Section 8 of the 2014 Telangana act is the next (hopefully last?) canon being fired in the ongoing cacophony relating to the cash for votes conspiracy. Sundry individuals parrot rehearsed statements about the alleged relevance of this section to the subject presently debated in an acrimonious manner.
What is section 8? Will this survive judicial scrutiny? Assuming for the purpose of argument it does, how relevant is it to the present situation?
Another question needs to be looked into apart from the above viz. does the 2014 Telangana formation act survive if section 8 is struck down?
Section 8 in brief
Section 3 of the 2014 Telangana act demarcates the area of the newly formed Telangana state. This includes Hyderabad & Ranga Reddy districts in their entirety.
Under section 5 (1), Seemandhra is permitted to house its capital in Hyderabad "for such period not exceeding ten years". 5 (2) provides that Hyderabad will be the capital will be Telangana's capital at the expiry of this period. Section 6 requires the center to constitute an expert committee to "study various alternatives" and "make appropriate recommendations" for the location of Seemandhra capital.
Section 7 of the act provides that the governor of the now defunct state as on the appointed date would be the governor of both the successor states for such period as may be determined by the President. It is worth noting at this stage that a governor holds office at the pleasure of the president. Together this could obviously mean separate governors for the two successor states are permissible anytime at the discretion of the central government.
Section 8 is titled "Responsibility of Governor to protect residents of common capital of Hyderabad". 8 (1) reads:
"On and from the appointed day, for the purposes of administration of the common capital area, the Governor shall have special responsibility for the security of life, liberty and property of all those who reside in such area".
Section 8 (2) is reproduced in full below:
"In particular, the responsibility of the Governor shall extend to matters such as law and order, internal security and security of vital installations, and management and allocation of Government buildings in the common capital area".
8 (3) requires the governor to consult Telangana before proceeding to exercise his individual judgment. The section goes on to provide that the governor's decision on whether a particular matter requires him to exercise his judgment is final and not amenable to legal challenge.
Section 8 (4) provides for center to appoint two advisors to the governor.
Given that the scenario of two separate governors is permissible under the immediately preceding section 7, it must be interpreted that the "governor" referred to in section 8 is the Telangana governor. This is further strengthened by the language of 8 (3) that requires consultation with Telangana but is silent about the other successor state.
Impact of section 8
For the moment let us arguendo proceed on the premise that the impugned section 8 is valid.
Section 8 (1) vests the responsibility for security of life, liberty and property of all those who reside in Hyderabad with the governor. 8 (2) specifically refers to "law and order, internal security and security of vital installations, and management and allocation of Government buildings" as covered by the said responsibility.
The section does not provide any authority to the governor. It is trite law that a responsibility can be executed if and only if the necessary powers are granted. These powers can only be granted by the central government under appropriate due process. Taking a closer look at the responsibility allegedly vested with the governor, we note it does not even remotely cover criminal activity. No one's life, liberty or property is threatened by when a duly constituted authority investigates crimes allegedly committed by him J
Section 8 (2) expands the responsibility to cover among others law and order, internal security and security of vital installations, and management and allocation of Government buildings. As the last two are not relevant to the present situation, let us concentrate on the first viz. "law and order".
The dictionary meaning of law and order is "a situation characterized by respect for and obedience to the rules of a society". We must therefore surmise section 8 (2) relates to the maintenance of general peace without any breakdown in the rule of law.
A police station's functions may be divided into two categories. While investigation & prosecution of crimes committed or imminent is the first, maintenance of law and order is the other important element. These functions may overlap in certain situations but for our limited purpose we can treat these as distinct and independent.
The Indian model of policing provides an interesting clue. Special forces such as Anti-Corruption Bureau (ACB) operate on a state wide jurisdiction. Corruption cases are therefore totally outside the jurisdiction of all police stations. An inspector level officer designated as Station House Officer (SHO) controls all functions not assigned to state wide forces in the station's jurisdiction. Two different sub-inspectors, one responsible for crime control and the other for law & order, report to the SHO.
If the alleged powers resulting from section 8 are to be interpreted as total control over all law and order maintenance, we would be imposing dual control on the hundreds of police stations in the state. As this is untenable by all means, this interpretation must be rejected.
