the constitutional crisis in andhra pradesh : a critical study

The Constitutional Crisis in Andhra Pradesh : A Critical Study

K. Natesan*

I THE CONSTITUTIONAL CRISIS in the State of Andhra Pradesh

presents before us various constitutional problems, and according to this writer, this will be an ideal topic for this Seminar for a detailed discussion. Before delving deep into the complexities of the constitutional law involved in this matter, it is essential to have the historical and political background concerning the formation of the State of Andhra Pradesh, and the subsequent crisis which threatens the existence of the same.

During the Éritish regime, the division of this country into various provinces was not based on any historical factor, or for that matter on any cultural background. Provinces were formed in a haphazard manner to serve the needs of the British rulers rather than in the interest of the Indian people. Naturally, the first task that faced the Central Government after independence was the reorganisation of the states so as to create ideal units in our federal set-up. The Indian National Congress which spearheaded the independence movement emotionally committed itself to the reorganisation of the provinces on unilingual basis, and the result was the appointment of the Dar Commission in 1948. It is to be noticed that this commission, while acknowledging the importance of formation of provinces on the basis of linguistic considerations, advocated the reorganisation on the basis of historical, geographical, and economic factors. The JVP Committee which consisted of Jawaharlal Nehru, Vallabhbhai Patel and Pattabhai Sitaramayya was constituted by the Congress Party to study the Dar Commission's report. The committee while expressing itself in unequivocal terms against linguistic states, ended its note with a suggestion that the problem may be re-examined in the light of public demand which according to Granville Austin1 enabled the supporters of linguistic provinces to press for their claims endlessly and tirelessly.

* Principal, Evening College of Law, Osmania University, Hyderabad. 1. Granville Austin, The Indian Constitution : Cornerstone of a Nation 242 (1966).

The Constitutional Crisis in Andhra Pradesh 381

Ultimately, Jawahar Lai Nehru had to bow to the demand of linguistic division of the country in 1953 after the angry and violent agitations, consequent on the death of the fasting Gandhian, Potti Sriramulu, on this issue. He oppointed the Fazl Ali Commission by the end of 1953, to consider the demand for linguistic states in the various parts of the country. The States Reorganisation Commission (hereinafter referred to as SRC) thus constituted in 1953 submitted its report in 1955. The SRC had to deal with very difficult and delicate questions, and it had to reconcile at times apparently conflicting principles. Linguistic and cultural homogeneity had to be upheld without sacrificing the unity and security of the country. Strong yet narrow regional claims had to be met; but at the same time, provision also had to be made for the smooth implementation of national development plans.2

Meanwhile, the people of the Nizam's State (Hyderabad) who felt highly relieved after the police action in 1948, were slowly and steadily stabilising themselves to reach the economic, social and cultural standard of their compatriots in the rest of India. Conditions as they prevailed prior to and after the police action in Hyderabad State have been very aptly summarised by Justice Madhava Reddy :

Hyderabad State was one among the several other Princely States in India. Due to political conditions and historical reasons, the state remained isolated. There were no adequate educational facilities afforded to the people of the State, in the result, there were very few opportunities available to the people of the region to enter public service in competition with others from outside the State. Another contributing factor in this behalf was the use of Urdu, which was not the language of nearly ninety per cent of the people, as the official language in the entire administration of Hyderabad State....3

In 1952 there was an agitation against the non-implementation of the Mulki Rules sponsored by the students in the main towns of Hyderabad State, protesting against the appointment of about 5000 Outsiders' in the state service after the police action. The Hyderabad Government appointed a sub-committee to enquire into the grievances of the agitators, and suggest measures for the strict implementation of the Mulki Rules. When the question of formation of Vishalandhra for the entire Telugu-speaking people was mooted before the SRC, majority of the leaders from Hyderabad State represented to the commission that the Telugu-speaking region of

2. B.K. Gokhale, The Constitution of India and Its Working 148 (1972). 3. In the Full Bench judgment ¡n Venkata Reddy v. Director of Industries, (1973)1

A.L.T. at 99.

382 Constitutional Developments Since Independence

Hyderabad State (Telangana) should be constituted as a separate state. Tn the words of the SRC :

One of the principal causes of opposition to Vishalandhra also seems to be the apprehension felt by educationally backward people of Telangana that they may be swamped and exploited by the more advanced people of coastal area.4

The SRC recommended for a separate statehood for Telangana with a right to opt for merger with Andhra State after a period of five years if two-thirds of the M.L. A.s of the Telangana region voted for the same at the end of five years. It is a pity that political considerations at high level turned down the recommendations of the SRC on this point, and in the result, the State of Andhra Pradesh was formed consisting of Andhra and Telangana regions from 1st November, 1955. The Government of Andhra Pradesh adapted the Mulki Rules under the provisions of Andhra Pradesh Adaptation of Laws Order, 1957. These rules were continued in their operation by virtue of the provisions of sections 119 and 120 of the States Reorganisation Act, 1956, read with article 372 of the Constitution. Also, the state government issued the G.O.M.sNo. 813 G.A.D dated May 18, 1957, under article 309 of the Constitution making the new rule invoking the power of delegated legislation for the application of the Mulki Rules in the Telangana region with retrospective effect from 1-11-1956.

In addition, there was a clear understanding between Andhra and Telangana leaders, in the form of what was technically called as Gentleman's Agreement, at the time of the formation of the State of Andhra Pradesh regarding certain safeguards guaranteed to the Telangana people. The following were the three important principles underlying the agreement :

(/) A regional committee consisting of the members of the state legislature from Telangana should be appointed; laws pertaining to certain matters were to be passed only with the approval of the committee, and any dispute was tobe referred to the Governor, whose decision will be final and binding on the parties concerned.

(i'i) For five years (later the period was extended) Telangana was to be treated as a separate unit for the purpose of recruitment of staff to the subordinate services in the area, and only mulkis (local) people were to be employed.

