CHAPTER 4 – THE UNION AND THE TERRITORY OF INDIA (FREE)

 

THE UNION AND THE TERRITORY OF INDIA

(ARTICLES 1 – 4)

 

 

PART I OF THE CONSTITUTION OF INDIA

 

 

ARTICLE 1

 

India, that is Bharat, shall be a Union of states. The territory of India shall consist of:

  1. The Territories of the states.
  2. The Union territories.
  3. Any Territory that may be acquired. 

The names of the states and the Union Territories have been described in the First Schedule. 

 

DESCRIPTION

The country is described as ‘Union’ although its Constitution is federal in nature i.e. it has a Centre and it has states. We have preferred the term ‘Union of the states’ over ‘Federation of the states’. This has been done because unlike American Federation, Indian Union is not a result of an agreement among the states. As a result, the Union of India is indestructible unlike American Federation which can dissolve as and when the states decide to do so. No Indian state has the right to secede from the Union. While the states share power with the Centre, the Union Territories are administered directly by the Centre. Being a sovereign state, India can acquire foreign territories according to the provisions of the international law i.e. through cession (following a treaty with territories wanting to be a part of India, through plebiscite, through gift or purchase), or through conquest of such territories or through surrender by such territories.

Union of India = All the Indian states.

Territory of India = All the Indian states + All the Union Territories of India + Any Territories that may be acquired.

Although the names of the states and Union Territories have been mentioned in the First Schedule of the Constitution, the Fifth and Sixth Schedules contain separate provisions with respect to the administration of Scheduled Areas and Tribal Areas within the states.

At present, there are 28 States and 9 Union Territories (UTs). J&K, and Ladakh are the two new UTs after dissolution of the state of Jammu and Kashmir in August 2019.

 

 

ARTICLE 2

 

The parliament may, by law, admit new states into the Union of India or establish new states on terms and conditions it deems fit.

 

DESCRIPTION

Article 2 allows the Parliament to admit into the Union of India,

  1. the states that already exist but which are not part of the Union of India.
  2. the states that don’t exist and needs to be created out of areas not under the Union of India. It implies that Parliament can convert any UT or any acquired Territory, into a state of the Union of India.

However, whether the Parliament can convert a state of the Union of India into a UT is not mentioned in this Article (since this Article talks only about the addition of new states into the Union of India).

 

 

ARTICLE 3

 

The Parliament, may by law,

  1. form a new state by,
    1. separating a territory from a state.
    2. uniting two or more states or parts of states.
    3. uniting a territory or a part of territory to any state/states.
  2. increase the area of any state.
  3. diminish the area of any state.
  4. alter the boundaries of any state.
  5. alter the name of any state.

A bill contemplating the above changes can be introduced in any house of the Parliament, only with the prior recommendation of the President. Before making such a recommendation, the President shall be obliged to refer such a bill to the concerned state Legislatures to help them express their views within a specified period. However, the President shall not be bound by the views expressed by the concerned states, and may either accept or reject them. Further the President shall not be obliged to refer the bill to the concerned state Legislatures everytime amendments are made to such a bill. In case of UTs, the President doesn’t need to refer the bill to the concerned legislatures. 

 

DESCRIPTION

It is clear that the Parliament has the exclusive power to redraw the political map of India. In other words, India can be described as the ‘Indestructible Union of the Destructible states‘. An amendment under Article 368 would be required to cede its territorial area to/from a foreign state.

 

CONTROVERSY RELATED TO POWER TO DIMINISH THE AREA OF THE STATE

This question came up in 1960, when the Central Government decided to cede a part of the territory known as Berubari Union (in West Bengal) to Pakistan. The Supreme Court held that the power of the Parliament to diminish the area of a state under Article 3 does not infer cession of Indian Territory to a foreign country. Hence, Indian Territory can be ceded to or from a foreign state only by amending the Constitution under Article 368. Consequently, the 9th Constitutional Amendment Act was passed in 1960 to transfer the said territory to Pakistan.

 

RECENT CASE OF REORGANISATION OF JAMMU AND KASHMIR

The reorganisation of the erstwhile state of Jammu and Kashmir into two Union territories has drawn the country’s attention to Article 3 of the Constitution. Many critics consider this act of the government of India as violation of the Constitution. This is because:

  1. Article 1 of the Constitution of India defines India as a Union of states, and not Union of Territories. Therefore, if Parliament could convert one state to UT under Article 3, it can hypothetically convert all the states to Union Territories, in which case, India would not stay as Union of states anymore, which shall be violation of Article 1 itself. That is the reason why Article 3 does not speak about the conversion of states into Union Territories. 
  2. Article 3 is silent on whether any state of the Union can be converted into a Union territory.
  3. Article 3 doesn’t specify to whom the President shall refer such a bill for consideration in the state, during a time when President’s rule is imposed on the state.
    1. Article 356 provides that during President’s rule on a state, the powers of the state Legislature shall be exercisable by or under the authority of Parliament.
    2. However, expressing an opinion is and cannot be a part of the ‘powers’ of the legislature, since this would constitute ‘privilege’ of the legislature, which must not be exercised by the Parliament under any situation.

