New Provinces-The Constitutional Aspect

New Provinces: The Constitutional

Aspect

(Advocates, High Court, Madras)

Principles of human reason and human civilisation have, in more than one instance, borne out the propriety and justness of the proposition that a self-sufficient and homogeneous people occupying a territory of reasonable dimensions should be invested with autonomy. The justice embodied in those principles and now invoked by the Andhras, is the same justice that was invoked and accepted by civilised public opinion in the formation of many European States like Poland, Ireland, Hungary and the Balkan States. To say that a nation, otherwise qualified to govern herself, should be allowed a free hand in the management of her local affairs is a mere truism, but how often is the world blind to the wisdom that lies in truisms!

If we study the history of other countries, we find several cases, both within and without the British Commonwealth, which bear a close resemblance to the Andhra problem, and invariably justice was done to homogeneous units aspiring to be States or autonomous Provinces. In the past, whenever a Federal democratic State found the necessity of creating a new Province, it could not, and it did not, hesitate to create one. To quote only a few instances: When the Dominion of Canada became a Federation under the British North America Act of 1867, there were only 4 Provinces, but now it is composed of 9 Provinces. As late as in 1905, Saskatchewan and Alberta were given the status of Provinces. Very recently, by the introduction of the new Constitution of 1936, in the U. S. S. R., the Union Republics increased to 11 from the earlier 7. Armenia, Georgia and Azerbaidjan, which together formed the Trans-Caucasian Federated Republic, have now been made Republics equal in status to the other component parts of the U. S. S. R. In British India, the Government has created new Provinces like the Frontier, Sind, and Orissa, yielding to the same logic as prevailed in the other countries.

If the creation of new Provinces is detrimental, or in any way not conducive, to the interests of the whole of India, as was agitated by some people, is it really argued that great countries like Russia and Canada acted unwisely in creating new Provinces? The truth is that both history and commonsense reject the thesis of these people and their way of thinking. It is certain that the creation of new Provinces will bring about a healthy atmosphere on the whole. A study of the Constitution of Switzerland, consisting of 25 Cantons, each with a population much less than that of Andhra, proves how beneficial it can be to create new Provinces. Democracy is not the worse in Switzerland for this division into autonomous Cantons, for, as every student of Politics knows, the democratic machinery of Switzerland is the smoothest and the finest in the world.

If those who resist the demand of the Andhras try to evade argument on the constitutional position by saying that a separate Andhra Province cannot maintain itself out of its own income, which is not the truth, they must, even so, bear in mind what the Joint Parliamentary Committee accepted in their Report regarding the deficit Provinces of Orissa and Sind without therefore immediately rejecting the claims of these homogeneous units to be Provinces:

"Orissa will undoubtedly be a deficit area and will require a subvention of something like 30 lakhs per annum."

And about Sind:

"There will be an initial deficit of about 3/4 crore per annum, but this will be gradually diminished over a period of 15 years."

In the case of Andhra, however, there is no such unstable financial prospect involved at all. We know that, apart from some initial help that we require for capital expenditure, we can stand on our legs. When Sind and Orissa, smaller in size and financially weaker than Andhra, could be given separate Provinces, we do not see how Andhra could be denied a home of her own.

We all know that the splitting of Canada into Provinces and uniting them in a Federation helped to solve the racial quarrels of the French and the English. The same act helped Canada to resist the powerful desire of her great neighbour, the U. S. A., to absorb it, and to crush the rebellion of Louis Reil on the Red River. In the face of this glaring historical example, it is astonishing to note how certain Indian nationalists seem to think that the creation of new Provinces will create a parochial outlook in the people and lessen our energy in the fight for Independence.

Before a new Province is created, what are the constitutional formalities that are to be fulfilled? Sec. 290 of the Government of India Act, 1935, and Sec. 52-A of the Government of India Act, 1919, deal with this matter. Under Sec. 290, it is necessary, before an Order in Council is made creating a new Province, that the Secretary of State should ascertain the views of the Federal Government and the Chamber or Chambers of Legislature of any Province which will be affected by the Order.

