Recently, the government of Andhra Pradesh dissolved the state’s Legislative Council. Arguably, the primary motive behind the dissolution seems to be the fact that the Council dominated by the opposition, had been stalling several key legislations passed by the Legislative Assembly. One such legislation is the AP Decentralisation and Inclusive Development of All Regions Bill, 2020 which intends to establish three capitals for the state i.e. a respective executive, legislative and judicial capital (“Three Capital Bill”).
The legislation is unique because for the first time it formally establishes three capitals in a state. The state government has been criticized for enacting a law that is within the domain of the parliament, an argument it has vehemently defended. In the present post, I aim to answer the two looming questions central to the legality of the Three Capital Bill.
First, who takes the decision on the capital of a state? In other words, whether the decision to declare a territory as the capital of a state is taken by the central government or the state government? Second, is the situation different when the state in question is newly created by the Parliament?
The answers to the above questions shall help us solve the curious case of the Andhra Pradesh’s Three Capital Bill.
I. Centre or State: Who takes the decision on the state capital?
The Constitution of India provides for a quasi-federal set up, wherein the domain of the Centre and States are almost clearly demarcated. The Parliament is empowered to make laws for the whole or any part of the territory of India, while the state legislature can make laws for the whole or any part of the State’s territory.
As a matter of practice, the decision over which territory shall serve as the state capital, has been with the state government. This decision is exercised as part of the government’s executive power under Article 154(1) of the Constitution of India. In other words, the decision is taken by the state cabinet and is thereafter, signed by the Governor.
In fact, states have used this provision of the Constitution, to even change their respective capital(s) or add another one. For instance, in 2017 the state of Himachal Pradesh declared Dharamshala as its second capital using this provision.
The underlying principle behind this exercise of power by the state government is that the decision over the governance of a state vests with its state government.
II. Who takes the decision over the capital of Newly Created States?
The Constitution of India empowers the Parliament to admit or establish new states in India (Article 2). It also empowers the Parliament to form new states by altering the area and boundaries of the existing States (Article 3).
According to Article 3, the Parliament may by law:
a. Form a new state by separating a territory from an existing state or uniting two or more states ;
b. Increase the area of any State ;
c. Diminish the area of any State ;
d. Alter the boundaries of any State ;
e. Alter the name of any State ;
In addition to the above, the Constitution also empowers the Parliament to make supplemental, incidental and consequential provisions in the legislation which creates or alters a state (Article 4).
A joint reading of Article 3 and 4 shows that the Parliament is empowered to do the bare minimum, necessary for the effective administration of the state under the Constitution. As per the Hon’ble Supreme Court, this would include, making provisions for setting up of the legislative, judicial or executive organs of the state, apportionment of assets, state’s representation in the Parliament or the Legislature etc. (Mangal Singh & Anr. v. Union of India, AIR 1967 SC 944).
In my opinion, the role of the Parliament is to provide the newly created state with a basic model/infrastructure of governance from which the subsequently elected state government can take over. If one reads the several State Reorganization Acts passed by the Parliament in exercise of its powers under Article 3 & 4, one gets the same answer.
Interestingly, none of the State Reorganization Acts passed till date mention the territory that would serve as the capital of the newly created state(s). The trend has been that a territory serves as a temporary capital, till the elected state government takes a decision on the new permanent capital of the state. The State of Uttarakhand still has a temporary capital, as the state government has not been able to decide on a permanent capital yet.
The Case of Andhra Pradesh:
The erstwhile state of Andhra Pradesh was bifurcated into the state of Telangana and Andhra Pradesh in the year 2014 vide the Andhra Pradesh Reorganisation Act, 2014 (“Reorganisation Act”). As per the Act, Hyderabad would serve as the common capital of both the states for a period not exceeding ten years. Thereafter, Hyderabad shall be the capital of Telangana and Andhra Pradesh shall have a new capital (Section 5).
As per Act, the central government was to constitute an expert committee to study alternatives for the new capital of the successor state of Andhra Pradesh and make appropriate recommendations within six months from the date of enactment of the Act. Subsequently, on 31 August 2014 the report was submitted by an Expert Committee.
Now that the Expert Committee has submitted its recommendations, the statutory requirement of the Reorganisation Act stands fulfilled. In fact, the central government’s supervisory role over the newly created state was only for a period of three years. Hence, as of this date, there is nothing standing in the way of the state government to take a decision on its state capital.
While one may question the need for having three respective capitals, the state government’s move is not new. Several states in India have either two capitals or have different judicial and legislative capital. Therefore, one may argue that the reason behind the criticism/debate over the Three Capital Bill is not because of its legality but because of the politics behind it.
[PS – While researching for this post, I came across the poor state of government documents in India, even on an important topic like the state capitals. It was strenuous locating the notifications declaring a territory as the state’s capital. Except Himachal Pradesh, no state government’s website had a notification to that effect. Interestingly, I found out that Dehradun is only a temporary capital of Uttarakhand and the state of Punjab has failed to produce any notification declaring Chandigarh as its capital before the Hon’ble High Court.]