(Hi) Allocation of revenue between Telangana and the rest of the state was to be made on the basis of 1:2. (Every year there

4. The Report of the States Reorganisation Commission 105 (1955),


was surplus unutilised revenue in Telangana, and this came to be called Telangana surplus, which by 1969 rose to nearly Rs. 31 crores.)

This political arrangement between two sections of the people in Andhra Pradesh was destined to last only for a brief period indeed! In 1969, there was a mass upheaval in Telangana in the form of Telangana agitation demanding a separate state of Telangana. The students, the non-gazetted officers (NGOs) and the political leaders could point out that the Mulki Rules were more often violated under the plea of exemption than being honoured and implemented by the government, and the Gentleman's Agreement remained only in name. The agitation took a violent turn, and the army was called in the last week cf January 1969 to help the civil authorities in the Telangana area. After what was known as 'All Party Accord' in January 1969, the government issued a G.O (G.A.D.S.R.) dated January 21, 1969, directing the heads of offices of the Telangana area to prepare statements showing the names and service particulars of non-domiciliary persons working in their offices who were to be transferred to Andhra cadres to supernumerary posts before February 28, 1969. This led to a batch of writ petitions in the Andhra Pradesh High Court, and ultimately, a batch of Andhra employees filed a separate writ in the Supreme Court on February 4, 1969. The Supreme Court quashed the orders passed in the said G.O. and also declared section 3 of the Public Employment (Requirement as to Residence) Act, 1957, as ultra vires article 16 (3) of the Constitution.8

Another section of the NGOs, this time from the Telangana region, approached the High Court and filed writ petitions with a plea for declaration of Mulki Rules as a valid law. A full bench of three judges of the High Court revalidated the Mulki Rules;6 before the division bench of the High Court in another case, this full bench decision was challenged, and the division bench thought that a reference of the matter to a full bench of five judges was advisable, and it directed that the papers be laid before the Chief Justice of the High Court, who accordingly constituted a full bench of five judges. This full bench, by majority, held that the Mulki Rules were not valid and operative after the formation of the State of Andhra Pradesh.7 On appeal,8 the Supreme Court set aside the full bench judgment and upheld the validity of the Mulki Rules. This chain of litigation culminating in the decision of the Supreme Court created unrest

5. A.V.S. Narasimha Rao v. State of Andhra Pradesh, A.I.R. 1970 S.C. 422. 6. P. Lakshmana Rao v. State of Andhra Pradesh, A.I.R. l!>70 A.P. 18. 7. Supra note 3. 8. Director of Industries v, Venkata Reddy, (1972) II A.L.T. 243.


in the Andhra region, where slowly and steadily the impression was gathering momentum that people from Andhra region were treated as secondary citizens in the capital of the state regarding educational facilities, and job opportunities in the government. The whole Andhra region was shaken with agitations demanding for a separate state. The agitation took a violent turn, and all the traffic throughout the Andhra region came to a standstill. Consequent on the two decisions of the Supreme Court, the prime minister first announced her fivepoint formula on November 27, 1972, which was later given effect to in the form of the Mulki Rules Act, 1972, in Parliament.

The chief provision of the present Act stipulatesthecontinuanceof Mulki Rules in the capital of Andhra Pradesh till the end of 1977, and in the rest of the Telangana area till the end of 1980. The Mulki Rules Act did not put an end to the impasse over the Mulki Rules, and the agitation in Andhra region reached its peak in January, 1973. There were repeated incidents cf extreme mob violence, and the Central Reserve Police had been deputed there. The entire Andhra region remained paralysed due to the continuous strike of the NGOs and gazetted officers of the state government, and the students. Subsequently, on January 18, 1973, President's rule was clamped over the state.

Let us now critically examine the constitutional aspect of the crisis from various angles. The crux of the problem lies in the Mulki Rules and the interpretation of the same in their application by the courts. Another important factor in this crisis revolves round the centre-state relations involved in this matter.

II

The so-called Mulki Rules formed part of the Hyderabad Civil Service Regulations promulgated in obedience to His Exalted Highness the Nizam's Firman, dated 25th Ramzan, 1337 H. The State of Hyderabad was then a native Indian State which had not acceded to the Dominion of India after the Indian Independence Act, 1947. Chapter III of the Regulations contained article 39 which reads :

39. No person will be appointed in any superior or inferior service without the specific sanction of His Exalted Highness, if he is not a Mulki in terms of the rules laid down in Appendix 'N'. Any person whose domicile is cancelled under para 9 of the Mulki Rules, will be considered to have been dismissed from his post from the date of such Cancellation.


The following rules in Appendix 'N' may be set out :

1. A person shall be called a Mulki if—

(a) by birth he is subject of the Hyderabad State, or

(¿) by residence in the Hyderabad State he has been entitled to be Mulki, or

(c) his father having completed 15 years of service was in the government service at the time of his birth, or

{d) she is wife of a person who is Mulki.

3. A person shall be called a Mulki who was a permanent resident of the Hyderabad State for at least 15 years and has abandoned the idea of returning to the place of his previous residence and has obtained an affidavit to that effect on a prescribed form attested by a Magistrate.

At the time of the formation of Andhra Pradesh in 1956, the leaders of the Andhra and Telangana regions reached certain agreements with a view to allaying the fears of the people of the under-developed Telangana region and to reserve for them the benefit of securing employment in the region on the strength of their residence. For safeguarding their legitimate interest in certain matters, the formation of a regional standing committee of the state assembly of this region was also agreed upon. Clause B of this agreement stipulates Domicile Rules as hereunder :

B. A temporary provision will be made to ensure that for a period of five years (this was extended later), Telangana is regarded as a unit as far as recruitment to subordinate services in the area is concerned; posts borne on the cadre of these services may be reserved for being filled by persons who satisfy the domicile conditions as prescribed under the existing Hyderabad Rules.

