After keeping it pending for a long time Governor of Andhra Pradesh Bisha Bhushan Harichandan gave his assent to the AP Decentralisation and Inclusive Development of All Regions Bill, 2020, and the AP Capital Region Development Authority (Repeal) Bill, 2020 which were passed twice by AP Assembly to establish three capitals raises several constitutional questions. Can AP Governor Bishwa Bhushan Harichandan agree to three capitals when;
1. the AP High Court is hearing challenges to the constitutionality of the Ordinance which is placed before him as the Bills,
2. the Legislative Council has referred the Bill to select committee of AP Legislature,
3. other constitutional options were existing under Article 200,
4. the High Court of Amaravati was established by Presidential Order?
5. the establishing High Court must be done by Supreme Court,
6. it is in contradiction of section 31(b) AP Reorganization Act 2014,
7. there is no need for a law to establish capital cities,
8.these Bills nullify thousands of contracts between the Government of AP and farmers, land-owners, and allottees.
1. Conflicts with the adjudication before High Court
The AP High Court is hearing the challenge to ordinance, which should have made the Governor to wait for judgment, especially when ‘judicial capital’ is within the domain of Judiciary.
The HC bench of Chief Justice J K Maheshwari, Justices A V Sesha Sai and M Satyanarayana Murthy on 23rd January 2020 restrained the AP from shifting any government office anywhere till it completed hearing a batch of petitions on the state capital issue. Hearing the challenge to the AP Decentralisation and Inclusive Development of All Regions Bill, 2020 and the APCRDA (Repeal) Bill, the Bench also directed the government to hand over copies of the reports of the High-Power Committee (HPC) and other committees on the capital issue to "all those concerned". The High Court has scheduled the hearing of these petitions on August 6. On March 21, 2020 the HC passed interim orders suspending GO 13 to shift the offices of vigilance commissioner and Commissionerate of enquiries to Kurnool. the state government's justification for shifting of offices merely on the reason of lack of enough space is unreasonable and illogical. The court agreed with the contention that shifting of both offices which are part and parcel of the general administration department would defeat the very purpose of that institution which primarily to curb corrupt practices. Though the judicial intervention in policy matters is limited, the courts cannot refuse to act when decision is against the constitution and guided by malice.
2. Contradicts legislative council’s decision
Governor’s assent to three Bills could be in straight contradiction of the decision of legislative council of Andhra Pradesh. It was brought to the notice of HC by Advocate General that the Legislative Council has referred two Bills to a select Committee, which should have been honoured by the Assembly and the Government, as that facilitates a deeper and wider discussion on the issues of creating 3 capitals, which effectively means divesting 2/3rds of capital from Amaravati. The select committee generally takes three months to debate it. Neither the Governor nor the HC can ignore the opinion of the Legislative Council, especially when that facilitates the democratic discussion on a vital aspect because the decision on capital cannot be frequently changed. Once a city is capital it is always a capital, beyond the lifetime, almost permanently. This should have been brought to the notice of Governor. He could have considered if there are any constitutional defects, or the fact of Council’s decision, the pending challenge before a High Court.
3. Other Constitutional options not considered
Article 200 placed three options before the Governor regarding the Bills. The Bill passed by the Legislative Assembly of a State shall be presented to the Governor who shall declare either that (a) he assents to the Bill or that (2) he withholds assent therefrom or that (c) he reserves the Bill for the consideration of the President. He can also return the Bill if it is not a Money Bill, together with a message requesting that the House will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message. But once returned Bill is passed again with or without amendment and sent back to Governor, he ‘shall not withhold assent’ therefrom.
The proviso to Article 200 contains a very important limitation on the powers of Governor in assenting the consent. It says: Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.
4. Is it against Presidential Order?
Jaganmohan Reddy’s Government contemplates ‘judicial capital’ in an unprecedented manner. The Judiciary under the supervision of the Supreme Court is an independent Estate equally sovereign and powerful. The SC and AP High Court together with the Executive concluded and proceeded further to have ‘judicial capital in Amaravathi. Whether the Legislature or Executive has any power to direct the High Court to immediately shift to Kurnool from the present seat in Amaravathi? If such an order is emanating from the Bill, does not derogate the powers of the High Court? It is surprising that this specific sentence did not persuade the Governor to reserve it for the Presidential consideration. The state legal experts should have advised the Governor on this aspect.
The Governor should have noticed that the present HC at Amaravati has been established by the Presidential Order not by GO of AP Government. After bifurcation of Andhra Pradesh into Telangana and Andhra Pradesh as per the Andhra Pradesh Reorganisation Act, 2014, the High Court of Judicature at Hyderabad was constituted as a common High Court, until the new High Court for the State of Andhra Pradesh is created.
In pursuance of article 214 of the Constitution and the Order issued by the Supreme Court of India and in exercise of powers conferred under clause (a) of sub-section (1) of section 30, sub-section (1) of section 31 and sub-section (2) of section 31 of the Andhra Pradesh Reorganisation Act, 2014, the President has constituted the High Court of Andhra Pradesh, from the 1st day of January, 2019 with the principal seat of such High Court at Amaravati in the State of Andhra Pradesh and the High Court of Judicature at Hyderabad shall become the High Court for the State of Telangana. This was issued on 26 December 2018. This will be the 25th High Court which is expected to function from a temporary structure in Amaravati till a permanent building is set up at the ‘Justice City’ being planned in Amaravati. The Justice City of Amaravati must transform into Judicial capital at Kurnool, according to the new Bills.
