Capital of a State: The Question of Who Decides?

Introduction

The Andhra Pradesh Reorganization Act 2014 (“Reorganization Act”) separated Telangana from the erstwhile state of Andhra Pradesh. Hyderabad was declared as the common capital for a period of 10 years. After the expiry of the period, Amaravati was decided to be established as the capital of Andhra and accordingly, development plans were laid out. Interestingly, the State Government proposed a change in the plan and rather decided to have three capitals alike the South African system.

This decision ignited a political turmoil in the state. On one hand, Amaravati farmers showed their dissent against the decentralization, and on the other, the Telangana Government seems gathering support for moving the capital out of Amravati. The High Court favored the farmers directing the state to proceed with the original plan. The decision has been constitutionally challenged before the Supreme Court. Amidst the pending decision, the author provides a bird’s eye view of the unprecedented developments and attempts to envisage the issue entirely through the legal lens to find a way out of this predicament.

The present case requires the Constitution to be interpreted to decide whether the state governments have the power to move their own capital. Amravati case is also unique as the questioning shifts to whether once the capital of a new state has been decided and declared, can it be changed by a subsequent government. The author attempts to deal with this novel issue and provide opinionated insight into the discussions that arise out of it.

Facts in a Nutshell

The chain of events goes back to 2010, when B.N. Srikrishna Committee was constituted to assess the feasibility of a new state which led to the formation of the state of Telangana and consequently, Parliament passed the Reorganization Act. Notably, the division of Hyderabad was a major bone of contention and concern for both states as it was the epicenter of the region, and thus a unique way out was formulated. As per Section 5 of the Reorganization Act, Hyderabad was declared as an interim common capital for both states for a period of 10 years. Having a common capital is not unprecedented however continuing it was not feasible owing to geographical barriers as Hyderabad is situated in the center of Telangana. The Reorganization Act provided to form a committee to consider a new capital for Andhra Pradesh. Accordingly, the Sivaramkrishnan Committee was constituted which suggested three approaches for deciding the capital: first, a single super city capital; second, expansion of existing cities as capital; third, a distributed development. It can be observed that the committee did not find it feasible to consider a single large capital city and was inclined to the third approach. It though did not conform to any specific capital, which ideally would have solved the current issue.

Andhra Government passed the Capital Region Development Authority Act (“CRDA Act”) declaring the development of Vijayawada as “Amaravati”, the capital of Telangana. CRDA Act inter alia provided for a Land Pooling Scheme(“LPS”) and a detailed master plan and zoning regulation whereby Land Owners surrendered their land for a guaranteed return of a smaller but developed and reconstituted plot/land. In furtherance of it, the government issued Capital City Land Pooling Scheme Rules 2015 (“LPS Rules”), and a detailed master plan and Zoning Regulation for Amaravati were published. It is pertinent to highlight that majority of the farmers started selling their land under the LPS Rules with the immediate effect. Meanwhile, President issued an Ordinance establishing Telangana High Court with its principal bench at Amaravati (“Presidential Ordinance”), thus making it the de facto judicial capital.

Meanwhile, with a shift in power, another committee led by G.N. Rao was formed to review the development plan and suggest a development strategy for the entire State of Andhra Pradesh. The committee proposed the decentralization of capital between three places: Amaravati, Vishakapatnam, and Kurnool, which was also favored by the Sivaramkrishnan Committee. Thus, the CRDA Act was repealed and the Andhra Pradesh Decentralization and Inclusive Development of All Regions Act ( “Repeal Act and Decentralization Act”) was passed enacting Amaravati as the Legislative Capital, Visakhapatnam as Executive Capital and Kurnool as Judicial Capital.

The matter went to High Court and during the course, Repeal Act and Decentralization Act were repealed(“Repeal of Repeal Act”). Thus, CRDA Act again became effective. However, High Court proceeded to adjudicate on the competence of the State to enact such laws and answered in negative and inter alia ordered to complete the development of Amaravati. Whether the proceedings were infructuous or not is out of the scope of this article. Nonetheless, it got challenged before the Supreme Court with the underlying question that whether the impugned judgement undermined the federal structure of the Constitution by ruling that a State has no competence or jurisdiction to determine where it would carry out its Capital functions from or to shift, bifurcate (or trifurcate) the capital.

Legal Backdrop

Capital of a state has been nowhere discussed in the Constitution. The author though attempts to peruse other Constitutional provisions and judicial precedents to navigate through the intention of the drafters to critically appraise the situation.

In Mangal Singh v UOI^[1] the court reinstated that the Central Government is empowered to re-organize the state under Article 3 including supplemental, incidental or consequential subjects which would include provisions relating to the setting up of the legislative, executive and judicial organs of the State essential to the effective State administration under the Constitution. Article 4 confers powers of the widest amplitude to make any laws that become necessary as a result of the redistribution of States or areas, as also provided in Nalluri Venkataraju v. State of Andhra Pradesh^[2]. Further, it has also been held in Mullaperiyar Environmental Protection Forum v. UOI^[3], that the constitutional validity of law made under Articles 3 and 4 cannot be questioned on the grounds of lack of legislative competence with reference to the Lists of the Seventh Schedule.

