Sunday, 31 May 2020

Dubious Legality

Updated: March 15, 2014 1:54 pm

Undoubtedly, the Andhra Pradesh State Reorganisation Bill 2014 that is passed in both the Houses of Parliament is likely to get entangled in a legal quagmire. It is the strong feeling of several constitutional experts that the legislation would be invalid without going for constitutional amendments. The proposals such as vesting special powers in the governor to control law and order in Hyderabad and the city serving as the common capital of the two states do not satisfy the constitutional requirements.

Article 163 of the Constitution clearly states that the governor of the state is bound by the aid and advice of the council of the ministers. ‘Law and order’ and ‘policing’ are state subjects under entries 1 and 2 of List II of the Seventh Schedule.

Clause 8 of the Bill proposes that the law and order of Hyderabad city, which will be common capital of the two states, shall vest in the governor. The governor, who is an appointee of the union government will be aided by two advisors (appointed by the central government) who shall advise him in the law and order functions of the state. This is an alternative method of governance.

Now the question is, whether this alternative method of governance, which violates Article 163 of the Constitution as also the Seventh Schedule thereto can be done by an ordinary legislation and not by a constitutional amendment?

The constitutional and legal experts argue that the Bill to create Telangana with Hyderabad initially as the common capital should be legally and constitutionally a sustainable decision and not a suspect decision.

Categorically expressing its support the formation of new Telangana state, the BJP offered its support to any constitutional amendment that would provide legal sanctity to the new born state. Without addressing these issues, enactment of the legislation would definitely lead to further legal tangles and complications.

Astonishingly, the ruling party did not bother to take the suggestion and support of the BJP in providing unquestionable legal and constitutional sanctity to the new Telangana state. Probably, the Congress might want to take full credit of creating a new state and thus gain political advantage. Adopting such shortcut methods and acting for temporary political advantages, the Congress is doing great injustice to the people of both the regions.

The constitutional experts argued that it must be first determined whether giving common capital status to Hyderabad and vesting special powers in the governor are ordinary changes to the consequent legislation or a constitutional change. The legislation for the bifurcation of a state can be passed with a simple majority and the same applies for the consequent legislation. If the house decides it is a special constitutional amendment, then it requires to be passed with two-thirds majority under Article 368. And, the ruling Congress party deliberately ignored the fact and hurried the passing of the Bill in both the Houses of Parliament.


TELANGANA CAUSES DOMINO EFFECT


15-03-2014

Telangana, created out of the southern state of Andhra Pradesh, would become the country’s 29th district. It will be created out of a mainly tribal area that supporters say has been neglected by successive Andhra Pradesh governments. The state capital Hyderabad will be included in the new state, although for the first 10 years it will serve as the joint capital of the two states. However, the announcement of Telangana has caused a “domino effect” as agitation for similar demands from others parts of the country have also started pouring in. According to home ministry officials, it has received representations for creation of more than 20 states. Though these representations, except for Uttar Pradesh, have not been backed by the respective state governments.

The most vocal demands for separate states are: In Uttar Pradesh, there have been demands for Awadh Pradesh, Poorvanchal, Bundelkhand and Pachimanchal or Harit Pradesh. There is also demand for creation of a Braj Pradesh, consisting of Agra division and Aligarh division of Uttar Pradesh and districts of Bharatpur and Gwalior from Rajasthan and Madhya Pradesh. A demand for creation of Bhojpur comprising areas of eastern UP, Bihar and Chhattisgarh has also been received by the home ministry.

There has been an old demand for creation of a separate Vidarbha by carving out the Vidarbha region of Maharashtra, due to perceived neglect from the government of Maharashtra and incompetent political leadership. The region holds 21.3 per cent of total population of Maharashtra and owns of two-third of mineral resources of the state and is a net producer of power.

The most vocal demands for separate states came from Gorkhaland, by carving out Darjeeling and its adjoining areas in West Bengal. The leaders of Gorkha Janamukti Morcha (GJM) are demanding to carve a separate state for the people of Gorkha ethnic origin. Earlier GJM reached an agreement with the West Bengal state government to form a semi-autonomous Gorkhaland Territorial Administration to administer the Darjeeling hills.

