Union and its Territory

Union and its Territory

Articles 1 to 4 under Part-I of the Constitution deal with the Union and its territory
Article 1 : Name and territory of the Union
(1) India, that is Bharat, shall be a Union of States.
(2) The States and the territories thereof shall be as specified in the First Schedule.
(3) The territory of India shall comprise –
(a) the territories of the States;
(b) the Union territories specified in the First Schedule; and
(c) such other territories as may be acquired.

• 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 administration.
• 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.
• 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 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.
• An economic zone (EEZ) is a sea zone prescribed by the United Nations Convention on the Law of the Sea over which a state has special rights over the exploration and use of marine resources, including energy production from water and wind. It stretches from the baseline out to 200 nautical miles (370 km) from its coast.
• The difference between the territorial sea and the exclusive economic zone is that the first confers full sovereignty over the waters, whereas the second is merely a “sovereign right” which refers to the coastal state’s rights below the surface of the sea. The surface waters, as can be seen in the map, are international waters.
• The constitution (40th amendment) act, 1976, 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.
• 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, 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.

Article 2 : Admission or establishment of new States
Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit.

• 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.
• 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.
  Like Indian parliament admitted the French settlements of Pondicherry, Karaikal, Mahe & Yanam , the Portuguese settlements of Goa Daman & Diu and Sikkim etc.

Article 2A: [Sikkim to be associated with the Union.] Rep. by the
Constitution (Thirty-sixth Amendment) Act, 1975, s. 5 (w.e.f.
26-4-1975).

Article 3 : Formation of new States and alteration of areas, boundaries or names of existing States
Parliament may by law –
(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;
(e) alter the name of any State:
Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.
Explanation I: In this article, in clauses (a) to (e), “State” includes a Union territory, but in the proviso, “State” does not include a Union territory.
Explanation II: The power conferred on Parliament by clause (a) includes the power to form a new State or Union territory by uniting a part of any other State or Union territory to any other State of Union territory.

• 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. The time limit may be extended.
• 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 territory.
• 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 Parliament.
  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.
• 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. USA is described as ‘an indestructible union of indestructible states.
• 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.
• 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 India-East Pakistan land boundary was determined as per the Radcliffe Award of 1947.

EVOLUTION OF STATES AND UNION TERRITORIES

• 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. Then 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 of the Indian Union—Part A, Part B, Part C and Part D State5. 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 state.

Dhar Commission and JVP Committee

• 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.
• 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 Committee. It submitted its report in April 1949 and formally rejected language as the basis for reorganization of states.
• However, in October 1953, the Government of India was forced to create the first linguistic state, known as Andhra state, by separating the Telugu speaking areas from the Madras state. This followed a prolonged popular agitation and the death of Potti Sriramulu, a Congress person of standing, after a 56-day hunger strike for the cause.

Fazl Ali Commission

• The creation of Andhra state intensified the demand from other regions for creation of states on linguistic basis. This forced the Government of India to appoint (in December 1953) a three-member States Reorganisation Commission under the chairmanship of Fazl Ali to re-examine the whole question.
• Its other two members were K M Panikkar and H N Kunzru. It submitted its report in September 1955 and broadly accepted language as the basis of reorganisation of states. But, it rejected the theory of ‘one language–one state’.
  The Government of India accepted these recommendations with certain minor modifications. By the States Reorganisation Act (1956) and the 7th Constitutional Amendment Act (1956), the distinction between Part-A and Part-B states was done away with and Part-C states were abolished. Some of them were merged with adjacent states and some other were designated as union territories. As a result, 14 states and 6 union territories were created on November 1, 1956.
• Maharashtra and Gujarat in 1960.
• Dadra and Nagar Haveli : It was converted into a union territory of India by the 10th Constitutional Amendment Act, 1961.
• Goa, Daman and Diu : India acquired these three territories from the Portuguese by means of a police action in 1961. A union territory by the 12th Constitutional Amendment Act.
• Puducherry : It was administered as an ‘acquired territory’, till 1962 when it was made a union territory by the 14th Constitutional Amendment Act.
• Nagaland, in 1963.
• Haryana, Chandigarh and Himachal Pradesh, In 1966. In 1971, the union territory of Himachal Pradesh was elevated to the status of a state (18th state of the Indian Union).
• Manipur, Tripura and Meghalaya, In 1972
• Sikkim, Till 1947, Sikkim was an Indian princely state ruled by Chogyal. Accordingly, the 35th Constitutional Amendment Act (1974) was enacted by the parliament. This amendment introduced a new class of statehood under the constitution by conferring on Sikkim the status of an ‘associate state’ of the Indian Union. For this purpose, a new Article 2A and a new schedule (Tenth Schedule containing the terms and conditions of association) were inserted in the Constitution. The 36th Constitutional Amendment Act (1975) was enacted to make Sikkim a full-fledged state of the Indian Union (the 22nd state). This amendment amended the First and the Fourth Schedules to the Constitution and added a new Article 371-F to provide for certain special provisions with respect to the administration of Sikkim. It also repealed Article 2A and the Tenth Schedule that were added by the 35th Amendment Act of 1974.
• Mizoram, Arunachal Pradesh and Goa in 1987.
• Chhattisgarh, Uttarakhand and Jharkhand in 2000.
• Telangana on 2nd June 2014. Hyderabad is made the joint capital for both the states for a period of 10 years. It is the outcome of 15th Lok Sabha.
• By the 69th Constitution Amendment Act, 1991 with effect from February 1, 1992 the Union Territory of Delhi has been named as National Capital Territory of Delhi.
• The Union Territory of Jammu and Kashmir and the Union Territory of Ladakh (The Jammu and Kashmir Reorganisation Act, 2019).
• Dadra and Nagar Haveli and Daman and Diu – merged into one Union Territory (The Dadra and Nagar Haveli and Daman and Diu (Merger of Union Territories) Bill, 2019.

Article 4: Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth Schedule and supplemental, incidental and consequential matters
(1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary.
(2) No such law as aforesaid shall be deemed to be in amendment of this Constitution for the purposes of article 368.