by Kshitij Maheshwari

The bifurcation of the State of Andhra Pradesh into Andhra Pradesh and Telangana happened in an unprecedented manner. When the states of Chhattisgarh, Jharkhand and Uttarakhand were created, the assemblies of Madhya Pradesh, Bihar and UP respectively had passed resolutions recommending the creation of these states. This process was not followed in this case as the Bill which was sent by the President to the Andhra Assembly for discussion was rejected by a majority voice vote in the Assembly and sent back. However, this was not reciprocated by the Central Government which proceeded with introducing it in the Parliament. It was also argued by the Government that the process that had been adopted in the earlier instances was not mandatory under the Constitution. As a result key perspectives in the form of significant objections by Telangana leaders to the role of the Governor post division, amongst many other things went unrepresented.

The history of bifurcation of Andhra Pradesh continues to be plagued by events even after its division. After the separation from Andhra Pradesh and subsequent creation of the State of Telangana on June 2, 2014 in exercise of the powers conferred by the Andhra Pradesh Reorganization Act, 2014, (‘Act’) growing discontent led to filing of a petition challenging the constitutional validity of this decision before the Andhra Pradesh High Court. More recently the political turmoil intensified when there was a confrontation between the Governments at the Centre and in the State when the Telangana Chief Minister refused to vest charge of law and order of the capital city of Hyderabad to the Governor. Under the provisions of the Act, Hyderabad will remain the capital of both Andhra Pradesh and Telangana for not more than 10 years after which it will be retained by Telangana while Andhra Pradesh will have a new capital.[1] It is important to note that as per Section 7 of the Act, the Governor of the existing State of Andhra Pradesh will be the common Governor for the successor States of Andhra Pradesh and Telangana for a tenure that will be determined by the President.

It would not be correct to say that the Central Government was at fault in demanding the handing of law and order to the Governor as it derives this authority from Section 8 of the Act. The marginal note to Section 8 reads “Responsibility of the Governor to protect residents of common capital of Hyderabad.” This section confers on the common Governor of both the states special responsibilities for the security of life, liberty and property and endows responsibility in matters such as law and order, internal security and management in the common capital area. The Governor must discharge these functions after consulting the Council of Ministers of Telangana but can exercise his individual discretion if any uncertainty as to the matter arises such that the Governor is required to act in the exercise of his individual judgment. In such cases, the Governor’s discretion will be final and the validity of anything done by the Governor shall not be called in question on the same ground. Moreover it appears that such powers will be vested in the Governor only as long as Hyderabad remains the common capital for both the States i.e. for a period of 10 years as the marginal note uses the phrase “common capital of Hyderabad”.

The opponents and particularly the ruling and other regional parties in Telangana have questioned the constitutionality of Section 8. Entry 1 under List II (State List) of the Seventh Schedule to the Constitution of India, 1950 (‘Constitution’) deals with the subject matter “Public Order”. Section 8(1) and (2) on the other hand mention security of life, liberty and property and law and order, internal security, etc. respectively and not public order. The terms “Public Order” and “Law and Order” are not the same. In Ram Manohar Lohia v. State of Bihar[2], the Supreme Court has referred to them as concentric circles wherein law and order is the largest one followed by public order and subsequently security of the State. Therefore an action may affect law and order but not public order and similarly another which affects public order may not affect security of the State. It was held that maintenance of law and order may mean preventing disorder of relatively lesser gravity and of local significance only. For instance if there is a free fight between a group of drunkards on the street, it is merely a situation of “Law and Order” as there is no apprehension of disruption of peace and tranquillity. On the other hand for instance when there is communal tension followed by an attack on members of a particular community, it would give rise to a “Public Order” situation as it disrupts the peace and tranquillity and the life of communities in a locality.[3] In other words “Law and Order” is a wider term which includes “Public Order”. This has broader implications as the inclusion of “Law and Order” in the Act takes the maintenance of the “Public Order” beyond the realm of the State Government, since the latter which is granted by the State List of the Constitution has narrow connotations compared to the term “Law and Order”.

