Babulal Parate vs The State Of Bombay And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 342 of 1956

Decision Date: 28 August 1959

Coram: S.K. Das, A.K. Sarkar, K.N. Wanchoo, M. Hidayatullah

In the case titled Babulal Parate versus The State of Bombay and another, the Supreme Court of India rendered its judgment on 28 August 1959. The opinion was authored by Justice S.K. Das, who sat on the bench together with Justices A.K. Sarkar, K.N. Wanchoo and M. Hidayatullah. The official citation of the decision is 1960 AIR 51 and 1960 SCR (1) 605, and the judgment is also referenced as RF 1973 SC1461 (1945). The petitioner, Babulal Parate, had filed a petition under article 226 of the Constitution in the High Court of Bombay, challenging the constitutionality of the States Reorganisation Act, 1956. He argued that the Act was passed in violation of article 3 of the Constitution because the Legislature of Bombay had not been given an opportunity to express its views on the formation of the composite State of Bombay as proposed in the Bill. The High Court dismissed the petition, and the matter was taken on appeal to the Supreme Court.

The Court examined the proviso to article 3, which sets out two conditions that must be satisfied before Parliament may amend the boundaries of a State. The Court held that the second condition requires the President to refer to the State Legislature the specific proposal contained in the Bill that is being considered. The Court emphasized that this requirement does not extend to any later amendment of the Bill by Parliament; a fresh reference to the State Legislature is not required if Parliament subsequently modifies the original proposal. The Court explained that the word “State” in article 3 refers to the entities listed in article 1 and the First Schedule of the Constitution, and that “Legislature of the State” means the legislature of that particular State. Consequently, the Court rejected the application of any foreign democratic doctrines or an expanded interpretation of the term “State” in this context. The Court also observed that the Bill originally introduced in the Lok Sabha, on the recommendation of the States Reorganisation Commission, proposed three separate units: the Union territory of Bombay, Maharashtra (including Marathawada and Vidarbha), and Gujarat (including Saurashtra and Cutch). After the President obtained the views of the concerned State Legislatures, the joint Select Committee of the Lok Sabha and Rajya Sabha reported on the Bill, and Parliament subsequently amended several clauses before enacting the States Reorganisation Act, 1956. Under section 8(1) of that Act, a composite State of Bombay was created instead of the three separate units originally proposed. The Court concluded that the modifications made by Parliament did not require a new reference to the State Legislature, and therefore the Act was not in breach of article 3.

The Court observed that the requirements set out in Article IV, section 3 of the Constitution of the United States differ materially from the conditions contained in the second proviso to Article 3 of the Constitution of India. Consequently, authorities that rely on the American provision are not applicable to the present Indian dispute. The Court therefore held that the decisions in State of Louisiana v. State of Mississippi (1905) 202 U.S. 1 and State of Washington v. State of Oregon (1908) 212 U.S. 127, as well as the reference to State of Texas v. George W. White (1869) 74 U.S. 700, could not be applied to interpret the Indian provision. The Court further rejected the contention that the word “Bill” appearing in the proviso should be read to include any amendment of a clause of the Bill or even a substantial amendment, and that any proposal contained in such an amendment must be sent back to the State Legislature for its opinion. Such a construction, the Court explained, would defeat the effect of Article 122(1) and would be inconsistent with the scheme of Articles 117 and 118 of the Constitution. Although the formation of a composite State under section 8 of the States Reorganisation Act, 1956 represented a considerable alteration of the original proposal contained in the Bill, the Court found that the change remained germane to the subject-matter of the original proposal and was not a direct negation of it. Accordingly, the amendment fell within the permissible scope of amendment under the proviso. The Court applied the principles articulated in T. H. Vakil v. Bombay Presidency Radio Club Ltd. (1944) 47 Bombay L.R. 428 and concluded that the Act could not be said to have been enacted in violation of Article 3 of the Constitution.

