V.K.GUPTA C.J.AND D.N.PRASAD.J. - (1.) DURING the course of lengthy arguments, the learned counsel for the petitioner, Mr. B.K. Sinha, challenged the constitutional validity of Sections 13 and 14 of the Bihar Reorganisation Act. 2000, on the ground that these two Sections are ultra -vires Articles 170. 171 and 172 of the Constitution of India. According to Mr. Sinha, a plain reading of these three Articles clearly suggests that the parliament has by enacting Sections 13 and 14 in the Bihar Reorganisation Act. 2000, violated these mandatory constitutional provisions by providing that the members of the Legislative Assembly of undivided Bihar, who were elected to that House before 15th November, 2000 (the appointed day fixed in the 2000 Act) should be deemed to be the members of the newly created Legislative Assembly of Jharkhand State. Mr. Sinha laid great stress upon the concept of "direct election" of the Members to the Legislative Assembly and argued that Section 13 (supra) actually is a camouflage for indirect election of the persons, who now are the M.L.As. of the Jharkhand Legislative Assembly by virtue of this provision. Similarly, he challenged the vires of Section 14 of the Act by saying that five year term as provided therein; from the date of the election to the Bihar Legislative Assembly is unconstitutional.
(2.) THE arguments of Mr. Sinha can be squarely dealt with by a bare reference to Articles 2, 3 and 4 of the Constitution. Whereas Article 2 permits the Parliament to admit into the Union or otherwise establish new States, Article 3 permits the Parliament to form a new State by separation of territory from any existing State. Clause (1) of Article 4 prescribes that any law, made either under Article 2 or Article 3 by which the Parliament, inter alia, has formed a new State by separation of territory from any existing State, may also contain such provisions for amendment of the First Schedule and the Fourth Schedule as might be necessary to give effect to the provisions of such a law and may also additionally contain such supplemental, incidental and consequential provisions as the Parliament may deem necessary to give effect to the purpose of such an enactment. In the list of such supplemental. Incidental and consequential provisions are included the provisions relating to the representation in Parliament and the Legislature of the State as might have to be affected by such a law. Clause (2) of Article 4 lays down that no such law as might be made under Clause (1) shall be deemed to be an amendment to the Constitution as contemplated under Article 368. For ready reference, we reproduce herein -below Article 4 which reads thus : "4. Laws made under Articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules are supplemental, incidental and consequential matters : (1) Any law referred to in Article 2 or Article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament arid in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary. (2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of Article 368." 3. In the light of the aforesaid Constitutional provisions, let us now proceed to examine the merits of the contentions urged by Mr. Sinha, learned counsel appearing for the petitioner, with particular reference to the impugned Legislation, also in the light of the Constitutional provisions contained in Articles 170 and 172 (of course, on the touchstone of Article 4 read with Articles 2 and 3). In order to appreciate the submission, first of all let us have a look at Sections 13 and 14 of Bihar Reorganisation Act. 2000. These two Sections read thus : "13. Allocation of sitting members. - -(1) Every silting member of the Legislative Assembly of the existing State of Bihar elected to fill a seat in that Assembly from a constituency which on the appointed day by virtue of the provisions of the Section 10 stands allotted, with or without alteration of boundaries, to the State of Jharkhand shall, on and from that day, cease to be a member of the Legislative Assembly of Bihar and shall be deemed to have been elected to fill a seat in the Legislative Assembly of Jharkhand from that constituency as so allotted. (2) All other sitting members of the Legislative Assembly of the existing State of Bihar shall continue to be members of the Legislative Assembly of that State and any such sitting member representing a constituency the extent, or the name of the extent of which are altered by virtue of the provisions of Section 10 shall be deemed to have been elected to the Legislative Assembly of Bihar by that constituency as so altered. (3) Notwithstanding anything contained in any other law for the time being in force, the Legislative Assemblies of Bihar and Jharkhand shall be deemed to be duly constituted on the appointed day. (4) The sitting member of the Legislative Assembly of the existing State of Bihar nominated to that Assembly under Article 333 to represent the Anglo -Indian community shall be deemed to have been nominated to represent the said community in the Legislative Assembly of Jharkhand under that Article. 14. Duration of Legislative Assemblies. - -The period of five years referred to in Clause (1) of Article 172 shall, in the case of Legislative Assembly of the State of Bihar or Jharkhand be deemed to have commenced on the date on which it actually commenced in the case of Legislative Assembly of the existing State of Bihar."
(3.) UNDOUBTEDLY Article 170 of the Constitution clearly does lay down that the Members of a Legislative Assembly shall be chosen by direct election from territorial Constituencies in the State. Similarly, Article 172 prescribes a five -year term for every Legislative Assembly unless the same may be sooner dissolved. Article 4 having a close relationship and a direct nexus with Articles 2 and 3 is meant to cater to a situation where a new State is carved out of the territory of an existing State. Once, in terms of either Article 2 or Article 3 a new State comes into being, it has to have all the trappings of a new State and it has to possess within its fold al! the State Institutions being the creatures of the Constitution itself. These institutions may belong to the Executive. Judiciary or the Legislature wings/organs of the State. Having these Institutions in every State is a mandatorily postulate of the Constitution because as per the scheme of the Constitution, its very basic structure, no State can be considered to have come into being unless it has within its fold all these Institutions legislative Assembly of a State, therefore, is one of such Institutions, without which the creation of the State cannot even be conceived of. It is with this in view that Article 4 of the Constitution enables, through the mechanism of ordinary legislative enactment (and not by resorting to the amendment of the Constitution, under Article 368) for having such provisions in such ordinary legislative enactment as might be necessary for the amendment of the First Schedule, or the Fourth Schedule or such other provisions as might be necessary to give effect to the provisions as might come into being consequent upon any action taken either under Article 2 or Article 3. By way of elaboration and elucidation with reference to the aforesaid Legislative Enactment. Article 4 itself clearly lays down and suggests that such a legislative enactment may contain such supplemental, incidental or consequential provisions as Parliament may deem necessary, such provisions might also within their embrace include provisions as to representation in Parliament and in the Legislature of the State affected by such law. Undoubtedly, Sections 13 and 14 are the direct offshoots of this enabling provision as provided in Article 4.;