As per the Decentralization Act, Kurnool was to be the judicial capital of the state. However, it is also pertinent to note shifting the judicial capital would be in direct conflict with the President’s Ordinance. Thus, clear conflict is apparent between the Centre and State. Deriving the reasoning from Article 254, the Ordinance shall prevail over the state government’s decision. Therefore, making Decentralization Act partially void, even if it’s not repealed.

Moreover, Parliament under Article 231 has the power to establish High Courts or it can be put as the power to decide the judicial capital of a state. Thus, it can be deduced from several constitutional provisions that it inclines towards the Centre for the power to decide the capital of a state, indicating India is not truly federal state, which has been upheld times and again.

Challenges in the Present Case

From the above discussion, we can derive that the power to decide a capital arguably rests with the Central Government. The author hereafter argues why such power cannot be shifted to the state governments.

Assuming, in case the State has been given power to change their capital autonomously, it has a huge possibility creating a political turmoil, as in the present case. It would create an opportunity for political parties to relocate the capital of the state to the place which is epicenter of their power or use it as propaganda to gain votes. A similar incident was observed when the Korean Government initiated the relocation of its administrative capital from Seoul to Chungcheong province in 2004, and it was held unconstitutional by 8:1 majority. Inarguably, the circumstances and the structure are pertinently different however the two observations can be noted from the case. First, their Apex Court came up with the concept of constitutional custom, and mentioned that the capital forms a part of custom and has same effect as the written constitution. Thus, change in capital is de jure change in constitution. Secondly, it stated that such a change requires national referendum.^[4] The author is also inclined towards such approach in the present scenario. Considering the wide amplitude of impact the current issue has, a referendum may be a better way out.

If the power to change the capital is given to states, it will inherently gain decentralizing power as well, which provide equal opportunity to misuse of the power for political gains. It pertinent to highlight that a decentralized capital is not a new concept to India. However, one of the major concerns is the economic feasibility of the relocation as establishing a new city as it incurs a huge cost. In the haste of having holistic growth of the state it can very possibly become an economic disaster which can be very detrimental to the country. Therefore, its most reasonable to maintain the status quo in the present matter.

Moreover, delving into the present case, LPS has already been initiated, land has been taken from farmers. Shifting the capital would drastically reduce the price of the land and therefore, nullifying the purpose of the scheme. Also, applying the principles of promissory estoppel and Constitutional trust, the state cannot go against it denying the rights of the farmers. Therefore, the author is of the opinion that the High Court’s decision should be upheld and development of Amaravati must be done expeditiously to secure the rights of the farmers.

Conclusion

The issue in hand deals with an important aspect of Indian federalism. This is one-of its kind case with no judicial precedence. Nevertheless, this matter has its own theoretical and practical significance. Theoretically, the questions arise related to definition of a capital, decentralization, federal structure of India, etc. Practically, a major concern remains regarding potential misuse of the power.

The Reorganization Act was passed which provided Hyderabad as the common capital for 10 years post which Amaravati was to be the capital for Andhra Pradesh. The issue arose when the new government of Andhra Pradesh declares to relocate 3 capitals for 3 different wings of the government. The Supreme Court have to decide the underlying question of whether the state government has the power to take such an action or it rests entirely with the Central Government by virtue of Article 3.

The author argues that the powers of selecting capital should rest with the Central Government. The power of selecting Capital arguably forms an essential part of organization of a state should rest with the Centre, also if the same power is completely transferred to state government it could promote political turmoil as each regional party would want the capital should be situated at the area of their interest or benefit and it would become an issue. The Central Government can delegate this authority, if it deems appropriate. But once, it is approved and the capital is decided, it must be final and subject to no alteration by the State Government without a referendum.

However, the incumbent government has not provided any clear stance to a way forward, though shows indications of the battle not being over yet! The Supreme Court decision will play major role in it.

References

1. Mangal Singh v. Union of India, (1967) 2 SCR 109 : AIR 1967 SC 944. ↑
2. Nalluri Venkataraju v. State of Andhra Pradesh, 1960 SCC OnLine AP 235 : AIR 1961 AP 50. ↑
3. Mullaperiyar Environmental Protection Forum v. Union of India,(2006) 3 SCC 643 : 2006 SCC OnLine SC 243. ↑
4. Relocation of the Capital City Case (16-2(B) KCCR 1, 2004Hun-Ma554, 566(consolidated), October 21, 2004) ↑

(This article has been authored by Sparsh Srivastava, a third-year law student at National Law University, Odisha)

CITE AS: Sparsh Srivastava, “Capital of a State: The Question of Who Decides?” (The Contemporary Law Forum, 20 November 2023) <tclf.in/2023/11/20/capital-of-a-state-the-question-of-who-decides> date of access