Demands for Bodoland, comprising Bodo dominated areas in Western Assamhave also been made. The demand is to carve out eight districts namely Kokrajhar, Dhubri, Bongaigaon, Barpeta, Nalbari, Kamrup, Darang and Sonitpur for the Bodo people. This movement lost its sheen after an agreement between the three players: Centre, Assam state and Bodo Liberation Tigers. Also, a separate state of Karbi Anglong, comprising the Karbi tribals living areas under Karbi Anglong autonomous district in Assam, have also been pending with the centre.

There is a demand for Mithilanchal comprising Maithili speaking Vaishali, Muzzafarpur, Sitamarhi, Shivhar, Betiah, Motihari, Darbhanga, Madhubani, Samastipur, Munger, Begusarai, Khagaria, Jamui, Lakhisarai, Sheikhpura, Saharsa, Supaul, Madhepura, Purnia, Katihar, Araria, Kishanganj, Bhagalpur and Banka districts of Bihar and Dumka, Deoghar, Pakur, Sahebganj, Khunti and Godda districts of Jharkhand.

There is a demand for creation of Kongu Nadu comprising parts of southwest of Tamil Nadu, southeast of Karnataka and east of Kerala.

Also a demand for creating a Coorg state, comprising the Coorg region of Karnataka has also come to the centre.

The demand for separate Kukiland, comprising Kuki tribal inhabited areas in Manipur has also been raised.

There has been a demand for creation of Kamtapur comprising some districts West Bengal, including Cooch Behar and Jalpaiguri. Some people from Garo regions of Meghalaya are demanding for a new state of Garoland.

The outlines of the existing Indian map, were laid down by a post-independence States Reorganisation Commission, which recommended division on linguistic basis. The move was undertaken to defuse strife in an ethnically diverse population, and to ensure state governments function in their local language. Since that, centre has thrice tinkered with the internal borders of the country. The Congress decision on Telangana has inspired regional leaders to seize the moment and use the run-up to the upcoming general elections as leverage to drive home their claim for separate statehood. With the decision on Telangana, the Congress party, it seems has stirred up a hornet’s nest.

By Nilabh Krishna


Another issue that stands in the way of formation of Telangana state is the special provisions made to Andhra Pradesh under Article 371-D.

Article 371-D, which was inserted through the 32nd Amendment in 1973, empowers the President to issue orders from time to time providing for equitable opportunities for people belonging to different parts of the state.

This provision, which has overriding effect on other Articles of the Constitution, was brought in following agreement on a six-point formula between leaders of the state on September 21, 1973. This formula was aimed at a uniform approach for “accelerated development of the backward areas” of Andhra Pradesh, and to provide “equitable opportunities” to different areas of the state in the matter of education and employment in public services.

The centre under special circumstances (merger of two states) brought out 371-D for the state and introduced local quota. Now with the demerger, the special circumstances will no longer be there.

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Repeal of Article 371-D will spell doom for Telangana state as people from Andhra Pradesh will become eligible to compete for 100 per cent seats in professional courses and universities, as well as government jobs.

A similar facility is of course available for the people of Telangana in the residuary state but their numbers will be much less than the migration from the residuary state.

Retaining local quota in education and public employment by continuing Article 371-D in both Telangana state and the residuary state of Andhra Pradesh will have nation-wide ramifications and could create unrest in other states, particularly those in the Hindi heartland.

Article 16 of the Constitution prohibits discrimination in public employment on the basis of religion, race, caste, sex, descent, place of birth, residence or any of them.

The two states cannot even follow the model of other southern states and non-Hindi speaking states in the north, which ensure jobs to locals over-coming Article 16 with the help of “language” which is not in the list of prohibited factors in Article 16.

These states insist that the candidate must have studied the native language as first language at SSC level to become eligible for employment. In case of Seemandhra and Telangana the candidate’s first language will be Telugu. Another major issue that may create hurdles for smooth formation of two states is about the distribution of government employees on the principles of nativity, choice and seniority.

By Balasubrahmanyam Kamarsu

 

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