Know the Constitution[ Part III]: Union and Its Territory - Articles 1 To 4

Speaking at an event recently, Justice Gautam Patel of the Bombay High Court had noted that the "Constitutional Idea of India" lay not in the chapters on Fundamental Rights or Duties but rather in Article 1 of the Constitution.

"Everything in the Constitution flows from this Article. This has to be THE Idea of India for without which India cannot exist. What it tells us in this incredibly compact sentence is that while we may differ from state to state and region to region- all of us are one," he added while speaking about the significance of Art.1 of the Constitution.

A nation is nothing without its territory and its people and for that reason, the first part of the Constitution titled 'Union and its Territory' specifies the territory of India and also lays down the conditions under which territories may be acquired or given away. Not only that, but this Part also recognizes that despite our cultural, regional, economic, and political difference, every person and every state is a part of this nation-state: India that is Bharat.
 

India a Union of States

Article 1 of the Constitution describes the Republic of India as a "Union of States." The choice of the word "Union" in place of "Federation" was a deliberate choice of the members of the Constituent Assembly to signify that the Union of India is not the product of an agreement among existing states and therefore it is not open to any state to secede from the Constitution. Speaking in the Constituent Assembly, Dr.B.R. Ambedkar had stated:

"Though India is to be a federation, the federation is not the result of an agreement by the States to join in a federation and that…no state has right to secede from it….the Americans had to wage a war to establish that the states have no right to secession and that their Federation was indestructible. The Drafting Committee thought that it was better to make it clear at the outset rather than to leave it to speculation."^[1]

This comparison with the American experience is crucial because, as observed by the Supreme Court in Babulal Parate v State of Bombay, none of the constituent units of the Indian Union was sovereign or independent at the time of Independence in the sense of the American colonies. Thus, unlike their American counterparts which had to wage a literal war to contest the right for states to secede, the Indian Constitution sought to make things amply clear from the outset that the constituent states of the 'federation' would have no right to secede from the Union of India. This difference has an important implication on the nature of Federalism that the world's oldest and largest democracies practice. Under the US model of Federalism, the Federation does not have the power to create new states or alter borders of existing states whereas the Indian Constitution expressly recognizes the power to alter existing boundaries of states. For this reason, while comparing the nature of federalism of the two democracies, the US has been described as a destructible union of indestructible states whereas India has been described as an indestructible union of destructible states.

Though it flows from Article 1 of the Constitution that states have no right to secede from the Federation and vary their boundaries on their own free will, Article 2 and 3 contemplate acquisition and cessation of territories and changes in the territorial limits of the constituent states. Depending on the act in question, the Constitution lays down certain requirements.

Article 1 specifies the constituent units of the Union as States, Union Territories and 'other territories as maybe acquired'. The States and Union Territories are specified in the First Schedule of the Constitution.

Acquisition of Territory

As explained before, the Union of India has the right to acquire territories. After the commencement of the Constitution, the annexation of Sikkim, Goa, Daman and Diu, Dadra and Nagar Haveli, and Pondicherry have been examples of the acquisition of territory by the Union of India. In the case of the acquisition of territories by the Government of India, no parliamentary legislation is required to acquire the territory. The constitutional obligation to amend the Constitution/ enact a statute is dispensed with in the case of acquisition of territory because it is an inherent attribute of the sovereign State to acquire new territories. The Supreme Court of India explained in Re Berubari Union case that Article 1 merely states a factual situation and does not confer a power on the Parliament to acquire a foreign territory hence no constitutional amendment would be required.

The cessation of Indian territory requires a Constitutional Amendment for the action to be constitutionally valid. As explained in the previous article in the series, the case of In Re Berubari Union, the question of the power of the Republic to undertake cessation of its own territory or settle boundary disputes with other nations in a constitutionally valid manner was settled by the Supreme Court of India. The Presidential Reference that led to the Berubari Union case arose out of the implementation of the Nehru-Noon agreement to divide certain territories between India and Pakistan. The question to consider for the Supreme Court was whether the Government of India could give effect to the agreement without undertaking a constitutional amendment.

The Apex Court noted that while Art.3 of the Constitution conferred a power on the Parliament to diminish or alter the territories of states, this would not include the power of cede a part of its own territory. The Court explained that in order to cede a territory Parliament would have to use its powers under Art.368 of the Constitution of India to undertake a constitutional amendment. (It should be noted that amendment using article 3 can be done by an ordinary majority in the parliament, but under Article 368, special majority is required).

In line with the court's judgment, the 9th Constitutional Amendment Act 1960 was enacted to give effect to the Nehru-Noon agreement. On similar lines, the 100th Constitutional Amendment Act was enacted in 2015 to give effect to the exchange enclaves between India and Bangladesh.

