By: T Vivek & KR Nandan
The Delhi model which is an exception and also an aberration brings to surface certain questions to which satisfactory answers cannot be found in the legal framework.
Union Home Minister Sushil Kumar Shinde’s statement that the Telangana issue is moving from political phase to the constitutional phase has not come a day too soon because the stalemate after the CWC decision on 30th July has only exacerbated the situation. He also said that the Centre is contemplating a few models on the status of Hyderabad, which while being the capital of Telangana, will continue to be the functional capital of the residuary state of AP for up to ten years, as per the CWC resolution.
The Delhi model is gaining wide publicity if media stories are anything to go by. People of AP are curious about the model and keen to know what it means to them. For one it means Hyderabad while being the capital of Telangana will continue to be functional capital of the residuary state of AP for as many as ten years as per the CWC decision. It also means that the existing state of AP will soon see replication of Legislature, Executive and Judiciary and its offices in the city of Hyderabad.
One has to examine the model being touted as possible solution to the vexed issue of Hyderabad status against this backdrop. There can be no doubt that Telangana will be a full-fledged state with Hyderabad as a territorially integral part of it. Therefore, the new Telangana state will have the same position as any other state in Indian Union and its relations with the Union will be governed by the Constitution of India.
Ideally, it will have a legislature and will have the powers to make laws as per List II of the Constitution of India. However, the Delhi model which is an exception and also an aberration brings to surface certain questions to which satisfactory answers cannot be found in the legal framework.
In the Delhi model, it must be recognized at the very outset that it continues to be a Union Territory with a semblance of state legislative apparatus, an Assembly, a Municipal Corporation and elected representatives et al. But the ‘state’ is divested of its legislative powers in respect of public order, police, land and rights in or over land, tenancy, transfer, alienation, land improvement etc.
Most importantly, it is divested of power to deal with offences against matters in the List II. In result it makes the ‘state’ feeble and yet makes the elected people’s representatives answerable to its people. This is amply demonstrated and epitomized in the infamous Nirbhaya gang rape. This incident which shocked the conscience of the nation raised questions about the safety quotient of Delhi. Therefore entry 2 of List II which deals with police can only be tinkered with disastrous consequences. There are perhaps no examples of a state in Indian Union where its powers have been divested!
Inasmuch as public order is a state subject, to divest the police administration of law and order only to assuage the unfounded fears of Seemandhra citizens living in Hyderabad is an idea fraught with undesirable consequences. It has the potential to find its echo in other metropolitan cities such as Mumbai on the ground of insecurity due to Shiv Sena and non-Bodos in Bodo dominated areas in Assam and elsewhere in the country. Will the Centre be willing to consider such demand is a question which may not be easy to answer? If the most likely answer is in the negative then why make Hyderabad a guinea pig?
Law and order encompasses all functions other than crime investigation, traffic management and administration. It will cover all units relating to intelligence, anti-extremist and anti-insurgency forces including SIB, counter intelligence, greyhounds, octopus, and armed police etc., which form the bulk of the force. To divest a state of law and order and keep it under Central authority situated far away at Delhi is, to say the least, is an ill-conceived idea.
Moreover, law and order and crime are not water tight compartments. The SHO of a police station in Hyderabad city is an Inspector of Police with a sub-inspector for law and order and one for crime investigation. These two functions have to be integrated at the level of the SHO because one impinges on the other. If the law and order is under central control there will in effect be two authorities over one force which goes against sound principles of administration.
Police is the internal security agency. Security is the outcome of complimentary roles played by every member of the team. Removing any function from such mutually reinforcing complementarities can subvert the efficiency of the force. Opposition from various states to the proposed National Counter Terrorism Center (NCTC), which is a crying need because India is the biggest victim of terrorism, is precisely on the ground that police being a state subject, the center (Parliament) cannot make a law which encroaches on the powers and jurisdiction of states. As such, the NCTC has not come into being till date.
State-centric issues such as the law and order, therefore, have to be dealt within the state. States have to develop capacities and competencies to effectively tackle security issues on their own with central assistance as when required. To divest a state of its powers provided under the Constitution is to emasculate the state which will defeat the federal character of the polity.
Therefore, the best way forward on the status of Hyderabad is to follow the time tested principles observed in the case of division of erstwhile Bombay state, Punjab, Chattisgarh, etc., The principle of territoriality should be followed. It enjoins the successor state to assume jurisdiction, rights, powers and responsibilities over all functions under the state list in its jurisdiction which, in this case, necessarily includes Hyderabad. Therefore, Telangana, the de-merged part of AP that emerges as a full-fledged state should have all powers and responsibilities as per this principle. Only then it will be constitutionally valid. Conversely, the residuary state of AP should try and build its own capital as quickly as possible and re-locate itself. For transition arrangement one can look into KN Wanchoo’s report on the new Andhra state submitted to the Centre in 1952. It was suggested in the report that certain essential parts of the government can be shifted from Madras city to Waltair-Visakhapatnam. Interestingly, the solution provided in the report still holds good.
The people of residuary AP state will also be demanding a quick decision on the new and permanent capital as it will create huge economic opportunities in the form of construction activity, infrastructure development which in turn triggers economic activity in the manufacturing, trade and service sector leading to job opportunities for the unskilled, semi-skilled and the skilled. Any delay on this front will eventually lead to greater frustration among the aspiring youth. In the interim, if necessary, a co-ordination committee may be set up to resolve issues relating to the day-to-day functions including security of people of both the state governments. The administrative apparatus for this body, which has to be necessarily lean, can be discussed with the stake holders.
Political leadership on both sides should appreciate the implications of surrender of powers vested by the Constitution in the states and assert that a conglomeration of weaker states will not help build a stronger nation. After all, a whole is a sum of its parts. One can only hope that the political leadership is listening.
(Vivek is founder of Telangana History Society while Nandan is a retired IPS officer)
Source: The Hans India