This article is written by Mariya Paliwala of the seventh semester, a student at Mohanlal Sukhadiya University College of Law, Udaipur, Rajasthan. This article throws light on the Constitution of India with special emphasis on Part I i.e. Union and its Territories.
It is very difficult to govern a vast nation like India, so the mechanism of federal governance was adopted. The heading in Part I i.e. Union and its territory reflects the unitary biasness of the federal structure as a union is considered to be the center and it comprises of states which is termed as territory. The country is divided into various states just for the sake of smoothing the administration. The Part I of the constitution pertains to the union and its territories and it comprises of Article 1, 2, 3, and 4.
Name and Territory of the Union
India is described as the “Union of states” and not “Federation of states”. The drafting committee of the Constituent Assembly deliberately used the word union and not federation. This can be interpreted as the union of India means the nation as a whole, it is not the result of any agreement between the states. Whereas, federation means the nation is constituted in accordance with the agreement and in future any state or group of states may secede from the union and demarcate the boundary on their own free will.
The Chairman of the Drafting Committee of the constituent Assembly, Dr. B.R. Ambedkar stated the reason for the question that why the drafting committee wanted to make it clear that though India was to be a federation, that federation was not the result of agreement by the states to join federation and that the federation not being the result of agreement no state has the right to secede from it. The federation is a union because it is indestructible. Though the country and people can be divided into different states for the convenience of the administration the country is one integral whole, its people are the single people living under a single imperium whole from a single source. Just a change in word and the Americans had to wage civil war to establish that the states have no right to secession and that their Federation was indestructible. The drafting committee thought that it is better to make it clear in an initial stage rather than leave it for the speculation leading to future controversies and contingencies.
Therefore, Article 1 says pertains to the above ideology whose essentials are:
Union of States
Article 1 says that India will also be known as Bharat and it shall be the ‘Union’ of states. Moreover, it also states that the states and union territories are mentioned in the 1st Schedule of the constitution.
Indian territory will comprise of:
- The state territories.
- Union territories.
- Territories which may be acquired by the government of India.
To acquire any foreign territory no parliamentary legislation is required as the sovereign state has an inherent power to acquire any territory.
Meaning of Acquisition
The expression ‘acquisition’ means by any notifications, declarations or assertions by which the government of India has declared and treated as a part and parcel of India, then the courts will be bound to recognize an “acquisition” as having taken place the consequence that territory would be the part of the union. Acquisition may be brought about in the following manners:
- Cession following treaty
- Occupation of territory hitherto unoccupied by any recognized ruler
The annexation of Sikkim, Daman & Diu, Goa, Dadar and Nagar Haveli, and Pondicherry are examples of acquisition.
Further, Article 2-A which elaborated on Sikkim to be associated with the union. However, this article was repealed by the Constitution (36th Amendment) Act, 1975.
Admission and Establishment of New States
Article 2 of the Constitution empowers the parliament to make new rules to admit any territory into the union or establish a new state on the basis of any terms as it thinks fit.
The main highlights of Article 2 are:
- To admit any new state in a Union (admission of organized political communities).
- Power to make or establish new state (existence of no political communities).
Article 2-A state that Sikkim was to be associated with the Union of India which was later repealed by the Constitution 36th Amendment Act, 1975.
Formation of New States, Alteration of New Areas, Boundaries or Names of Existing States
Parliament is empowered under Article 3 of the constitution to:
- Either from a new state by separation of territory from any state or by merging two or more states or by uniting any territory to a part of any state.
- Increase in the area of any state.
- A decrease in the area of any state.
- Alteration in the boundary of any state.
- Alteration in the name of any state.
This can be done if no bill for the purpose is introduced in the parliament except on the recommendation of the President of India.
A bill to become a law under Article 3 of the constitution need to fulfill 2 conditions. Firstly, the bill must be introduced in either house of the parliament only on the recommendation of the President of India. Secondly, where the proposal in the bill affect or change the area, boundaries, or name of any states, after this, the President must refer the bill to the legislature of the state which is going to be affected by the bill to express its will on matters pertaining to any alteration, formation or the name of that state.
Legislations under Article 3
- Assam (Alteration of Boundaries) Act, 1951: This altered the boundaries of the state of Assam consequent on the cession of a strip of territory, which was comprised in the state of the Government of Bhutan.
- Andhra State Act, 1953: Under this new state of Andhra Pradesh was formed by separating it from the State of Madras.
- Himachal Pradesh and Bilaspur (New State) Act, 1954: This Act merged the two former parts of the States to form one state of Himachal Pradesh.
- Bihar and West Bengal (Transfer of Territories) Act, 1956: Under this Act certain territory was transferred from Bihar to West Bengal.
- States Reorganisation Act, 1956: This Act recognizes the boundaries of the different states. It establishes the new state of Kerala and merged the former states of Madhya Bharat, Pepsu, Saurashtra, Travancore-Cochin, Ajmer, Bhopal, Coorg, Kutch, and Vindhya Pradesh in other adjoining states.