5. Whether Assembly is competent to shift High Court?
Can Andhra Pradesh Assembly change the location of APHC by legislation? Answer is not simple yes. Unfortunately, the capital and the seat of High Court for Andhra Pradesh was always fluid, changing and controversial. It was established in 1954, when the new ‘state of Andhra’ (not combined Andhra Pradesh) was formed after Potti Sriramulu sacrificed his life demanding the Andhra State to be carved out of earlier Madras Presidency. The Court initially met at the Guntur city till 1956, when state merged with the Hyderabad State (roughly present Telangana) with Andhra State to form the State of Andhra Pradesh. By that time the Capital and the High Court were firmly established in Hyderabad. One of the significant reasons for merger of two states against the will of Telangana was the Hyderabad, a ready-made natural capital with sufficient infrastructure. The judiciary being a main stake holder of High Court’s location, the AP Assembly cannot unilaterally decide on shifting it. If the Andhra Pradesh has sincerely felt that decentralization is required, so called objective of three capitals, they should have sent a formal proposal to the Supreme Court taking HC into confidence, for establishment of a bench at Kurnool. Is it necessary to call a city as ‘judicial capital’, and make law for it?
6. In contradiction of Section 31(2) of AP Reorganization Act
Section 5(2) of AP Reorganization Act 2014, while carving out a new State of Telangana, says: (2) After expiry of the period referred to in sub-section (1), Hyderabad shall be the capital of the State of Telangana and there shall be a new capital for the State of Andhra Pradesh. Some legal experts are raising a question whether this mandate of ‘a new capital’ is contradicted when ‘new capitals’ are contemplated. This Act of 2014 does not mandate number and places of the capital. Proposing three capitals thus may not contradict the intention of the Parliament.
But section 31(2) 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.
The principal seat of HC was mandated by President after due consultation with the concerned authorities to be the Amaravati. The Jaganmohan Reddy Government can still choose other places for its benches with the approval of Governor. For change of principal seat, it is not the legislature, but the President needs to be approached. This could be an interference with the powers of Parliament, President and the Supreme Court.
7. Why law for a capital city?
As a matter of fact, there is no need for making any law for establishing a capital city. There is no law for choosing Delhi as capital of Indian nation. Even when British shifted capital from Calcutta to Delhi, they did not pass any law. Neither Hyderabad nor Amaravati became capitals by law. An executive decision followed by creation of necessary infrastructure makes a capital. When Tuglaq shifted capital from Delhi to Daulatabad, it was an executive dictation that did not stand for a long time, as Tuglaq himself shifted it back to Delhi, which resulted in great miseries for the people and officers, resulting in a historic and permanent disreputation for the Sultan.
Even according to Jaganmohan Reddy’s Government, Amaravati continues to be the capital, to the extent of one-third volume with Assembly and a few Secretariat offices. Another one-third - the Justice City wherein High Court is established by Presidential Order, is not totally the domain of legislative power of state. With two thirds out of its control, what remained was shifting of headquarters of some departments to Visakhapatnam.
The idea of three capitals is criticised as unprecedented and unnecessary. The whole of India for its breadth and width and huge population there is only one capital – New Delhi. The example of South Africa with three capitals is appropriate for a nation, not for a state. Some opined that the AP, a small state within the nation, may not need three capital cities.
8. Contractual Obligations
The Governor should not have ignored the prolonged agitation against this policy and the plight of thousands of farmers who gave up their agricultural land and livelihood for capital expecting financial returns. It’s a human issue.
The involvement of the Centre in inaugurating Amaravati, sanction of thousands of crores as funds and several other activities including construction of some buildings like Secretariat and High Court etc, are substantive factors before the Governor and surely be contentious before HC. If for any reason HC strikes down the Bills, the capital issue will get further complicated.
The Chief Ministers and the ruling Party may change, but the Government is continuous institution, the decisions and agreements become irrevocable especially when it comes to issues like seat of capital and the contracts signed with owners or allottees of the land. Though the parties to these contracts may not have a right to have the capital at Amaravati, they can certainly demand compensation for the losses they suffered due to change in the decision, beyond what was agreed to. The farmers who offered their agricultural fields were assured with the proper development of the capital. They could have legally enforced their right to seek proper development. They are plunged into crisis because the seat of capital itself is changing, which means that there will no further development of the area as planned or agreed. The AP Government under Chandrababu Naidu allotted lands to several Central corporations and private bodies at cost ranging from Rs 50 lakh to Rs 2 crore per acre. It was agreed to pay three times to the cost as compensation if agreement is not adhered to. The compensation perhaps go to the astronomical heights of one lakh crore if all agreements with 33 thousand farmers are enforced. All those 33 thousand acres should be reconverted into agricultural lands and given back to the same farmers, which is another gigantic exercise.