One must be mindful of the fact that Section 8 of the Andhra Pradesh Reorganisation Act is not the first of its kind to be enacted in India. It echoes some existing constitutional provisions as well. Articles 371A (1)(b) and 371H (a) of the Constitution were instituted respectively by the 13th and the 55th Amendment of the Constitution and though the inclusion of a provision like Section 8 in the Act seems to have drawn inspiration from them, the Law Ministry has denied the same. Article 371A(1)(b) confers upon the Governor of Nagaland special responsibility with respect to law and order in the State so long as the Naga Hills-Tuensang Area continues to be ‘disturbed’. It further gives the Governor discretionary powers which will override his consultation with the Council of Ministers, and shall be final and not be called into question as also is provided for in Section 8 of the Act. Article 371H (a) entitles the Governor of Arunachal Pradesh with similar discretionary powers. The Central Government however has rejected the similarity by saying that the 55th Amendment was a result of the conferment of statehood on Arunachal from its existing Union Territory status and such circumstances did not exist with regard to Andhra Pradesh as it did not have a “sensitive location and constitutional history”. The provisions for the two North-Eastern states suggest that conferment of similar powers to the Telangana Governor with respect to Hyderabad must require a similar Constitutional Amendment. The formation of Telangana was not a peaceful one. Violent protests and clashes particularly in the capital city of Hyderabad have preceded the bifurcation of the two States which would imply that the place does have a ‘sensitive’ history. Therefore a lack of reasoning can be seen on the part of the Legislature as to why Law and Order was in the first place handed over to the Governor if there was no threat to peace and tranquillity in the capital city. And if the threat did exist, why was the process of a Constitutional Amendment bypassed and the term “Law and Order” inserted directly in the Act?

Hyderabad is not the only city which is the common capital of two states. The reorganisation of the former State of Punjab (formerly State of PEPSU) into Punjab, Haryana and Himachal Pradesh in 1966 led to the common capital of Punjab and Haryana being Chandigarh. But Chandigarh was also made a Union Territory by The Punjab Reorganisation Act, 1966 from the day of formation of both the states.[4] Thus the administration and law and order situation of the capital became the responsibility of the Union Government as per Articles 239-241 of the Constitution.[5] If Hyderabad was made a Union Territory, the subject of Law and Order would not have been a complication as the same would have squarely fallen in the domain of legislative competence of the Union Government. However while clearing the Reorganisation Bill, the Union Cabinet rejected this demand and Hyderabad was not made a Union Territory.

What must also be considered is the fact that “Public Order” is not just a subject in the State List but maintenance of “Public Order” is also a subject in the Concurrent List. The question that therefore needs to be asked is whether the Parliament can make laws which fall in the State List. In Naga People’s case,[6] the Supreme Court observed that while determining the legislative competence of Parliament to make a law, it is required to be seen whether the subject matter falls in the State List which the Parliament cannot enter. If the subject matter does not fall in the State List, the Parliament would have legislative competence to pass the law by virtue of the residuary powers under Article 248 read with Entry 97 of the Union List and there would be no need to go into the question whether it falls under any entry in the Union List or the Concurrent List. But the subject matter i.e. “Public Order” does fall in the State List and there would be no need to go into the other lists. The Parliament can therefore not make a law on the State Subject of “Public Order”. The expression “public order” has been described as “a most comprehensive term” and it has been held that the “maintenance of public order within a province is primarily the concern of that province”.[7]

The process of inclusion of “Law and Order” in the Act and accordance of powers of its maintenance to the Governor raises the question of constitutionality even if this has to be the situation for only the next 10 years. It does on the face of it seem to be unconstitutional. But the final outcome of this conflict between the State and the Centre is yet to be seen.

(Kshitij Maheswari is a Research Assistant at the Journal of Indian Law and Society)

[1] § 5 of The Andhra Pradesh Reorganisation Act, 2014

[2] Ram Manohar Lohia v. State of Bihar 1966 AIR 740

[3] Arun Ghosh v. State Of West Bengal (1970) 1 SCC 98

[4] § 4 of The Punjab Reorganisation Act, 1966

[5] “Union Territory Division.” Ministry of Home Affairs. Accessed January 4, 2015. http://mha.nic.in/Union_Territory_Division.

[6] Naga People’s Movement of Human Rights v. Union of India 1998 2 SCC 109

[7] Lakhi Narayan Das v. Province of Bihar A.I.R. 1950 SC 59

Original author: jilsblognujs