Indian Constitution | Territory of The Union Download PDF

Indian Constitution | Territory of The Union Download PDF

AS has been already stated, the political structure prescribed by the Constitution is a federal Union. The name of the Union is India or Bharat [Art. 1(1)] and the members of this Union at present1 Union. are the 29 States i.e. Andhra Pradesh, Telangana, Assam,Bihar, Gujarat, Haryana, Karnataka,3 Kerala, Madhya Pradesh, Tamil Nadu,4 Maharashtra, Nagaland, Orissa, Punjab, Rajasthan, Uttar Pradesh, West Bengal, Jammu & Kashmir, Himachal Pradesh, Manipur, Tripura, Meghalaya, Sikkim,1 Mizoram, Arunachal Pradesh, Goa, Chhattisgarh, Uttaranchal6 and Jharkhand7. Barring Jammu & Kashmir, which has still a special position under the Constitution (see post, Chapter 15), the provisions of the Constitution relating to the States now apply to all these States on the same footing.

Territory of India

The expression ‘Union of India’ should be distinguished from the expre-Territory of India, ssion ‘territory of India.’ While the ‘Union’ includes only the States which enjoy the status of being members of the federal system and share a distribution of powers with the Union, the “territory of India” includes the entire territory over which the sovereignty of India, for the time being, extends.

Thus, besides the States, there are two other classes of territories, which are included in the ‘territory of India’, viz.: (i) ‘Union Territories’, and (ii) Such other territories as may be by India.
(i) The Union Territories are, since 1987, seven9 in number—Delhi, the Andaman & Nicobar Island; Lakshadweep; Dadra & Nagar Haveli;9 Daman & Diu; Pondicherry; and Chandigarh.
For the Union territory of Pondicherry, the Parliament has by enacting a law, viz. Pondicherry (Administration) Act, 1962 under Art. 239A made provision for a legislature etc. By an amendment to the Constitution two new articles, viz. 239AA and 239AB were inserted in 1992 providing for a legislature and a ministry for Delhi which has been named as National Capital Territory of Delhi by Art. 239AA

Rest of the Union territories are Centrally administered areas, to be governed by the President, acting through an ‘Administrator’ -appointed by him, and issuing Regulations for their good government [Arts. 239-240],
(ii) Any territory which may, at any time, be acquired by India by purchase, treaty, cession or conquest, will obviously form part of the territory of India. These will be administered by the Government of India subject to legislation by Parliament [Art. 246(4)].
Thus, the French Setdement of Pondicherry (together with Karaikal, Mahe and Yanam), which was ceded to India by the French Government in
1954, was being administered as an ‘acquired territory’ until 1962, inasmuch as the Treaty of Cession had not yet been ratified by the French Parliament. After such ratification, the territory of these French Setdements was constituted a ‘Union Territory’, in December, 1962.
The constitutional developments in Sikkim by way of its integration under the Constitution of India are dramatic.

Sikkim a new State

During British days, Sikkim was an Indian State, under a hereditary Sikkim, a new monarch called Chogyal, subject to British para- State. mountcy. Its external frontier in the Himalayas was demarcated by agreement with China, in 1890. The Chogyal was a member of the Chamber of Princes.
When India became independent, there was a section of public opinion in Sikkim for merger with India. But the Princely Rule of that State and its strategic position stood in the way. Hence, after the lapse of paramountcy, a treaty was entered into between Sikkim and the Government of India, by which the latter undertook the responsibility with regard to the defence, external affairs and communications of Sikkim. Government of India was represented in Sikkim by a Political Officer, who was also assigned to Bhutan. Sikkim thus became a Protectorate of the Union of India.
In May, 1974, the Sikkimese Congress decided to put an end to monarchical rule, and the Sikkim Assembly passed the Government of Sikkim Act, 1974, for the Progressive realisation of a fully responsible government in Sikkim and for furthering its relationship with India. This Act empowered the Government of Sikkim to seek participation and representation of the people of Sikkim in the political institutions of India, for the speedy development of Sikkim in social, economic and political fields.
The Chogyal was made to give his assent to the Government of Sikkim Bill, under which effective power went into the hands of a representative Sikkim Assembly and the Chogyal was turned into a normal constitutional head. The Sikkim Assembly, by virtue of its powers under the Government of Sikkim Act, passed a resolution, expressing its desire to be associated with the political and economic institutions of India and for seeking representation for the people of Sikkim in India’s Parliamentary system.

