New Delhi:
On May 6, the official Twitter handle of the Congress party put out a
tweet attributing to Congress parliamentary party chairperson Sonia
Gandhi the following words: “The Congress will not allow anyone to pose a threat to Karnataka’s reputation, sovereignty or integrity.”
The speech she delivered in Hubbali that day
while campaigning for her party’s candidates in the forthcoming
assembly election did not contain this sentence or any words even
remotely resembling these, nor has the BJP circulated a clip with those
words, so it is likely that some person on the Congress’s social media
team completely mistranslated the speech.
Be that as it may, Prime Minister Narendra Modi picked up the words
in the Congress’s tweet and said on May 7 that Karnataka does not have
sovereignty and that those who talk of the state’s sovereignty are
advocating secession. ‘Congress Shahi Parivar calling for Karnataka
secession: PM Modi’ said a typical newspaper headline on his riposte.
On Monday, May 8, the BJP filed a complaint with the Election Commission
about the alleged statement. The poll panel, responding to the
complaint, issued a letter to Congress president Mallikarjun Kharge,
asking him “to provide clarification and take rectification measures in
respect of the social media post which has been put up on the Official
INC Twitter handle and attributed to Chairperson CPP”.
Whether Sonia Gandhi actually said what she is accused of saying, and
whether the prime minister has interpreted the impugned words correctly
or not, the actual constitutional position as laid down by the Supreme
Court is clear: legal sovereignty resides with the people of India,
while political sovereignty is divided between the Union and state
governments.
More significantly, to call states of the Indian Union ‘sovereign’ cannot imply that the speaker is preaching secession. Otherwise,
one of the former Chief Justices of India (CJI), K. Subba Rao, would
have been guilty of the offence of preaching secession, as he very
specifically referred to states as ‘sovereign’ in their allotted
spheres, in his dissent in a landmark 1962 case.
The top court’s judgment in the State of West Bengal vs Union of India, delivered on December 21, 1962, offers some guidance on this question.
In this judgment, delivered by a six-judge bench, land acquisition
was the issue. Under the Coal Bearing Areas (Acquisition and
Development) Act, 1957, enacted by parliament, the Union of India
proposed to acquire certain coal-bearing areas in West Bengal. The state
filed a suit contending that the Act did not apply to lands vested in
or owned by the state and that if it applied to such lands, the Act was
beyond the legislative competence of parliament.
The then CJI, B.P. Sinha, on behalf of the majority judges – Justices Jafer Imam, J.C. Shah, N.
Rajagopala Ayyangar, and J.R. Mudholkar – held that upon a proper
interpretation of relevant provisions of the Act, it was clear that it
applied also to coal bearing areas vested in or owned by the state
government also.
The majority judges held that the preamble of the Act did not support
the argument that it was intended to acquire only the rights of
individuals and not those of the state’s in coal bearing areas.
Justice K. Subba Rao. Photo: GODL-India
In his dissent, Justice Subba Rao held that the Act “insofar as it
confers a power on the Union to acquire lands owned by the States,
including coal mines and coal-bearing lands is ultra vires”. He
held that under the Constitution of India, political sovereignty is
divided between the constitutional entities, that is, the Union and the
States, who are juristic personalities possessing properties and
functioning through the instrumentalities created by the constitution.
The Indian constitution, he held, accepts the federal concept and
distributes sovereign powers between the co-ordinate constitutional
entities, namely, the Union and the States. This concept implies that
one cannot encroach upon the governmental functions or instrumentalities
of the other – unless the constitution provides for such interference.
Justice Subba Rao held that the power to acquire the property of a
citizen for a public purpose is one of the implied powers of the
sovereign. This sovereign power, he held, is divided between the Union
and the States. It is implicit in the power of acquisition by a
sovereign that it must relate only to property of the governed, for a
sovereign cannot acquire its own property. He concluded that the
property of the states can be acquired by the Union only by agreement.
The majority judges, no doubt, differed from Justice Subba Rao on the
constitutionality of the Act, but did not dissent from him explicitly
on the question of interpreting sovereignty.
The majority judges held that it is not correct to say that full
sovereignty is vested in the States. We should note here that Justice
Subba Rao also did not suggest that.
The majority judges held that parliament which is competent to
destroy a State cannot be held, on the theory of absolute sovereignty of
the States, to be incompetent to acquire by legislation the property
owned by the States. Even if the constitution were held to be a
Federation and the States regarded qua the Union as sovereign,
the power of the Union to legislate in respect of the property situated
in the States would remain unrestricted, they held. It shows that the
majority judges too believed that it is not incorrect to suggest that
States and the Union can be regarded as sovereign together.
The constitution bench had framed a specific question as one of the
five issues in this case. It asked: Whether the State of West Bengal is a
sovereign authority as alleged in paragraph 8 of the plaint?
