Article 1 of the Constitution of India describes India (Bharath) as a Union of States. The reasons behind making India as a Union rather than federation is that it was inseparable, that is no State had the right to withdraw (secede) from the Indian Union on its on account. The Union of India is not the product of an agreement between states to join the Union, and that since the Union was not the consequence of an agreement, no State had the right to withdraw from the same. The Union is a federation because it is indestructible. No individual state is having sovereignity like in US, and is concentrated at the centre, ie, the Parliament.
ARTICLE 2 : ADMISSION AND ESTABLISHMENT OF NEW STATES
Article 2 confers on the parliament, the power to make law
- to admit into the Union new states and
- to establish, new States,
on such terms and conditions as it thinks fit. It should be noted that the former refers to the admission of an organised political state into the union and the later refers to the organisation of a very new state which was not a part of the Union of India. The constitution confers wide powers on the parliament to admit or establish state under this article on such conditions as it thinks fit. By exercising this power, the parliament can impose any condition for such admission or establishment, however in R C Poudyal vs. Union of India, it was held that such terms and conditions must be consistent with the foundational principles and basic structure of the Constitution.
It is to be noted that no parliamentary law is required for the acquisition of a territory by the Government of India, but inorder to admit or recognize it as a state under Indian Union, a parliamentary legislation to that effect under this article is required.
Parliament has admitted by exercising this power, for example, the French settlements of Pondicherry, Karaikal, etc.
Article 3. Formation of new States and alteration of areas, boundaries or names of existing State.
Article 3 Provides the Power to the Parliament to :
- Establish New state
- Increase the Area of Any state
- Decrease the Area of Any State
- Diminish the area of any state
- Alter boundaries of any state
- Alter the name of any state.
The major difference between article 2 and article 3 of the Constitution is that article 2 speaks about the admission or establishment of states which formerly was not a part of Union of India where as article 3 relates to the alterations to the existing state. Article 3 provides for territorial changes of the existing state and therefore no state in Indian Union have no guarantee to their territorial Integrity. The parliament can establish new states out of the existing states in the following ways.
- By separation of territories from an existing state
- By uniting or combining two or more existing states.
- By uniting any parts of a state.
- By uniting any territory to a part of any existing state
Any bill introduced in the parliament under article 3 must satisfy two conditions :
- It must be introduced in either house of parliament only on the recommendations of the president.
- If such bills affects the area, boundary or name of any states, President shall refer the bill to the concerned state legislatures to express their views on it. The president my fix a time period for expressing the state views and can extent it at his/her discretion. It should also be noted that if the state fails to respond in stipulated time frame, this condition is deemed to be fulfilled.
In the case of Union Territories, before such a bill, it is not necessary to seek the views of the Legislatures of Union Territories, For example, such Bills concerning Mizoram, Arunachal Pradesh, Goa, Daman, and Diu were introduced in Parliament without obtaining such views.
Article 3 thus demonstrates the vulnerability and dependence of the territorial integrity of the States on the Union, whereas, in federations such as the USA or Australia, the borders or names of States can not be changed by the Federation without the consent of the States.
Article 4. Article 4 allows for consequential changes to the First Schedule (names of the States in the Union of India) and the Fourth Schedule (number of seats allocated by each State to the Rajya Sabha). It also notes that it does not consider a constitutional amendment under Article 368. It also states that no law existing States or creating a new State will be considered a constitutional amendment. It is in line with the previous provisions of the requirement, of a simple majority in Parliament and suggests full control of the Union over the territories of the individual States of the Union.
CESSION OF INDIAN TERRITORY TO A FOREIGN TERRITORY
In re, Berubari Union (1960), the supreme court held that the power of Parliament to diminish the area of a State (under Article 3) does not cover the cession of Indian territory to a foreign country. Indian territory can be ceded to a foreign state only by amending the Constitution Under Article 368. Consequently, the 9th Constitutional Amendment Act (1960) was enacted to transfer the said territory to Pakistan. Supreme Court in 1960 ruled that the Settlement of a boundary dispute between India and another Country does not require a Constitutional amendment. It can be done by executive action as it does not involve cession of Indian territory to a foreign country.
Case Laws:
Mullaperiyar Environment Protection Forum V. Union of India, (2006) 3 SCC 643 : In this case, the validity of Section 108 of the State Reorganization Act, 1956 which allows for the continuation of existing agreements between the existing states at that time. The Court held that the legislative powers referred to Article 3 and Article 4 are supreme and not subject to or bound by Article 246 and List II and List III of the Seventh Schedule. It also held that the constitutional validity of the legislation referred to Article 3 and Article 4 can not be questioned on the grounds of lack of legislative competence in relation to the list in the Seventh Schedule.
Ram Kishore Sen v. Union of India, AIR 1966 SC 644,
The Constitutional Act (18th amendment) 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” which includes the term “Union Territories” but since there is no such necessity with regard to the provision of Article 3, it is also provided that the term “State” does not include the term “Union Territories”. The reason is that, in the event of a change and alternation in the borders of the State, it is necessary to seek the opinion of the States concerned; but since the Union Territory is governed by the Parliament itself, the inclusion of the Union Territory in the term “State” would have been redundant. The second explanation further clarifies the Parliament’s Power. It provides that Parliament’s power under Article 3 clause (a) includes the power to form a new State or Union Territory by uniting a part of any State or Union Territory with any other State or Union Territory.
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