Group President, Group Managing Director & Editor In Chief: Dr.Shelly Ahmed

Sunday, July 14, 2013

Telangana: Politically Critical And Constitutionally Complex

By Madabhushi Sridhar (Guest Writer)

High command, Core Committee, Congress Working Committee, Amendment to the Constitution…etc are being discussed to find a solution to crisis around Telangana.  Congress is struggling to come out of killing indecision and unending assement of its prospects in coming elections.  The possible advancing of elections is another factor which makes ‘high command’ to act quickly. Not only for Congress for almost all main parties in Andhra Pradesh Telangana is a complex political issue. It is also Constitutionally complex problem for Union Government.
Constitution in part XXI has certain ‘temporary, transitional and special provisions’.  Article 370 limits the power of Parliament to make laws pertaining to Jammu & Kashmir. Article 371 deals with special provisions for Maharashtra and Gujarat. It created separate development Boards for Vidarbha, Marathwada and rest of Maharashtra, Saurashtra, Kutch and the rest of Gujarat. It also ensures equitable allocation of funds, facilities for technical education and vocational training. Article 371 A protects special culture of Nagas by saying that unless Assembly of Nagaland approves the Act of Parliament dealing with religious or social practices of Nagas, their customary law, or administration of justice involving Naga customary law will not be valid. Governor of Nagaland was given some special powers. Article 371B provided for special committee of legislature for Assam with tribal elected members. Article 371C gives a similar committee for tribals of State of Manipur.  President constitutes these committees.

Speciality of AP
Political and legal developments over struggle for Telangana which began in 1969 have culminated into creation of Article 371D. The agitation for Telangana reached crescendo when Telangana Praja Samithi has won 11 out of 14 Loksabha Seats even as the whole of the country voted for Mrs Indira Gandhi after winning historic war for Bangladesh in 1971. At around that time the Supreme Court came to the rescue of Telangana by upholding Mulki rules which was struck down by Andhra Pradesh High Court with 2:1 majority. Two judges gave a majority decision while dissenting judgment was from Jusitce Konda Madhav Reddy. What the Supreme Court concluded was almost the judgment of Justice Madhav Reddy and his reasoning. 

But the coastal Andhra leaders did not allow the fruits of apex court verdict to reach Telangana. They strategized an agitation seeking Andhra state, which was in fact, aimed at ousting Telangana Chief Minister P V Narasimharao, and his land reforms. The agitation was successful as they could bring down his government, brought in President Rule, got six point formula shelved and Telangana Regional Council was cancelled besides diluting the Supreme Court judgment. The ultimate result of the agitation was just formation of Hyderabad University and the Article 371D, which did not do any good to the Telangana people.

Earlier Telangana was assured of due share in public employment and education opportunities under six point formula or Mulki rules. All of those were culminated into general rule in the name of ‘special provisions’ to secure the equitable opportunities in public employment and education in all the regions of the Andhra Pradesh.

Article 371D was introduced by Constitution (Thirty Second Amendment) 1973, which came into effect in July 1974. This Article gives power to President to create equitable opportunities for people belonging to different parts of state. These provisions did not talk about an autonomous committee with some devolved powers, neither they deal with constitution of legislative committee, but just facilitates the President to make an order. It also facilitates creation of Administrative Tribunal to adjudicate the disputes and issues about employees in Government service. 

This Article is no favour to any region within AP. In fact, the state loses its inherent power to deal with matters relating to services, all its power goes to the President, which means the union cabinet. While all other provisions under Part XXI increase autonomy for a better development of region by self rule, the 371D is not giving any substantial power for development of Telangana, but increases the power of center at the cost of Telangana. And in the process Telangana lost it’s Regional Committee, for what it was worth, and the feeble protections offered under six point formula.

Congress Government took long time to promulgate the order known as Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment), Order 1975 in short the Presidential Order in 1975, which divided state into six zones and restricted the public employment in these zones to people of those zones, with some exceptions. As per Para 3(4), the posts belonging to each specified gazetted category in each department in each zone shall be organised into a separate cadre.

The pro-Andhra and anti-Telangana Chief Ministers got them reduced to a GO which could be violated with all impunity and those violations could be rectified with retrospective effect. The successive Governments in Center and AP have rendered this article just an appendage without any functional value as the Presidential Order 1975 itself violated Article 371D and Telangana had to fight for deletion of violating provisions from it. For instance the Chandrababu Naidu Government did not honour this Presidential Order, instead, went on violating it indiscriminately. During Telugu Desham tenure, they secured a retrospective validation of the violations in 2000. The anti-Telangana forces played manipulative role to remove the ‘Telangana’ from the name of the state during 1956 and then to remove the name and provisions for Telangana from Constitution in 1973.

The 14f controversy
Under Para 14 of the Presidential Order, certain Establishments and posts are saved or exempted from its application. Para 14 (f) says nothing in this Order shall apply to- …. (f) any post of Police Officer as defined in Clause (b) of Section 3 of the Hyderabad City Police Act, 1348 F.

By operation of Para 14(f), the posts of Police Officers defined in Hyderabad City Police Act are saved from the provisions of the Presidential order. Because of this para 14f, the Presidential Order 1975 violates the Article 371D (10). Clause (10) of Article 371D provides that the provisions of the Article and of any order made by the president thereunder shall have effect notwithstanding anything in any other provision of the Constitution or any other law for the time being in force. Therefore, the Presidential Order should prevais over any other law existing or made in future. Factually speaking, the 14f enables the state to post the police officers from different zones into Zone VI and also helps considering the capital as separate zone, which is again not within the scheme of Presidential Order 1975.