Parliament, in effect, gave statutory recognition to this agreement by amending article 371 providing for the constitution of the Telangana Regional Committee. The Constitution (Seventh Amendment) Act, 1956, inter alia substituted a new article 371 for the old, the relevant part of which reads :

(1) Notwithstanding anything in this Constitution, the President may, by order made with respect to the State of Andhra Pradesh, provide for the constitution and functions of regional committees of the Legislative Assembly of the State, for the modifications to be made in the rules of business of the Government and in the rules of


procedure of the Legislative Assembly of the State and for any special responsibility of the Governor in order to secure the proper functioning of the regional committees.

After the Telangana agitation in 1969, leaders of all political parties in the Legislature of Andhra Pradesh reached a decision to implement what are called 'Telangana Safeguards' in the form of following measures :

All non-domicile persons, who have been appointed either directly, by promotion or by transfer to posts reserved under the Andhra Pradesh Public Employment (Requirement as to Residence) Rules, 1959, for domiciles of Telangana region will be immediately relieved from service. The posts so rendered vacant will be filled by qualified candidates possessing domicile qualifications and in cases where such candidates are not available, the posts shall be left unfilled till qualified domicile candidates become available. Action on the above lines will be taken immediately. All non-domicile employees so relieved shall be provided employment in the Andhra region without break in service, and by creating supernumerary posts, if necessary.

Accordingly, the government passed an order (G.O.Ms. 36, G.A. (SR) Dept.) on January 21, 1969, incorporating the measures stated above. This was done in accordance with section 3 of the Public Employment (Requirement as to Residence) Act, 1957, which was an Act of Parliament made in pursuance of clause (3) of article 16 of the Constitution, drawing its strength from article 35 (a) and φ) of the Constitution in view of the fact that the Mulki Rules formed part of the civil rules and regulations of the former Hyderabad State. This Act was brought into force on March 21, 1959. While section 2 of the Act repealed the Mulki Rules that were in existence, section 3 of the Act gave the power to make rules in respect, of certain classes of employment in certain areas. It provided :

(T) The Central Government may by notification in the Official Gazette make rules prescribing, in regard to appointments to—

(a) any subordinate service or post under the State Government of Andhra Pradesh or...any requirement as to residence within the Telangana area...prior to such appointment.

By virtue of the government's G.O. referred to above, when many Andhra employees were transferred from the Telangana region, there were batches of writ petitions before the High Court, and later on before the Supreme Court. Where the Supreme Court has given the final ruling in


certain matters, it is needless for us to go into details on the various decisions of the High Court on the same. The first case for critical study in this connection is A.V.S. Narasimha Rao's case.9 In this case, the petitioners challenged the Public Employment Act, the rules, and proposed action under the state government order passed on January 21, 1969. The Supreme Court was of the opinion that there were two questions involved in this case : (/) Whether Parliament, while prescribing the requirement as to residence, can do so by prescribing the same in a particular part of the state! (emphasis added); (ii) Whether Parliament can delegate this function by making a declaration, and leaving the details to be filled in by the rule-making power of the Central Government or state government? Regarding the first question, the court held that Parliament has no power to prescribe residential qualification within a part of the state, and as such, section 3 of the Public Employment (Requirement as to Residence) Act, 1957, in so far as it relates to Telangana, and rule 3 of the Rules under it are ultra vires article 16(3) of the Constitution. The court was of the opinion that as the answer to the first question was in the negative, the second question need not be taken for consideration.

It is submitted that the Supreme Court's interpretation of the expression 'within the state' in this case, as to mean 'within the whole state, and not part of the state' is quite unconvincing.10

Chief Justice Hidayatullah who delivered the judgment observed :

The Article speaks of residence in a state and means only that. If it chose to speak of residence in parts of state such as Districts, Taluqas, cities, towns, etc., more appropriate and specific language could have been used such as 'any requirement as to residence within (it may be noticed that the learned judge uses the exact word used in the Constitution only here) the State or Union Territory or part of that State or Union Territory. Having used the word 'State', the unit state is only meant and not any part thereof. Reference is made to the history of the drafting of the Article and the debates in the Constituent Assembly which bears out this contention. (emphasis added).

9. Supra note 5. 10. Article 16(3), The Constitution of India :

Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a Stale or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment,


The word 'within'according to the Oxford Dictionary means'inside', and it is cur firm opinion that the words 'in' and 'within' are not synonymous. As such, the expression 'within the state' need not neccessarily mean 'within the whole state', and it can as well mean 'within the part of the state'. In this context, Setalvad's contention that emphasis should be attached to the words 'any requirement as to residence within the state' in the Constitution appears to be more convincing.

Secondly, the court's contention that article 16(3) is an exception, and came as an amendment, and as such 'must be viewed narrowly and not carried to excess by interpretation' brings us to the important question of policy of the Supreme Court in observing the rules of interpretation. We feel that the court is not following a uniform policy in observing the rules of interpretation. Thus, for instance, in the following cases, liberal interpretation was preferred to literal and narrow interpretation :

In A.K. Gopalarís case, Chief Justice Kania adopted the following quotation from an Australian case :

Although we are to interpret words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act we are interpreting—to remember that it is a Constitution, a mechanism under which laws are to be made, and not a mere Act which declare what the law is to be11

In Nctvinchandrct Mafatlals. Commr. ofΊ.Τ., Bombay, it was observed :

The rule of interpretation is that words should be read in their ordinary, natural, and grammatical meaning subject to this rider that in construing words in a constitutional enactment conferring legislative power the most liberal construction should be upon the words so that they may have effect in their widest amplitude.12

The same view has been expressed by Justice Venkatarama Aiyar in deducing the principle underlying the cases cited in support of 'flexible construction'. He said :

The principle of these decisions is that when, after the enactment of a legislation, new factors and situations arise which could not have been in its contemplation, the statutory provisions could properly be applied to them if the words thereof are in a broad sense capable

11. Quoting Justice Higgins in Attorney-General of New South Wales v. Brewery Employees' Union, (1908) 6 C.L.R. 469 at 611-12 in A.I.R. 1950 S.C. 27 at 42

12. A.I.R. 1955 SC, 58 at 61.


of containing them. In that situation,'it is not', as observed by Lord Wright in James v. Commonwealth of Australia, 'that the meaning of the words changes but the changing circumstances illustrate and illuminate the full import of the meaning'. The question then would be not what the framers understood by those words, but whether those words are broad enough to include the new facts.13

However, in certain other cases, the Supreme Court has interpreted the Constitution literally.11

Thirdly, it is also noticed that in the present case, the court observed that prescribing residential qualification within a part of the state cannot be accepted in the light of the debates in the Constituent Assembly on article 76(3).

