Union and its Territories : As provided under article 1 – 4 of the Indian Constitution

By | March 8, 2017

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Part 1 of the Constitution comprising of Articles 1 to 4, provides a self-contained mechanism for effecting changes in the constitution of states or union territories of the Union of India.

By a simple majority and by ordinary legislative process, Parliament may form a new state or alter the boundaries, etc. of existing states and thereby change the political map of India.

Article 1 of the Constitution declares that the sovereign democratic Republic of India ‘shall be the Union of States’. The choice for a strong federation with a strong Centre was made both for political and administrative reasons although the move to describe the Constitution as federal failed. The Constituent Assembly accepted the view of the Drafting Committee that describing the Union as Federation was not necessary.[1] The Drafting committee had a purpose in choosing the word ‘Union’, in preference to the “Federation”. They were of the view that the word “Union” better expresses the fact that the Union of India is not the outcome of an agreement among the old provinces with the result that it is not open to any State or a group of States to secede from the Union or to vary the boundary of their States on their own free will. The Chairman of the Drafting Committee, Dr. Ambedkar, said:[2]

but I can tell you why the Drafting Committee wanted to make it clear that though India was to be a Federation, the federation was not the result of an agreement by the States to join in the federation and that the Federation not being the result of an agreement no State has the right to secede from it. The Federation is a Union because it is indestructible. Though the country and the people can be divided into different States for the convenience of administration the country is one integral whole, its people a single people living under a single imperium derived from a single source. 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 was better to make it clear at the outset rather than to leave it to speculation.”

Article. 1: India – a union of states, its territory

Article. 1(1) declares that “India, that is Bharat, shall be a union of states” and the States and the territories thereof are specified in the First Schedule. The expression “union” indicates that the Indian federation is not the result of an agreement between the units it constituted of and that the component units have no freedom to secede from the union so created.  The Constituent Assembly of India deriving its power from the sovereign people, was unfettered by any previous commitment in evolving a constitutional pattern suitable to the genius requirements of the Indian people as a whole.[3] The Constitution contemplated changes of the territorial limits of the constituent States and there was no guarantee about their territorial integrity.[4]

Article. 1(3) mentions that the “territory of India” comprises of:

(a) State territories,

(b) Union territories, and

(c) Such other territories as may be acquired by the Government of India at any time.

There are at present 28 states and 7 union territories in the union of India. No parliamentary legislation is required to acquire a foreign territory. It is the inherent attribute of a sovereign State to acquire new territories. Article 1(3)( c), therefore, in including the acquired territory as a part of the Indian territory, merely states a factual situation and does not confer a power on the Parliament to acquire a foreign territory.[5]

In N. Masthan Sahib v. Chief Commr., Pondicherry[6] , the apex court held that the expression ‘acquired’ [article. 1 (3)(c)] should be taken to be a reference to ‘acquisition’ as understood in public international law. If there was any public notification, assertion or declaration by which the government of India had declared or treated a territory as part and parcel of India, the courts would be bound to recognize an ‘acquisition’ as having taken place, with the consequence that the territory would be part of the territory of the union within art. 1 (3) (c). A statement by the government of India that it did not consider a particular area to have been acquired by it is binding on the court. It does not matter how the Acquisition has been brought about. It may be by conquest, it may be by cession following treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler,[7] or it may be under the terms of an agreement between two states[8] or it may be by accretion. After independence the cases of Sikkim, Goa, Daman and Diu, Dadra and Nagar Haveli and Pondicherry may be given as examples of acquisition.

Article. 2: Admission or establishment of new states

Article. 2 provides: “Parliament may by law admit into the Union, or establish, new states, on such terms and conditions as it thinks fit.”

Article 2 enables Parliament by Law to admit into the Union or establish new States on such terms as it thinks fit. It will be noted that there are two powers given to the Parliament by Article 2 namely:

  1. The power to admit into Union new States and
  2. The power to establish new States.

The first refers to the admission of duly organised political communities and second to the formation of a State where none existed before. It will be recalled that the territory acquired by the Union becomes Indian Territory by virtue of clauses 3(c) of Article 1. No Parliamentary sanction is required for acquisition of territory acquired by the Government of India, though factually becomes territory of India from the date of its acquisition, the formal or legal assimilation is brought about only by Parliamentary Legislation made either under this article when the acquired territory is established as a new State of the Union, or when the acquired territory is merged into an existing State under Article 3 of the Constitution.”[9]

The expression “admit” refers to the admission of a state already in existence as a ‘state’ i.e. duly organized political community. The term “establish” refers to the creation of a state where none existed before.

A new state may be admitted into the union in any of the following ways –

(1) An inferior category such as a union territory, may be raised to the status of full state,

(2) A foreign territory acquired by India may be made a state and admitted into the union,

(3) A territory separated from an existing state reorganized into a full state. However, article. 2 deals with admission, etc. of new states, which may be formed of the foreign territories… article. 2 does not refer to the territories forming part of the existing states (article. 3 provides for that).

Article. 2 confers full discretion on the parliament as to what terms should be imposed on the new states so admitted into the union. The expression “by law” indicates that a legislative action on the part of the parliament is required for the admission of a new state. Therefore, the acquisition of a foreign territory by India automatically makes the said territory a part of the Indian Territory under article. l(3)(c), but they said territory can be admitted as a ‘state,’ into the union, by the process of law, enacted by parliament under article. 2.

