Common Guv: CM sans power over Hyd

President Rule can be perpetuated over Hyderabad for at least ten years! Sounds unbelievable? But that is what is provided by AP Reorganisation Act 2014. This is undemocratic fallout of Telangana formation with a Common Governor for Andhra and Telangana, inferior to him will be Telangana Chief Minister with no powers over Hyderabad on law and order, while the Hyderabad will be under his rule for unspecific period.

Telangana Act suspects elected Government of Telangana and reposes faith in Governor. Each state should have a separate Governor (Article 153) and exceptionally the Center may find it necessary to have one person to lead two states or more (Proviso to Article 153). That also is meant for a temporary period, but not as provided for longer times in Telangana Act. A 35-year-old Indian is fully qualified to become Governor (Art 157) of one or two or many states. As per Article 158(3A) common governor’s salary and allowances have to be shared by the states in proportion as the President may by order determine. The Governor is called Rajpramukh in Raj Bhavan. Rajpramukh of Andhra and Telangana is Samraat of two Raj Bhavans.

Common Governor’s rule will affect the autonomy and democratic character of both the States. When signing the orders for Andhra, the Governor has to think of Telangana and while accepting recommendations of Telangana cabinet, think of interests of Andhra. The Governor is agent of Center in state and of state in the center. Now as Seemandhra Governor he will be the Agent of both Seemandhra and Center in Telangana. There is no recall for Governor who holds office during the pleasure of the President’ [Article 156 (1)] and that he continues till successor is appointed notwithstanding the expiration of term of office [Proviso to Article 156(3)]. Common Governor’s term thus depends upon pleasure of President or Union Government. The Constitutional authors did not intend it to be for long as provided by Telangana Act.

Powers over Law & Order

Issue of ‘security’ of Seemandhra industrialists in Hyderabad was raised aiming at stalling or delaying division. The security of non-Telangana was not doubted in entire ten districts. But the Group of Ministers considered this demand and added Section 8 in Telangana Act which says:

Section 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.

Constitutional experts from opposition parties objected this as violative of the balanced power and decentralisation. While all Governors have to act on aid and advice of the Council of Ministers, two-state Governor can override it, refuse the advice and decide on his own with immunity. Only during President’s rule (article 356) center appoints two advisors to Governor but in Telangana state it is prescribed for ten years or more. ‘Report from Governor that the Government cannot run in accordance with the Constitution’ is essential for invoking Article 356, which is not required for Telangana. Instead of power, expression used is ‘responsibility’ which cannot be exercised without power. The Section 8 begins with the subheading ‘Responsibility of Governor to protect residents of common capital area’. The ‘Common Capital Area’ has been defined as area encompassing the present GHMC under the Hyderabad Municipal Corporation Act. Special power of Governor was limited by territory without any specification of time, which means it could go beyond. After misuse of Article 356, the Center and State Relations Commission’s recommendation to limit it and judicial review by apex court resulted in amending the Constitution requiring Parliament to endorse President’s rule.

This reminds the extraordinary powers of administrator in Delhi Union Territory who can supersede Chief Minister. The Union Territory under Part VIII of the Constitution and the Government of Union Territories Act, 1963 (UT Act), the Legislative Assembly of Delhi is just recommendatory while Administrator can act ‘as he thinks fit’ (Article 239) and the UT Act says “he can act in his discretion, and his decision shall be final” By inserting Article 239AA by Constitution (Sixty ninth Amendment) Act 1991, the legislative powers of Delhi Assembly over law and order were shifted to the Central Government. Chief Minister Arvind Kejriwal has sat in dharna recently in Delhi to show that he had no powers over law and order. Perhaps the Chief Minister of Telangana may have to do the same.

From the new law the inferences drawn are: a) government cannot be run in accordance with provisions of Constitution in GHMC area of common capital, b) Telangana Government cannot have any powers on the issues of law and order in this area, c) Governor can overrule the advice of the cabinet and act on his own which cannot be questioned, d) Governor rule continues in this part without any legislative check, e) while President’s rule can be limited to few months, there is no limitation on the Governor’s rule, f) Telangana cabinet can give advice when consulted by Governor but should be mute spectator to watch what two advisors appointed by Central Government would advise and how the Governor takes decision in his own individual judgment. The 29th state is different and its Governor also different from the rest. Is that constitutional?

(The writer, Information Commissioner, New Delhi, can be reached at [email protected] )