Telangana, AP Legislative Seats: Increase Possible Without Constitutional Amendment
S.Viraat, from New Delhi
New Delhi: Hansraj Gangaram Ahir, Minister of State for Home told Loksabha on Wednesday that as per the opinion of Attorney General it is impossible to increase the seats in AP and Telangana Assemblies. But the Constitutional provisions and provisions of 2014 law with proper interpretation facilitate the increase, provided there is political will. The following is the analysis:
In its wisdom, the Executive and Parliament decided to increase the number of legislative seats in AP and Telangana while dividing the State of Andhra Pradesh in 2014. The lawmakers knew well about Article 170 of the Constitution regarding delimitation, yet they thought it would be proper to increase the number of representatives of the people. According to Article 4 of the Constitution, a law made under Article 3 through a special process prescribed, would mean the Amendment of the Constitution by itself, without necessitating any fresh amendment again in certain consequential issues like increase in number of seats of legislature.
The Home Ministry responded in Rajya Sabha to member Devender Goud saying that Section 26(1) of the AP Reorganization Act, 2014 cannot be implemented without amending the Article 170 of the Constitution. That reply mentioned opinion of Attorney General who stated that the amendment “notwithstanding the provisions contained in Article 170 of the Constitution of India in place of “subject to the provisions contained in Article 170 of the Constitution” would not be sustainable.
Increasing the seats in legislative assembly is one of the important provisions of that Act. By delimitation, the number of assembly seats will increase from 175 to 225 in AP and from 119 to 153 in Telangana.
Even though the Act was made in March 2014, the Government could not increase the number of seats in view of objections raised by the Election Commission of India (ECI). Dilip K Varma, under-secretary, ECI, conveyed the commission’s inability in a letter mailed to chief electoral officer (CEO), Andhra Pradesh, Bhanwar Lal, on February 12 this year. In the letter, the EC made it clear that it was not in a position to carry out a full-fledged delimitation exercise in respect of AP in the absence of an enabling legislation to be made by Parliament. The EC recalled that it had taken up the issue with the union ministry of home in a letter (dated 26 June 2011), seeking clarification on certain legal issues which cropped up in connection with the delimitation exercise. Dilip K Varma wanted the CEO to advise the AP government to take up the matter with the Centre. Clause 3 of article 170 of the Constitution vests the powers with Parliament for readjustment of the total number of seats in the legislative assembly of each state upon completion of each census without affecting the representation in the assembly until its dissolution. Basing on its letter, the EC is understood to have concluded that section 26 of the Reorganisation Act runs counter to this particular article of the Constitution and that the delimitation exercise could not be possible without an ‘enabling’ legislation.
The Governments in Telangana and Andhra Pradesh said: “Parliament is the highest Executive in democracy which gave a commitment with regard to the delimitation through the bifurcation Act and let its word prevails over the EC.” As the division altered the political equations, the need for increasing the number of assembly seats was felt to ensure stability of states.
The latest delimitation of assembly constituencies took place before the 2009 elections by considering the census in 2001 as the basis. There is stipulation of time limit of 25 years for delimitation. The ECI felt that without relaxing this time limit there cannot be any increase. The Centre also felt that in view of Article 170 delimitation could be done only in 2026, after census.
Significance of AP Reorganization Act 2014
Most important and distinct feature of passing AP Reorganization Act 2014, is that it was not an ordinary law making but an enactment made in exercise of its special power under Article 3 on reference from the President of India and after due consultation in Andhra Pradesh Legislative Assembly.
While altering the boundaries of an existing state and carving out a new state Telangana with ten districts of Andhra Pradesh, the Parliament has provided to resolve the issue of proper representation to the people of two Telugu states. It made an enabling provision for delimitation of the constituencies in the Legislative Assembly of the successor States of Andhra Pradesh and Telangana. A specific provision regarding increasing the constituencies enables the Government of India to initiate the process and complete it before 2019 elections as desired by the Parliament.