State Government, as per Presidential Order Para 5, reserves 85% of the seats in each local area for the local candidates and sets apart 15% as unreserved. In regard to the State-wide Universities and the educational institutions subject to the control of the State Government, which have been specified in Schedule-II of the Order, 85% of the available seats in such Universities or educational institutions are reserved in favour of the local candidates of each of the local areas at the ratio of 42:36:22 respectively.

The AP High Court rightly concluded that the power of the State Government to make a provision for transfer in any of the circumstances and exigencies set out in sub-paras (a) to (c) of para 5(2) is a power circumscribed by the limitation that such transfers are to be only in exceptional circumstances, in exigencies of overriding public interest or where no qualified or suitable person is available in a particular local cadre and predominantly only for a transient period for which such contingency exists, an exception being the circumstance enumerated in para 5(2Xd) namely reciprocal basis. Most unfortunately the Supreme Court ignored all these finer points explained by the AP High Court and treated Hyderabad as separate zone beyond 6 Zones prescribed under Presidential Order. This virtually amounts deletion of para 14f. Telangana people had to fight this injustice and won the deletion of para 14f.

CM’s misrepresentation
Chief Minister Kiran Kumar Reddy has reportedly told the Core Committee of Congress that by removal of 14f paragraph from Presidential Order the purpose of Telangana demand was achieved and no grievance remained. The CM also tried to represent that KCR’s fast unto death was only to remove para 14f. However, removal of 14f did not stop the Kiran government from posting hundreds of police officers in Telangana to suppress the agitaion during recent chalo assembly.

As on today this article 371 has no impact and if Telangana state is carved out this provision might be irrelevant and required to deleted or removed. Even if this article remains on statute book, it cannot be an obstacle for formation of Telangana, which is exclusively the politial power of the center.

Generally Article 3 prescribed the power and procedure of creating a new state within the Union of India. If a state is made out of existing state or Union Territory, Constitution need not be amended.

However Amendment of Constitution will become essential for converting a part of existing state into Union Territory. If the center is considering according Union Territory status to Hyderabad as one alternative among various options to address the Telangana issue, then it would certainly require amendment to the Constitution. If center plans creating an Autonomous Council for Telangana region then also the Constitution has to be amended.

Need for Amendment
The Telangana aspirants got disappointed again with the talk of ‘need for amendment of the Constitution’ to solve the Telangana tangle on July 11th and further postponement of decision making from Core Committee to Congress Working Committee as announced on July 12th.  Latest comments of Digvijan Singh raised doubts about possibility of further delay in taking an acceptable decision.

Article 4
Article 4 is very specific about non-requirement of Constitutional Amendment to carve out new state from out of existing states. Article 3 explains that a bill recommended by the President will be enough to create a new state and such a bill if passed by both the houses of Parliament, will automatically affect the changes in the Schedule 1 listing out the states, their area, boundaries and names and Schedule 5 deciding the number of representatives to Council of States, without necessitating amendment. Sub Article 2 of Article 4 also says that such a Bill passed by the Parliament though affects the changes in names of the States within the schedule of Constitution, shall not be considered as amendment to the Constitution.

Substantive part of Article 3 and its proviso contain an expression ‘state’. But the meaning of the ‘state’ was further explained in an ‘explanation’ attached to Article 3. It says ‘in clauses (a) to (e) ‘state’ includes a Union Territory, but the proviso ‘state’ does not include Union Territory. It means the Constitution amendment is not required for creating a new state our existing states and union territories, but to create a new Union Territory an amendment will be required. Parliament has power to convert a UT into a state but unless constitution is amended it cannot convert existing state to convert into Union Territory.

Interpreting the latest statement of Digvijay Singh on evening of July 11th based on what was reported by media may not give accurate inference.  On one hand he says the decision would not be delayed and on the other he adds that they need to consult the UPA partners and opposition before final decision. It is difficult to say beforehand whether Digvijay wanted the people to keep guessing, or intending to reduce the pressures from different corners or really considering options beyond separate Telangana.

If Telangana is carved out, Article 371D becomes redundant and needs to be removed by an amendment to the Constitution. It’s an enabling provision empowering executive just to make an order. Earlier Article 371 was facilitating Regional Committeefor Telangana within Andhra Pradesh. Article 371 was amended by Bombay Reorganization Act 1960, when Maharasthra and Gujarat were formed. Similarly Artricle 371B was amended by North-Eastern Areas (Reorgnaization) Act, 1971. If a Bill intends to form a new state is passed by Parliament, that itself effects required changes in nomenclature in these special Provisions.  

However, when Parliament intends to make special provisions and make substantial change like deletion or replacement of entire provisions in Part XXI, a Constitutional amendment will be required. 27th amendment in 1971 and 32nd Amendment in 1973 made substantially amended this Article. If Telangana is formed, article 371D becomes redundant and requires to be deleted by an amendment to the Constitution. But 371D will not be an impediment in formation of Telangana.  The indecision of Congress is going to be the strength of the Telangana Rashtra Samithi. If decision is in favour of Telangana, it sounds deathknell to TDP and seriously troubles the new party YSRCP. Either way Telangana is going to change the political landscape of Andhra Pradesh, which is on the verge of disappearance.

(About the Writer: Madabhushi Sridhar is a Professor and Head of Center for Media Law and Public Policy, NALSAR University of Law, Hyderabad.)