Sakshi Education
<span style=" font-size:18px"> By,
Krishna Pradeep,
Director, 21st Century IAS,
Hyderabad.
</span>
There has been a controversy regarding the Governor’s special powers in Hyderabad, as provided under the Andhra Pradesh Bifurcation Act 2014. Though the act under section 8 (1), (2), (3) and (4) provides for the special powers, it is opposed by the Telangana government when a directive is issued by the Union Home Ministry.
What is Section 8 of the Andhra Pradesh Bifurcation Act 2014 act?
8. (1) 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.
(2) 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.
(3) In discharge of the functions, the Governor shall, after consulting the Council of Ministers of the State of Telangana, exercise his individual judgment as to the action to be taken:
Provided that if any question arises whether any matter is or is not a matter as respects which the Governor is under this sub-section required to act in the exercise of his individual judgment, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in the exercise of his individual judgment.
(4) The Governor shall be assisted by two advisors to be appointed by the Central Government.
What is the implication from this?
The following implications can be derived from the interpretation of this provision –
The Home Ministry, in a detailed letter to Chief Secretary of Telangana Rajiv Sharma, has said that on all matters falling under law and order, internal security and security of vital installations, as well as the two police commissionerates of Hyderabad and Cyberabad, and for the district of Ranga Reddy, the Home Secretary of Telangana shall brief the Governor and “the Governor’s advice shall prevail”. The Governor, who will be assisted by two advisers appointed by the Central government, will also be the last word on handling threat perception.
The governor has been given powers to ask the state government to requisition additional forces for deployment. In case the State government takes a divergent view, the Governor’s decision will be final. The governor can also call for a report or assessment from the Telangana government “on any acts of omission and commission by any official and direct the government to conduct an enquiry and take appropriate action as per law.”
The governor will also have powers to issue necessary directions to the officials of the Telangana government for the protection of the property rights of the people residing in the common capital of Hyderabad.
In its letter, the ministry has listed 11 critical powers vested in the governor which include power to call for any record or information or decision of the Council of Ministers or any authority relating to law and order, internal security and security of vital installations, and management and allocation of government buildings in the common capital of Hyderabad.
What is the argument of Telangana State Government?
The government of Telangana is making the following arguments against the Home Ministry’s directives -
According to the constitution, law and order is a State subject. However Union can also make the laws and issue directions to the states in performing this task. Therefore state list is often called as the second concurrent list.
Are there any other similar provisions in the constitution?
There indeed are such provisions which exist in the constitution. Certain states are given special status in the constitution. Accordingly Governors are given special power to maintain law and order in that state. They are as follows –
Article 371 (A) (b): The Governor of Nagaland shall have special responsibility with respect to law and order in the State of Nagaland for so long as in his opinion internal disturbances occurring in the Naga Hills-Tuensang Area immediately before the formation of that State continue therein or in any part thereof and in the discharge of his functions in relation thereto the Governor shall, after consulting the Council of Ministers, exercise his individual judgment as to the action to be taken.
Article 371 (F) (g): The Governor of Sikkim shall have special responsibility for peace and for an equitable arrangement for ensuring the social and economic advancement of different sections of the population of Sikkim and in the discharge of his special responsibility under this clause, the Governor of Sikkim shall, subject to such directions as the President may, from time to time, deem fit to issue, act in his discretion;
Article 371 (H) (a) : The Governor of Arunachal Pradesh shall have special responsibility with respect to law and order in the State of Arunachal Pradesh and in the discharge of his functions in relation thereto, the Governor shall, after consulting the Council of Ministers, exercise his individual judgment as to the action to be taken.
Note: The wording under Article 371 (A) (b) with reference to state of Nagaland and Article 371 (H) (a) with reference to state of Arunachal Pradesh are more or less similar to section 8 of the AP Reorganization act 2014.
What will happen if Union directions are ignored by the State?
According to Article 256, the executive power of every State shall be so exercised as to ensure compliance with the laws made by parliament and any existing laws which apply in that state, and the executive power of the union shall extend to the giving of such direction to a state as may appear to the government of India to be necessary for that purpose.
According to Article 365, if any State has failed to comply with, or to give effect to, any directions given in the exercise of the executive power of the Union under any of the provisions of this Constitution, it shall be lawful for the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution.
It implies that, if a State does not follow the directions of the Union government that will be treated as the failure of constitutional machinery in the state, which means possibility of imposing President’s rule in the state. This is intended to protect the national unity and integrity.
Even the Inter State Council meeting in 2003, has agreed with this provision under article 365. Earlier the Sarkaria Commission on Union State relations (1983-88) and Second Commission on Union State relations under the chairmanship of MM Punchi Commission (2007-10) have also did not disagree with this stand under article 365. The Supreme Court in the SR Bommai Case (1994) has not rejected this view.
Dr. Ambedkar said, article 356 should be used only as a matter of last resort. It should first be ensured that the Union had done all that it could in discharge of its duty under article 355, that it had issued the necessary directions under articles 256-257 and that the State had failed to comply with or give effect to the directions.
Final Observation:
Two aspects are visible from the above discussion –
What is Section 8 of the Andhra Pradesh Bifurcation Act 2014 act?
8. (1) 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.
(2) 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.
(3) In discharge of the functions, the Governor shall, after consulting the Council of Ministers of the State of Telangana, exercise his individual judgment as to the action to be taken:
Provided that if any question arises whether any matter is or is not a matter as respects which the Governor is under this sub-section required to act in the exercise of his individual judgment, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in the exercise of his individual judgment.