The majority judges answered this question as follows:
“There is undoubtedly distribution of powers between the Union
and the States in matters legislative and executive; but distribution of
powers is not always an index of political sovereignty….Legal
sovereignty of the Indian nation is vested in the people of India who as
stated by the preamble have solemnly resolved to constitute India into a
Sovereign Democratic Republic for the objects specified therein.”
“The political sovereignty is distributed between…the Union of
India and the States with greater weightage in favour of the Union.
Article 300 invests the Government of India and the States with the
character of quasi-corporations entitled to sue and liable to be sued in
relation to their respective affairs. Executive power of
the State is vested by Article 154 in the Governor and is exercisable by
him directly or through offices subordinate to him in accordance with
the Constitution.”
The majority judges, however, reasoned thus:
“What appears to militate against the theory regarding the
sovereignty of the State is the wide power with which the Parliament is
invested to alter the boundaries of States, and even to extinguish the
existence of a State. There is no Constitutional guarantee
against alteration of the boundaries of the States. By Article 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 Article 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 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.
….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. That being the
extent of the power of Parliament, it would be difficult to hold that
the Parliament which is competent to destroy a State is on account of
some assumption as to absolute sovereignty of the State incompetent
effectively to acquire by legislation designed for that purpose the
property owned by the State for governmental purpose.”
It was urged that to hold that property vested in the State could
be acquired by the Union, would mean, as was picturesquely expressed by
the learned advocate-general of Bengal that the Union could acquire and
take possession of Writer’s buildings where the Secretariat of the
State Government is functioning and thus stop all State Governmental
activity.”
The majority judges held that there could be no doubt that if the
Union did so, it would not be using but abusing its power of
acquisition, but the fact that a power is capable of being abused has
never been in law a reason for denying its existence, for its existence
has to be determined on very different considerations.
These judges also said they were unable to appreciate the argument that if the constitution
were to be held to be a Federation, the States being considered as the
federative units, such a status necessarily involved a prohibition or
negation of the right of the Union to acquire the property of the State
for the purpose of giving effect to its legislative powers. They said:
“Therefore, the power of the Union to legislate in respect of property situated in the States even if the States are regarded qua the Union as Sovereign, remains unrestricted, and the State property is not immune from its operation.” [Emphasis supplied]
The Supreme Court of India. Photo: The Wire
Recent cases
In Swaraj Abhiyan vs Union of India (2017), in
paragraph 51, the Supreme Court held that the principle of federalism
as present in India cannot be explained in a sentence or two; rather a
detailed study of each and every provision of the constitution would
inevitably point that India has divided sovereignty in the form of
Centre on one hand and States on the other. Each power house is
independent in its own terms.
In S.R. Bommai vs Union of India (1994), Justice K. Ramaswami, in paragraphs 247 and 248 of his separate judgment, observed:
“The State qua the Constitution is federal in structure and
independent in its exercise of legislative and executive power. However,
being the creature of the Constitution, the State has no right to
secede or claim sovereignty. Qua the Union, State is quasi-federal. Both
are coordinating institutions and ought to exercise their respective
powers with adjustment, understanding and accommodation to render
socio-economic and political justice to the people, to preserve and
elongate the constitutional goals including secularism.”
Justice Ramaswami, in this judgment, was only stating the obvious, as
to suggest that the states are sovereign, along with the Centre, does
not mean that they have the right to secede from the Indian Union. The
term, with reference to the States, has all along been used to suggest
cooperative federalism, that is, they claim sovereignty along with the Centre, and not in opposition to it.
The Andhra Pradesh high court in a PIL, J.P. Rao vs Union of India (2014), through the division bench of Chief Justice K.J. Sengupta and Justice P.V. Sanjay Kumar observed:
“Though the States in the Union of India are constitutionally
recognised units through Article 1 of the Constitution, mere
distribution of powers between the States and the Union despite the fact
that both the States and Union spring from the Constitution, the States
are said to be enjoying the political sovereignty. Legal sovereignty of
the Indian nation is vested in the people of India, who as stated by
the Preamble, have solemnly resolved to constitute India into a
sovereign Republic.”
In GNCTD vs Union of India, the
constitution bench held on July 4, 2018 in para 297 that a democratic
form of government recognises that sovereignty resides within the
people, and is exercised directly or through their elected
representatives.
In Kalpana Mehta vs Union of India
(2018), the constitution bench observed that the three wings of the
state are bound by the doctrine of constitutional sovereignty and all
are governed by the framework of the constitution.
Note: The campaign speech Sonia Gandhi delivered on May 6, 2023
was in Hubli and not Ballari, as was erroneously stated in an earlier
version of this story.