As this point once again revolves round the question of interpretation, it is a matter of great interest what jurists have to say in this connection. Durga Das Basu, while urging the need for 'progressive interpretation' quotes from various judgments from the Commonwealth, as well as the United States. According to him :

A rule of interpretation of ordinary statutes is that their terms must be construed in the light of the meaning which they bore at the time of the passing of the statute. But since a constitution, unlike other statutes, is intended to be permanent, and is to endure for ages the chief consideration in its construction should be present conditions, relations, and requirements and when the language of the constitution will bear it, these should determine the interpretation : provided, of course, there is no express command or prohibition to the contrary. In fact, if the ordinary rule of contemporary meaning were given to a constitution, it would be "to command the race to halt in its progress", and "to project oneself mentally backward through a period of transition". A constitution cannot be regarded as a "political straight jacket for generations to come" or "as though it were a mathematical abstraction, an absolute having no relation to the lives of men."15

It is regretted that the court did not refer to the discussions in Parliament on the Bill regarding Public Employment (Requirement as to Residence) in this connection, so as to have the complete picture in this

13. The State of Madras v. Gannon Dukerley & Co. {Madras Ltd.), 1959 S.C. 379 at 416.

14. See, Chiranjitlal v. Union of India, A.I.R, 1951 S.C. 41; Bool Chand v. Kuruks-hetra University, A.I.R. 1968 S.C. 293.

15. Basu, 1 Commentary on the Constitution of India 56 (5th ed. 1965).


matter. It is absolutely impossible for the Constituent Assembly to have anticipated such a situation like the one in Andhra Pradesh in 1957. Thus, it is submitted that the 'external aid' on which the court relied in this case for reaching its conclusion is illusory. Justice Stone of the U.S. Supreme Court observes :

[I]n determining whether a provision of the Constitution applies to a new subject-matter, it is of little significance that it is one with which the framers were not familiar. For, in setting up an enduring framework of government, they undertook to carry out for the indefinite future and in all vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses. Hence, we read its words, not as we read legislative codes but as the revelation of the great purpose which were intended to be achieved by the Constitution as a continuing instrument of government. (emphasis added).16

We would have been happy if the court would have applied the doctrine of 'true character and nature' as propounded by Justice Mahajan, in Dwarkadas v. Sholapur Mills17 which means that the court should determine the subject-matter of the impugned legislation, the area in which it is intended to operate, its purport and intent to adjudicate upon its constitutionality. In this process, the court has to take into consideration all factors, such as, the history of the legislation, the purpose therof, the surrounding circumstances and conditions, the mischief which is intended to be suppressed, the remedy for the disease which the legislature resolved to cure and the reasons for the remedy. It is a pity that none of these factors were even considered by the court, while declaring section 3 of the Public Employment Act of 1957 as unconstitutional.

Fourthly, the most important paint in this case, viz., the impugned Act.no doubt, came into existence in pursuance of article 16(3) of the Constitution, but it was made by virtue of article 35(¿>) of the Constitution. So, the question, whether in case of conflict between the two fundamental rights, that is, between articles 16(3) and 35(Z>), which will prevail, remains still unanswered in this case. The court observed :

It was argued that the Mulki rules existing in the former Hyderabad State must continue to operate by virtue of Article 35(6) in this area. This point is not raised by the petitions under consideration and no expression of opinion by us is desirable.18

16. United Stales v. Classic, 313 U.S. 299 at 316 (1941). 17. A.I.R. 1954 S.C. 119. 18. Supra note 5 at 426.

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It is surprising how this important point was not raised in the petitions, and it may be safely predicted that the future legal battle over the Mulki Rules Act, 1972, will essentially revolve round this important point alone.

Perhaps Setalvad argued that Parliament is given the power to make any law on the subject in the light of articles 16(3) and 35(6) in this particular context alone; however, the court has negatived the claim for supremacy of Parliament by taking a stand that Parliament, in this, as in other matters, is supreme only in so far as the Constitution makes it.

After this decision, the legal battle over the Mulki Rules turned to the question whether they survived or not due to the unconstitutionality of section 3 of the Public Employment Act of 1957. Thus, once again the venue of the legal battle, as it were, was shifted to the High Court. In Lakshmana Rao v. State of A.P.19 a full bench of three judges critically examined article 35(6) of the Constitution in this connection. Article 35 reads :

Notwithstanding anything in this Constitution—

(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws,

(i) with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32 article 33 and article 34 may be provided for by law made by Parliament; and

(»') for prescribing punishment for those apts which are declared to be offences under this Part;

and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub-clause (//);

(b) any law in force immediately before the commencement of this Constitution in the territory of India with respect to any of the matters referred to in sub-clause (i) of clause (a) or providing for punishment for any act referred to in sub-clause (»') of that clause shall, subject to the terms thereof and to adaptations and modifications that may be made therein under Article 372, continue in force until altered or repealed by Parliament.

Explanation :—In this article, the expression "law in force" has the same meaning as in article 372.

19. Supra note 18-


The court had to decide whether the Mulki Rules stand revived in view of the Supreme Court's decision in Narasimha Rao's case. There were two important points involved in the argument: {i) By virtue of the decision in Narasimha Rao's case, declaring section 3 of the Public Employment Act as unconstitutional in so far as it applies to Telangana, whether section 2 of the Act in so far as it operated to repeal the Mulki Rules prevalent in the Telangana area of Andhra Pradesh survives or not. On this point, the court was of the opinion that section 2 of the Act also was not inseparable from the rest of the invalid part of the Act, and hence it also does not survive. (») Whether the Mulki Rules should satisfy the test of article 16(3) to continue in force after the Constitution. On this question, the Court decided that in view of the non-obstante clause of article 35(b), it is not necessary that such an existing law should in all respects satisfy the requirements of article 16(3) or strictly conform with it.

