Patterns and Schemes of Constitution for New State Formation

Article for Blog Post Writing Competition 2011 | by Nishant Singh


May 22nd, 20119:47 pm


The name of the union is India that is “Bharat”, and the members of the union are the states specified in the first schedule of the constitution

The States Reorganisation Act of 1956 was a major reform of the boundaries and governance of India’s state and territories. The act reorganised the boundaries of India’s states along linguistic lines and amended the Indian constitution to replace the three types of states (Parts A, B, and C states), with a single type of state. Although additional changes to India’s state boundaries have been made since 1956, the States Reorganisation Act of 1956 remains the single most extensive change in state boundaries since the independence of India.

India has been characterised as the union of states under article 1(1) of the constitution. India comprises of the states the union territories and any other territory that may be acquired by the government of India at anytime. The choice of a federation with a strong centre was made for both of political or administrative reasons. The constituent assembly accepted the view of the drafting committee that describing the union as federation is not necessary. Dr Ambedkar while submitting the draft constitution stated that although the constitution may be federal in nature but the committee has used the term union because of certain advantages.

Our constitution provides the prospective changes including alteration of boundaries. The identity of States can be altered, expunged by the Parliament. First Schedule lists the States and Territories of India and also lists if any changes to borders of them.

Article 2 of our constitution states “parliament may by law admit into the union, or establish new states on such terms and conditions as it thinks fit”. But it does not mean that the legislature can act arbitrarily, the power conferred on the parliament under this article is not unreviewable from judicial scrutiny.

Article 3 states the formation of new states and alteration of area, boundaries or names of existing states. The proviso of this also lays down two conditions: one is that no Bill shall be introduced except on the recommendation of the President, and the second condition is that where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has to be referred by the President to the Legislature of the State for expressing its views thereon. The period within which the State Legislature must express its views has to be specified by the President; but the President may extend the period so specified. The intention seems to be to give an opportunity to the State Legislature to express its views within the time allowed. The proviso does not say that if and when a proposal contained in the Bill is modified subsequently by an amendment properly moved and accepted in Parliament, there must be a fresh reference to the State Legislature and a fresh bill must be introduced. Other difficulties which may arise are. For example, in a case where two or three States were involved, different views might be expressed by the Legislatures of different States. If Parliament were to accept the views of one of the Legislatures and not of the other, a fresh reference would still be necessary by reason of any amendment in the original proposal contained in the Bill.

In the case of Babulal V State Of Bombay(1) a Bill was introduced in the House of the People on the report of the States Reorganisation Commission and as recommended by the President under the Art. 3 of the Constitution, containing the proposal for the formation of three separate units, viz., (1) Union territory of Bombay, (2) Maharashtra, including Marathawada and Vidarbha  (3) Gujrat, including Saurashtra and Cutch. This Bill was referred by the President to the State Legislatures concerned. The Lok Sabha and the Rajya Sabha considered the-Bill and made its report. Subsequently, Parliament amended some of the clauses and passed the Bill  known as the States Reorganisation Act, 1956. That Act by s. 8(1) constituted a composite State of Bombay instead of the three separate units. The contention raised was that the Legislature of Bombay had not been given an opportunity of expressing its views on the formation of the composite State and in the present case the formation of a new Bombay State as one unit was so different from the three units originally proposed in the Bill that it was not really an amendment of the original proposal but a new proposal altogether for which a fresh Bill and a fresh reference were necessary.

But it was held that there was no violation of Art. 3 and the Act or any of its provisions are not invalid on that ground and thus the appeal was dismissed by the court.

In the case of In Re: Berubari Union And Exchange Of Enclaves(2) the petitioner contended that even Parliament has no power to cede any part of the territory of India in favour of a foreign State either by ordinary legislation or even by the amendment of the Constitution; and so, the only opinion the court can give on the Reference is that the Agreement is void. It was suggested that the preamble to the Constitution clearly postulates that like the democratic republican form of government the entire territory of India is beyond the reach of Parliament and cannot be affected either by ordinary legislation or even by constitutional amendment. The other ground on which this contention was raised is founded on Art. 1(3)© .

The court rejected the contention and concluded that it would not be competent to Parliament to make a law relatable to Art. 3 for the purpose of implementing the Agreement. Thus it has to be passed in accordance with the article 368. It’s implementation would naturally involve the alteration of the content of and the amendment of Art. 1 and of 1st schedule.

In the case of Maganbhai Ishwarbhai Patel v Union Of India And Anr.(3) The question raised in the case was -If constitutional amendment is necessary for implementation of award and Implementation of treaties and arbitral awards. It was held that the Award does not purport to nor does it operate as giving rise to an obligation to cede India n territory and therefore no constitutional amendment is necessary.

Thus our constitution provides the prospective changes including alteration of boundaries under articles 2-4 of the constitution. It has been clear from the various cases discussed that the say of the state legislature in these matters is not much. This is because we have a strong centre.

There are obvious concerns about giving greater representative power to states who had recently agreed to be governed under the Indian union. Over the years however, threats of secessionist politics have reduced greatly.

There is Telangana issue which is doing the rounds and there are major problems in Kashmir also which our government is facing. So in order to avoid all these problems our constitution and the precedents gives the power to the parliament to reorganise the states, to increase or decrease the boundaries of the state etc.

According to the various cases discussed the parliament need not amend the constitution in order to increase, decrease or to decide the boundary of the state, but it has to amend the constitution if it is ceding the territory to another country.

Thus the power of the parliament is not outside the judicial scrutiny and thus it cannot act in  arbitrary manner.

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1) 1960 AIR 51 1960 SCR (1) 605

2) Reference Under Article 143(1) Of The Constitution Of India vs on 14/3/1960 and decision by Gajendragadkar. J

3) 1969 AIR 783 1969 SCR (3) 254

 

Article by-

Nishant Singh

Student, Amity University

[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]

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