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(a) Atheistic State: The state is anti-religion and hence,
condemns all religions.
(b) Theocratic State: The state is pro-religion and
hence, declares one particular religion as the state
religion, as for example, Bangladesh, Burma, Sri
Lanka, Pakistan, and so on.
religion as the state religion, as for example, USA
and India.
G.S. Pande, Constitutional Law of India, Allahabad
Law Agency, eighth edition, 2002, P. 222.
10. The then Union Law Minister, H.R. Gokhale defined this
concept as: ‘There will be freedom, liberty of faith and
worship, whatever religion you belong to. The State will
not have anything to do, as a state, with any religion
excepting to treat every religion equally, but the State
will not have any foundation of religion’. Similarly, P.B.
Gajendragadkar, a former Chief Justice of India, defined
secularism as in the Indian Constitution in the following
way: ‘The State does not owe loyalty to any particular
religion as such: it is not irreligious or anti-religious; it
gives equal freedom to all religions’.
11. The term ‘democracy’ is derived from two Greek words,
namely, Demos and Kratia meaning ‘People’ and ‘rule’
respectively.
12. Referendum is a procedure whereby a proposed
legislation is referred to the electorate for settlement by
their direct votes.
Initiative is a method by means of which the people can
propose a bill to the legislature for enactment.
Recall is a method by means of which the voters can
remove a representative or an officer before the expiry
of his term, when he fails to discharge his duties
properly.
Plebiscite is a method of obtaining the opinion India’s of
people on any issue of public importance. It is generally
used to solve the territorial disputes.
12a. B. Shiva Rao, The Framing of India’s Constitution:
Select Documents, Volume IV, P. 944.
13. He said that the Preamble of the Indian Constitution
states ‘in a brief and pithy form the argument of much of
the book; and it may accordingly serve as a key-note’.
14. He wrote: ‘I am all the more moved to quote it because I
political tradition which we in the west call western, but
which is now something more than the western’.
15. M Hidayatullah, Democracy in India and the Judicial
Process, p. 51.
16. Reference by the President of India under Article 143 of
the Constitution on the implementation of the Indo-
Pakistan agreement relating to Berubari union and
exchange of enclaves (1960).
17. Kesavananda Bharati v. State of Kerala (1973).
18. LIC of India v. Consumer Education and Research
Centre (1995).
19. ‘Constituent Assembly Debates’, Volume 10, P. 450–
456.
20. The Court observed, ‘The edifice of our Constitution is
based upon the basic elements mentioned in the
Preamble. If any of these elements are removed, the
structure will not survive and it will not be the same
Constitution or it cannot maintain its identity. An
amending power cannot be interpreted so as to confer
power on the Parliament to take away any of these
fundamental and basic characteristics of the polity’.
5 Union and its Territory
A
rticles 1 to 4 under Part-I of the Constitution deal with the
UNION OF STATES
Article 1 describes India, that is, Bharat as a ‘Union of States’
rather than a ‘Federation of States’. This provision deals with two
things: one, name of the country; and two, type of polity.
There was no unanimity in the Constituent Assembly with
regard to the name of the country. Some members suggested the
traditional name (Bharat), while other advocated the modern
name (India). Hence, the Constituent Assembly had to adopt a
mix of both (‘India, that is, Bharat’)
Secondly, 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 administration1 .
According to Article 1, the territory of India can be classified into
three categories:
1. Territories of the states
2. Union territories
3. Territories that may be acquired by the Government of India
at any time.
The names of states and union territories and their territorial
extent are mentioned in the first schedule of the Constitution. At
present, there are 28 states and 9 union territories. The provisions
of the Constitution pertaining to the states are applicable to all the
states in the same manner2. However, the special provisions
(under Part XXI) applicable to the States of Maharashtra, Gujarat,
Nagaland, Assam, Manipur, Andhra Pradesh, Telangana, Sikkim,
Mizoram, Arunanchal Pradesh, Goa and Karnataka override the
general provisions relating to the states as a class. Further, the
respect to the administration of scheduled areas and tribal areas
within the states.