The resolution of the Madras Legislature on linguistic Provinces made clear its views regarding the Andhra Province to be created. Still another condition has to be fulfilled, namely, the ascertainment of the views of the Federal Government and the Chambers of the Federal Legislature. Since the federal structure of the Central Government and the Federal Legislature have not yet come into existence, we have to look, so far as the Central Government is concerned, to Sec. 52-A of the Government of India Act, 1919, or to the other transitory provisions of the Government of India Act, 1935. Sec. 52-A of the 1919 Act gives to the Central Government the power to constitute a Province with the previous sanction of His Majesty, signified by the Secretary of State. It is clear that the present Central Government alone must function in this matter until the Federal part of the Government of India Act comes into force. That is the result thrust upon us by the constitutional anomaly of the inauguration of the present Provincial Autonomy without a federal structure at the Centre. The mere passing of a resolution in the Madras Legislature and its being recommended to the Secretary of State cannot get us an Andhra Province. It is necessary that the Central Government should endorse the resolution passed by the Provincial Legislature before anything materialises out of the resolution. To get the endorsement, the Andhra M. L. A.’s and the Congress Party in the Central Legislature should get passed a resolution in the Assembly expressing the Assembly’s approval of the need to constitute an Andhra Province. We are afraid that the Congress Party as a bloc might not join in this procedure unless there is a strong agitation both by the Andhra Provincial Congress Committee and the Andhra public. As a matter of fact, the need for agitation is greater now than it was ever before.

We think that under the Government of India Act, 1935, a Ministry can do a great deal in the matter of constituting de facto linguistic Provinces, only of course if the Ministry wants to do it. Firstly, there is nothing in the Constitution preventing the Cabinet at the time of introducing the Budget from allocating the revenues and other income derived from the Andhra districts for expenditure in Andhra alone, barring no doubt the proportionate sums that Andhra has to contribute towards common expenditure like the Governor’s establishment, etc. Secondly, we believe that the Cabinet can separate or sub-divide each department in the Secretariat on a Provincial basis. What is there to prevent the Cabinet from sub-dividing the Public Works Department into three or four territorial branches? When we suggest this delicate arrangement we are thinking of the legal provisions that authorise the Governor to frame rules for the conduct of business of the Provincial Government. Those rules are framed by the Governor in consultation with the Ministers, under Sec. 59, Sub-clause 5. Although the Governor is the person according to statute who is nominally authorized to make rules for administrative changes, it is not within his power, conventionally, to refuse in ordinary circumstances to make the rules wanted by the Ministry. Prof. Keith says, in his discussion on the relations between Governors and Ministers in the Dominions,

"In all cases alike the principle prevails that for official actions the Governor must under normal circumstances act on the advice of his Ministry or of an individual Minister.… The duty of acting, it must be noted, is not a legal duty but one of imperfect obligation."

The idea of a de facto administrative division based on linguistic units is not a thing invented by us. Something akin to this is noticeable even in Great Britain, in the case of Scotland:

"From Queen Anne to our day, Scotland’s constitutional position has remained essentially unchanged. All general legislation for the country is enacted at Westminster, although in the weightier matters it is customary to give Scotland the benefit of a separate Statute incorporating minor variations as may seem desirable; and the country is further recognised as an entity for legislative purposes by maintenance in the House of Commons of a Standing Committee containing all of the Scottish members, to which every Public Bill relating exclusively to that area is referred….The country is also given special recognition on administrative lines through the presence in the Cabinet of a Secretary of State for Scotland who heads an establishment containing Under-Secretaries, a Lord Advocate, a Solicitor- General, a Registrar-General, a Board of Health, and numerous other offices and Boards corresponding broadly to those functioning in England and Wales."

And not being satisfied with its position, Scotland has agitated more than once through its Scottish Home Rule Association for Home Rule!

In our opinion there is nothing, either under the Government of India Act or under any other Act, we know of, that puts a limit to the number of Ministers or the number of Secretaries under a Minister. A Minister (for instance the Public Works Minister) can have under him three or more Secretaries, as in the United Provinces, one Tamil, one Kanarese, one Andhra and one Malayalee. And the Minister himself can be something like a coordinating authority above the Secretaries.