If section 8 is held to be valid, the only harmonious interpretation that emerges is an arrangement where the governor receives periodic reports on any breakdowns of order that may have occurred or are imminent. This is consistent with the requirement that the governor must consult Telangana government before applying his discretion. This interpretation logically precludes all criminal investigations such as those prevalent in the current situation. It may be noted in this connection the impugned section 8 does not provide for any machinery to assist the governor other than two advisors. The governor perforce has to rely on Telangana's machinery for any information/reports.
Finally it must be noted the Telangana governor, even if he holds charge over both successor states, is under no obligations whatsoever to consult Seemandhra government.
Present status of section 8
Now let us look at the directions issued by the center on the impugned section. The norms prescribed are as follows:
· Governor can call for "any record or information or decision" relating to the section 8 responsibilities
· The appropriate police officials to furnish "periodical reports of law and order" as well as "special reports on all grave and specially grave crimes"
· Governor to have the power to issue directions
· Governor to be assisted by two advisors
· Home secretary to brief governor on "all matters mentioned above as well as those that have special significance"
· Any advice the governor conveys to the home secretary to prevail after being "placed before the appropriate authority"
· A special cell to be setup to deal with hate crimes and extortion or any other specified crime
· Another special cell relating to internal security and security of vital installations. Governor may suggest measures that shall be binding
· A board headed by the Telangana Director General of Police (DGP) to handle transfers & promotions of police offers. Governor may issue suggestions that shall be binding
· Governor can suggest the government to deploy additional forces if any situation so demands in his judgment. This suggestion too shall be binding.
· Governor can call for a report on any official's acts of commission/omission and issue directions for any enquiry he deems necessary
· Governor can call for a report in case of any exigencies and ask for temporary staff reallocations if necessary
· Governor to be the final deciding authority on management & allocation of buildings to the two successor states
· A grievance cell to be set up for receiving property related complaints from residents. Governor can issue directions to ensure protection of property of the aggrieved parties
The directions suffer from certain lacunae. For example, the requirement of consultation with Telangana arising from section 8 (3) is missing at some places. The language also suffers from drafting issues such as "binding suggestions", an oxymoron!
The directions appear to confer the governor the right to confer directly with police officials. This is tantamount to bypassing the duly elected government and does not augur well for democratic values.
Ignoring these points for now, the following can be safely spelt out:
· Except for the management & allocation of buildings to the two successor states, Seemandhra government has no stake or interest in any of these directions
· Governor's rights are restricted to receiving/calling for reports & providing "binding advice"
· These reports are mostly periodic but can in some conditions be "custom requests"
· In reality, this translates into forwarding such reports to the center and issue any "advise" as per central instructions
· Governor has no role vis-à-vis state level institutions such as the ACB
· Home secretary, the authority for issuing interception orders, does not report to the governor
· No machinery has been provided to the governor for the powers
· None of these even remotely relate to investigation of crimes such as corruption & criminal conspiracy
One may point out certain amount of informal reporting is quite common in normal discourse unless in situations where the governor and the state government are at loggerheads. Apart from the "binding advice" aspect, the other purpose of the directions appears to be to induce a formal element & periodicity.
Shorn of the "individual judgment" some of the elements in the above directions, especially the hate speech/extortion special cell, are clearly in the right direction. These deserve to be considered for national level implementation, in fact with additional transparency initiatives such as review by an independent board comprising of eminent personalities.
I am not sure if the above directions have been implemented or the extent of implementation. This is not particularly germane to our discussions. What is important though is that the directions if implemented in full are consistent with the interpretation in the previous section. In other words, these directions are in no way relevant to the situation arising out of Naidu's alleged wrong doing.
During (and indeed even before) the aftermath of the center's decision to honor the aspirations of the Telangana people, several Seemandhra worthies forecast imminent catastrophes that would follow. Apart from ridiculous Balkanization scenarios, these included targeted pogroms against non-locals, upsurge in left wing extremism & communal riots. The above "directions" are clearly in line with these exaggerated premonitions. None of these Cassandra predictions has come even remotely true making this a classic example of the "curios case of the hound that did not bark" J
The so called common capital
Before proceeding to examine the vires of the impugned section 8, let us note at the outset that the constitution does not mention the term "capital" anywhere. The so called "common capital" was essentially a political decision that was imposed through central action.
