Part I of the Constitution of India
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This part of the constitution contains the law in the establishment, renaming, merging or altering the borders of the states or union territories. It also physically defines the words union / central government / government of India, states, territory of India, territory of a state, union territories and acquired territories which are used frequently in the constitution. 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, Sikkim, etc.
Articles 1 & 2
Article 1 of the constitution says that India, that is Bharat, shall be a union of states and the territory of India is composed of territories of states, the union territories and any acquired territories as listed in Schedule 1 per Article 1 (3). There was widespread disagreement in the constituent assembly on whether to use India or Bharat as the official name of the country. As a compromise, 'India, that is Bharat' was used. Though India is defined as a 'federation with strong centralising tendency', the word federation has not been used even once in the constitution. Instead, the term union is used. This is done on purpose as Dr. B.R. Ambedkar preferred the use of word union in place of federation to emphasise that India is not a result of an agreement between different states and hence no state has right to secede from it. The details of union, states, union territories are further given in Parts V, VI and VIII of the constitution respectively. Article 1 mandates a federal structure in which all the citizens of states which are collectively called India (Bharat) shall have at least two tier governance with second tier as locally elected state government. When a union territory is listed in Schedule 1 of the constitution it is part of 'territory of India' but not union of states (i.e. India/ Bharat) and will be governed by the president as per Article 239 and 240 of Part VIII. When the word India or Bharat or union of India is used in the constitution, it is applicable to the territories of states only. When the word 'territory of India' is used in the constitution, it is applicable to all the territories including the union territories and any acquired territories. Presently, there is no other area forming territory of India excluding its states and union territories.
The acquired territories can be converted in to a state/states as per Article 2. Per Article 2, Sikkim was admitted as a state in Indian union on 26 April 1975.
With the seventh amendment to the constitution in 1956, the concept of Union territory is brought in to administer areas which are very small in area or governed by international agreements or politically not evolved for locally elected governance. The representation of seats in the council of states (Rajya Sabha) shall be as given in Schedule 4 of the constitution.The territorial waters and the exclusive economic zones shall also become part of the territories of 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 amended the Article 297 (earlier also amended by the constitution [15th amendment] act, 1963) 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.
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. However, these maritime zones are also parts of the states as they are not separately listed in schedule 1 of the constitution and union government (i.e. union of states) has control over these territories.
States are not debarred from imposing taxes or royalty on the minerals extracted from the territorial waters and the exclusive economic zone (which are under states jurisdiction) as per serial no. 50 of state list in seventh schedule of the constitution.
Article 3 provision says that the views of the state assembly shall be taken by the president before recommending for changing the boundary of a state. The original provision of Article 3 was amended by Constitution (fifth amendment) Act, 1955 on 24 December 1955. 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. This means that though the central government must ask for state opinion regarding creating new state, changing name or altering boundary, it is not bound by the opinion thus given and is free to act as it deems fit.
The supreme court judgement in the case known as "Babulal Parate vs The State Of Bombay on 28 August 1959" 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 16 July 1956. Some of the clauses of the bill were amended substantially in Parliament and on being passed by both Houses by simple majority subject to Articles 107 (2), 245 and 4 (2), it received the President's assent on 31 August 1956, and became known as the States Reorganisation Act, 1956. This legislation is in line with the Supreme Court verdict in Golaknath case, 1967 which states that parliament can also amend the constitution by normal legislation under Article 245, Article 248 and entry 97 of union list in the seventh schedule. In 1973, this verdict was over ruled or made invalid by the later judgement of Supreme Court in Kesavananda Bharati case where it is made clear that constitutional amendments are to be enacted under its constituent power only as per procedure given in Article 368 and no other article or provision of the constitution is applicable. 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. 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 with an amendment motion was passed by simple majority in to law without referring to the Joint Select Committee of Parliament and 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.
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, 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. Constituent power means eligibility to frame constitution and make amendments to the constitution. Supreme court observed that article 368 (1) clearly defined the scope of constituent power which is power to make amendments, variations or deletions to the constitution. 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. 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), 356 (1)c, 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.
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