The court went on to say that even if it is assumed that the law in force must satisfy the test of article 16(3) in regard to residential qualification of the entire state and not part of a state, the Mulki Rules satisfied the test on the day when the Constitution came into force, when the Hyderabad State was in existence. They continued and will continue to be in force until altered, repealed, or amended by Parliament as provided in article 35(6). They did not lose their validity on account of the reorganisation of the state. Parliament did in fact repeal the rules by enacting the Public Employment Act, but with the striking down of the material provisions of the Act by the Supreme Court in Narasimha Rao's case the Rules revived and will continue in force until Parliament alters or repeals or amends them again.

However, in Venkata Reddy v. Director of Industries™ a full bench of five judges, by a majority decision, did not agree with the earlier decision in the Lakshmana Rao's case. It stressed that the Supreme Court in Narasimha Rao's case struck down only section 3 of the Public Employment Act as it relates to Telangana and rule 3 made thereunder, but not the whole of section 3. Section 2 or any portion thereof was not found invalid. Parliament was competent to enact section 2 by virtue of the power vested in it under article 35(a) (i) or (ii) of the Constitution. The invalid portion of section 3 is separable from the valid part of that very section apart from section 2 which is unconnected with it. There is, therefore, no basis or justification for applying the rule of implied repeal to hold that section 2 or any portion therof must be deemed to be invalid, because section 3 pertaining to Telangana had been struck down as ultra vires. The Mulki Rules will not revive and cannot be

20. Supra note 3.


deemed to be effective in the light of the Supreme Court's striking down section 3 pertaining to Telangana.

Due to these two conflicting decisions, the matter was taken up to the Supreme Court by the state government, In Director of Industries v. Venkata Reddy.21 the Supreme Court had to decide whether the Mulki Rules revived or not, after its decision in the Narasimha Rao's case. According to the court, the issues involved in the case were : (/) Were rule 1(b), read with rula 3 of the Mulki Rules, and article 35 laws in force immediately before the commencement of the Constitution in the territory of India ? (ii) Were they continued in force by article 35(6) of the Constitution ? (Hi) Did they continue in force after the constitution of the State of Andhra Pradesh under the Reorganisation of States Act, 1956 ? (iv) Did they stand repealed by section 2 of the Public Employment Act, 1957, notwithstanding that section 3 of the said Act was declared void in so far as it dealt with Telangana ?

On the first question, the court's answer was in the affirmative, as the words "laws in force....in the territory of India' in article 35(6) also occur in article 372 which continue in force the existing laws which existed not only in the province of British India but in all the Indian States.

Regarding the second question, as all the Mulki Rules constituted one integrated scheme regulating appointments to services and posts in the old Hyderabad State, in the opinion of the court, article 35(6) saves laws like the impugned Mulki Rules which form part of Civil Service Regulations or laws dealing with appointments especially in the old Indian States.

While observing the difference of views of the judges of the High Court on the third question, the Supreme Court was of the firm opinion that the effect of reorganisation of states under articles 3 and 4 of the Constitution making Telangana a part of a new state has to be ignored under article 35(6), as otherwise a fundamental right conferred on persons under article 35(6) would be liable to be taken away by the reorganisation of the states, and it cannot be denied that the purpose of reorganisation of states is not to take away fundamental rights.

On the fourth question, it is gratifying to note that the court took into consideration the purpose and objects of the Public Employment Act before reaching a conclusion, while it did not do so in Narasimha Rao's case. After citing the preamble for examining the object of the Act, the court reached the conclusion that it was clear that Parliament would not

21. Supra note 8.


have enacted section 2 without section 3 as far as Telangana was concerned, as also the Constitution (Seventh Amendment) Act, 1956, substituting new article 371 for the old one showed that it was intended to give special consideration to the Telangana region. In the words of the court, "This Court specifically held that Section 3 was bad insofar as it dealt with Telangana. We hold that Section 2 is also bad insofar as it dealt with Telangana area".

It is deeply disturbing to note that the Supreme Court once again declined to go into two vital problems in this case, viz., (a) interpretation of the Mulki Rules and (b) their applicability after their adaptation. They said:

We may mention here that we are not concerned with the interpretation of the Mulki rules, and their applicability after the adaptation. No such question was answered by the Full Bench or was dealt with by the Division Bench.22

It is submitted that the full bench did stipulate the scope of interpretation of the Mulki Rules, even though there was a difference of opinion among the judges. Justice Obul Reddy and Justice Kondiah were of the opinion that among the four classifications of mulkis viz., (i) those who are mulkis by birth, (»') those who become mulkis by residence, (Hi) those who are mulkis by descent, and (¿v) and those who become mulkis by marriage, only those who are mulkis by residence in Telangana for 15 years will be eligible to the benefits of the Mulki Rules. But Justice Madhava Reddy said :

What Rule 1 (b) and Rule 3 lay down is that not only persons who have residence of a place outside the State of Hyderabad, and have established permanent residence in Hyderabad, stayed for at least 15 years and abandoned the idea of returning to the place of their previous residence, but also those persons who have always been permanent residents of Hyderabad State and have been such permanent residents for at least 15 years shall be called Mulkies.23

It is feared that by the Supreme Court's silence on this crucial issue, there is bound to be another fresh round of litigation once again going up to the Supreme Court. In fact, in K. Kondal Rao v. Superintending Engineer™ Justice Obul Reddy observed that in view of the Mulki Rules Act, 1972, as the validity or existence of the impugned Mulki Rules was only until

22. Supra note 8 at 252. 23. Supra note 3 at 84. 24. I.L.R. (1973) A.P. 641.


it was altered or repealed or amended by Parliament under article 35(e), and that it had been repealed by Parliament by enacting the Mulki Rules Act, the decision of the Supreme Court in Narasimha Rao's case prevailed and sprang into action, and what the Supreme Court said was the law of the land under article 141 of the Constitution. In this case, the petitioner challenged the order of the government retrenching him, but retaining the services of junior engineers on the ground that they were mulkis, and he was not a mulki. It is not clear what the learned judge meant when he observed that the decision in Narasimha Rao's case prevailed, and sprang up into action the moment the Mulki Rules Act of 1972 came into existence. Did he mean that the Mulki Rules Act was unconstitutional ?