(4) The Governor shall be assisted by two advisors to be appointed by the Central Government.
What is the implication from this?
The following implications can be derived from the interpretation of this provision –
- Governor shall be responsible to the matters like law and order.
- Governor will act in accordance with the advice of the council of Ministers of the Telangana state.
- But he is free to use his discretion i.e. the governor can over ride the advice of the council of ministers.
- The decision of the governor is final.
- Governor is assisted by two advisors.
- The advisors are appointed by the central government.
The Home Ministry, in a detailed letter to Chief Secretary of Telangana Rajiv Sharma, has said that on all matters falling under law and order, internal security and security of vital installations, as well as the two police commissionerates of Hyderabad and Cyberabad, and for the district of Ranga Reddy, the Home Secretary of Telangana shall brief the Governor and “the Governor’s advice shall prevail”. The Governor, who will be assisted by two advisers appointed by the Central government, will also be the last word on handling threat perception.
The governor has been given powers to ask the state government to requisition additional forces for deployment. In case the State government takes a divergent view, the Governor’s decision will be final. The governor can also call for a report or assessment from the Telangana government “on any acts of omission and commission by any official and direct the government to conduct an enquiry and take appropriate action as per law.”
The governor will also have powers to issue necessary directions to the officials of the Telangana government for the protection of the property rights of the people residing in the common capital of Hyderabad.
In its letter, the ministry has listed 11 critical powers vested in the governor which include power to call for any record or information or decision of the Council of Ministers or any authority relating to law and order, internal security and security of vital installations, and management and allocation of government buildings in the common capital of Hyderabad.
What is the argument of Telangana State Government?
The government of Telangana is making the following arguments against the Home Ministry’s directives -
- Entrusting the Governor with special powers is against the spirit of the Constitution of India.
- The Telangana government is functioning in accordance with the provisions of the Constitution and the Governor too should act as per the decisions of the State Council of Ministers.
- Such a directive is an infringement of the rights of the States by the Union.
- Such sweeping powers to the governor will amounts to Governor’s rule in the State.
- Centre’s missive is an attempt to usurp powers of a democratically elected government.
According to the constitution, law and order is a State subject. However Union can also make the laws and issue directions to the states in performing this task. Therefore state list is often called as the second concurrent list.
Are there any other similar provisions in the constitution?
There indeed are such provisions which exist in the constitution. Certain states are given special status in the constitution. Accordingly Governors are given special power to maintain law and order in that state. They are as follows –
Article 371 (A) (b): The Governor of Nagaland shall have special responsibility with respect to law and order in the State of Nagaland for so long as in his opinion internal disturbances occurring in the Naga Hills-Tuensang Area immediately before the formation of that State continue therein or in any part thereof and in the discharge of his functions in relation thereto the Governor shall, after consulting the Council of Ministers, exercise his individual judgment as to the action to be taken.
Article 371 (F) (g): The Governor of Sikkim shall have special responsibility for peace and for an equitable arrangement for ensuring the social and economic advancement of different sections of the population of Sikkim and in the discharge of his special responsibility under this clause, the Governor of Sikkim shall, subject to such directions as the President may, from time to time, deem fit to issue, act in his discretion;
Article 371 (H) (a) : The Governor of Arunachal Pradesh shall have special responsibility with respect to law and order in the State of Arunachal Pradesh and in the discharge of his functions in relation thereto, the Governor shall, after consulting the Council of Ministers, exercise his individual judgment as to the action to be taken.
Note: The wording under Article 371 (A) (b) with reference to state of Nagaland and Article 371 (H) (a) with reference to state of Arunachal Pradesh are more or less similar to section 8 of the AP Reorganization act 2014.
What will happen if Union directions are ignored by the State?
According to Article 256, the executive power of every State shall be so exercised as to ensure compliance with the laws made by parliament and any existing laws which apply in that state, and the executive power of the union shall extend to the giving of such direction to a state as may appear to the government of India to be necessary for that purpose.
According to Article 365, if any State has failed to comply with, or to give effect to, any directions given in the exercise of the executive power of the Union under any of the provisions of this Constitution, it shall be lawful for the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution.
It implies that, if a State does not follow the directions of the Union government that will be treated as the failure of constitutional machinery in the state, which means possibility of imposing President’s rule in the state. This is intended to protect the national unity and integrity.
Even the Inter State Council meeting in 2003, has agreed with this provision under article 365. Earlier the Sarkaria Commission on Union State relations (1983-88) and Second Commission on Union State relations under the chairmanship of MM Punchi Commission (2007-10) have also did not disagree with this stand under article 365. The Supreme Court in the SR Bommai Case (1994) has not rejected this view.
Dr. Ambedkar said, article 356 should be used only as a matter of last resort. It should first be ensured that the Union had done all that it could in discharge of its duty under article 355, that it had issued the necessary directions under articles 256-257 and that the State had failed to comply with or give effect to the directions.
Final Observation:
Two aspects are visible from the above discussion –
- Union has not encroached in to the federal spirit by issuing guidelines to the state because the guidelines are in accordance with 2014 Andhra Pradesh reorganization act.
- The new born state of Telangana has its own apprehensions regarding Union domination over the law and order is a clear vision of violating the spirit of federalism.
Published date : 02 Sep 2014 04:04PM
