Part One of the Constitution of India

From Wikipedia, the free encyclopedia
Jump to: navigation, search

Part I - The Union and Its territories is a compilation of laws pertaining to the constitution of India as a country and the union of states that it is made of. Dr. B.R. Ambedkar clarified in the constituent assembly debate that Indian states are sovereign States.[1][2]

This part of the constitution contains the law in the establishment, renaming, merging or altering the borders of the states or union territories. This part contains four articles. These articles were invoked when West Bengal was renamed, and for formation of relatively new states such as Jharkhand, Chhattisgarh.[3]

Articles 1 & 2[edit]

Part I of the constitution says that India shall be a union of states composed of states and union territories (as listed in Schedule 1) and any acquired territories as admitted in article 2. Sikkim was admitted as a state in Indian union on 26 April 1975. There is no other area forming part of India excluding its states and union territories. The representation of seats in council of states (Rajya Sabha) shall be given in Schedule 4 of the constitution.The territorial waters and the exclusive economic zones shall also become part of the states or union territories in the absence of any listing of them separately in Schedule 1 and 4 of the constitution. There is no separate representation in parliament though people inhabit on these offshore areas for exploiting resources such as fisheries, oil and gas, etc.

The constitution (40th amendment) act, 1976, was passed during the emergency period and received Presidential assent on 27 May 1976. It substituted a new Article 297 so as to vest in Union of India all lands, minerals, and other things of value underlying the ocean within the territorial waters or continental shelf or exclusive economic zone of India.[4]

The territorial waters, continental shelf, exclusive economic zone and other maritime zones act, 1976 was enacted by the Indian government to notify the sovereign rights on these areas for dealings with other countries.[5]

However, it is not clear whether states are debarred from imposing taxes or royalty on the minerals extracted from the territorial waters and the exclusive economic zone (which are still under states jurisdiction) as per serial no. 50 of state list in seventh schedule of the constitution.[6]

Article 3[edit]

Article 3 original proviso[7][8] was amended by Constitution (fifth amendment) Act, 1955 on 24 December 1955.[9] Dr. B.R. Ambedkar stated in constituent assembly debate that states consent shall be obtained to change their boundaries since sovereignty remains with them. President shall accept the views of the State legislature and act accordingly. Thus Parliament has no powers to change boundaries of a state against the views of the State legislature under Article 3 of the constitution.[1] In case of union territories the provision for finding the views of the assembly is not applicable. The proviso of Article 3 would become redundant / superfluous if the views expressed by the state assembly is not of any concern for the president/central government in reorganisation of a state.

The supreme court judgement in the case known as "Babulal Parate vs The State Of Bombay on 28 August, 1959"[10] ruled that the Parliament has power to amend / modify substantially the bill sent to it on the recommendation of the president for making law. In this case, the Joint Select Committee of Parliament made its report on July 16, 1956. Some of the clauses of the Bill were amended substantially in Parliament and on being passed by both Houses, it received the President's assent on August 31, 1956, and became known as the States Reorganisation Act, 1956. However, in the case of Andhra Pradesh Reorganisation Act, 2014, the bill sent by the President to the state legislature of undivided Andhra Pradesh for expressing its views was rejected by the state legislature.[11] The rejected bill was further substantially modified by the Central Government and President recommended the bill to Parliament for its enactment without getting views again of the state legislature before recommending to the parliament. The substantially modified bill was passed in to law without referring to the Joint Select Committee of Parliament and any amendment / discussion on the bill in the Parliament. Many petitions were lodged in the Supreme Court challenging the validity of Andhra Pradesh Reorganisation Act, 2014 under Article 3.[12]

Article 4[edit]

Article 4 is invoked when a law is enacted under Article 2 or 3 for the marginal, incidental and the consequential provisions needed for changing boundary of a state or union territory. As per Article 4 (2), no such law framed under Article 4 (1), shall be deemed to be an amendment of the constitution for the purposes of article 368.

Before 1971, there were few articles [Articles 4 (2), 169 (3)-1962, 239A (2)-1962, 244A (4)-1969, para 7(2) of Schedule V and para 21(2) of Schedule VI] other than Article 368 which permitted marginal amendments to the constitution. However Article 4 (2) got superseded by the 24th amendment in the year 1971 to Article 368 (Power of Parliament to amend the Constitution and Procedure there for). Article 368 (1) was added by 24th amendment which says that notwithstanding anything in this Constitution,[13] parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.[14] Constituent power means eligibility to write constitution and making amendments to the constitution.[15] Constituent power conferred on the parliament must be exercised by it in accordance with the procedure given in article 368 (2) and can not be subjected to an inferior legislative procedure under article 4 or delegated to an outside agency.[16][11] Thus there is only one procedure for bringing an amendment (including of marginal nature) to the constitution which is the procedure given in Article 368. However, these superseded articles [Articles 4 (2), 169 (3), 239A (2), 244A (4), para 7(2) of Schedule V and para 21(2) of Schedule VI] have been in use for enacting laws for not contesting their validity in the court of law.

See also[edit]

References[edit]

  1. ^ a b "Amendment proposals to Article 3 while adopting the Indian Constitution". Retrieved 2014-04-16. 
  2. ^ Sovereign means possessing supreme or ultimate power. "in modern democracies the people's will is in theory sovereign" synonyms: supreme, absolute, unlimited, unrestricted, unrestrained, unbounded, boundless, infinite, ultimate, total, unconditional, full, utter, paramount; principal, chief, dominant, predominant
  3. ^ Ministry of Law. "Constitution of India - Part 1". 
  4. ^ Mirchandani, G. G (1 January 1977). Subverting the Constitution (pages 187 & 188) by G. G. Mirchandani. ISBN 9788170170570. Retrieved 16 September 2013. 
  5. ^ "The territorial waters, continental shelf, exclusive economic zone and other maritime zones act, 1976". Retrieved 16 September 2013. 
  6. ^ "THE CONSTITUTION OF INDIA". Retrieved 21 March 2012. 
  7. ^ Proviso: The name of a clause inserted in an act of the legislature, which generally contains a condition that a certain thing shall or shall not be done, in order that an agreement contained in another clause shall take effect
  8. ^ "Original unamended constitution of India, January, 1950". Retrieved 2014-04-17. 
  9. ^ "5th Amendment". Indiacode.nic.in. 1955-12-24. Retrieved 2011-11-19. 
  10. ^ "Babulal Parate vs The State Of Bombay And Another on 28 August, 1959". Retrieved 2014-07-10. 
  11. ^ a b "Invalid Andhra Pradesh Reorganisation Act, 2014". Retrieved 3 August 2014. 
  12. ^ "supreme court admits petition against formation of telangana". Hindu. 
  13. ^ "Interpretation of "notwithstanding anything"". Retrieved 5 May 2014. 
  14. ^ "Constitution Amendment in India (page 11)"". Retrieved 15 August 2014. 
  15. ^ "constituent power verses legislative power". Retrieved 23 August 2014. 
  16. ^ "Page 311 (para 3): A. K. Roy, Etc vs Union Of India And Anr on 28 December, 1981". Retrieved 23 August 2014. 

External References[edit]

Supreme court verdict on Non-obstante clause