In this case, the learned judge further reiterated the view expressed by the full bench in the Venkata Reddy case that the definition of mulki as appearing in rule 1(b)27 read with rule 328 did not apply to persons who were born in the erstwhile State of Hyderabad, but to persons who came from an area outside the Telangana area or the Nizam's Dominion, whether it be from the Punjab, Kerala, Bengal or any other state in the country. It is submitted that in the Venkata Reddy case, the Supreme Court has taken the stand that the full bench as well as the division bench have not examined the interpretation of the Mulki Rules, and their applicability after their adaptation, even though as a matter of fact, the full bench had done so. But as it stands, the obiter of the Supreme Court still holds good, and as such, the full bench definition of Mulki Rules cannot have any application. Even taking it for granted that the full bench definition of Mulki Rules may have application, this writer feels that this definition does not seem to be realistic. For instance, A, who is born in Hyderabad, and a resident of the same for the past 15 years is a Mulki; so also, B, who is born outside the erstwhile State of Hyderabad, but resides in Telangana area for the past 15 years, and has abandoned the idea of returning to his place of previous residence. But C, who is born in Hyderabad, and does not reside in any part of Telangana area for the past 15 years is not a mulki. In the words of the Supreme Court :25

If...two constructions are possible, then the Court must adopt that which will ensure smooth and harmonious working of the Constitution, and eschew the other which will lead to absurdity or give rise to practical inconvenience, or make well-established provisions of existing law nugatory.

25. State of Punjab v. Ajaib Singh, (1953) S.C.R. 254 at 264.


III

In the preceding pages, we have analysed at length the implications of the Mulki Rules concerning public appointments which were mainly responsible for the political crisis in the state. This paper is incomplete unless we examine the scope of the Mulki Rules regarding admission to educational institutions, especially professional courses. It should not be forgotten that the Telangana agitation in 1969 was primarily started by the students in that area, under the apprehension that they may not stand anywhere in competition with those from the advanced region of coastal Andhra. The Telangana Regional Committee's recommendations from time to time regarding admission to colleges were effectively implemented by the government through G.O.s, at least after the agitation in 1969. Regarding admission to educational institutions, the relevant provision in the Constitution is found in article 29(2). While article 16(2) includes 'residence' among the grounds on which discrimination cannot be made, with a proviso under article 16(3), the absence of that ground in article 29(2) is the striking difference between the two. The question often crops up whether or not article 15(1) should be taken into consideration regarding admission to educational institutions. In University of Madras v. Shantha Bai,26 it was observed that it was article 29(2) and not article 15(1) which prevails in matters of admission into educational institutions.

While Art. 15(1) prohibits discrimination on the ground 'inter alia' of 'place of birth', these words are omitted in Art. 29(2). The omission is deliberate and there is a purpose behind it....If persons from other and more advanced regions are to insist on being admitted and the restriction in favour of persons who belong to the locality is to be rejected as inconsistent with Art. 15(1), the result would be that persons in the locality might be prevented for all times from improving their lot. It is to avoid such consequences that 'place of birth' which is included in Art. 15(1) would appear to have been omitted in Art. 29(2).

The Supreme Court has supported this view,2' and the overall picture that emerges is that discrimination on the grounds of place of birth and residence does not contravene article 29(2). However, in Ramakrishna v. Osmania University19 the Andhra Pradesh High Court has upheld rule 6 of the Osmania University insisting the preference for 'domicile candidates' on the ground that it was based on residence and not on place of

26. A.I.R. 1954 Mad. 67 at 70. 27. A.I.R. 1954 S.C. 561. 28. A.I.R. 1962 A.P. 120.


birth. It is to be noticed that in this case article 15(1) along with article 29(2) are taken together for examining the question of discrimination. Also in another case,29 the A. P. High Court has held that the classification made by the Principal of the Nagarjunasagar Engineering College in Hyderabad dividing the state into two areas—Andhra and Telangana—and his further division between the natives of Andhra who reside in the twin cities of Hyderabad and Secunderabad and those who do not reside in the twin cities for admission into the college, was violative of articles 14 and 15 of the Constitution. (As we do not have the details of the judgment, we are unable to offer any comments on the same.) We wonder how admissions to the colleges are governed by articles 14 and 15, when the Supreme Court has clearly endorsed the decision in the Shantha Bai case.30

Though the domicile rules are applicable regarding admission to colleges in Telangana, there are not many cases in this connection, unlike the cases of implementation of the Mulki Rules in public appointments. But, after the separate Andhra movement coming into prominence, it is noticed that one of the grievances of the people from the Andhra region is that their children are not given equal opportunities along with others in the capital of the state.

To conclude, the Mulki Rules seem tobe the apple of discord in the minds of the people from the Andhra region who feel that these rules stand in their way of securing equal opportunities in public appointments along with the people of Telangana; to the people of Telangana, it is the only source of hope against being swamped and exploited by their more advanced brethren from the coastal Andhra. Those who feel aggrieved by either operation or non-operation of the Mulki Rules will tirelessly seek the constitutional remedies through the proper forums. Thus, it is felt that the Mulki Rules Act of 1972 may not prove to be the panacea for the ills confronting the state at this stage. If we fondly hope that the present Act is going to put an end to the endless legal battle that is waged since 1969, we are only disillusoning ourselves, as, on the other hand, it is going to be the starting point for a chain of litigation in the years to come.

