Constitutional complexities of Andhra Pradesh capital
The dilemma over 'Amaravati or not' appears to continue for some more time with the decision-making being shifted from the Cabinet to the Assembly to the Governor to the High Court
The dilemma over 'Amaravati or not' appears to continue for some more time with the decision-making being shifted from the Cabinet to the Assembly to the Governor to the High Court. Governor of Andhra Pradesh Bishwabhushan Harichandan gave his assent to the AP Decentralisation and Inclusive Development of All Regions Bill, 2020, and the AP Capital Region Development Authority (Repeal) Bill, 2020 which were passed twice by the AP Assembly to establish three capitals. This raises several constitutional questions.
First conflict is with the AP High Court hearing the challenge to ordinance (later Bill signed by the Governor), which should have made the Governor to wait for judgment, especially when 'judicial capital' is within the domain of Judiciary.
The HC bench of Chief Justice J K Maheshwari, Justices A V Sesha Sai and M Satyanarayana Murthy on 23rd January 2020 restrained AP from shifting any government office anywhere till it completed hearing a batch of petitions on the State capital issue. Hearing the challenge to the AP Decentralisation and Inclusive Development of All Regions Bill, 2020 and the APCRDA (Repeal) Bill, the Bench also directed the government to hand over copies of the reports of the High Power Committee (HPC) and other committees on the capital issue to "all those concerned". The High Court has scheduled the hearing of these petitions on August 6. On March 21, 2020 the HC passed interim orders suspending GO 13 to shift the offices of Vigilance Commissioner and Commissionerate of Enquiries to Kurnool. The State government's justification for shifting of offices merely on the reason of lack of enough space is unreasonable and illogical. The court agreed with the contention that shifting of both offices which are part and parcel of the General Administration Department would defeat the very purpose of that institution which primarily to curb corrupt practices. Though the judicial intervention in policy matters is limited, the courts cannot refuse to act when decision is against the Constitution and guided by malice.
Now the decision of Legislative Council to send the Bills for consideration of Select Committee became purposeless. The Governor's assent conflicts with decision of Legislative Council of Andhra Pradesh. It was brought to the notice of HC by Advocate General that the Legislative Council has referred two Bills to a Select Committee, which should have been honoured by the Assembly and the government, as that facilitates a deeper and wider discussion on the issues of creating three capitals, which effectively means divesting 2/3rds of capital from Amaravati. The select committee generally takes three months to debate it. Neither the Governor nor the HC can ignore the opinion of the Legislative Council, especially when that facilitates the democratic discussion on a vital aspect because the decision on capital cannot be frequently changed. Once a city is capital, it is always a capital, beyond the lifetime, almost permanently. This should have been brought to the notice of the Governor. He could have considered if there are any constitutional defects, or the fact of Council's decision, the pending challenge before a High Court.
Whether the Governor was properly appraised of the implications of the Article 200 of Indian Constitution which placed three options before him regarding the Bills. The Bill passed by the Legislative Assembly of a State shall be presented to the Governor who shall declare either that (a) he assents to the Bill or that (2) he withholds assent therefrom or that (c) he reserves the Bill for the consideration of the President. He can also return the Bill if it is not a Money Bill, together with a message requesting that the House will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message. But once returned, the Bill is passed again with or without amendment and sent back to the Governor, he 'shall not withhold assent' therefrom.
The proviso to Article 200 contains a very important limitation on the powers of the Governor in assenting the consent. It says: Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that court is by this Constitution designed to fill.
YS Jagan Mohan Reddy's government contemplates 'judicial capital' in an unprecedented manner. The Judiciary under the supervision of the Supreme Court is an independent estate equally sovereign and powerful. The SC and AP High Court together with the Executive concluded and proceeded further to have 'judicial capital in Amaravati. Does the Legislature or Executive have any power to direct the High Court to immediately shift to Kurnool from the present seat in Amaravati? If such an order is emanating from the Bill, doesn't it derogate the powers of the High Court? It is surprising that this specific sentence did not persuade the Governor to reserve it for the Presidential consideration. The State legal experts should have advised the Governor on this aspect.
The Governor should have noticed that the present HC at Amaravati has been established by the Presidential Order not by GO of AP government. After bifurcation of Andhra Pradesh into Telangana and Andhra Pradesh as per the Andhra Pradesh Reorganisation Act, 2014, the High Court of Judicature at Hyderabad was constituted as a common High Court, until the new High Court for the State of Andhra Pradesh is created.
In pursuance of article 214 of the Constitution and the order issued by the Supreme Court of India and in exercise of powers conferred under clause (a) of sub-section (1) of section 30, sub-section (1) of section 31 and sub-section (2) of section 31 of the Andhra Pradesh Reorganisation Act, 2014, the President has constituted the High Court of Andhra Pradesh, from the 1st day of January, 2019 with the principal seat of such High Court at Amaravati in the State of Andhra Pradesh and the High Court of Judicature at Hyderabad shall become the High Court for the State of Telangana. This was issued on 26 December 2018. This will be the 25th High Court which is expected to function from a temporary structure in Amaravati till a permanent building is set up at the 'Justice City' being planned in Amaravati. The Justice City of Amaravati must transform into Judicial capital in Kurnool, according to the new Bills.
Unfortunately, the capital and the seat of High Court for Andhra Pradesh was always fluid, changing and controversial. It was established in 1954, when the new 'state of Andhra' (not combined Andhra Pradesh) was formed after Potti Sriramulu sacrificed his life demanding the Andhra State to be carved out of earlier Madras Presidency. The Court initially met at the Guntur city till 1956, when State merged with the Hyderabad State (roughly present Telangana) with Andhra State to form the State of Andhra Pradesh. By that time the Capital and the High Court were firmly established in Hyderabad. One of the significant reasons for merger of two States against the will of Telangana was Hyderabad, a ready-made natural capital with sufficient infrastructure. The judiciary being a main stakeholder of High Court's location, the AP Assembly cannot unilaterally decide on shifting it. If the Andhra Pradesh has sincerely felt that decentralisation is required, so-called objective of three capitals, they should have sent a formal proposal to the Supreme Court taking HC into confidence, for establishment of a bench in Kurnool. Is it necessary to call a city as 'judicial capital', and make law for it? As the High Court has scheduled the case about three capitals on August 6, the legal and constitutional complications might come up for further probe.
(The writer is former Central Information Commissioner and Professor at Bennett University)Madabhushi