The law, verdict and wayout

While the AP Reorganisation Act clearly provides for separate High Courts for AP and TS, putting the onus on the Centre, the delay as well as silence on the issue by the Centre is inexplicable. Telangana strongly seeks separate High Court and even expresses its readiness to bifurcate the present building housing the Hyderabad High Court between the two States. It is even ready to relocate the TS High Court to another place.

However, the High Court strongly ruled that no ad hoc measures for setting up a High Court of a State outside its territory are laid in the Constitution. AP contends that the Centre has to fund the setting up of HC in the new capital, which is just taking shape. However, the HC can be located elsewhere in the State, as the history shows

The Part IV of THE ANDHRA PRADESH REORGANISATION ACT, 2014 mandates bifurcation of the High Court

The Section 30 (1) states that the High Court of Judicature at Hyderabad shall be the common High Court for the State of Telangana and the State of Andhra Pradesh till a separate High Court for the State of Andhra Pradesh is constituted. The Section 31 (1) states that there shall be a separate High Court for the State of Andhra Pradesh and the High Court of Judicature at Hyderabad shall become the High Court for the State of Telangana.

A simple reading of the provisions of the Reorganisation Act clearly mandates the division of High Court into Andhra Pradesh and Telangana High Courts. The Central government has given an explicit assurance to implement the said provisions of the Act, but despite agitations of lawyers from both the States, it seems to be lackadaisical, causing undesirable ire to both sides.

The Central government or any other authority concerned has failed to provide any information for the delay in implementing the provisions of Reorganisation Act in regard to the bifurcation of the HC. Chief Minister of Telangana K Chandrashekar Rao had said in the state legislature that certain forces were blocking the process. One cannot expect the Chief Minister of a State to comment anything more on such a sensitive matter pertaining to the judiciary.

However, the average citizen is also perplexed that the division of HC is not completed even one year after the executive and the legislature wings are separated. The capital of the residuary state of Andhra Pradesh is still in its formative phase. But a separate HC for Andhra Pradesh can be constituted somewhere else in the state and can be subsequently shifted to the capital.

In fact, even the history of Andhra State reveals that the High Court need not necessarily be located in the capital and even the otherwise is advisable. The Andhra High Court was set up on July 5, 1954, and was located at Guntur while the capital of the then Andhra state was in Kurnool.

This arrangement was in keeping with the Sri Bagh Pact that had been arrived at as early as on November 15, 1937, between the leaders of coastal Andhra and Rayalaseema, in which it had, inter-alia, been agreed “that the location of the University, the Headquarters and the High Court may advantageously be in different places so as not to concentrate all civil importance at the same Centre.”

(COMMITTEE FOR CONSULTATIONS ON THE SITUATION IN ANDHRA PRADESH Chaired by Justice B N Srikrishna, Chapter 1 Page 2) Therefore, lack of separate capital for the residuary state of Andhra Pradesh cannot be cited as a reason for the delay in division of high court. The Reorganisation Act itself provides for alternative arrangements to tide over exigent situations.

The Section 31 of the Reorganisation Act says:

(2) The principal seat of the High Court of Andhra Pradesh shall be at such place as the President may, by notified order, appoint; (3) Notwithstanding anything contained in sub-section (2), the Judges and Division Courts of the High Court of Andhra Pradesh may sit at such other place or places in the State of Andhra Pradesh other than its principal seat as the Chief Justice may, with the approval of the Governor of Andhra Pradesh, appoint…

No other constitutional or legal provision can be a hurdle for the division of High Court as it forms part of the provisions of the Reorganisation Act promulgated as part of the Articles 3 and 4 of the Constitution of India. A reference to the Article 4 and Section 107 of the Reorganisation Act makes it very clear that the provisions of no other law or even the Constitution can come in the way of implementing the Act.

The Section 107 says “The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law.” The Supreme Court gives a further elaborate explanation in regard to the scope of Articles 2, 3 and 4 in a judgment related to the case – Mangal Singh and Another vs Union of India (17 November 1966)…

“The law so made may also make supplemental, incidental and consequential provisions which would include provisions relating to the setting up of the legislative, executive and judicial organs of the State essential to the effective State administration under the Constitution...” “...the Constitution also contemplates by Article 4 that in the enactment of laws for giving effect to the admission, establishment or formation of new States, or alteration of areas and the boundaries of those States, power to modify provisions of the Constitution in order to tide over a temporary difficulty may be exercised by the Parliament…”

In its judgement in the case T Dhangopal Rao vs 1. Union of India, Through Its ... on 1 May, 2015, a division bench of Chief Justice Kalyan Jyoti Sengupta and Justice P V Sanjay Kumar of Hyderabad High Court said it was the responsibility of the central government to allocate funds to create a new high court as per the Reorganisation Act and the Constitution. The bench observed that it was for Andhra Pradesh government to decide where to set up the high court.

Chief Secretary of Telangana in a counter-affidavit stated that since the buildings pertaining to the State Legislature and the Executive were divided and allocated to the two successor States for the purpose of independent and separate functioning of their administration, the existing High Court building of Judicature at Hyderabad can also be divided in the event of a Presidential Order being issued for establishing a separate High Court for Andhra Pradesh.

“The State of Telangana is also agreeable and willing for locating two separate High Courts for the successor States in the existing High Court building by providing additional infrastructure facilities, if necessary, or High Court at Hyderabad for the State of Telangana will be located in a new building at Gachibowli, Hyderabad. The State of Telangana is willing to cooperate in any manner for providing facilities for establishment of two separate High Courts to the two successor States,” stated the Government of Telangana.

The State of Andhra Pradesh in a counter-affidavit stated that under the Act, 2014, the Union of India is to provide special financial support for creation of essential facilities including establishment of High Court in the new capital of the successor State of Andhra Pradesh. It was further informed to the Hon’ble Chief Justice that the Government of Andhra Pradesh has no objection for the constitution of separate High Court.

However, the Hyderabad High court in its judgement stated, “there is no manner of doubt that there is no scope for bifurcation of the present High Court as sought to be made, rather it is a common High Court for both the States so long as a separate High Court for the State of Andhra Pradesh is not constituted. The moment separate High Court for the State of Andhra Pradesh is constituted, the present High Court will function for the State of Telangana alone.

We fail to understand how does it come in the mind of any reasonable person looking at present legal position that High Court for the State of Telangana can be shifted to some other place in Hyderabad. Such effort is in conflict with provision of the Act, 2014. Therefore, the place offered by the State of Telangana for shifting this High Court to some other place is totally absurd and devoid of any merit...”

The judgement further said, “The constitution of High Court in any part of the State of Telangana for the State of Andhra Pradesh, including Hyderabad, would be an action not permitted by law. There is no contemplation nor the Legislature has any intention to create Andhra Pradesh High Court temporarily at any place other than the existing one at Hyderabad.

Constitution framers did not intend to allow to create High Court of the State exclusively outside its territory. Had it been so, such permissible provision would have been made expressly. It is an equally misplaced contention that present High Court building, like Secretariat, etc., can be bifurcated into two establishments of two separate High Courts.

The creation of High Court for the State of Andhra Pradesh has to be a permanent measure, and not an ad hoc one .” Therefore, it is clear that the onus lies on Andhra Pradesh government and subsequently the central government to complete the process of setting up a separate High Court for Andhra Pradesh at the earliest.