For us, who have great interest in studying the-development of constitutional law, each case may represent one interesting aspect of the Constitution, and we thrive intellectually by delving deep into the niceties of law interlinked with each important decision. For a politician, each important decision of the judiciary provides him with the opportunity for pursuing the process of experimentation through legislation. But for a common man,

29. The Hindu, 13.2.1973, 30. Supra note 26,


these endless battles before the highest judiciary of the country appear to be meaningless and without any purpose. It should not be forgotten that in the present atmosphere prevailing in this state, each issue affecting either the Andhra or the Telangana region is tinged with emotion and prestige. One may wonder why the Centre has not taken any immediate step to solve this jigsaw puzzle, and decide for early bifurcation of the state into Andhra and Telangana States to avoid further complications in this matter.31

This question leads us to critically examine the centre-state relations in this respect.

IV

At the outset, it may be mentioned that we do not have any systematised constitutional machinery for reorganisation of states. We do have one precedent in the case of State of Goa, when Parliament enacted a legislation known as the Goa, Daman and Diu (Opinion Poll) Act, 1966, whereby Parliament could ascertain the wishes of the people of Goa on the question of merger of that territory with Maharashtra or Gujarat. In the opinion of this writer, this was the wisest move on the part of Parliament at that time, instead of taking a hasty step by dividing the territory of Goa, and merging the same with the territories of Maharashtra and Mysore (Karnataka). Regarding the demand for separation of Andhra Pradesh into Andhra and Telangana States, if the tempo of the mass upheaval can be taken as the index to gauge the public opinion in this regard, we can safely say that the majority of the people from these two regions want bifurcation. The immediate question is, what are the constitutional obligations of the Centre in this respect? Unfortunately, the framers of our Constitution did not think in terms of obligations on the part of the Centre in case of such an eventuality. Having the goal, of creating a strong Centre, our Constitution thinks only in terms of what the

31. It may be pointed out that Parliament repealed the Mulki Rules by enacting the Mulki Rules (Repeal) Act, 1973. Further, the Constitution has been amended by the Constitution (Thirty-second Amendment) Act, 1973, which has inserted articles 371D and 371E. The former empowers the President to provide equitable opportunities and facilities for people of different parts of the State of Andhra Pradesh in matters of public employment and education. The President is further empowered to constitute an administrative tribunal for the state which would exercise powers and authority on matters relating to appointment, allotment, or prmotion to posts in any civil service of the state, seniority and other conditions of service of persons appointed, allotted or promoted. Further, it renders valid all appointments, postings and promotions, made in the past in the state. The latter article empowers Parliament to provide for · the establishment of a university in the state. (Ed.).


Parliament may do in this matter. If we refer to the provisions of our Constitution, article 3 stipulates that Parliament may, by law, form a new state by separation of any territory from any state...subject to the condition that no Bill for this purpose shall be introduced except on the recommendation of the President. Before the recommendation of introduction of such a Bill, the President is required to refer the Bill for the views of the Legislature of the State or States whose area, boundaries or name is to be affected by it. If, however, a state legislature does not express its views within the time specified by the President, he may recommend the introduction of the Bill without even obtaining the views of such state. It is to be noticed that prior to the Fifth Amendment of the Constitution in 1955, the views of the state legislatures were to be ascertained not only with respect to the proposal for the introduction of the Bill, but also with respect to the provisions of the Bill, but after the Fifth Amendment, the only requirement is the reference of the Bill to the state legislatures concerned, and once such reference is made, the formalities as stipulated in the provison of article 3 are complete. According to K.C. Wheare32

It is true that a bill to alter the area or boundaries or name of any state may not be introduced until the legislature of that state has had an opportunity of expressing its views thereon, but in contrast, for example, with the constitutions of the United States and Australia, the consent of the legislature of that state is not required. The very existence of the states depends, therefore, on the Parliament of the Union.

The constitutional implications of article 3 have been critically examined by the Supreme Court in Babulal Párate v. State of Bombay™ and State of West Bengal v. Union of India.34, In the former case, Justice S.K. Das rejected the plea of inducting the doctrine of democratic process into the interpretation of article 3. In the latter case, Chief Justice Sinha, who delivered the majority judgment, set out the position :

What appears to militate against the theory regarding the sovereignty of the States is the wide power with which the Parliament is invested to alter the boundaries of States. By Art. 2 of the Constitution, the Parliament may admit into the Union or establish new States on such terms and conditions as it thinks fit, and by Art. 3, the Parliament is by law authorised to form a new State by redistribution of the territory of a state or by uniting two or more States or

32. K.C. Wheare, Federal Government 27 (4th ed. 1963). 33. A.I.R. 1960 S.C. 51. 34. A.I.R. 1963 S.C. 1241.


parts of States, or by uniting any territory to a part of any State, increase the area of any State, diminish the area of any State, alter the boundaries of any State, and alter the name of any State. Legislation which so vitally affects the very existence of the States may be moved on the recommendation of the President which in practice means the recommendation of the union ministry, and if the proposal in the Bill affects the area, boundaries, or name of any of the States, the President has to refer the Bill to the Legislature of that State for merely expressing its views thereon. Parliament is therefore by law invested with authority to alter the boundaries of any State and to diminish, its area so as even to destroy a state with all its powers and authority.35

Asok Chanda in his book also comments :

It is important to note that the Act does not enjoin that the concurrence of the state legislature should be obtained, or the wishes of the people ascertained by a referundum, as a prelude to parliamentary legislation; it merely prescribes that the President should refer the bill to the states. The legislation itself does not require that it must be passed by a two-thirds majority of members present and voting, or that an absolute majority of the total strength should be obtained in addition; it is sufficient to have it passed by a simple majority. In other words, the provision is treated as falling within the scope of ordinary legislation and not of constitutional amendment....This article, as now amended, gives Parliament, in other words, the party in power at the Centre, the right to undertake reorganisation of states without their consent and without even waiting to ascertain their views.38

Thus, the Parliament's right to reorganise states remains supreme as per the constitutional provisions. The positive form of these provisions is that Parliament can do anything for reorganising states without the consent or concurrence of the state or states concerned. In its negative form, the Parliament wants to sit tight over any constant demand of reorganisation of states, it can do so at its own sweet will and pleasure.