35th Amendment

The Constitution (35th Amendment) Act, 1974, was prompdy passed to give effect to this resolution. The main provisions of this Amendment Act were—
(i) Sikkim will not be a part of the territory of India, but an ‘associate State’, which was brought within the framework of the Indian Constitution by inserting Art. 2A and 10th Schedule in the Constitution which were subsequently omitted by the Constitution (36th Amendment) Act, 1975.
(ii) Sikkim would be entided to send two representatives to the two Houses, whose rights and privdeges would be the same as those of other members of Parliament, except that the representatives of Sikkim would not be entided to vote at the election of the President or Vice-President of India.

They would also be subject to the disqualifications for members of Parliament under the Indian Constitution.
(iii) The defence, communications, external affairs and social welfare of Sikkim would be a responsibility of the Government of India and the people of Sikkim would have the right of admission to institutions for higher education, to the All-India Services and the political institutions in India.
(iv) The Government of Sikkim shall retain residual power on all matters not provided for in 10th Schedule to the Constitution of India.
There is litde doubt that the 35th Amendment Act, 1974, introduced innovations into the original scheme of the Constitution of India. There was no room for any ‘associate State’ under the Constitution of 1949. India was a federal union of ‘States’, Union Territories and ‘acquired territories’ [Art. 1(3)]. Of course, Article 2 empowered the Parliament of India to admit new ‘States’ into the ‘Union’. But the Constitution (35th Amendment) Act did not seek to admit Sikkim as a new State of the Indian Union. It was to be a territory associated with India, and would have representatives in the Indian Parliament without being a part of the territory of India.

The criticism of the introduction of the status of an ‘associate State’ into the Indian federal system has, however, lost all practical significance, because Sikkim has shortly thereafter been admitted12 into the Indian Union as the 22nd State in the First Schedule of the Constitution of India.
We shall now advert to this later development. While the Indian Parliament was enacting the Constitution (35th Amendment) Act, the Chogyal resented and sought to invoke international intervention. This provoked the progressive sections of the people of Sikkim and led to a resolution being passed by the Sikkim Assembly on April 10, 1975, declaring that the activities of the Chogyal were prejudicial to the democratic aspirations of the people of Sikkim and ran counter to the Agreement of May, 1974, executed by the Chogyal. The Assembly further declared and resolved that.
“This institution of the Chogyal is hereby abolished and Sikkim shall henceforth be a constituent unit of India, enjoying a democratic and fully responsible government.”

36th Amendment

This resolution of the Assembly wets submitted to the people of Sikkim for their approval. At the referendum so held, there was an overwhelming majority, and the Chief Minister of Sikkim, on behalf of his Council of Ministers, urged the Government of India to implement the result of the referendum. This led to the passing by the Indian t en ent. Parliament of the Constitution (36th Amendment) Act, 1975, which was later ratified by the requisite number of States under Art. 368(2), Proviso. By the 36th Amendment Act, Sikkim has been admitted into the Union of India as a State, by amending the First and the Fourth Schedules, Art. 80-81, and omitting Art. 2A and the 10th Schedule, with retrospective effect from 26-4-1975. Art. 371F has, further, been inserted to make some special provisions relating to the administration of Sikkim.

