Union and its Territories

Introduction

The Constitution of India is the supreme law of the law and no one is above the Constitution. As said, “Indian Constitution is not mere lawyer’s document, but it’s a vehicle of life and the Bhagavat Gita of law and justice in India”. It is a legal document that defines India and its territories, fundamental rights and duties of its citizens, power, and duties of Legislative, Executive, and Judiciary and provides answers for every question of law when the question of justice arises. Overall it explains various players who are in the authority in the country, defines there power, and puts limits on those power. It is the world’s largest constitution with a total 448 article, 25 parts, and 12 schedules at present; originally containing 395 articles, 22 parts, and 8 schedules. The Constitution of India was enacted on 26th November 1949 and came into force on 26th January 1950.

Part I of our Constitution is titled as “The Union and its Territories”, covered under Article 1 to 4 of the Indian Constitution. Part I is a compilation of all the laws that pertain to the constitution of India as a country and Union of states that comprise India as a country. This is the first part of the constitution containing the laws regarding establishment, renaming, merger, or alteration of the state borders. Thus, articles under Part I were invoked while changing the name of West Bengal from Kalinga and now bill passed in 2016 to change it to Bengal or Bangla; formation of new states such as Jharkhand, Telangana, and Chattisgarh.

Through the 10th Amendment od the Constitution in 1962, the Portuguese enclaves of Dadra and Nagar Haveli were constituted into a Union Territories. Similarly, by the 12th Amendment Act, 1962 Goa, Daman, and Diu were added as a Union Territory and by the 14th Constitutional Amendment Act, Pondicherry, Karaikal, Mahe, and Yanam were added as a Union Territory.

Union and its territories

Explained under Article 1 to 4 of the Indian Constitution; mentioned in Part I.

Article 1:Name and the Territory of the Union

Article 1(1) states that India, that is Bharat, shall be considered be as a “Union of States.

Article 1(2) states that what is State and territories, that will be specified in the first schedule of the Constitution.

Article 1(3) states that Indian Territory comprises of:

  1. State territories;
  2.  Union territories as per the First Schedule of the Constitution; and
  3. Any other territories acquired.

It is evident from the article that India i.e. Bharat is defined as “ Union of States” and the very reason for that was made clear by Dr. Bhimrao Ambedkar in the Constituent Assembly where he made it quite clear that the Indian Federation was a “ Union of States” because without any single trace of doubt it is inseparable and indissoluble and no State has right to separate itself from Indian Union. It is pertinent to note that although a country comprises different states for the convenience of administration but is it one integral unit; although the country and its people are divided all are living under a single imperium coming from a single source.

It was made clear by the “ Drafting Committee” that though the Indian was going to be a “ federation” it had to be kept in mind that the federation was not the product of any agreement between the states where they were being asked to join the federation, each state chose independently to join the Union as India and since the federation was not any sort of consequential result of the agreement, it confers no power or right on any State to withdraw from the federation.

Now, the confusion arose between “Union of India” and “ Territory of India” both need to be differentiated; the former includes only the States enjoying the Status of being members of the federal system and sharing the power with the Union, whereas latter includes not only the States but also the Union Territories and other such territories that may be acquired by India in future. Both States and its territories have been specifying in the First Schedule.

Article 2: deals with the Admission or Establishment of new

It states that Parliament may by law admit into the Union or establish any new States based on the terms and Conditions i.e. it confers power on the Parliament to admit or establish any new state which was not part of India.

For example, Pondicherry along with Karaikal, Mahe, and Yanam was ceded to India by the French government in 1954.

Article 2A: stated that Sikkim to be associated with the Union[1].

Article 3: deals with the formation of new States; Alteration of the areas, boundaries, or names of the already existing State.

It states that Parliament may by law:

  1. Form a new State either by –
  2. Separating territory from any State; or
  3. Uniting two or more States or parts of States; or
  4. Uniting any territory with any part of any State.
  5. Increase the area of any State.
  6. Diminish or decrease the area of any State
  7. Alter the boundaries of any State
  8. Alter the name of any State.

For Article 3, a prescribed procedure ought to be followed by the Parliament seeking the opinion of the State Legislature ( which is a mere formality) and the recommendation of the President of India. This article demonstrates the vulnerability and dependence of the territorial integrity of the States on the Union; when compared to federations of USA or Australia where the state borders or names cannot be changed by the Federations without the consent of the States.

In the case Re: Berubari Union, 1960 it was held by the Supreme Court of India that the power conferred on the Parliament of India to diminish the area of any Stae by the virtue of Article 3 of the Constitution does not cover the cession of Indian territory to a foreign country.

It is to be marked that Indian territory can be ceded to a foreign state only by amending Article 368[2] of the Constitution. As a result, 9th Amendment Act was bought into the Indian Constitution and In 1960 the Supreme Court came up with the judgment that for the Settlement of boundary dispute between India and any other country, no constitutional amendment is required and it can be done by executive action because such cession does not involve cession of Indian territory to a foreign country.