It is to be remembered that our Constitution is not the product of any agreement between the component units, nor the result of any revolution; it is the deliberate and cool-headed product of a group of eminent men assembled in the Constituent Assembly who

35. Id. at 1255. 36. Asok Chanda, Federalism in India 46 (1960).


prepared the Draft after 'ransacking all the known constitutions of the world'.37

In the opinion of this writer, article 3, prior to the Fifth Amendment to the Constitution, was insufficient, and after the Fifth Amendment, its effect has been reduced to nullity, destroying any remnant of power in the hands of the states on the question of reorganisation of states. No wonder, any demand for reorganisation of states is viewed as a threat to our federalism, in the light of the existing constitutional background. This writer also feels that some obligations should be imposed on Parliament on the issue of reorganisation of states. It is interesting to note the recommendations made by the Rajamannar Committee which suggests :38

Two alternatives are open. One is to provide in the Constitution for the consent of the states concerned being obtained on the analogy of similar provisions in the Constitutions of the Federations of the traditional type, or to set up an independent Judicial Tribunal for deciding the issues. If either of the above alternatives is found unacceptable, it is for consideration whether it may be provided that the opinion of the people of the area concerned should be ascertained....

It is submitted that the best alternative is to provide for ascertaining the wishes of the legislature or legislatures concerned, as well as the wishes of the people of the area concerned.

As stated earlier in the historical and political background of the crisis in the State of Andhra radesh, President's rule was imposed from January 18, 1973 on the state. Naturally, after a couple of months of imposition of the President's rule, the proverbial question that haunts us is 'what next?' The relevant provisions of article 356, under which the President's rule was imposed on this state, viz., on the ground of failure of the constitutional machinery in thestate, require our immediate attention. The President may by proclamation—(/) assume to himself all or any of the functions of the state government or the powers of the Governor or any body or authority in the state other than the state legislature; (ii) declare that the powers of the state legislature are to be exercised by Parliament; {Hi) make such incidental provisions as may appear to him to be necessary or desirable for giving effect to the provisions of the proclamation; he may even suspend in whole or in part the provisions of the Constitution relating to any body or authority in the state. However, the

37. Basu, supra note 14 at 5. 38. See the Report of the Centre-State Relations Inquiry Committee 161 (1971).


President is not authorised to assume the powers of the High Court or to suspend any constitutional provision to it. Without going into further details of the technicalities, we can broadly say that the President's rule can be extended to a maximum period of six months at a time by Parliament; however, the total tenure of the president's rule cannot exceed three years.

The one important constitutional point which requires our specific attention is the suspension of the legislative assembly of Andhra Pradesh consequent on the President's rule. It is submitted that there is no attempt made by the party in power to set up convention regarding the matter of suspending the activities of the assembly, or dissolution of the assembly. Instead of going into the details of various instances where the Central Government observed double standards on account of the political considerations, suffice it is to say that dissolution or suspension of the assembly does not depend on any constitutional factor. In Andhra Pradesh, for instance, does the continuance of the President's rule depend upon the attitude adopted by the legislators? After normalcy returns in this region, the Central Government is bound to lift the President's rule. Before doing so, the Centre will prefer to have assurances from the majority of the legislators (at least those belonging to the party in power) that they would not create any complication such as moving a resolution demanding the separation of the state, thereby putting the Centre in a tight corner if it is not in favour of the bifurcation of the state. As an alternative, if the Centre is convinced that the legislators of the state are steadfast in their demand for bifurcation, will it dare to lift the President's rule and face the consequences, or will it continue the President' rule to the maximum period of three years by virtue of its strength in Parliament? May be, these are political problems which should not find a place in this paper; however, it is stressed that these factors will be primarily responsible in drawing the attention of the Centre for the need to observe certain conventions in this matter, if not now, but at least in the future. There is another point of interest mooted by the opposition leaders of Andhra region who advocate for bringing about a constitutional crisis in the state, by the legislators submitting their resignations en block thereby forcing the Centre either to come out with the proposal of conducting fresh elections, or continuing the President's rule to the maximum period of three years. If fresh elections are to be conducted to the state assembly or Parliament in the near future, separation will be undoubtedly the election issue! All these complications can be avoided if the Centre make up its mind to ascertain the consensus of the legislature, as also the verdict of the people of the region by opinion poll.

V The formation of Andhra Pradesh in 1956 heralded the era of reorgani

sation of states on linguistic basis, and the present crisis in Andhra Pradesh

The Constitutional Crisis in Andhta Pradesh 403

within 17 years of its formation proves the fallacy of anticipating that economic imbalances within a state can be pacified on the basis of common language. If the present constitutional crisis in this state results in disintegration of Andhra Pradesh, there is bound to be a demand for bifurcation of Vidarba from Maharashtra, Jharkand from Bihar in the immediate near futur. One suggestion is made in this connection, viz., appointment of another States Reorganisation Commission to go into the feasibility of realignment of states on the basis of historical, geographical, and economic factors. It is felt that this recommendation requires a favourable consideration in the light of existing experience of linguistic provinces. From linguism to regionalism there may not be any notable difference. But all the same, if stability of states can be rest assured through this process, we need not hesitate to proceed further in this matter.

Our federal structure itself is an experimental set-up without any constitutional history, and if idealism comes into conflict with practicability, we should not hesitate to sacrifice the former for the sake of the latter. Morever, a demand for further decentralisation proves the success of democracy rather than lack of political consciousness. It is to the credit of this country and its people that our nascent democracy continues to survive in spite of innumerable challenges, perhaps due to our unshakable faith in our Constitution.

the constitutional crisis in andhra pradesh : a critical study

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