Is Section 8 of APRA violated?

The Governor’s responsibility, as per this provision, is confined to security individual life, liberty and property. The investigation into crimes alleged to have been committed by any resident of Hyderabad does not fall under this responsibility. Providing security does not mean providing immunity

Is the Section 8 of the AP Reorganization Act is not implemented, violated or to be implemented specially? This has to be examined with reference to the Anti Corruption Bureau (ACB) trap in the note-for-vote incident in Hyderabad. The Chief Minister and Ministers of Andhra Pradesh have alleged unconstitutional tapping of their phones and sought enforcement of the Section 8.

Constitutionality of procedure adopted for tapping of phones is definitely an issue which can be questioned based on evidence. The question that needs to be examined is: whether any special powers are given to Governor under the Section 8 and whether the Telangana ACB has any powers to investigate bribery.

While opposing the split of united Andhra Pradesh State, some sections expressed apprehensions of threat to life, liberty, security & property of Andhra settlers residing in Hyderabad. First, it was proposed to give special powers to the Common Governor along with some say to the AP Cabinet. But, it was opposed as an affront to the State of Telangana.

From the text of the Section 8, following points emerge:

a) No special powers are given to the Governor; they are only responsibilities.

b) No powers from the State of Telangana are transferred to the Governor.

c) The Section 8 addresses the problems of insecurity to all persons residing in Hyderabad.

d) The Governor cannot act on his own without consulting the Telangana Cabinet.

e) Only after consulting the Telangana cabinet, he has to take his individual decision.

f) Though there is a common Governor, the AP Cabinet cannot advise the Governor against Telangana and the Telangana Cabinet cannot advise him against AP.

g) Every decision of the Governor must be to secure life, liberty, property and security of persons residing in Hyderabad. They must be related with the purpose of administration of common capital area.

h) The Section 8 (2) specifically says the Governor’s responsibility extends to certain mentioned areas which include ‘law and order and security of vital installations and allocation of government buildings. It does not extend to crimes of bribing.

i) The Governor’s responsibility, as per this provision, is confined to security individual life, liberty and property. The investigation into crimes alleged to have been committed by any resident of Hyderabad does not fall under this responsibility. Providing security does not mean providing immunity.

j) There is no word that deals with the special powers of the AP government in Hyderabad, except using the accommodation for government, employees and functionaries of AP.

k) While exercising individual discretion, the Governor has to give reasons which are constitutional. He cannot violate the Constitution while exercising his discretion in discharging the responsibilities prescribed.

l) The Section says the Governor’s decision shall be final and cannot be questioned on the grounds that he did or did not act on his own. General power of Judicial Review by Constitutional Courts (High Courts and Supreme Court) cannot be denied. Thus, the material depended upon by the Governor can be examined. (As per the decision of the Supreme Court in Bommai case) The Governor should be assisted by two advisors appointed by the Centre. This is about law.

Maintenance of law and order is different from the duty of prevention of ‘crime’. The Section 8 deals with responsibility to maintain law and order to provide security to individual life, liberty and property of the all residents of capital region. It does not extend to duties dealing with investigation, detection, prosecution or prevention of crimes. The power to deal with crimes belongs to lex loci, the law of the locality.

The implementation of the Section 8 was neither stopped nor postponed. That being an enabling provision, the Governor can discharge that responsibility as and when need arises. The contention of the Telangana government was that none complained about threat to life and security in the common capital. The only complaint filed recently with the Centre was that the phones of constitutional functionaries were tapped.

Assuming that total law and order powers are transferred to the Governor, it does not mean that ACB powers of Telangana also have gone to the Governor. Unlike the City-State Delhi which is a Union Territory where the CM does not have powers over law and order and land, Telangana is a full-fledged State like any other State in India whose powers cannot be transferred.

The Section 5 of APR Act 2014 states that Hyderabad shall be the common capital for such a period not exceeding 10 years. The expression is not ‘up to’ ten years. The moment the Government of AP thinks that it can shift to their State, Hyderabad will cease to be the Common Capital. If the AP government does not decide to move out of Hyderabad, it can do so for only ten years and not beyond.

This section enables the Government of Andhra Pradesh to get accommodated in Hyderabad buildings without having any right over Hyderabad. Hyderabad is declared as the capital of Telangana, and it ceases as the common capital whenever the Andhra government moves out before ten years or after expiry of ten years.

The Section 8, though Telangana contends as unconstitutional, remained in the statute book and can be invoked whenever needed. (The writer is an advocate & co-author of ‘Telangana: 29th state empowered by Article 3”, Mohan Law Publishers, New Delhi)

By Madabhushi Vasuprada