 

 

ARTICLE 4

 

Any law made by the Parliament under Article 2 or Article 3, shall contain such provisions for the amendment of First Schedule (Names and Jurisdictions of the States and UTs) and Fourth Schedule (Allocation of Seats in Rajya Sabha to the states and the UTs) , as may be necessary to give effect to the provisions of the law, and any such law shall not be considered as amendment to the Constitution under Article 368.

 

DESCRIPTION

It means that any changes made to the First and the Fourth Schedules of the Constitution of India, to give effect to the alteration of political map of India as per the provisions of Article 2 or Article 3, shall not be considered as Amendment to the Constitution of India under Article 368, and therefore, would require only a simple majority of the Parliament to approve such changes.

 

 

EVOLUTION OF STATES AND UNION TERRITORIES OF INDIA

 

Amidst demand for reorganisation of states on linguistic basis, the LINGUISTIC PROVINCES COMMISSION (also known as DHAR COMMISSION) set up by the Government of India in 1948, recommended the reorganisation of the states on the basis of administrative convenience rather than linguistic factor. Its recommendations were widely opposed and led to the appointment of another Linguistic Provinces Committee under Jawaharlal Nehru, Vallabhbhai Patel and Pattabhi Sitaramayya (also known as JVP COMMITTEE). In 1949, this committee also rejected the idea of formation of states on linguistic basis. However, in 1953, the government was forced to create the first linguistic state of India, known as Andhra Pradesh, by separating Telugu speaking region from the Madras state. 

 

FAZL ALI COMMISSION

The creation of Andhra state gave impetus (boost) to similar other agitations for creation of more states on linguistic basis. Thus in 1953, the Government of India was forced to appoint a three member STATES REORGANISATION COMMISSION under the chairmanship of Fazl Ali.  The two other members of the Commission were KM Panikkar and HN Kunzru. It submitted its report in 1955 in which it accepted language as the basis of reorganisation of the states. However, it rejected the demand for one language one state. Instead, it came up with four principles to be taken into account in any scheme of reorganisation of the states.

  1. Preservation and strengthening of national unity and security.
  2. Linguistic and cultural homogeneity.
  3. Financial, Economic and Administrative considerations.
  4. Planning and promotion of welfare of the people in each state as well as the nation as a whole.

 

STATES REORGANISATION ACT (1956)

Based upon the recommendations of Fazl Ali Commission, States Reorganisation Act was passed by 7th Constitutional Amendment Act 1956.

It did away with distinction between Part-A and Part-B states, while abolishing Part-C states, which was the classification under original Constitution. As a result, 14 states and 6 UTs were created after reorganisation of the states in 1956.

 

CREATION OF STATES AFTER 1956

In 1960, the bilingual State of Bombay was divided into two separate states – Maharashtra for Marathi speaking people and Gujarat for Gujarati speaking people. 

In 1961, Dadra & Nagar Haveli was added to India as a Union Territory through Constitutional 10th Amendment Act. It was liberated from the Portuguese rule in 1954, and was being self ruled by people till it joined India as its Union Territory. 

In 1962, Goa, Daman and Diu were added to India as Union Territories through Constitutional 12th Amendment Act. India acquired these from the Portuguese through the police action in 1961. 

In 1962, Puducherry was also added to India as Union Territory through Constitutional 14th Amendment Act.  The French had handed over the territory to India way back in 1954 itself. However, it was administered by India as an ‘Acquired Territory’ till 1962.

In 1963, Nagaland state was carved out of the state of Assam.

In 1966, Haryana state and Chandigarh UT were carved out of the state of Punjab. 

In 1971, the Union Territory of Himachal Pradesh was conferred the statehood.

In 1972, the  political map of North-East India underwent a major change as Union Territories of Manipur and Tripura along with sub-state of Meghalaya were conferred statehood. Also two Union Territories of Mizoram and Arunachal Pradesh were formed out of the state of Assam.

In 1974, Sikkim, which was so far an Indian Protectorate (i.e. dependent on India only for Defence, External Affairs and Communication) ruled by a domestic monarch, expressed its desire for greater association with the Indian Union. As such, through 35th Constitutional Amendment Act, 1974, Sikkim joined India as an Associate State. However, in a referendum held in 1975, people of Sikkim voted in favour of fully joining the Union of India and hence Sikkim was added as a state in the Union of India through 36th Constitutional Amendment Act, 1975.

In 1987, the Union Territories of Mizoram, Arunachal Pradesh and Goa were conferred statehood.

In 2000, three more states were carved out –  Chhattisgarh from Madhya Pradesh, Jharkhand from Bihar, and Uttarakhand from Uttar Pradesh.

In 2014, Telangana state was carved out of Andhra Pradesh.

Please note that adding new territories to Indian Territory has always been followed by Constitutional Amendments, while it is not necessarily so in case of the states.