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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 |
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