It is worth recalling the situation that prevailed during the agitation for the erstwhile Andhra state. Initially the Andhras claimed Madras should be the capital of the proposed new state. However these efforts failed to materialize due to the strong principled stand taken by the central leadership. In the violent aftermath following the demise of late Potti Sreeramulu, the center conceded the demand for the Andhra state but held firm in its resolve that Andhras forego their claim on Madras.
This gave rise to a demand that Madras be made a "common capital" or a "joint capital" of both the states. Justice KN Wanchoo Committee was constituted to "set out, consider and report on the financial and other implications of this division and the various questions which will arise in the course of implementing the decision of the Government of India more particularly by reason of the non-inclusion of the city of Madras in the Andhra State”.
Justice Wanchoo recommended that the "temporary capital" of Andhra may be located in Madras for a period of 3-5 years. He noted however: "It should be clearly understood that the jurisdiction over the city of Madras will in all matters rest in the residuary State (Madras) and the Government of the new State (Andhra) will merely be in the nature of guests or tenants in Madras city".
Acknowledging the Tamil fears that Andhras will not leave Madras after the period of 3-5 years, Justice Wanchoo refuted these on the ground that "Andhra Government would have no powers in the city of Madras and one would normally expect that such as Government would like to go to its own territory, where it can exercise all the powers of Government, as early as possible". He further recommended that essential parts of the Andhra government to be shifted from Madras "at once". He identified these parts as "the Governor, the Legislature, the Ministers and the Secretariat and certain other essential Heads of Departments like Inspector General of Police".
In the end, wiser counsel prevailed and the "temporary capital" idea was given a decent burial. The brief history of the erstwhile Andhra state was full of bickering and political high drama, mostly centered on the location of its capital.
Unfortunately in the present case, the lobbyists proved too powerful and the so called common capital was thrust on Telangana over our protests. Telangana apprehensions while similar to that of Madras then are proving true in the light of the present aggressive posture by Seemandhra politicians.
At the risk of sounding repetitious, let us look at the meaning of the phrase "common capital" used in the act. The usual dictionary meaning is "shared by, coming from, or done by two or more people, groups, or things" as used in the phrase "common boundary" between two geographic entities. Black's law dictionary provides the meaning "shared among several".
The meaning of the word "joint" is dramatically different. The usual dictionary meaning is "shared, held, or made by two or more people together" while Black's law dictionary offers several options including "united", "combined", "undivided" and "shared by or between two or more".
The dictionary meaning of capital is "the city or town that functions as the seat of government and administrative center of a country or region". Black's law dictionary offers two options: "place where legislative department holds its sessions and where chief offices of the executive are located" and "political and governmental metropolis".
The above definitions read with sections 5 (2) & 6 apart from the clear choice of the phrase "common capital" over "joint capital" clearly indicate the following:
· A capital is just a seat of government
· A state's capital is normally located in its own territorial boundaries
· The selection of the capital's location within its territory is the state's prerogative
· The so called common capital status indicates sharing for a limited non-extendable period
· This status does not change the territorial jurisdiction of the successor states in any manner whatsoever
· Telangana's territorial jurisdiction over the so called common capital is unbridled at all times
As already demonstrated earlier, Seemandhra's position in Hyderabad is that of a "mere user" with no proprietary right, title and interest in this city. This judgment thus validates the rationale adopted in the above interpretation.
Constitutionality of section 8
The vires of section 8 need to be inspected from various angles.
As almost every possible reader knows by now, state formation in India is covered by article 3. Our current focus is on the associated article 4 that inter alia provides that a law enacted under article 3 may also contain such supplemental, incidental and consequential provisions deemed necessary by parliament. These provisions are not to be deemed to constitutional amendments for the purpose of 368.
Article 4 is not a carte blanche as it is limited only to those provisions that are supplemental, incidental or consequential to the chief purpose viz. formation of a new state under article 3. Even if a provision is supplemental, incidental or consequential to the state formation, it can be included only if deemed necessary by parliament. This view is reiterated in the preamble of the 2014 Telangana act i.e. "to provide for the reorganization of the existing State of Andhra Pradesh and for matters connected therewith".