Most important aspect to be noticed is that the Act does not talk about the seats from these two states in Lok Sabha and Rajya Sabha. Thus it is a special provision exclusively aimed at addressing the issues of two states.
Article 170 of our Constitution prescribes the number of seats for Composition of the Legislative Assemblies. There are in all three principles in this Article, they are;
- Seats shall not be more than 500 or less than 60.
- Ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the State
- The division of each State into territorial constituencies shall be readjusted by such authority and in such manner as Parliament may by law determine
There are three rules enunciated in this provision, (a) maximum and minimum number of seats, (b) ratio between population and each constituency and the number of seats allotted to it, and (c) territorial adjustment according to law are the three rules which need to be followed all over India and also in Andhra Pradesh & Telangana. The Delimitation in two states as per S 26 of APSR Act, need to be carried on in accordance with these three substantive principles. However a proviso is also introduced to hold the delimitation process up till 2026. What is to be noted is that this freeze on delimitation is an exception and it is limited to sub-clauses (2) and (3) of Article 170.
Intention of Parliament
The aim of the Parliament is very clear, i.e., to increase the seats in Legislative Assemblies in both the states, as indicated by expression ‘shall increase’. The Act prescribed detailed procedure for increasing the number of seats in Legislative assemblies in successive Telugu States.
If the Parliament wanted to freeze the number of seats in two successive new states, there was no need to incorporate Section 26 at all. If the section 26 is not there, naturally the freezing provision in Sub-sections 2 and 3 of Article 170 will apply and there can be no increase till 2026.
The Parliament wanted the increase, irrespective of ‘freeze’ mentioned in Article 170. As per Article 170 Parliament cannot increase beyond maximum or reduce below minimum number prescribed. But Supreme Court explained in Mangal Singh case, that Parliament can reduce the number less than minimum through Reorganization Act under Article 3 and 4. However, Parliament in case of division of Andhra Pradesh did not want to defy the norms prescribed in Article 170. Hence that Act says increase the seats subject to Art 170. Section 26 is subject to A 170. But unfortunately this section 26 is being read as “subject to exception to 170(2) and (3) to freeze”. It is not.
Meaning of Expression “Subject to..”
The meaning of the expression “subject to provisions in Article 170..” is that the procedure to be adopted for increasing number of seats is subject to three substantive principles relating to number, ratio and law. “Subject to provisions in Article 170” does not extend to include the ‘freeze’ under (2) & (3) of Article 170. If it is read to be subject to ‘freeze’ under (2) & (3) of Article 170, there will be no need to make such provision at all. Such ‘freeze’ was relaxed by the Parliament through incorporation of this specific provision. The Executive has to honour the intention of the Parliament.
To say that Section 26 is ‘subject to entire Art 170’ means it is subject to freeze up to 2026 also is highly inconsistent with express provisions of law and the spirit of division under the Act. The meaning of ‘shall freeze’ needs to be translated into reality. There is no scope for such kind of reading, which makes entire section 26 meaningless. Such a reading will defeat the purpose of assurance to broader representation to the people in the wake of division of state into two new states. Section 26 is perfectly constitutional.
Rule of Interpretation
The most practical rules of interpretation accepted worldwide facilitate the consideration of enactment in its entirety along with the preamble and statement of objects and purposes. If there is any expression used appears to be in conflict with the object and purpose of the legislation, it has to be properly understood and applied while implementing the legislation in the light of its background, purpose and objective. Interpretation should not defeat the intention of provisions of law. To say, though intention is to increase, but cannot be done till 2026 is not proper and not correct. It is a negative understanding of a positive provision.
The expression “subject to provisions in Article 170” should be understood as ‘subject to provisions in Article 170 notwithstanding the provisos to Subsections (2) and (3) of Article 170 given under explanation of expression ‘population’.