100th Amendment The Land Boundary Agreement with Bangladesh

Recently both the houses of Indian parliament unanimously passed the Constitution (One Hundred and Nineteenth Amendment) Bill, 201315 for operationalising the Land Boundary Agreement with Bangladesh, 41 years after the accord was signed. India and Bangladesh have a common land boundary of approximately 4096.7 kms. Initially the India-East Pakistan land boundary was determined as per the Radcliffe Award of 1947. Disputes arose out of some provisions in the Radcliffe award, which were sought to be resolved through the Bagge Award of 1950. Another effort was made to settle these disputes by the Nehru-Noon Agreement of 1958. However, the issue relating to division of Berubari Union was challenged before the Hon’ble Supreme Court. To comply with the opinion rendered by the Hon’ble Supreme Court of India, the Constitution (Ninth Amendment) Act, 1960 was passed by the Parliament Due to the continuous litigation and other political developments at that time, the Constitution (Ninth Amendment) Act, 1960 could not be notified in respect of territories in former East Pakistan (presendy Bangladesh). On 16th May, 1974, the Agreement between India and Bangladesh concerning the demarcation of the land boundary and related matters was signed between both the countries to find a solution to the complex nature of the border demarcation involved. In this connection, it was also required to identify the precise area on the ground which would be transferred. Subsequendy, the issues relating to demarcation of un-demarcated boundary; the territories in adverse possession; and exchange of enclaves were identified and resolved by signing a Protocol on 6th September, 2011, which forms an integral part of the Land Boundary Agreement between India and Bangladesh, 1974. The Protocol was prepared with support and concurrence of the concerned State Governments of Assam, Meghalaya, Tripura and West Bengal. Accordingly, the Constitution (One Hundred and Ninteenth Amendment) Bill, 2013 which proposes to amend the First Schedule of the Constitution, for the purpose of giving effect to the acquiring of territories by India and transfer of territories to Bangladesh through retaining of adverse possession and exchange of enclaves, in pursuance of the aforesaid Agreement of 1974 and its Protocol entered between the Governments of India and Bangladesh. The land swap protocol envisages transfer of 111 enclaves with a total area of 17,160.63 acres to Bangladesh, while the neighbouring country is to transfer 51 enclaves with an area of 7,110.02 acres to India. A 6.1-km undefined border stretch will be demarcated with the bill being passed. The bill had been moved as the (One Hundred and Nineteenth Amendment) Bill, it will be notified as the “100th Amendment Act” after assent of President of India.

Formation of new states and Alteration of Boundaries,etc

It has already been pointed out that the Indian federation differs from the traditional federal system insofar as it empowers Parliament to alter the . territory or integrity of its units, namely, the States,without their consent or concurrence. Where the federal tion of Boundaries, system is the result of a compact or agreement between etc. independent States, it is obvious that the agreement cannot be altered without the consent of the parties to it This is why the American federation has been described as “an indestructible Union of indestructible States”. It is not possible for the national Government to redraw the map of the United States by forming new States or by altering boundaries of the States as they existed at the time of the compact without die consent of the Legislatures of the States concerned. But since federation in India was not the result of any compact between independent States, there was no particular urge to maintain the initial organisation of the States as outlined in the Constitution even though interests of the nation as a whole demanded a change in this respect. The makers of our Constitution, therefore, empowered Parliament to reorganise the States by a simple procedure, the essence of which is that the affected State or States may express their views but cannot resist the will of Parliament.
The reason why such liberal power was given to the national government to reorganise the States is that the grouping of the Provinces under the Government of India Acts was based on historical and political reasons rather than the social, cultural or linguistic divisions of the people themselves. The question of reorganising the units according to natural alignments was indeed raised at the time of the making of the Constitution but then there was not enough time to undertake this huge task, considering the magnitude of the problem.
The provisions relating to the above subjects are contained in Art. 3-4 of the Constitution.
Article 3 says:
“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.”

