Home Ministry's letter to transfer law & order has created a storm in Telangana
_0.jpg "DC debate: Is Governor’s control over law, order legal?")
Narendra Modi and Telangana CM KCR. (Photo: DC/File)
Governor responsible for security in state
P.P. Rao, Constitutional law expert
The norms issued by the ministry of home affairs, Government of India, to the chief secretary of the Government of Telangana State seems to have raised needless doubts in certain quarters about their validity.
Before considering the legal aspects, it is necessary to bear in mind the scheme of the Constitution and the relevant provisions of the Andhra Pradesh Reorganisation Act, 2014, and the object of Section 8, thereof, which casts a special responsibility on the common Governor of the two states, AP and Telangana for ensuring the security of life, liberty and property of all those who reside in the common capital.
Sub-Section (3) categorically states that while discharging the functions under Section 8 the Governor shall, after consulting the Council of Ministers of the Telangana State, exercise his individual judgement as to the action to be taken. This is an exception to the general constitutional principle of the Governor acting on the aid and advice of the Council of Ministers of the state embodied in Article 163(1) of the Constitution of India.
The AP Re-Organisation Act is a law made by Parliament in exercise of its power conferred by Article 3 of the Constitution. Section 8 underlines the need to ensure the security of life, liberty and property of all those residing in the common capital.
All citizens have the fundamental right not only to reside and settle but also to practise any profession or to carry on any occupation, trade or business in any part of the country. The state government is under a duty to protect these rights and to ensure that all sections of the inhabitants of Hyderabad lead a peaceful life and not subjected to a sense of insecurity and uncertainty.
The executive power of the Central government is co-extensive with the legislative power of Parliament. Similar is the case with the executive power of a state. Therefore, the power to secure effective implementation of Section 8 of the Andhra Pradesh Re-organisation Act is part of the Executive power of the Union. Article 154(1) requires the Governor of the State to exercise the executive power of the state either directly or through officers in accordance with the Constitution.
The norms issued by the ministry of home affairs to the State of Telangana are in the nature of clarifications of existing powers of the Governor, guidelines and instructions to operationalise those powers.
Hyderabad made ‘UT in disguise’
K. Vivek Reddy, Advocate at Hyderabad HC
The Government of India has issued 13 commandments that effectively vest the power of law and order in Hyderabad in the Governor as opposed to the Chief Minister. This is sought to be justified by invoking Section 8 of the AP Reorganisation Act, which mandates that the “Governor shall have special responsibility for the security of life, liberty and property of all those people who reside” in the common capital area.
Under this provision, the Governor is only bound to consult the Telangana Council of Ministers, but is not bound by their advise. This effectively means that the Central government would exercise the power through the Governor. This provision and the Rules conferring power over law and order on the Governor are unconstitutional for three reasons.
First, the extraordinary powers conferred on the Governor undermine the federal scheme enshrined in the Constitution. The Constitution contemplates only two categories, states and Union Territories. In the former, the power to control law and order falls in the exclusive realm of the state government, whereas in a Union Territory, the said power vests in the Central government which exercises power through an administrator (Article 239). Section 8 creates a new category, whereby the power to control law and order in a state is conferred on the Centre through the Governor, effectively making Hyderabad a Union Territory. This is constitutionally impermissible.
Second, Section 8 undermines the legislative and executive power of the state to control law and order. A Constitution Bench of the Supreme Court in 1967 categorically held: “No state can therefore be formed, admitted or set up by law by Parliament which has not effective legislative, executive and judicial organs.” The SC said Parliament “cannot override the Constitutional scheme” while establishing a new state (Mangal Singh v. Union of India, 1967).
By conferring the powers of law and order on the Governor, Parliament has rendered the Telangana legislative and executive organs ineffective. To overcome this Constitutional impediment, a Constitutional Amendment had to be passed to confer “special responsibility” on the Governor over law and order when the new state of Arunachal Pradesh was created. (Article 371H) No such Constitutional amendment was passed when the Telangana was created. And it is ironic that none other than current finance minister Arun Jaitley, when the bifurcation of AP was being debated in the Rajya Sabha, categorically said the special powers conferred on the Governor under Section 8 was unconstitutional in the absence of a constitutional amendment.
Third, the Rules formulated by the Centre go much beyond the powers conferred upon the Governor under the AP Reorganisation Act. Under Section 8, the Governor can exercise powers over law and order only after consulting with the Telangana Council of Ministers. But the Rules formulated by the Centre enable the Governor to directly deal with the police and the administrative machinery even without involving the Telangana government.
( Source : dc )
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