“Freeze” provision of Art 170 is amended by S 26
Article 3 enables the Union Government and Central Parliament to readjust the territorial constituencies of one state to two states. The reorganization of State is in fact causing delimitation by redrafting the territorial boundaries of two states. Thus a major delimitation was done by the Reorganization Act. Providing for internal territorial readjustment, to increase number of seats in two Telugu states is a minor readjustment when compared to division of a very big state into two states. Division of erstwhile AP happened also with division of assembly constituencies. The Act that prescribed formation of two states by re-drafting the boundaries has prescribed further re-drafting of boundaries of territorial constituencies also. There are two major limitations on this delimitation: One- it is limited to Legislative Assemblies only (there is no change in the number of Parliamentary constituencies which remain frozen) and two- it has to be done as per the Constitution. The frozen delimitation to the extent of legislative assemblies was defrozen by the Act of 2014 which has effect of amending the Constitution, i.e., the freezing was amended to the extent of legislative assemblies as per Article 4. The freezing is protected as far as Parliamentary constituencies are concerned in relation to two Telugu states, but a provision was made for increasing assembly constituencies in accordance with three above referred substantive principles established in Article 170. Hence the proper meaning to be inferred is that section 26 is subject to Article 170 but specifically taken out of freez up to 2026 as far as Assembly constituencies are concerned. To that extent section 26 and APR Act has amended that provision of the Constitution. Parliament can cause delimitation by amending constitution, and that was done by Act 2014.
As per the Constitutional norms, the APR Act, 2014 is almost equal to amendment of the Constitution in certain aspects. There is no need to make separate Constitutional Amendment to change the schedule of names of states, their area, and number of MP and MLA seats in those states, Consequential changes in Constitution will automatically happen with passage of Reorganization Act under Article 3.
Article 4 specifically explains that law made under Article 3 can contain such supplemental, incidental and consequential provisions including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law. Had the Article 4 was brought into notice of AG and was it considered, the final result would have been different.
Similarly Section 26 of the APR Act will have an effect of amending the constitution to the extent of carving an exception to proviso to sub-clauses (2) and (3) of Article 170 of the Constitution to enable increasing the seats in both of the Telugu states to fulfil objective and meet the purpose. Hence the contention that the freezing of delimitation of seats as per Art 170 will eclipse section 26 of APR Act is not tenable. In fact, section 26 of APR Act is exception to proviso in Art 170.
In Mangal Singh v Union of India (1967) 2 SCR 109, Punjab Reorganization Act 1966, which had Assembly seats less than minimum prescribed under Article 170 because of which it was challenged on the ground that it contradicted the Article 170. It was held:
Power to reduce the total number of members of the Legislative Assembly below the minimum prescribed by Art. 170(1) is, in our judgment, implicit in the authority to make laws under Art. 4. Such a provision is undoubtedly an amendment of the Constitution, but by the express provision contained in cl. (2) of Art. 4, no such law Which amends the First and the Fourth Schedule or which makes supplemental, incidental and consequential provisions is to be deemed an amendment of the Constitution for the purposes of Art.368.
The Supreme Court finally held that: The High Court was, therefore, right in holding that s. 13(1) was not invalid merely because it departed from, the minimum prescribed as the total membership of the Legislative Assembly for a State. Power to reduce includes power to increase the number of territorial Legislative Assembly constituencies notwithstanding the provisions in Article 170, which was validated by the Supreme Court in Mangal Singh case.
In Mullaperiyar case (https://indiankanoon.org/doc/1649309/), the Supreme Court explained: The power of Parliament to make law under Articles 3 and 4 is plenary and traverse over all legislative subjects as are necessary for effectuating a proper re-organization of the States. We are unable to accept the contention as to invalidity of Section 108 of the Act.
Section 26 made a consequential change in Article 170, which is well within the power of Parliament as per Article 3 and 4 as upheld by the Supreme Court in Mangal Singh Case. There is no need to amend the Act of 2014.
The AP Act empowers Union and facilitates Union Government to increase the number of seats in two state assemblies without any further amendment. It requires political will on the part of the Union Government.