Let us look up these three words in Black's law dictionary:
· Supplemental: That which is added to a thing to complete it
· Incidental: Depending upon or appertaining to something else as primary; something necessary, appertaining to, or depending upon another which is termed the principal
· Consequence: The result following in natural sequence from an event which is adapted to produce, or to aid in producing, such result
The impugned section 8 meets none of the three requirements. The so called governor raj is not necessary to "complete" the primary objective of Telangana formation. The responsibility purported to be vested is neither necessary to the avowed objective nor does it follow in natural sequence. The section, in short, is beyond the legislative powers under article 4 and hence ultra-vires of the constitution.
It may be noted here in passing section 5 providing for the so called common capital suffers from exactly the same constitutional infirmities as section 8. That is a subject for another debate though.
This may be a good time to examine if Telangana formation will survive the striking down of section 8 (or 5 for that matter). As established above the raison d'être for the 2014 Telangana act is the formation of the new state under article 3. Section 8 allegedly arising from supplemental, incidental or consequential provisions under article 4 is derived from section 3 and incapable of independent existence. On the other hand section 3 being the essence of the act stands on its own. Therefore the argument that the entire act fails if section 8 is held invalid is preposterous.
Turning to a different angle, article 163 is titled "Council of Ministers to aid and advice Governor". 163 (1) reads: "There shall be a council of Ministers with the chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion".
Article 163 (2) relating to the "discretionary power" cases is on lines similar to section 8 (3) of the 2014 Telangana act. It may be surmised that the draftsman used 163 (2) as the basis for this section.
163 (3) is not relevant to the present discussion as it relates to the normal cases where the governor acts on the cabinet's advice.
A plain reading of 163 (1) reveals the following:
· Governor can exercise individual judgment in any matter specifically permitted under the constitution
· In all other matters he is bound by the advise rendered by the cabinet
The various reorganization acts passed in the past are not a part of the constitution. The acts are legislative instruments that do not amend the constitution in any manner whatsoever. The acts do not therefore qualify for any gubernatorial discretionary powers envisaged by 163 (1).
The unanimous judgment in the celebrated Shamsher Singh & Anr v. Punjab, 1974 case outlines the limits of the gubernatorial discretion. Chief Justice Ajit Nath Ray heading the seven member Supreme Court bench held: "there is some qualitative difference between the position of the President and the Governor. The former, under Art. 74 has no discretionary powers; the latter too has none, save in the tiny strips". The learned Chief Justice lists the article providing the "tiny strips" and proceeds to decree: "These discretionary powers exist only where expressly spelt out and even these are not left to the sweet will of the Governor but are remote-controlled by the Union Ministry which is answerable to Parliament for those actions".
The honorable apex court reiterates: "We have extensively excerpted from various sources not for adopting quotational jurisprudence but to establish that the only correct construction can be that in constitutional law the functions of the President and Governor and the business of Government belong to the Ministers and not to the head of State, that aid and advice of ministers are terms of art which, in law mean, in the Cabinet context of our constitutional scheme, that the aider acts and the adviser decides in his own authority and not subject to the power of President to accept or reject such action or decision, except, in the case of Governors, to the limited extent that Art. 163 permits and his discretion, remote controlled by the Centre, has play".
The above judgment is also noteworthy as it sets out the governor's "individual judgment" does not rest on his personal decision but that of the central government.
The Supreme Court judgment in the Pu Myllai Hlychho & Ors v. Mizoram & Ors, 2005 provides further clarity if indeed any doubts still persist. The case pertained to governor's discretionary powers under the sixth schedule. Paragraphs 2 (1) of the schedule relate inter alia to the governor's powers to appoint nominated members to the district council while 2 (6A) provided that these members hold office at the pleasure of the governor. Paragraph 20-BB provided the governor discretionary powers with respect to the former but not the latter.
Justice KG Balakrishnan delivering the unanimous judgment of the five member bench decreed: "Thus, these provisions would show that as regards the nomination of four members to the MADC, the Governor can exercise the discretionary powers whereas the power of termination of the members under sub paragraph (6A) of Paragraph 2 is not left to the discretion of the Governor".
The honorable Court further held: "In the result, we hold that the Governor was bound by the aid and advice of the Council of Ministers and the termination of the four members from the MADC by order of the Governor on 5.12.2001 was perfectly in accordance with the Constitutional provisions and the Sixth Schedule to the Constitution".