Article 4 provides that any such law may make supplemental, incidental and consequential provisions for making itself effective and may amend the First and Fourth Schedules of the Constitution, without going through the special formality of a law for the amendment of the Constitution as prescribed by Article 368. These Articles, thus, demonstrate the flexibility of our constitution. By a simple majority and by the ordinary legislative process Parliament may form new States or alter the boundaries, etc., of existing States and thereby change the political map of India. The only conditions laid down for the making of such a law are—
(a) No Bill for the purpose can be introduced except on the recommen-dation of the President.
(b) The President shall, before giving his recommendation’, refer the Bill
to the Legislature of the State which is going to be Reorganisation of affected by the changes proposed in the Bill, for States. expressing its views on the changes within the period
specified by the President. The President is not, however, bound by the views of the State Legislature, so ascertained.
Here is, thus, a special feature of the Indian federation, viz., that the territories of the units of the federation may be altered or redistributed if the Union Executive and Legislature so desire.3
Since the commencement of the Constitution, the foregoing power has been used by Parliament to enact the following Acts:
1. The Assam (Alteration of Boundaries) Act, 1951, altered the boundaries of Assam by ceding a strip of territory from India to Bhutan.
2. The Andhra State Act, 1953, formed a new State named Andhra, by taking out some territory from the State of Madras as it existed at the commencement of the Constitution.
3. The Himachal Pradesh and Bilaspur (New State) Act, 1954, merged the two Part C States of Himachal Pradesh and Bilaspur to form one State, namely, Himachal Pradesh.
4. The Bihar and West Bengal (Transfer of Territories) Act, 1956, transferred certain territories from Bihar to West Bengal.
5. The States Reorganisation Act, 1956, reorganised the boundaries of the different States of India in order to meet local and linguistic demands. Apart from transferring certain territories as between the existing States, it formed the new State of Kerala and merged the former States of Madhya Bharat, Pepsu, Saurashtra, Travancore Cochin, Ajmer, Bhopal, Coorg, Kutch and Vindhya Pradesh in other adjoining States.
6. The Rajasthan and Madhya Pradesh (Transfer of Territories) Act, 1959, transferred certain territories from the State of Rajasthan to that of Madhya Pradesh.
7. The Andhra Pradesh and Madras (Alteration of Boundaries) Act, 1959, made alterations in the boundaries of the States of Andhra Pradesh and Madras.
8. The Bombay Reorganisation Act, 1960, partitioned the State of Bombay to form the new State of Gujarat and to name the residue of Bombay as Maharashtra. Thus, the State of Bombay was split up into two States—Maharashtra and Gujarat.
9. The Acquired Territories (Merger) Act, 1960, provided for the merger into the State of Assam, Punjab and West Bengal of certain territories acquired by agreements between the Government of India and Pakistan, in 1958 and 1959.
A similar transfer of certain territories from West Bengal and Assam to Pakistan under the aforesaid agreement, was provided for by enacting the Constitution (9th Amendment) Act, 1960, because the Supreme Court opined that no territory can be ceded from India to a foreign country without amending the Constitution.14
10. The State of Nagaland Act, 1962, formed the new State of Nagaland, with effect form 1-2-1964, comprising the territory of the ‘Naga Hills- Tuensang Area which was previously a Tribal Area in the Sixth Schedule of the Constitution, forming part of the State of Assam.
11. The next change was introduced by the Punjab Reorganisation Act, 1966, by which the State of Punjab was split up into the State of Punjab and Haryana and the Union Territory of Chandigarh with effect from 1-11-1966.
12. The Andhra Pradesh and Mysore (Transfer of Territory) Act, 1968.
13. The Bihar and Uttar Pradesh (Alteration of Boundaries) Act, 1968.
14. The Assam Reorganisation (Meghalaya) Act, 1969, created an autonomous sub-State named Meghalaya, within the State of Assam.
15. Himachal Pradesh was upgraded from the status of a Union Territory to that of a State by the State of Himachal Pradesh Act, 1970.
16. The North Eastern Areas (Reorganisation) Act, 1971, similarly, brought up Manipur, Tripura and Meghalaya into the category of States, and added Mizoram and Arunachal Pradesh to the Ust of Union territories.
17. The Haryana and Uttar Pradesh (Alteration of Boundaries) Act, 1979.
18. Mizoram which had been made a Union Territory by the Act of 1971, was elevated to the status of a State, by the State of Mizoram Act, 1986.
19. Arunachal Pradesh a Union Territory was made a State by State of Arunachal Pradesh Act, 1986.
20. Goa became a State by virtue of Goa, Daman and Diu Reorganisation Act, 1987, separating it from Daman and Diu with effect from 30-5-1987.
21. A new State of Chhattisgarh was created by carving out its territory from that of the territories of the Madhya Pradesh by enacting the Madhya Pradesh Reorganisation Act, 2000 (w.e.f. 1-11-2000).
22. The State of Uttaranchal came into being on 9-11-2000 by separating its territory out of the territories of the Uttar Pradesh vide the Uttar Pradesh Reorganisation Act, 2000.
23. By enacting the Bihar Reorganisation Act, 2000, the State of Jharkhand was created on 15-11-2000 by carving its territory out of the territories of the Bihar State.
24. Bv enacting the Andhra Pradesh Reorganisation Act, 2014 the state of Telangana was separated from Andhra Pradesh on 2nd Tune, 2014, as a new 29th state of India, with the city of Hyderabad as its capital. Hyderabad will continue to serve as the joint capital city for Andhra Pradesh and Telangana for a period of not more than ten years.