The appeal before the Court was Civil Appeal No. 342 of 1956, filed against the judgment and order dated 14 September 1956 handed down by the Bombay High Court in Special Civil Application No. 2496 of 1956. Counsel for the appellant was R. V. S. Mani, while the respondents were represented by the Solicitor-General of India, C. K. Daphtary, together with B. Sen and R. H. Dhebar. The appeal was heard on 28 August 1959, and the judgment was delivered by Justice S. K. Das. The matter arose on a certificate granted by the High Court of Bombay under Article 132(1) of the Constitution, raising the question of the true scope and effect of Article 3, particularly of its proviso as amended by the Constitution (Fifth Amendment) Act, 1955. The factual background recounted that on 22 December 1953 the Prime Minister of India addressed Parliament stating that a commission would be appointed to examine “objectively and dispassionately” the question of re-organisation of the States of the Indian Union so as to promote the welfare of the people of each constituent unit and the nation as a whole. Following that statement, a commission was constituted by a resolution of the Ministry of Home Affairs dated 29 December 1953. The commission submitted its report in due course, and on 18 April 1956 a Bill embodying its recommendations was introduced in the Lok Sabha.

The Lok Sabha introduced the States Reorganisation Bill, numbered 30 of 1956, which contained clauses eight, nine and ten proposing the creation of three distinct units: firstly, the Union territory of Bombay; secondly, a State of Maharashtra that would include the regions of Marathawada and Vidharbha; and thirdly, a State of Gujarat that would incorporate Saurashtra and Cutch. The Bill was presented to the House of the People on the recommendation of the President, as required by the proviso to article three of the Constitution. After its introduction, the Bill was referred to a Joint Select Committee composed of members of both the Lok Sabha and the Rajya Sabha. This Committee issued its report on the sixteenth day of July in the year 1956. Following consideration, certain provisions of the Bill were amended by Parliament. When both Houses passed the amended Bill, it obtained the assent of the President on the thirty-first day of August, 1956, and consequently became law as the States Reorganisation Act of 1956, cited as Act number 37 of 1956, hereinafter referred to as “the Act.” It is necessary to examine section eight, clause one of the Act, which, instead of establishing the three separate entities originally envisioned in the Bill, created a single composite State of Bombay as set out in the text of that provision. Section eight, paragraph one states: “From the appointed day there shall be formed a new Part A State to be known as the State of Bombay comprising the following territories, namely: (a) the territories of the existing State of Bombay, excluding (i) the districts of Bijapur, Dharwar and Kanara and the district of Belgaum except for Chandgad taluka; and (ii) Abu Road taluka of Banaskantha district; (b) the districts of Aurangabad, Parbhani, Bhir and Osmanabad, the taluks of Ahmadpur, Nilanga and Udgir of Bidar district, Nanded district except for Bichkonda and Jukkal circles of Deglur taluk and Modhol, Bhiansa and Kuber circles of Modhol taluk, and the Islapur circle of Boath taluk, Kinwat taluk and Rajura taluk of Adilabad district, all of which were part of the existing State of Hyderabad; (c) the districts of Buldana, Akola, Amaravati, Yeotmal, Wardha, Nagpur, Bhandara and Chanda in the existing State of Madhya Pradesh; (d) the territories of the existing State of Saurashtra; and (e) the territories of the existing State of Kutch; and that upon such formation these territories shall cease to be part of the existing States of Bombay, Hyderabad, Madhya Pradesh, Saurashtra and Kutch respectively.” The Act defines the appointed day, from which the new State of Bombay came into being, as the first of November, 1956. However, prior to that appointed day, specifically on the twelfth of September, 1956, the appellant filed a petition under article 226 of the Constitution in the High Court of Judicature at Bombay. In that petition the appellant contended, in substance, that the creation of a single composite State of Bombay in place of the three separate units originally proposed in the Bill violated article three of the Constitution because the Legislature of the State of Bombay had not been given an opportunity to express its views on the formation of such a composite State. The appellant sought a declaration that section eight and the other consequential provisions of the Act were null and void, and prayed for a writ directing both the State Government of Bombay and the Union Government not to enforce or implement those provisions.