The conclusion from the plain meaning and the two apex court judgments is irresistible: section 8 is doomed to be struck down as it violates article 163.
Unfortunately for the votaries of the contentious section 8, the worst is yet to come.
The state list (list II) of the seventh schedule includes several items proposed to be bundled under the impugned section. In particular we may note entries 1 (public order), 2 (police) & 35 (buildings). These lists are therefore out of bounds for the parliament. The only exceptions to this legislative bar are provided under articles 244-A, 249 & 250.
As article 244-A is restricted to the formation of tribal states from the erstwhile state of Assam (as it existed on the day the constitution came into force), it does not concern us. Article 250 too does not make any impact on our discussion as it applies only when a national emergency proclamation is effect.
Article 249 (1) is produced in full below:
"Notwithstanding anything in the foregoing provisions of this Chapter, if the Council of States has declared by resolution supported by not less than two thirds of the members present and voting that it is necessary or expedient in national interest that Parliament should make laws with respect to any matter enumerated in the State List specified in the resolution, it shall be lawful for Parliament to make laws for the whole or any part of the territory of India with respect to that matter while the resolution remains in force".
Article 249 (2) limits the duration of the resolution to one year with a maximum possible extension by another year. 249 (3) provides for expiry of any law made on the authority of the Rajyasabha resolution six months from the expiry of the resolution.
The impugned section 8 fails the test of article 249 on the following grounds:
· Rajyasabha passed no such resolution under 249 (1)
· The purported duration of the so called special powers is far in excess of the maximum 30 months possible under 249 (2) & 249 (3) read together
· Even if a resolution had been passed, the test of national interest applies
The fact that the impugned section 8 does not mention the state list entries is a mere subterfuge. Blatant unlawful encroachment in the state domain is the clear intent.
As evident from the foregoing, the impugned section 8 falls on three constitutional grounds. Section 8 therefore will go lock, stock & barrel. All that is needed is for someone to challenge the impugned section in a court of law J
Certain individuals have raised the possibility of A constitutional amendment as a work-around solution. They usually cite the case of Arunachal Pradesh where the governor has "special responsibility with respect to law and order" exercised in his "individual judgment" on lines similar to the impugned section 8.
Under article 368, any amendment meeting certain conditions including "any of the Lists in the Seventh Schedule" needs to be ratified by "Legislature of not less than one half of the States by resolution". This will be a political hot potato J
In any case, this is not really a new development. When the Telangana bill was referred to the assembly of the now defunct state, the then Kukatpalli legislator Dr. Nagabhairava Jayaprakash Narayan presented what he termed a comprehensive solution. These "amendments" included inter alia a constitutional "route" to the impugned section 8.
Narayan rightly pointed out that the section as drafted is defective as it encroaches on the state list (entry 1) under the seventh schedule and thus ultra vires. He appears to have missed the other entries including 35 (covering buildings) and the other defects pointed out above. He proposed a constitutional amendment to insert an article ("371-K").
Narayan self-righteously notes: "Similar transfer of special responsibility to the Governor of Arunachal Pradesh has been done in the past by way of the Constitution (55th Amendment) Act, 1986. Thus, a Constitutional Amendment is necessitated here, as well".
In other words, the present call for a "work around" is nothing but old wine in a new bottle J
This contention is untenable due to the following reasons:
· Arunachal Pradesh was a union territory when statehood was conferred unlike the territory that now forms Telangana that has never been subject to direct central rule
· Arunachal Pradesh is a border state
· China captured much of Arunachal Pradesh territory during the 1962 war though it chose to withdraw its forces at the conclusion of the war
· China has never recognized the McMahon line and treats Arunachal Pradesh as "disputed territory"
· In fact, China goes to the extent of issuing stapled visas to Indian passport holders residing in the state
· The statement of objects and reasons of the fifty fifth amendment clearly refers to the "sensitive location" thus providing a clue to this extraordinary measure
· The north east is a hotbed of turbulent political movements including calls for secession. It may be argued (perhaps with some basis) that Arunachal Pradesh's great tranquility in comparison needs to be protected against possible Chinese moves even through draconian measures!
