Indian Polity PDF - 6th Edition

UNION OF STATES Article 1 describes India, that is, Bharat as a ‘Union of States’ rather than a ‘Federation of States’. This provision deals with two things: one, name of the country; and two, type of polity. There was no unanimity in the Constituent Assembly with regard to the name of the countr...

UNION OF STATES Article 1 describes India, that is, Bharat as a ‘Union of States’ rather than a ‘Federation of States’. This provision deals with two things: one, name of the country; and two, type of polity. There was no unanimity in the Constituent Assembly with regard to the name of the country. Some members suggested the traditional name (Bharat), while other advocated the modern name (India). Hence, the Constituent Assembly had to adopt a mix of both (‘India, that is, Bharat’) Secondly, the country is described as ‘Union’ although its Constitution is federal in structure. According to Dr. B.R. Ambedkar, the phrase ‘Union of States’ has been preferred to ‘Federation of States’ for two reasons: one, the Indian Federation is not the result of an agreement among the states like the American Federation; and two, the states have no right to secede from the federation. The federation is an Union because it is indestructible. The country is an integral whole and divided into different states only for the convenience of administration1. According to Article 1, the territory of India can be classified into three categories: 1. Territories of the states 2. Union territories 3. Territories that may be acquired by the Government of India at any time. The names of states and union territories and their territorial extent are mentioned in the first schedule of the Constitution. At present, there are 28 states and 9 union territories. The provisions of the Constitution pertaining to the states are applicable to all the states in the same manner2. However, the special provisions (under Part XXI) applicable to the States of Maharashtra, Gujarat, Nagaland, Assam, Manipur, Andhra Pradesh, Telangana, Sikkim, Mizoram, Arunanchal Pradesh, Goa and Karnataka override the general provisions relating to the states as a class. Further, the Fifth and Sixth Schedules contain separate provisions with respect to the administration of scheduled areas and tribal areas within the states.  Notably, the ‘Territory of India’ is a wider expression than the ‘Union of India’ because the latter includes only states while the former includes not only the states, but also union territories and territories that may be acquired by the Government of India at any future time. The states are the members of the federal system and share a distribution of powers with the Centre. The union territories and the acquired territories, on the other hand, are directly administered by the Central government. Being a sovereign state, India can acquire foreign territories according to the modes recognised by international law, i.e., cession (following treaty, purchase, gift, lease or plebiscite), occupation (hitherto unoccupied by a recognised ruler), conquest or subjugation. For example, India acquired several foreign territories such as Dadra and Nagar Haveli; Goa, Daman and Diu; Puducherry; and Sikkim since the commencement of the Constitution. The acquisition of these territories are discussed later in this chapter. Article 2 empowers the Parliament to ‘admit into the Union of India, or establish, new states on such terms and conditions as it thinks fit’. Thus, Article 2 grants two powers to the Parliament: (a) the power to admit into the Union of India new states; and (b) the power to establish new states. The first refers to the admission of states which are already in existence, while the second refers to the establishment of states which were not in existence before. Notably, Article 2 relates to the admission or establishment of new states that are not part of the Union of India. Article 3, on the other hand, relates to the formation of or changes in the existing states of the Union of India. In other words, Article 3 deals with the internal re-adjustment inter se of the territories of the constituent states of the Union of India.  PARLIAMENT’S POWER TO REORGANISE THE STATES Article 3 authorises the Parliament to: (a) form a new state by separation of territory from any state or by uniting two or more states or parts of states or by uniting any territory to a part of any state; (b) increase the area of any state; (c) diminish the area of any state; (d) alter the boundaries of any state; and (e) alter the name of any state. However, Article 3 lays down two conditions in this regard: one, a bill contemplating the above changes can be introduced in the Parliament only with the prior recommendation of the President; and two, before recommending the bill, the President has to refer the same to the state legislature concerned for expressing its views within a specified period. Further, the power of Parliament to form new states 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 territory3. The President (or Parliament) is not bound by the views of the state legislature and may either accept or reject them, even if the views are received in time. Further, it is not necessary to make a fresh reference to the state legislature every time an amendment to the bill is moved and accepted in Parliament4. In case of a union territory, no reference need be made to the concerned legislature to ascertain its views and the Parliament can itself take any action as it deems fit. It is, thus, clear that the Constitution authorises the Parliament to form new states or alter the areas, boundaries or names of the existing states without their consent. In other words, the Parliament can redraw the political map of India according to its will. Hence, the territorial integrity or continued existence of any state is not guaranteed by the Constitution. Therefore, India is rightly described as ‘an indestructible union of destructible states’. The Union Government can destroy the states whereas the state governments cannot destroy the Union. In USA, on the other hand, the territorial integrity or continued existence of a state is guaranteed by the Constitution. The American Federal Government cannot form new states or alter the borders of existing states without the consent of the states concerned. That is why the USA is described as ‘an indestructible union of indestructible states.’ Moreover, the Constitution (Article 4) itself declares that laws made for admission or establishment of new states (under Article 2) and formation of new states and alteration of areas, boundaries or names of existing states (under Articles 3) are not to be considered as amendments of the Constitution under Article 368. This means that such laws can be passed by a simple majority and by the ordinary legislative process. Does the power of Parliament to diminish the areas of a state (under Article 3) include also the power to cede Indian territory to a foreign country? This question came up for examination before the Supreme Court in a reference made by the President in 1960. The decision of the Central Government to cede part of a territory known as Berubari Union (West Bengal) to Pakistan led to political agitation and controversy and thereby necessitated the Presidential reference. The Supreme Court held that the power of Parliament to diminish the area of a state (under Article 3) does not cover cession of Indian territory to a foreign country. Hence, 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. On the other hand, the Supreme Court in 1969 ruled that, 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.  EXCHANGE OF TERRITORIES WITH BANGLADESH The 100th Constitutional Amendment Act (2015) was enacted to give effect to the acquiring of certain territories by India and transfer of certain other territories to Bangladesh in pursuance of the agreement and its protocol entered into between the Governments of India and Bangladesh. Under this deal, India transferred 111 enclaves to Bangladesh, while Bangladesh transferred 51 enclaves to India. In addition, the deal also involved the transfer of adverse possessions and the demarcation of a 6.1 km undemarcated border stretch. For these three purposes, the amendment modified the provisions relating to the territories of four states (Assam, West Bengal, Meghalaya and Tripura) in the First Schedule of the Constitution. The background of this amendment is as follows: 1. India and Bangladesh have a common land boundary of approximately 4096.7 kms. The India-East Pakistan land boundary was determined as per the Radcliffe Award of 1947. Disputes arose out of some provisions in the Radcliffe Award, which were sought to be resolved through the Bagge Award of 1950. Another effort was made to settle these disputes by the Nehru-Noon Agreement of 1958. However, the issue relating to division of Berubari Union was challenged before the Supreme Court. To comply with the opinion rendered by the Supreme Court, the Constitution (9th Amendment) Act, 1960 was passed by the Parliament. Due to the continuous litigation and other political developments at that time, the Constitution (9th Amendment) Act, 1960 could not be notified in respect of territories in former East Pakistan (presently Bangladesh).4a 2. On May 16, 1974, the Agreement between India and Bangladesh concerning the demarcation of the land boundary and related matters was signed between both the countries to find a solution to the complex nature of the border demarcation involved. This Agreement was not ratified as it involved, inter alia, transfer of territory which requires a Constitutional Amendment. In this connection, it was also required to identify the precise area on the ground which would be transferred. Subsequently, the issues relating to demarcation of un- demarcated boundary; the territories in adverse possession; and exchange of enclaves were identified and resolved by signing a Protocol on September 6, 2011, which forms an integral part of the Land Boundary Agreement between India and Bangladesh, 1974. The Protocol was prepared with support and concurrence of the concerned state governments of Assam, Meghalaya, Tripura and West Bengal.4b  EVOLUTION OF STATES AND UNION TERRITORIES Integration of Princely States At the time of independence, India comprised two categories of political units, namely, the British provinces (under the direct rule of British government) and the princely states (under the rule of native princes but subject to the paramountcy of the British Crown). The Indian Independence Act (1947) created two independent and separate dominions of India and Pakistan and gave three options to the princely states viz., joining India, joining Pakistan or remaining independent. Of the 552 princely states situated within the geographical boundaries of India, 549 joined India and the remaining 3 (Hyderabad, Junagarh and Kashmir) refused to join India. However, in course of time, they were also integrated with India– Hyderabad by means of police action, Junagarh by means of referendum and Kashmir by the Instrument of Accession. In 1950, the Constitution contained a four-fold classification of the states and territories of the Indian Union–Part A, Part B and Part C states and Part D territories5. In all, they numbered 29. Part A states comprised nine erstwhile governor’s provinces of British India. Part B states consisted of nine erstwhile princely states with legislatures. Part C states consisted of erstwhile chief commissioner’s provinces of British India and some of the erstwhile princely states. These Part C states (in all 10 in number) were centrally administered. The Andaman and Nicobar Islands were kept as the solitary Part D territories. Dhar Commission and JVP Committee The integration of princely states with the rest of India has purely an ad hoc arrangement. There has been a demand from different regions, particularly South India, for reorganisation of states on linguistic basis. Accordingly, in June 1948, the Government of India appointed the Linguistic Provinces Commission under the chairmanship of S.K. Dhar to examine the feasibility of this. The commission submitted its report in December, 1948, and recommended the reorganisation of states on the basis of administrative convenience rather than linguistic factor. This created much resentment and led to the appointment of another Linguistic Provinces Committee by the Congress in December, 1948, itself to examine the whole question afresh. It consisted of Jawaharlal Nehru, Vallahbhai Patel and Pattabhi Sitaramayya and hence, was popularly known as JVP Committee6. It submitted its report in April, 1949, and formally rejected language as the basis for reorganisation of states. Table 5.1 Territory of India in 1950 States in States in Part B States in Part Territories in Part D Part A C 1. Assam 1. Hyderabad 1. Ajmer 1. Andaman and Nicobar Islands 2. Bihar 2. Jammu and 2. Bhopal Kashmir 3. Bombay 3. Madhya Bharat 3. Bilaspur 4. Madhya 4. Mysore 4. Cooch- Pradesh Behar 5. Madras 5. Patiala and East 5. Coorg Punjab 6. Orissa 6. Rajasthan 6. Delhi 7. Punjab 7. Saurashtra 7. Himachal Pradesh 8. United 8. Travancore- 8. Kutch Provinces Cochin