- Andhra Pradesh and Madras (Alteration of Boundaries) Act, 1959: This Act altered the boundary of the states of Madras and Andhra Pradesh.
- Rajasthan and Madhya Pradesh (Transfer of Territories) Act, 1959: This Act allowed the transfer of certain territories from the state of Rajasthan to the State of Madhya Pradesh.
- Bombay Recognition Act, 1960: This Act divided the state of Bombay in order to establish the state of Gujarat and the state of Maharashtra.
- Acquired Territory (Merger) Act, 1960: This Act merged certain territories into the state of Assam, Punjab, and West Bengal, certain territories acquired from Pakistan under the agreement entered into by the government of India and Pakistan.
- State of Nagaland Act, 1962
- Punjab Reorganisation Act, 1966
- State of Himachal Pradesh Act, 1970
- North-Eastern Areas (Recognition) Act, 1971
- Haryana and Uttar Pradesh (Alteration of Boundaries Act), 1979
- State of Mizoram Act, 1986
- State of Arunachal Pradesh Act, 1986
- Goa, Daman, and Diu Reorganisation Act, 1987
- Bihar reorganization Act, 2000
- Uttar Pradesh Reorganisation Act, 2000
- Madhya Pradesh Reorganisation Act, 2000
- Andhra Pradesh Reorganisation Act, 2014
Ram Kishore Sen V. Union of India, AIR 1966 SC 644, 648: (1966) 1 SCR 430
This case has clarified the term ‘State’. The word State is inclusive of Union territories this can be derived from the Explanation 1 of Article 3. However, since there is no such necessity with regards to the proviso to Article 3, it is also provided that the term ‘state’ shall not include a word Union Territory.
Rationale: The reason is that in the case of alteration of boundaries of the state, it is very important to take the opinion of the affected state. However, the union territories are governed by the Parliament itself. Further, the inclusion of the word “Union Territories” in the term “state” occurring in the proviso would have been redundant. Explanation 2 further clarifies that the parliament has the power under clause (a) of Article 3 to form new states or union territory by uniting a part of any state or union territory to any other state or union territory.
Therefore, these two explanations are added to Article 3 with the help of the Constitution (18th Amendment) Act, 1966.
Laws made under Article 2 and 3 provides for amendment under First and the Fourth Schedules and supplemental, Incidental, and consequential matters.
In case parliament of India makes a law under Article 2 or 3, the law must include all the necessary provisions for amendment of the first and fourth schedules of the constitution.
- The first schedule: It specifies all the states which are a member of the Union and their representative territories.
- The fourth schedule: It specifies the number of seats to which each state is entitled in the council of states.
Further Article 4 enables the parliament to include supplementary, incidental and consequential provisions.
Clause 2 of Article 4 expressly provides that changes made in the constitution by such law will be deemed to be an amendment of the constitution under Article 368, which specifies the procedure to make amendments in the constitution. The consequence is that alteration in the constitution coming within the purview of Article 4 may be carried out by a bare majority, subject to the requirements laid down by the proviso to Article 3 if such alterations relate to the matters specified in that article.
Mullaperiyar Environment Protection Forum V. Union of India, (2006) 3 SCC 643: AIR 2006 SC 1428
In this case the validity of Section 108 of State Reorganisation Act, 1956 which provides for the continuity of the existing agreements between the then existing states. The court held that the law-making power under Article 3 and 4 are supreme/ paramount and are not subjected to nor fettered by Article 246 and the List II and III of the seventh schedule. Further, it held that the constitutional validity of law made under Article 3 and 4 can not be questioned on the grounds of lack of legislative competence with reference to the list of the Seventh Schedule.
Ram Kishore Sen v. Union of India, AIR 1966 SC 644, 648: (1966) 1 SCR 430
The Constitutional (18th Amendment) Act, 1966 adds two explanations to Article 3, incorporating the decision of the Supreme Court in this case which clarified the term “State” in the term “State” includes “Union Territories” but since there is no such necessity with regard to the proviso to Article 3, it is also provided that in the proviso, the term “state” shall not include “union territories”. The reason is that in the case of alteration of boundaries of the state, it is necessary to elicit the opinion of the affected states; but since the Union Territory is governed by Parliament itself, the inclusion of Union Territory in the term “State” occurring in the proviso would have been redundant. The second explanation further clarifies the power of the Parliament. It provides that the power of the Parliament under clause (a) of Article 3 includes the power to form a new state or Union Territory by uniting a part of any state or union territory to any other state or Union Territory.
Wherefore, it can be said that the Constitution is the paramount law of the land. The Parliament is a body empowered to make laws for the welfare state but while making them the members of the Parliament need to ensure that the law which is presented and enacted must not be in derogation with the constitution and above all it does not have to be in violation with the basic structure of the constitution of India.
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