· The impugned section 8 goes much beyond the fifty fifth amendment
· All governors of Arunachal Pradesh till date have been high ranking retired military officials thereby reiterating the sensitivity of the region
· The "special powers" vested in the governor of Arunachal Pradesh have never been exercised till date
· Article 371-H has never been contested, perhaps because it has not been acted upon anytime
The case of Mizoram (and other states that formed a part of Assam on the day the constitution went into effect) provides interesting food for thought. The special powers of the governor relate to the functioning of tribal councils that are essentially the successors of traditional bodies that predate the formation of Assam. The jurisdiction & functioning of these traditional councils from times immemorial is therefore an integral part of the customary law.
Article 244-A in effect recognizes the traditional rights of these councils. The role of the central government is deemed to be beneficial in not only protecting traditional rights from intervention by the state government but also preventing tribal conflict. In the present situation, no such customary law requirements arise. No traditional bodies existed anytime.
Even so it is worth noting that the "special powers" conferred on the governor in the sixth schedule do not relate to any item in the state list. The central interference is strictly limited to protection of customary rights.
Coyle v. Smith, 221 US 559 (1911) tested the powers of Oklahoma to setup its capital at Oklahoma City, OK. This was contested on the ground that it violated the Enabling Act, 1906, under which the state was admitted. The relevant section in the federal legislation provided inter alia: "The capital of said State shall temporarily be at the city of Guthrie, and shall not be changed therefrom previous to Anno Domini Nineteen Hundred and Thirteen".
Justice Horace Lurton writing for the majority held the impugned section illegal as it sought to confer Oklahoma a lower status than other states. The learned judge held "the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized. When that equality disappears, we may remain a free people, but the Union will not be the Union of the Constitution".
The doctrine of equality of states, sometimes stated as "equal footing", affirmed by the above judgment is well established in Australia, Canada and all other common law federal nations. We may note here the eminent jurist Barron Alfred Dunning's fiat in Corocraft v. Pan American Airways, 1969: "it is the duty of these courts to construe our Legislation so as to be in conformity with international law and not in conflict with it".
Delhi, a union territory was conferred a special status through the sixty ninth amendment. The statement of objects and reasons provides a detailed explanation of this decision. The amendment confers the democratically elected Delhi assembly legislative powers on state list entries excluding 1 (public order), 2 (police) and 18 (land rights).
It may be worth noting the following in passing:
· Even entry 35 (buildings) left untouched in the case of Delhi (a special status union territory) was not spared for Telangana
· Certain individuals had sought the inclusion of entry 18 (land rights) in the ambit of section 8. The refusal of this motivated demand is the only saving grace in the sordid unconstitutional misadventure
In other words, Telangana was sought to be reduced to a quasi union territory almost at the level of Delhi through the impugned section 8 in total violation of the principle of equality of states.
The historic case Kesavananda Bharati Sripadagalvaru and Ors v. Kerala and Anr, 1973, is best celebrated for its "basic structure" doctrine. This embodies the principle that certain features of the Indian constitution lie outside the amendment powers of article 368.
Chief Justice Sarv Mittra Sikri mentions supremacy of the constitution, republican and democratic form of government, secular character of the constitution, separation of powers between the legislature, the executive and the judiciary & federal character of the constitution as the essential features. This basic structure is held to be "built on the basic foundation, i.e., the dignity and freedom of the individual". The learned judge held the seventh schedule, representation of states in Parliament & the amendment process relating to specified matters "can rightly be said to involve the federal structure and the rights of the States". He reiterates this by stating the distribution of powers is "the essence of federalism".
The celebrated Bommai case (SR Bommai v. Union of India, 1994) involved the invocation of article 356 ("president's rule) in six states. The majority of the judges in the case (as well as Chief Justice Sikri in the earlier case) clearly defined federalism as non-intrusion into the state's domain.
The constitution has several measures to tackle emergencies that may arise from time in any state. Imposition of president's rule under article 356 is an extreme recourse but permissible if necessitated by the gravity of the situation.
Permanent central interference in anticipation of likely breakdown of law and order that may or may not occur or even be likely is a violation of both the equality of states principle and federalism as defined in the Bommai case. Any constitutional amendment attempting to introduce the essence of the impugned section 8 is thus a violation of the basic structure of the constitution and beyond the parliament's amendment powers.
I rest my case. I will be pleased to answer any questions anyone may have.