By: Adithya Krishna Chintapanti
The following elements in the Bill aim to retain macro institutional coordination between the States of Andhra Pradesh and Telangana undermining the political efficacy of Telangana State in reflecting the aspirations of people of Telangana region
• Common governor with extensive police functions over substantial population of telangan region.
• Alienation of core state functions over significant region and population of Telangana State.
• Common High Court which is politicized.
a. Common Capital
Territorially Hyderabad is part of Telangana State (Sec.3) however it shall be the common capital for both Telangana and Andhra Pradesh (Sec.5(1)) for maximum period of 10 years. Also says that after expiry of 10 years , ‘Hyderabad shall be the capital of the State of Telangana and there shall be a new capital for the State of Andhra Pradesh ‘ (Sec.5(2)) however the Act does not define the word ‘Capital’ . In addition to the same, a strict interpretation of the clause rules out, a migration to a new capital for Andhra Pradesh before 10 years as impossible. Instead of saying that Hyderabad shall continue being capital, it states that , after expiry of period of 10 years ‘Hyderabad shall be the capital of the State of Telangana’.
This is not a transitionary clause. For this to be a transitionary clause the 10 year period must be marked by regular milestones in terms of transfer of administrative mechanisms to the area designated to be capital of Andhra Pradesh as per the recommendations of the expert committee which is to submit its recommendations within 45 days of the passage of the State Reorganization Act (Sec.6) .
b. Law and Order in Common Capital Area – Role of Governor
If Hyderabad were to be territorially part of Telangana , then law and order which is a State function has to be in the hands of the State of Telangana . The Parliament cannot through legislation usurp the powers which have been constitutionally vested on the State of Telangana, from a part of its territory. Also, there is no outer limit of 10 years associated with the common capital clause, when it comes to the responsibility of the Governor for the ‘security of life , liberty and property of all those who reside in the common capital area’ , there is only reference to the area to be ‘common capital area’ which is in turn defined as area encompassing the present GHMC under the Hyderabad Municipal Corporation Act.In other words ‘common capital area’ is a geographical construct which may continue to be force even after Hyderabad ceases being the ‘political common capital’ , there needs to be greater clarity on this.
That the Governor shall cease to perform functions pertaining to ‘protection of residents of common capital’ has to be stated explicitly in the Act, otherwise this will no longer be a transitionary provision. The title of the Section 8 stating ‘Responsibility of Governor to protect residents of common capital area’ is misleading , as the substantive content of the provision deals with the area as defined under GHMC Act which would continue to be a constant even post 10 years of Hyderabad ceasing to be common capital.
That the Governor shall consult the Council of Ministers of State of Telangana before exercising his individual judgment whose validity shall not be called in question (Provisio to Sec. 3(3)), reverses the entire concept of collective responsibility and the Constitutional precedent of Governor acting on the aid and advise of the Council of Ministers . In the absence of mentioning the circumstances justifying such a clause in the Bill , it presupposes that there would be a perpetual breakdown of law and order and that the Central Rule is imposed for 10 years .This is evident in the next sub-clause stating that the Governor shall be assisted by two advisors appointed by the Central Government (Sec.8(4)). This could only happen as per the provisions of Article 356 of the Constitution of India and that too has its stipulations as to time . In other words the area under GHMC would be under perpetual Central Government rule as far as law and order is concerned. If law and order were to be the primary responsibility of the Governor then the jurisdiction of the state of Telangana is excluded from the most fundamental function which distinguishes State from a private entity. Not only would the same imply a defacto President’s rule in perpetuity but a President’s rule restricted to law and order i.e. a police state to the exclusion of other functions. The phraseology at the least should be limited till such time Hyderabad is Common Capital and not to the ‘Common Capital Area’ in any case I do not see this clause standing the Constitutional test in a court of law.
c. High Court
The Bill states that the High Court of Andhra Pradesh at Hyderabad (herein after referred to as High Court at Hyderabad) shall be the common High Court for the States of Andhra Pradesh and Telangana till the establishment of a High Court for Andhra Pradesh (Section 30) . Section 31 speaks about the establishment of High Court of Andhra Pradesh whereafter the High Court at Hyderabad would become High Court for Telangana (Sec.31). However, there is no specific time-line given for the said establishment of a separate High Court for Andhra Pradesh. When could the High Court be established? Is it after 10 years along with the Common Capital or much latter. There is nothing stopping the President from not constituting a High Court for Andhra Pradesh and the High Court at Hyderabad may have a bench in Andhra Pradesh with Section 32 never being invoked as it is subject to Section 31 of the Bill. Under ordinary circumstances this should not raise eye brows as similar large states like Punjab and Haryana also share a common High Court. What is of concern is the high level of politicization of the judiciary in the present State of Andhra Pradesh , with judges from either regions playing political role in the Telangana State formation process either by hindering or facilitating the same. The practitioners of the High Court are aware of the biases in administrative allocation of benches especially in areas such as Home i.e. maintenance of law and order and systematic exclusion of judges from Telangana region from benches dealing with the same. This being an internal administrative exercise is not evident. Also judges from Telangana are numerically / disproportionately smaller in contrast to judges from Andhra Pradesh. This would shift the balance of power to the Andhra Pradesh which will continue to influence the politics of Telangana through decisions overruling the Executive and Legislative acts of Telangana’s government. Interfering with Telangana’s internal self-determinative processes through the conduit of the Judiciary, would hollow out the efficacy of the Telangana State.
d. Conclusions
Battle for Telangana has been for control over the institutional processes so that the State can act as a conduit for development. The aforementioned clauses in the Bill evidently undermine the internal political self-determinative processes of Telangana State , subjecting them to external surveillance , interference and subversion .In other words resulting in the State becoming politically powerless to reflect and act on the aspirations of the people of Telangana and defeating the very purpose of having a separate State. These points should be agitated as part of the legislative debate in the assembly and communicated to the Parliament .