What is exactness of Section 8?

Competitive politics, compulsions created by circumstances for respective parties, strategic shifts in the stand by the central government, and a backdrop of sharply divided sentiment in the two States have further compounded the controversy over the status of Hyderabad as common capital. The debate is vitiated by partisan moves of different political parties. It is true that the Andhra Pradesh government has intermittently raised the issue of operationally defining the Section 8 of Andhra Pradesh state Reorganisation Act.

The ruling party in Andhra Pradesh caught in an unpleasant cash-for-vote scandal is taking a strident stand on the Section 8. The Central government and the party that heads it have decided to back the NDA ally in its hour of trouble. Thus the question today is whether the NDA-led Central government would also endorse the attempts of its government in the State to link the cash-for-vote episode with the political theatrics on the Section 8 . The TRS leaders who see in the controversy enough political capital seems to be joining the cacophony.

In fact, questions were raised even earlier on the constitutionality and the ambiguity of this section which tries to limit the powers of an elected State government on a geographical territory and the people it rules. The then leader of the opposition in Rajya Sabha, who is presently the Union Finance Minister and a reputed lawyer by profession, Arun Jaitley, made an interesting observation on the subject while participating in the debate on the State Reorganisation Act.

He said, “Can you vest the powers of law and order in a Governor by a simple legislation or do you need a constitutional amendment to do that? Article 163 of the Constitution very clearly provides that the Council of Ministers will aid and advise the Governor, and the judgements of the Supreme Court are that the Governor is bound by the aid and advice of the Council of Ministers. Law and order powers belong to the States.”

The Article 163 of the Constitution of India reads as follows: “Council of Ministers to aid and advise Governor

(1) 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;

(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, 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 his discretion; and

(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.“

The Section 8 of the Andhra Pradesh Reorganisation Act reads as follows:

(1) 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.

A plain reading of the Article 163 of the Constitution and Section 8 together reveals that the Governor has not been vested with any unusual powers. Any such interpretation would only raise the question which Arun Jaitley apprehended. But, the Section 8 has been incorporated in the Reorganisation Act in order to allay the fears of Seemandhra people residing in the common capital area and assuage the hurt sentiments of the Seemandhra region. Interestingly enough, the same section is again used to resurrect the same fear and sentiment .

A provision similar to the Section 8 exists in the case of Arunachal Pradesh in the form of Article 371 H of the Constitution of India. The Article 371 H reads as follows: “Special provision with respect to the State of Arunachal Pradesh Not withstanding anything in this Constitution,

(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: Provided that if any question arises whether any matter is or is not a matter as respects which the Governor is under this clause 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.”

Such a special responsibility has been accorded to the Governor of Arunachal Pradesh through the Constitution’s 55th Amendment Act in 1986. But no such amendment was enacted in the case of Hyderabad. In fact , Arun Jaitley, while supporting the UPA government’s intention to provide for special responsibility to Governor on Hyderabad, has asked for a constitutional amendment . But, the then Minister in the UPA Cabinet, who is also an eminent lawyer of Supreme Court like Jaitley, has a different take on the subject.

Kapil Sibal said, “when a State is being reorganized there are several issues that arise in the course of that reorganization which need to be addressed that deal with the population of the State and matters that concern the population. Therefore Articles 3 and 4 are complete on this issue. The Constitution authorizes Parliament to include supplemental, incidental and consequential provisions to deal with the problems that will arise in the course of the reorganization. Now, all the powers that have been vested in the Governor are in the context of supplemental, incidental and consequential provisions.

Under the Article 4(2) of the Constitution, it is specifically stated that nothing in the law shall be deemed to be an amendment to the constitution.” Kapil Sibal further clarified that since Arunachal Pradesh had already been created, “…therefore, to give that special responsibility we needed a constitutional amendment. Had that power been given when the state of Arunachal Pradesh was created then you need not have asked for a constitutional amendment.”

Sibal further remarked, “This is an issue that certainly, if there is an ambiguity, can be resolved when there will be a new government after general elections 2014.” As Arun Jaitley pointed out in the same debate that taking away powers of law and order from a State government was not a marginal issue and cannot be dismissed as supplemental and incidental issue. The time has come for the collective will of the Parliament to prevail on the exact interpretation of the Section 8.