Article 4: provides that laws made under Article 2 and 3 shall contain such provisions as required to amend the 1st and 6th Schedule[3] of the Constitution to give effect to the provisions of the law. Further, it may also contain “specific, incidental and consequential”  provisions that are deemed necessary by the Parliament.

Provided that no such law which is mentioned above shall be deemed to be in the Constitutional Amendment for Article 368.

In the case of Mullaperiyar Environment Protection Forum v. Union of India[4], the Supreme Court held that the legislative powers mentioned under Article 3 and Article 4 of the Constitution are supreme and they are not subject to or bound by Article 246[5] and List II and List III  of the 7th Schedule and the constitutional validity of the legislation referred to Article 3 and 4 cannot be questioned on the grounds of lack of legislative competency with relation to list in the 7th Schedule of the Constitution[6].

Conclusion

Indian constitutional structure provides for federalism i.e. dual structure of the government yet India is defined as “ Union” which portrays that despite the cultural, linguistic, and regional diversity all the citizens of India are woven by the single golden thread of unity. The federal structure was accepted so for the effective administration and smooth functioning of all the States which comprises the Bharat but above all the Constitution is the supreme law of the land and no is above it. The Parliament is empowered by the Constitution to make laws for the “ welfare state” but while doing so it has been made sure that any law made by the Parliament doesn’t affect the basic structure of the Constitution nor any legislation presented or enacted derogate from the Constitution.

The name or boundaries of any State can be altered or changed seeking the opinion of the concerned state but the Parliament is not bound by such opinion and once the bill received the assent of the President it shall pass on both houses of the Parliament.

Frequently Asked Questions (FAQs)

  • What is the procedure to be followed by the Parliament while the formation or alteration of the State name or boundaries?

Answer: To carry any of the changes as mentioned under Article 3, Parliament has to follow the following procedures:

Step 1: To give effect to any or all the changes as stated above, the Bill for the same can be introduced by either House of the Parliament only on the recommendation of the President of India.

Step 2: The bill affecting the boundary or name of the State will be referred to the concerned State Legislature by the President before introducing it in the Parliament.

Step-3:In the case of failure to give their opinion on the bill by the State Legislature in the prescribed time, then it is deemed that the State Legislature has expressed its views.

However, it is pertinent to note that the Parliament is not bound to accept or act upon the views of the State Legislature, although the SL submitted it views within the prescribed time and in the case of Union Territories, it is not necessary to seek the views of Legislatures of Union Territories before such Bill.

  • Why the words “ Union of the States” preferred over the “ Federation of the States”?

Answer: The word Union was preferred over the Federal by the Constituent Assembly because as per Dr. Bhimrao Ambedkar and the Drafting Committee of the Constitution, it has enormous advantages such as it indicates that the Federation in India is not the result of the agreement between the States, hence the State has no right to secede or withdraw it from the Union.

India is a nation of diversity and great size; hence India’s size and diversity demanded a system a government that could accommodate the regional autonomy along with fulfilling the purpose of safeguarding and promoting unity; under such need, a federal system of government which is the combination of “self-rule” and “ shared rule “ was chosen by the framers of our constitution but the word Union was chosen over Federation because India is made of many states and along with the division of the states and its peoples all are by woven by the common thread of unity because the Indian Federation was formed as a “ Holding together federation”.

  • Why the Union Territory is not included with the term “ State” in Article 3 and why no opinion of the concerned State is sought while altering or changing the name or boundaries of Union Territories?

Answer: In the case of Ram Kishore Sen v. Union of India[7], by the 18th Constitutional Amendment Act, 1966 two explanations were added in Article 3 that clarifies the term “State” which includes the term “ Union Territories”  and it also provided that the term State does not include “ Union Territories” in it since there is no necessity concerning to the provisions of Article 3. Hence, in the case of alteration or change of the State borders and its name, it is necessary to seek the opinion of the concerned State but it is not required in the case of Union Territory.

The reasoning behind is that Union Territory is itself governed by the Parliament so the inclusion of the Union Territory in the term “ State”  would have been redundant and end in vain.

References

[1]Rep. by the Constitution (Thirty-sixth Amendment) Act, 1975, s. 5 (w.e.f. 26-4-1975).

[2] Article 368 of the Constitution deals with the power of the Parliament to amend the Constitution and provides the procedure for the same.

https://indiankanoon.org/doc/594125/

[3]First Schedule deals with the names of the States in the Union of India and Fourth Schedule deals with the number of seats allocated by each State to the Rajya Sabha.

[4]3 SCC 643: AIR 2006 SC 1428

[5]Article 246 of the Constitution deals with the Subject matter of laws made by Parliament and the State Legislature.

https://indiankanoon.org/doc/77052/#:~:text=Article%20246%20in%20The%20Constitution%20Of%20India%201949,by%20Parliament%20and%20by%20the%20Legislatures%20of%20States

[6]It deals with the division of the power between the Union government and the State government; where list II deals with the State list (a subject matter on which the only state can make the laws) and list III deal with the Concurrent list (a subject matter on which both the State and Union can make the laws)

[7]AIR 1966 SC 644, 648: (1966) 1 SCR 430

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