The legislative power conferred to parliament by article 4 with less
stringent enactment procedure (simple majority of parliament members present
and voting in both houses of parliament or joint sitting of both houses under
article 108) is not constitutionally valid to amend the constitution. Thus the
provision under article 4 (2) of the constitution is void after the addition of article
368 (1) by 24th constitutional amendment in the year 1971.
The points which need constitutional amendment
Strictly speaking, the entire bill shall be passed under constitutional amendment
as the article 4(2) is no more valid. The following provisions in AP reorganization
bill 2014 shall attract specifically the constitutional amendments under article
368.
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
(unamended) constitution of the year 1950. So the later amendment (section 10

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of article 371 D) would be valid incase of conflict between Article 4 vs Article
371D & E.
Common Capital city:
In the constitution, there is no provision of common capital city or capital of one
state in another state territory or capital city of one state (undivided AP state
being represented by residual AP state after bifurcation) becoming capital of
another state (Telangana). So it shall call for constitutional amendment under
article 368 incase to be implemented.
Entry 63 of union list in Seventh Schedule:
The reference giving Article 371E is to be amended 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. In the absence of suitable
amendments to the article 371E and the Entry 63 of union list in Seventh
Schedule, central university at Hyderabad shall be treated as part of residual AP
state.
Cited references:
http://www.caaa.in/Image/Interpretation%20of%20Statutes.pdf

Interpretation of

statutes
Headings and Title of an Article / Chapter (page 26), Proviso (page 27),
Statement of Objects and Reasons (page 29), Reports of Committees as
evidence or facts (page 29), etc are to be studied.
Statutory interpretation http://en.wikipedia.org/wiki/Statutory_interpretation
Interpretation of statutes http://www.ijtr.nic.in/articles/art21.pdf
http://voiceofca.in/siteadmin/document/R2_MAXIM_OF_Interpretation.pdf Maxim
of interpretation (page 12): Non obstante clause as internal aid for interpretation
of statute.
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http://www.academia.edu/4237119/Taming_the_tension_between_constituent_po
wer_and_constituted_power_in_constitution_making_thoughts_on_delegability_o
f_constituent_power Constituent power vs legislative power.

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