Thursday, July 31, 2014

When a jurist undermines the law

One would expect a legal brain to clinically examine an issue before making sweeping and vilifying comments. Madabhushi Sridhar’s article (T Government Undermined, The Hans India dated 15-7-2014) betrays not only a lack of comprehension but also a malicious intent.

The write-up is supposed to have been written from a ‘legal angle’. Unfortunately, there is anything but legal in this piece – in fact, it is completely politically-motivated and prejudicial. Coming from somebody who taught law and is currently a Central Information Commissioner, Madabhushi’s arguments are not just one-sided, they are misleading and perfect examples of red herring.

The article begins with a string of statements that are completely at variance with the legal and stated position over Hyderabad in the AP Reorganisation Act, 2014. The following are inferences that Madabhushi draws from Section 8 of the Act (Responsibility of Governor to protect residents of common capital of Hyderabad):

“Telangana Chief Minister has absolutely no control over his capital, while his Andhra counterpart has it absolutely.”
“It is also made obvious to the first Chief Minister of Telangana K Chandrasekhar Rao that the Chief Minister of Andhra Pradesh N Chandrababu Naidu has a stronger grip on the capital.”
“… no power to Telangana, every power to Andhra.”

These are very strong but dubious conclusions, which if true are indeed against Telangana. But where did Madabhushi infer these perplexing assumptions from? Unless he created them out of thin air, there is nothing in the Section 8 of the Act that even remotely suggests what the learned lawyer so nonchalantly proclaims to be the gospel truth.

For the sake of clarity, I will have to reproduce the section that deals with the powers of Governor.

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.

Is there anything here that says Andhra Chief Minister has any control over Hyderabad?

(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.

Again, do the above suggest by any stretch of imagination that one of the chief ministers has a stronger grip on the capital than the other?

(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.

Note the point - the Governor shall consult the Telangana cabinet, not Andhra cabinet, in these matters. However, the Governor can exercise his individual judgment in taking action. Pray, where is the mention of Andhra government here?

(4) The Governor shall be assisted by two advisors to be appointed by the Central Government.

The advisors are appointed by the Centre, not by AP Government, though Madabhushi will have you believe otherwise.

Anybody with a rudimentary understanding of English language would figure out the intent, object and the meaning of the provisions of the section. But Madabhushi would twist and turn the section to suit his conspiracy theory. See what he has deducted from the points in the section:

“On the other hand, same Governor has to go by the advice of Andhra Pradesh Chief Minister. He cannot override his advice or use his own discretion”

Where has this come from? When the provisions clearly state that the Governor will use his own discretion, how can the writer say that the Governor cannot use his judgment? Where does it say that the Governor should take the advice of AP CM? If the Governor is not even expected to take the AP CM’s advice, where is the question of the Governor not being able to override the same?

Madabhushi goes on to say things which are completely out of sync with the letter and spirit of the law. The writer goes to the ridiculous length of stating that ‘even the Centre will have to go by Andhra CM’s advice’!

Even a cursory reading of the Section 8 will not lead anybody to such hyperbole. This is not amplification, but plain distortion. How can a Professor of Law derive at these outrageous conclusions? How can he totally misread a simple and plain section, and create demons out of nothing?

Is there an agenda behind this scare mongering?

It appears so if one were to analyse the drift of the write-up. Madabhushi, who is expected to be a neutral commentator, takes a blatant stand in favour of - not Telangana - but the Government of Telangana headed by K Chandrasekhar Rao. His coloured views are evident when he says that the AP CM was trying to protect ‘encroachments, illegal possessions and irregular occupation of lands in and around the capital city’! The Central Information Commissioner assumes, without any benefit of doubt, that the AP CM’s writing a letter to the Centre to implement Section 8 of the AP Reorganisation Bill is nothing but a ‘desire to have more powers to protect huge and valuable lands in Hyderabad of certain strong lobbyists’. At the same time, he is convinced beyond any doubt that the Telangana government was genuine in its ‘drastic action initiated .. against encroachments’ etc.

Only a completely partisan commentator, leave alone a Constitutional functionary, can be so presumptuous.

All through his rhetoric, Madabhushi is trying to gloss over the fact that the powers given to the Governor in regard to Hyderabad in the AP Reorganisation Act are due to the reality that the city remains a common capital for Telangana and Andhra Pradesh for a period of ten years. But the legal scholar does not as much as take that cold fact into cognizance. He writes as though this is an unforeseen development and an unwarranted attempt by the Centre and AP at ‘undermining’ the government of Telangana. In fact, when talking about the special powers of Governor, Madabhusi rakes up controversy without taking into account the context and the circumstances of the division process that led the UPA government to incorporate this section in the first place.

In a statement unbecoming of his public stature, Madabhushi claims that the ‘sovereignty and democratic character of Telangana state’ are under threat because of the political bonds between BJP and TDP. The champion of ‘Telangana sovereignty’ does not appreciate the fact that the Act was passed by the Congress government against the will of TDP, if not BJP. And that the law is not expected to change its stripes depending on who comes into power in the next term. It is as if Madabhushi will not continue to function in the same way as Central Information Commissioner after the recent elections, since he was appointed during the Congress regime!

Madabhushi Sridhar, through his surmises and conjectures, is creating an uncalled for resentment against the move to implement a provision for safeguards that might have little or no impact on Telangana government, if the administration were to be ‘neutral and non-discriminatory’ in its administration of Hyderabad. I am hopeful that it will be. It is also important to note that this particular section entails a temporary arrangement, and will be rendered void in any case after ten years.

Lastly, the jurist crying hoarse over the alleged violation of the federal spirit of the Constitution is like devil quoting the scriptures. Only recently, he had thrown all his weight behind Article 3 which empowers the Centre to cut a state into slices, against the wishes of the state legislature concerned. One can’t have the cake and eat it too!

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