In the petition filed on 12 September 1956, the appellant sought a declaration that sections 8 and other consequential provisions of the Bombay Reorganisation Act were null and void, and he requested an appropriate writ directing both the State Government of Bombay and the Union Government not to enforce or implement those provisions. The petition was heard by the Bombay High Court on 14 September 1956, and by a judgment dated the same day the High Court dismissed the petition, holding that no violation or contravention of Article 3 of the Constitution had occurred. Following that dismissal, the appellant obtained the certificate required under Article 132(1) of the Constitution and, on the strength of that certificate, filed an appeal before the Supreme Court on 18 October 1956. At this juncture, the Court found it convenient and advisable to set out the full text of Article 3, as amended by the Constitution (Fifth Amendment) Act, 1955, because the alleged breach of that article formed the principal ground of attack raised by counsel for the appellant. The article reads: “Art. 3: Parliament may by law- (a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State; (b) increase the area of any State; (c) diminish the area of any State; (d) alter the boundaries of any State; and (e) alter the name of any State; Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.” The Court observed that, substantively, the article confers upon Parliament a definite power to enact legislation concerning any of the five matters enumerated in clauses (a) through (e). This substantive authority encompasses the power to increase a State’s area, to diminish a State’s area, and to alter a State’s name. The substantive portion is followed by a proviso that imposes procedural conditions on the exercise of that power. The proviso stipulates two essential requirements: first, that no Bill may be introduced in either House of Parliament unless it is recommended by the President; and second, that where the Bill’s proposal affects the area, boundaries, or name of a State, the President must refer the Bill to the Legislature of that State to obtain its views within a period specified by the President, with the possibility of an extension granted by the President.

In this case the Court explained that the second condition of the proviso required that whenever a Bill contained a proposal affecting the area, boundaries or name of any State, the President had to refer that Bill to the Legislature of the concerned State for the purpose of obtaining its views. The President was required to fix a period within which the State Legislature should furnish its views, although the President retained the power to extend that period if necessary. The Court observed that if the prescribed period, whether the original period or a period subsequently extended, elapsed without any response from the State Legislature, the requirement of the second condition was nevertheless considered to be satisfied even though the State Legislature had not actually expressed its views. The intention behind this provision, according to the Court, was to give the State Legislature a chance to express an opinion within the time allotted; a failure by the State Legislature to take that opportunity did not render the introduction of the Bill invalid. The Court further noted that the proviso contained no language indicating that Parliament was bound to accept or act upon the views expressed by the State Legislature. It was possible, the Court pointed out, for two State Legislatures to express wholly divergent opinions. What the proviso contemplated, the Court said, was that Parliament should have before it the views of the State Legislatures concerning the proposals in the Bill, and after considering those views Parliament could deal with the Bill in any manner it deemed appropriate, following the normal parliamentary rules of business. Consequently, the essential requirement of the second condition was that the President refer the proposal contained in the Bill to the State Legislature for its views within the time specified. The Court emphasized, in line with the High Court’s judgment, that the reference to be made by the President concerned only the proposal as it appeared in the Bill. The proviso did not stipulate that any later amendment of the proposal, made by a duly moved and accepted amendment in Parliament, would trigger a fresh reference to the State Legislature or require the introduction of a new Bill. During the arguments it was highlighted that imposing such a requirement would lead to an endless process, because every amendment of the original proposal would demand a new Bill and a new reference to the State Legislature. Further difficulties could arise in situations involving two or three States, where the respective State Legislatures might express different views. If Parliament chose to accept the view of one State Legislature and reject that of another, any amendment to the original proposal would still obligate a fresh reference under that construction. The Court mentioned these practical problems not because it endorsed a forced approach, but to illustrate the impracticality of interpreting the proviso as demanding a fresh reference and fresh Bill for each amendment.