Article. 3(a): formation of new states

Article. 3(a) empowers the parliament to form new states, by law. It may do so by any of the following modes –

(1) By separation of territory from any state,

(2) By uniting two or more states,

(3) By uniting parts of states

(4) By uniting any territory to a part of any state.

The scope of this Article should be differentiated from that of the preceding article. Article 2 relates to admission or establishment of new states which are not part of the union, while art. 3 provides for the formation of or changes in the existing states including union territories.

It is important to note that “foreign territories” which become part of India on acquisition may:

(1) Either be admitted into the union;

(2) Constituted into new states under article. 2; or

(3) Merged into an existing state under art. 3(a) or 3(b); or

(4) Formed into a union territory.

The constitution of India does not guarantee the territorial integrity of any state of the union[10]. Parliament may even cut away the entire area of the state to form a new state. When a new state is formed by uniting two or more states, the states cannot unite in some matters and not to unite in respect of other matters.

It may also be noted that there is nothing in the constitution which would entitle a new state, after its formation or admission into the union, to claim complete equality of status with a state existing at the commencement of the constitution, or formed thereafter under article. 3.

Article. 3(b) to (e): alteration of areas, boundaries or names of states

The parliament may, by law, (b) increase the area of any state[11], (c) diminish the area of any state, (d) alter the boundaries of any state, and (e) alter the name of any state. The parliamentary legislation is subject to the condition laid down in proviso to art. 3.

proviso to article 3 – “no bill for this purpose shall be introduced in either house of parliament except on the recommendation of the president, and such a bill has to be referred by the president to the legislature of that state for expressing its views thereon”.

The state legislature is required to express its view within a specified time period as directed by the president. He may extend the time so specified. The parliament, however, is not bound to accept these views. Once the bill has been referred to the concerned state legislatures, and thereafter duly introduced in parliament, subsequent amendments seeking to make provisions different from those contained in the original bill at the time of its introduction, are not required to be referred again to the state legislatures (if the amendments are germane to the subject matter of the original proposal or are not a direct negation thereof). Also, no fresh recommendation of the president is necessary for the consideration of the proposed amendment to the bill [12]

THE CONSTITUTION (EIGHTEENTH AMENDMENT) ACT, 1966- This Act adds two explanations to Article 3, incorporating the decision of the Supreme Court in the Ram Kishore Sen v. Union of India[13]. This case had clarified that the term ‘State’ in Article 3 includes a ‘Union Territory’.[14]

Explanation 1 to article. 3 – The term “state” in clauses (a) to (e) of article. 3 include a “union territory”. But the term “state” used in proviso to article. 3 does not include a union territory (the reason being that the union territories are under the administration of the president himself).

Explanation 2 to article. 3 – The power conferred on parliament by clause (a) of article. 3, to form a new state, include the power to form a new union territory also.

Article. 4: Supplemental matters

Article. 4(1) directs the parliament, in case it makes a law under article. 2 or 3, to include therein necessary provisions (supplement, incidental and consequential) for the amendment of first and fourth schedules of the constitution[15]. The first schedule specifies the number of states which are members of the union and their respective territories. The fourth schedule specifies the number of seats to which each state is entitled to in the council of states.

Article. 4(2) said that laws relatable to article. 2 or 3 do not amount to constitutional amendments for the purposes of article. 368. Thus, such laws may be passed by the parliament by simple majority procedure (subject to the requirements laid down by proviso to article. 3) and without going through the special majority procedure prescribed by article 368.

Cession of territory to a foreign state

The powers given to parliament to reorganize states cannot be availed of by it to cede any Indian territory to a foreign country.

 

By – Monika Sharma

[1] See the Drafting Committee’s footnote on p.2 of the Draft to the following effect: “the Drafting Committee considers that following the language of the British North American Act, 1867, it would not be inappropriate to describe India a Union although its Constitution may be federal in Structure”. CAD, VII, pp.6, 399, 400.

[2] CAD, Vol. 7, p.48

[3] Babulal Parate v. State of Bombay, AIR 1960 SC 51, 55

[4] Berubari Union and Exchange of Enclaves, Re, AIR 1960 SC 845, 857

[5] Berubari Union and Exchange of Enclaves, Re, AIR 1960 SC 845, 857

[6]  AIR 1962 SC 797

[7] Thakur Amar Singhji v. State of Rajasthan, AIR 1955 SC 504, 523

[8] N. Masthan Sahib v. Chief Commr., AIR 1962 SC 797, 803

[9] V.N. Shukla, Constitution of India, 10th Ed., p. 6

[10] Berubari Union and Exchange of Enclaves, Re, AIR 1960 SC 845, 857

[11] Chandernagore Merger Act, 1954

[12] BabuLal Parate v. State of Bombay, AIR 1960 SC 51, 55

[13] AIR 1966 SC 644

[14] See also S.3(58)(b) 0f the General Clauses Act, 1897

[15] Mangal Singh v. Union of India , AIR 1967 SC 944; also, V.B. Raju v. State of Gujarat,(1981) 1 SCC 4

  • Mohammed Faradish says:

    need to change a statement.. beacause right now there are 29 states and 7 union territories in India.