At the same time, however, in Berubari Union case, the Apex Court clarified that while cessation of Indian territory cannot take place without a constitutional amendment, the settlement of boundary dispute with another country would not amount to the cessation of territory. Thus, the government could undertake settlement of boundary disputes without an amendment to the Constitution. Further clarifying things, in Union of India v Sukumar Sengupta^[2] the Court laid down that a perpetual lease in favor of another country to use a part of Indian territory also does not amount to the cessation of territory.

Admission or Establishment of new States

Article 2 of the Constitution confers the power on the Parliament to admit into the Union or establish new states on such terms as it deems fit. The Article confers two specific powers on the Union- the power to establish new states where none existed before and the power to admit duly organized states.

Previously, we had mentioned how the acquisition of territory under Art.1 (3) does not require parliamentary sanction. But for its legal assimilation, the territory would require a law to be enacted either under Art.2 of the Constitution where acquired territory is established as a new state [Example: Acquisition and establishment of Goa] or under Article 3 when it is merged into existing states [the merger of Chandernagore into West Bengal by the Chandernagore (Merger) Act]. Though the Constitution does not require, in the case of admission of territories like Dadra and Nagar Haveli, Goa, Daman and Diu, Pondicherry and Sikkim have been admitted into the Union by way of an amendment under Art.368 of the Constitution (Constitutional Amendments).

Alteration of areas, boundaries, and names of existing states

An important feature of the India model of Federalism is that the Constitution does not guarantee any territorial integrity to the states- their boundaries can be increased, diminished, altered and their names changed. There is no constitutional guarantee of the continuing existence of a State that existed at the commencement of the Constitution or came into existence later. Article 3 empowers the Indian Parliament to form a new state by separation of territory from any state, or by uniting two or more states or parts of states. It also empowers the Parliament to increase the area of any state, diminish the area of any state, alter the boundaries of any state or alter the name of any state. The explanation I to Article 3 says 'State' includes 'Union territory', which only means that what can be done to the states can be done to Union territories too.

However, at the same time it is important to note that the Constitution does not confer any carte blanche power upon the Union to alter the boundaries of the states as they wish. The Constitution places two conditions that act as limitations upon this power. One, the Bill to alter such boundaries must be introduced in Parliament only in the prior recommendation of the President and second, where the Bill contains a proposal to affect the area, boundary, or name of any state, the President must refer the Bill to the legislature of the concerned State for expressing its views on it. The President may fix a time limit for this purpose and if the views are not made available with the period fixed or extended, the Bill will be introduced in either house of parliament without such views. Crucially, while canvassing the state's views is mandatory and the Parliament is not bound to take the state's consent since the Constitution contemplates only "views."

By not mandating that the assent of the state be sought, the Constitution strikes a delicate balance between conferring sufficient powers on the Union to alter boundaries as it deems fit without conferring a carte blanche power to overrise any legitimate difference of opinion that states might have. This provision seeks to make the process of the alteration of states to be a consultative process. The creation of the states of Andhra Pradesh, Goa, Maharashtra, Chattisgarh, Uttarakhand, Jharkhand are some notable examples of laws being passed under Art.3 of the Constitution to create states/alter boundaries.

J& K Reorganisation Act & Article 3 of the Constitution

While Art. 3 of the Constitution talks about the alteration of the boundaries of states, it does not expressly mention that states can be 'downgraded' to the status of a Union Territory. The explanation I to Article 3 says 'State' includes 'Union territory', which means that what can be done to the states can be done to Union territories also but there is no express recognition of the power to change the legal status of a State to a Union Territory.

For this reason, the J&K Reorganisation Act, 2019 that split the state of Jammu and Kashmir into two Union Territories raised eyebrows for it was the first instance of a State being converted into a Union Territory. This became one of the grounds on which the constitutionality of the Act was criticised. Another ground that was raised was the obligation under Art.3 to garner the views of the state concerned.

As noted before, the proviso to Article 3 provides for a reference to the state legislature by the president of India for its views if the proposal contained in the Bill "affects the area, boundaries or name of any of the states". In the case of Jammu and Kashmir, the state legislature was in suspended animation and under Governor's rule. For this reason, doubts were raised whether the opinion of the Governor could be a valid substitute to the opinion of a "state legislature" as is mandated under Art.3. The question is, should the President have waited under the 'state legislature' was in place to enact such a law or could the President/Governor exercise their gubernatorial powers and express their views on such a proposal in lieu of the state legislature. These issues relating to J&K Reorganization Act are now pending adjudication before the Supreme Court.

The power to alter state boundaries has arguably been central to holding India together since it allows the federation to evolve and respond to sub-national aspirations- as was seen in the case of carving out of states like Jharkhand, Uttarakhand, Chattisgarh and most recently Telangana. The exercise of the same power can become problematic when the constitutional safeguards are ignored, running roughshod over the state's aspirations.