The Court observed that the purpose of giving meaning to the words of the proviso was to avoid certain difficulties that might otherwise arise. It held that the language of the proviso is sufficiently clear and should be understood in its ordinary plain sense. According to the accepted meaning of the words used, the second condition requires that the proposal contained in the Bill be referred to the State Legislature; it does not impose a requirement that a fresh reference be made each time an amendment of that proposal is moved and accepted under the parliamentary rules of procedure. The Court noted that in the present matter the States Reorganisation Bill had been introduced on the President’s recommendation, and that the proposal in the Bill had indeed been referred to the concerned State Legislatures and their views had been recorded. Nevertheless, counsel for the appellant argued that this step did not satisfy the second condition of the proviso. He presented his contentions in several forms. First, he asserted that the term “State” in Article 3 should be given a broader meaning that includes not only the geographical entity but also its people, thereby invoking a “democratic process” embedded in Article 3. Under this wider conception, the Court reasoned, the elected representatives of the people of Bombay, assembled in the State Legislature, should have been afforded an opportunity to express their views on any substantial modification of the proposal, not merely on the original wording. Second, following the same line of reasoning, he argued that the word “Bill” ought to be interpreted expansively to cover any amendment, at least any substantial amendment, of the proposal contained in the Bill. Third, he contended that the creation of a new Bombay State as a single unit differed so markedly from the three units originally proposed that it did not constitute an amendment of the original proposal but rather a new proposal altogether, requiring a fresh Bill and a fresh reference to the State Legislatures.

The Court then turned to consider these contentions. It stated that the primary task was to determine, by proper construction, the true scope and effect of Article 3 of the Constitution, with particular emphasis on the second condition set out in its proviso. Accordingly, the Court brought to its task those considerations that are germane to the interpretation of an organic instrument such as the Constitution, while warning that it would be improper to import doctrines of democratic theory and practice drawn from other jurisdictions that are unrelated to the tenor, scheme, and language of the provision under consideration. The Court emphasized that the plain and unambiguous wording of the proviso to Article 3 suffices to guide the analysis, and that no special or obscure doctrine of “democratic process” is required to give effect to the provision.

In plain language the proviso to Article 3 of the Constitution provides that when a proposal contained in a Bill would affect the area, boundaries or name of any State, the President must refer that Bill to the Legislature of the concerned State for the purpose of obtaining the Legislature’s views. The Court observed that there is no special or obscure doctrine of “democratic process” involved in this requirement. Counsel for the appellant drew the Court’s attention to Article IV, section 3 of the American Constitution, which states, inter alia, that “no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States or parts of States without the consent of the Legislatures of the State concerned as well as of the Congress.” The Court noted that this American provision is fundamentally different from the Indian proviso: the former demands the consent of the State Legislature, whereas the Indian provision merely requires that the President refer the proposal to the State Legislature so that the Legislature may express its views. Consequently, the Court found that the American decisions cited by counsel for the appellant—State of Louisiana v. State of Mississippi (1) and State of Washington v. State of Oregon (1)—are not applicable. The Court further examined the expression “State” as it appears in Article 3. Referring to State of Texas v. George W. White (3), the Court explained that the term may denote a territorial region, the people united in political relation residing in that region, the government under which those people live, or a combination of territory, people and government. However, Article 1 of the Indian Constitution declares that India is a Union of States and that the States and their territories are enumerated in a Schedule. Accordingly, there is no difficulty in understanding that “State” in Article 3 refers to the States listed in the First Schedule, and “Legislature of the State” refers to the constitutionally established Legislature of each such State. The Court therefore saw no reason to import any doctrinaire consideration of the sanctity of State rights or to give an expanded meaning to the term “State” in Article 3. None of the constituent units of the Indian Union were comparable to the American colonies or Swiss Cantons that existed before those nations formed their federal unions. The Constituent Assembly, deriving its authority from the sovereign people, was free of any prior commitment and was able to devise a constitutional structure suited to the genius and requirements of the Indian people as a whole. Unlike many other federal legislatures, Parliament, as the representative of the whole people of India, has been vested with the exclusive power to admit or establish new States, to increase or diminish the area of an existing State, or to alter State boundaries, with the State Legislatures possessing only the right to express their views on such proposals.

