Polavaram Ordinance unconstitutional; State governments should have been consulted

The very first action of the Narendra Modi government in promulgating the Polavaram Ordinance has become extremely controversial. By the Andhra Pradesh Re-Organisation (Amendment) Ordinance, 2014, the boundaries of the state of Telangana have been altered and over 250 villages have been transferred from Telangana to Andhra Pradesh.

This is the first time in the history of independent India, where the boundaries of a state have been altered by an ordinance. The ordinance altering the boundaries of the AP has four fatal constitutional flaws.

First and foremost, the ordinance proceeds on the erroneous assumption that the President can destroy or alter the boundaries of an existing state merely by way of an ordinance. The Constitution never conferred such extraordinary powers on the President. Although the President’s legislative power of promulgating ordinances extends to any area where Parliament is competent to enact laws, the said power does not include within its ambit issues which have been reserved exclusively for Parliament.

To illustrate, the President cannot promulgate an ordinance amending the Constitution since it can be done only by Parliament under Article 368. Similarly, the creation of new states or alteration of boundaries or destruction of existing states can be done only by way of a law passed by Parliament after following the elaborate procedure stipulated therein. Article 3, which deals with formation of new states and alteration of boundaries, uses the phrase: “Parliament, may by law”.

This reflects the underlying principle that certain decisions of significant consequences like amendment of the Constitution or creation of new states or alteration of boundaries can only be done by Parliament. Any view to the contrary would mean that the Central government, through the President, has the power to alter boundaries or destroy states which are ruled by the Opposition party. Our Constitution makers never intended to confer such extraordinary powers on the President.

Second, even if the President had the power to alter the boundaries of a state by an ordinance, he is subject to the same limitations as Parliament. Under the Constitution, the alteration of boundaries requires the President to make a recommendation to Parliament after obtaining the opinion of the state legislature. The President cannot short-circuit this elaborate procedure prescribed by the Constitution and is equally bound by the same limitations. This limitation is applicable even if a state is under President Rule.

Under Article 356, when the state is under Presidential Rule, the legislative powers of the state are exercised by Parliament and, therefore, Parliament exercising the powers of the state legislature has to give its opinion on the proposed alteration of boundaries.

Even if Parliament were to approve the ordinance, the constitutional infirmity will not disappear since the procedure for altering the boundaries of the state under Article 3 has not been complied.
Third, the ordinance also violates the constitutional limitations imposed upon the President for issuing the ordinance. Under Article 123, an ordinance can only be issued if there are “circumstances which render it necessary for the President to take immediate action”. An eleven-judge Bench of the Supreme Court in 1970 held that power to issue the ordinance could only be exercised in “extraordinary situations demanding immediate enactment of laws.” In 1982, a Constitution Bench of the SC reiterated that the power to issue an ordinance could only be issued “to take care of urgent situations which cannot brook delay”.

Where was the urgency or the extraordinary situations for the President to promulgate the ordinance and alter the boundaries of a state? On the same day when the ordinance was issued, the government announced the dates for convening Parliament. There was no reason for the government to not wait for a week till Parliament was convened. The issue could have been debated in Parliament after obtaining opinion of the legislature of Telangana and Andhra Pradesh.

Fourth, the ordinance also violates the spirit of federalism. Alteration of boundaries has far reaching consequences for any state and the same can be done only after obtaining the opinion of state legislatures. Instead of consulting the Chief Ministers of both the states, the Central government undermined the entire federal structure by invoking his prerogative power of issuing ordinances. The ordinance was issued surreptitiously and without any public discussion.

The newly constituted Union Cabinet also did not have any representation from Telangana. The Central Government ought to have invited the representatives of both states, held discussions with them and sorted out the issue of tribal rights before altering the boundaries. Instead, it chose to invoke its overriding power to alter the state boundary.

In the coming days, there will be several disputes between the two new states with respect to water, resources, employees and revenue. These disputes would have to be resolved by the Centre by negotiation and discussion and not by exercising overriding authority. The Ordinance undermines the federal structure and sets a bad precedent.