The Telangana issue is, arguably, one of the toughest confronting our nation. The Srikrishna Committee report guides us through the complexity of the big policy question — what is the best way to ensure development and good governance in the region? The constitutional questions, flowing from Article 3 of the Constitution, are equally complex, going to the heart of India’s federal design. These questions revolve around the constitutional significance of a state legislature’s rejection of a carve-out, the first such rejection in the history of our republic, and the extent to which this should have constrained the powers of Parliament.
Such questions, and the far-reaching implications of the Andhra Pradesh Reorganisation Bill, 2013, should have been extensively debated in the Lok Sabha before the bill was passed. Moreover, these deliberations should have been broadcast to the public. On February 18, however, the bill pushed through in the Lok Sabha on a voice vote, without any contemporaneous broadcast.
Two vital ingredients that give legislative decisions legitimacy in a representative, deliberative democracy were missing. The first was deliberation. Democracy is not about decision-making in a manner that crudely aggregates popular will through legislative balloting. The will of the majority, if it is not tempered by reason, resembles majoritarian tyranny, and the idea that inclusive dialogue is the most effective way of arriving at a rational consensus for the common good is as old as the idea of democracy itself.
Further, the Lok Sabha ought to have deliberated not only on the policy question, but also on the nature and extent of its own powers under Article 3, and how much weight it should give to the state assembly’s rejection of the bill. While the ultimate responsibility of interpreting the Constitution rests with the Supreme Court, its duty to interpret is not exclusive, even if it is final. It is entirely compatible with our constitutional scheme to demand that each of the three arms of our government make judgements on their powers, in order to ensure that constitutional morality does not lose out to political expediency. Swearing allegiance to the Constitution brings with it a shared duty for our legislators to engage with, and arrive at an understanding of, its meaning.
The second missing element was the broadcast of Lok Sabha proceedings, though the blackout was later attributed to a technical glitch. It should be noted that a deliberate blackout of Lok Sabha TV would be both undemocratic and unconstitutional. It would be undemocratic because deliberative democracy involves public deliberation. Opacity reduces autonomy, as preferences are seen to be externally imposed, instead of being shaped by reasoned debate.
On constitutionality, Article 19(1)(a) of our Constitution, which protects freedom of speech and expression, also protects the public’s right to acquire information, as the information we are privy to shapes the way we act and express ourselves, especially in choosing our elected representatives. The Supreme Court has deployed this right to receive information as a reason for judicial interference when state-controlled channels try to filter content (Manubahi Shah, 1992). It also attaches special significance to public scrutiny and information when this impacts elections. As Justice M.B. Shah observed in PUCL vs Union of India (2003), the right to vote would be meaningless “unless the voters are well informed about all sides of the issues, in respect of which they are called upon to express their views by casting their vote”. So people have a right to the uninterrupted and contemporaneous broadcast of legislative proceedings, not only to make up their minds about the Telangana issue, but also to decide on who to vote for, based on a legislator’s position on the issue or even her conduct in Parliament. It would also be worth considering whether this right imposes a parallel duty on the Lok Sabha speaker to adjourn proceedings the moment the broadcast blackout is brought to her knowledge, regardless of the cause.
These factors do not impact the constitutional validity of the final statute in a manner that makes it amenable to judicial review. The actual impact is on the perceived legitimacy of Parliament as an institution and, more importantly, on the perceived legitimacy of the statute itself. Not only will it raise doubts for those undecided on the Telangana issue, it may have serious fallouts for the law-and-order situation in Andhra Pradesh. A hastily enacted statute, shielded from the public eye and perceived to have been pushed through for political gain alone, may prove to be a pyrrhic victory for those who support the creation of Telangana.
The writer is a Delhi-based lawyer