In this case the Court explained that Parliament, acting as the representative of the whole people of India, possessed the exclusive authority to admit new states, to create or remove portions of an existing state, and to alter the boundaries of any state. The legislatures of the states involved were limited to the right to express their views on such proposals, but they did not share the power to make the changes. The Court also noted that a constitutional amendment was not required in order to carry out these territorial adjustments. The appellant advanced a second line of argument, contending that the word “Bill” in the proviso should be read to include any amendment of any clause of the Bill, or at least any substantial amendment, and that any proposal arising from such an amendment must be referred to the state legislature for its opinion. The Court rejected this interpretation. It observed that when an amendment is subject to a condition precedent, as with financial bills, the Constitution expressly uses the phrase “a Bill or amendments,” for example in Article 117, and that no comparable expression appears in Article 3. Moreover, Article 118 grants Parliament the power to frame its own rules of procedure and conduct of business, including the handling of amendments. Accordingly, Rule 80 of the Rules of Procedure of the Lok Sabha sets out the conditions for admitting amendments to clauses or schedules of a Bill, requiring that an amendment be within the scope of the Bill and relevant to the subject matter of the clause it amends. Article 122(1) further provides that the validity of any parliamentary proceedings cannot be challenged on the ground of alleged procedural irregularities. In light of these provisions, the Court held that it could not accept an interpretation of Article 3 that would undermine the effect of Article 122, especially an interpretation based not on the actual words of the Constitution but on abstract notions of a “democratic process” suggested by counsel for the appellant. The Court recognized that the creation of the new composite State of Bombay under section 8 of the Act represented a substantial modification of the original proposal of three separate units. However, the Court emphasized that this did not mean the amendment was improper or that the State Legislature had been denied the chance to voice its views on every aspect of the proposal. The High Court had correctly observed that during debates in the State Legislature several members had spoken in favour of a composite State of Bombay. The Court noted that a variety of opinions had been expressed concerning the original three-unit proposal, and that it could not be said that the State Legislature had been prevented from expressing support for a single composite unit in place of three.

In this case the Court noted that the suggestion to create one composite unit in place of the three originally proposed could be regarded as relevant to the subject matter of the original proposal and could not be dismissed as immaterial. The Court referred to the decision in T. H. Vakil v. Bombay Presidency Radio Club Ltd., where it had been held that an amendment must satisfy two conditions: first, it must be germane to the subject-matter of the original proposition; second, it must not be a direct negative of that proposition. Applying those two criteria, the Court found that the proposal for a single unit was indeed germane to the original proposal and was not a direct negative of it. Consequently, the Court could not accept the third contention raised by counsel for the appellant, namely that the formation of the new Bombay State contemplated in section 8 of the Act was so wholly detached from the Bill of 1944 that it amounted to a fresh Bill requiring a new reference. The Court also observed that counsel had raised a hypothetical question concerning the effect of Article 122(1) of the Constitution if an amendment entirely unrelated to any of the matters listed in clauses (a) to (e) of Article 3 were to be proposed and accepted, for example a change of the name of a State. The Court stated that it was unnecessary to answer that hypothetical scenario, but emphasized that if an amendment were of a character that was not truly an amendment and plainly violated Article 3, the issue would be one of constitutional violation rather than the validity of parliamentary proceedings. The Court concluded that such a situation did not arise here; there was no breach of Article 3, and consequently none of the provisions of the Act were invalid on that ground. For these reasons the appeal was dismissed with costs.