Notably, 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. The states are the members of the federal system and
share a distribution of powers with the Centre. The union
territories and the acquired territories, on the other hand, are
directly administered by the Central government.
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 acquisition of these territories are discussed
later in this chapter.
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. The first refers to the admission of
states which are already in existence, while the second refers to
the establishment of states which were not in existence before.
Notably, 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. In other words, Article 3 deals with the
PARLIAMENT’S POWER TO REORGANISE THE
STATES
Article 3 authorises the Parliament to:
(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; and
(e) alter the name of any state.
However, Article 3 lays down two conditions in this regard: one,
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.
Further, 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 territory3 .
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 Parliament4. 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.
It is, thus, clear that the Constitution authorises the Parliament
to form new states or alter the areas, boundaries or names of the
existing states without their consent. In other words, the
Parliament can redraw the political map of India according to its
will. 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. In USA, on the other
hand, the territorial integrity or continued existence of a state is
guaranteed by the Constitution. The American Federal
Government cannot form new states or alter the borders of
existing states without the consent of the states concerned. That
is why the USA is described as ‘an indestructible union of
indestructible states.’
Moreover, 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.
On the other hand, the Supreme Court in 1969 ruled that,
settlement of a boundary dispute between India and another
country does not require a constitutional amendment. It can be
EXCHANGE OF TERRITORIES WITH BANGLADESH
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 background of this
amendment is as follows:
1. India and Bangladesh have a common land boundary of
approximately 4096.7 kms. 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 Supreme Court. To comply with the
opinion rendered by the Supreme Court, the Constitution
(9th Amendment) Act, 1960 was passed by the Parliament.
Due to the continuous litigation and other political
developments at that time, the Constitution (9th
Amendment) Act, 1960 could not be notified in respect of
territories in former East Pakistan (presently Bangladesh).4a
2. On May 16, 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. This Agreement was not
ratified as it involved, inter alia, transfer of territory which
requires a Constitutional Amendment. In this connection, it
was also required to identify the precise area on the ground
which would be transferred. Subsequently, 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
September 6, 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,
EVOLUTION OF STATES AND UNION TERRITORIES
Integration of Princely States
At the time of independence, India comprised two categories of
political units, namely, the British provinces (under the direct rule
of British government) and the princely states (under the rule of
native princes but subject to the paramountcy of the British
Crown). The Indian Independence Act (1947) created two
independent and separate dominions of India and Pakistan and
gave three options to the princely states viz., joining India, joining
Pakistan or remaining independent. 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. However, in course of time, they were also
integrated with India–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 and territories of the Indian Union–Part A, Part B and
Part C states and Part D territories5. 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 territories.
Dhar Commission and JVP Committee
The integration of princely states with the rest of India has purely
an ad hoc arrangement. There has been a demand from different
regions, particularly South India, for reorganisation of states on
linguistic basis. Accordingly, in June 1948, the Government of
India appointed the Linguistic Provinces Commission under the
chairmanship of 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. This
created much resentment and led to the 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 Committee6. It submitted its
report in April, 1949, and formally rejected language as the basis
for reorganisation of states.
Table 5.1 Territory of India in 1950
States in States in States in Territories in Part D
Part A Part B Part C
1. Assam 1. Hyderabad 1. Ajmer 1. Andaman and
Nicobar Islands
2. Bihar 2. Jammu 2. Bhopal
and Kashmir
3. Bombay 3. Madhya 3. Bilaspur
Bharat
4. Madhya 4. Mysore 4. Cooch-
Pradesh Behar
5. Madras 5. Patiala 5. Coorg
and East
Punjab
6. Orissa 6. Rajasthan 6. Delhi
7. Punjab 7. Saurashtra 7. Himachal
Pradesh