Union and its Territory – Indian Polity
This article deals with ‘Union and its Territory – Indian Polity.’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here
Under International Law as laid down under the Montevideo convention, to be recognized as STATE some basic components are required like
- Permanent Population
- Defined Territory
- Capacity to enter into relations with other states
Hence, TERRITORY plays a significant role in making a recognized state.
Territory serves as a cornerstone in the establishment of statehood due to its multifaceted implications. A defined territory not only provides a physical space where a population resides and governance takes place but also serves as the spatial jurisdiction within which the State exercises its authority. This territorial demarcation delineates the scope of a state’s legal, political, and economic activities while also acting as a symbol of its sovereignty and distinct identity on the global stage.
(E.g., Kurds have a Permanent Population, even a somewhat independent government, and they enter into relations with other powers like the US, but they don’t have a defined Territory which is internationally recognized by other states; hence, although Kurds are a nation but not State).
Articles 1 to 4 of Part 1 deal with Union and its Territory.
Analysis of Article 1(1)
- Article 1(1) states that India, that is, Bharat, shall be a Union of States. Hence, the official name of India is ‘India that is Bharat‘. The nomenclature of “India that is Bharat” underscores the country’s rich cultural heritage and historical continuity. It serves as a bridge between the modern and ancient, acknowledging the deep-rooted historical legacy while embracing the contemporary identity.
- India is a Union of States and
not a Federation of States because
- India is not the result of an agreement among different states.
- No state can secede from the Union.
- States can’t change the boundaries on their own free will.
- It should also be noted that
the term ‘Union’ was preferred over ‘Centre’ because
- States are neither the agencies of the Union nor derive their powers from it. Both the entities, i.e. the Union and the States, are the creation of the Constitution, and both derive their respective authority from the Constitution.
- The Constitution clearly demarcated the Legislative and Executive powers between Union and States.
- The relationship between Union and States is not of subordination but cooperation.
- Point to note
|India||Indestructible Union of destructible state|
|USA||Indestructible Union of indestructible states|
|Canada||Destructible Union of destructible states|
Analysis of Article 1(2)
- Article 1(2) of the Indian Constitution states that the states and territories thereof shall be as specified in the First Schedule.
- Hence, Schedule 1 of the Indian Constitution contains the name of states and Union Territories along with their territorial extent.
Analysis of Article 1(2)
Article 1(2) of the Indian Constitution delineates the expansive and dynamic concept of the territorial boundaries of India. This provision lays down the comprehensive composition of the territory of India, highlighting the multi-faceted nature of its geographical and political entity.
The Territory of India consists of
- Territory of States: The first component encapsulates the territories of the different states that collectively form the Indian Union.
- Union Territories: The second aspect encompasses the Union Territories (UTs), regions directly administered by the central government.
- Territories that the Government of India may acquire at any time: The third facet introduces a dynamic and potentially evolving aspect of India’s territory. It emphasizes that the territorial scope of India is not static, as the Government of India has the authority to acquire additional territories at any time.
Hence, the Territory of India is greater than the Union of India. While the Union of India comprises only those states that are members of the federal structure and share powers with the central government, the Territory of India extends beyond this federal composition. It encompasses not only states but also union territories and, importantly, leaves room for potential future territorial acquisitions.
- Article 2 of the Indian Constitution empowers Parliament to admit new States into the Union and the power to establish new States on such terms & conditions as it thinks fit.
- This article is meant for the newly acquired area, which wasn’t part of India earlier. Parliament exercised this power to admit the French enclaves of Pondicherry, Karaikal, and others, as well as the Portuguese enclave of Goa, into the Indian Union.
- Significant Supreme Court
Judgements in this regard include
- In N. Masthan Sahib v. Chief Commissioner of Pondicherry, the Supreme Court held that mere having administrative control over the Territory of Pondicherry didn’t mean the territory had been transferred to India. For the legal transfer of territory, ratifying the cession between France and India is necessary.
- Similarly, later in SR Bhansali v. Union of India, it was held that mere physical control of territory by force of arms didn’t amount to ‘acquisition’ and the territory conquered in the Indo-Pakistan War of 1971 had not become a part of the Territory of India.
Hence, ratification by both sovereigns is an essential condition for the acquisition of territory.
- Bill can be introduced in any house with the prior recommendation of the President.
- Before recommending the bill, President would send it to the concerned state legislature to seek its opinion within the time limit.
- If State doesn’t respond within time, it can be extended or introduced in Parliament without the State’s recommendation.
- Parliament is not bound to act on the recommendation of the State Legislature (ruled by the Supreme Court in Babulal Parate v. the State of Bombay).
- The bill needs to be passed by the Parliament with a simple majority.
Recent development happened in 2017 when the above provision was challenged in Andhra Pradesh Bifurcation. In the case of the creation of the State of Telangana, the Andhra Pradesh Reorganisation Bill, 2013 was decisively rejected by the Andhra Pradesh Legislative Assembly and Council. But the same did not deter the Government from going ahead with the passage of the Andhra Pradesh Reorganisation Act, 2014 (Telangana) in the Parliament. Hence, the petition demanded to declare bifurcation to be Unconstitutional. The petition claimed that the
- The Centre had introduced the bill when the Andhra Pradesh State Legislature rejected it. They contended that the bifurcation violated the basic provisions of federalism.
- There should be a “federal index” for State formation. The Union can’t have roughshod over the federal structure.
A full verdict is awaited. It is hoped that the Supreme Court will clarify the procedure to be followed in case of such bifurcations.
There are instances where the State Legislatures have passed a resolution for creating new states. But constitutionally, states cannot initiate the creation process of states. The motion passed by Uttar Pradesh Assembly in 2011 to divide the State into 4 parts – Poorvanchal, Paschim Pradesh, Awadh Pradesh, and Bundelkhand had only suggestive value but no material significance in Constitutional terms.
Laws made under Article 2 & Article 3 are not Amendments to Constitution under Article 368 and hence can be passed by a simple majority. The ordinary legislative procedure can pass such laws through a simple majority.
Supreme Court rulings on the important questions
Do the power to diminish the area of the State also constitute the power to cede territory to a foreign country?
- The matter arose in the Berubari Union Case of 1960 when India ceded the Berubari Union region in West Bengal to Pakistan (under the Nehru-Noon Agreement of 1958).
- The Supreme Court
said Parliament doesn’t have the power to diminish area by
ceding its territory to another country under Article 3 as its implementation would
reduce the total area of India. Consequently, amending Article 1 and
pertinent sections of the Constitution’s First Schedule becomes necessary,
requiring a Constitutional Amendment as per Article 368.
- Consequently, the 9th Constitutional Amendment was enacted in 1960 to transfer Berubari to Pakistan.
- In 2015, when India ceded 111 Land Enclaves to Bangladesh, the 100th Constitutional Amendment Act was passed. It amended the First Schedule of the Constitution.
- In the 1970s, India ceded Katchatheevu Island to Sri Lanka after signing a bilateral treaty. The decision was against the Berubari Judgement as Indian territory can be ceded to any foreign country through a constitutional amendment. Hence, Tamil groups challenged this action in the Supreme Court of India, and the case is still pending before the Supreme Court.
How to settle boundary disputes?
- In the Ram Kishore case / Berubari II Case, the Supreme Court held that cessation of the territory is different from the settlement of the boundary.
- Settlement of boundary disputes & the implementation of the International Tribunal’s Award is within the executive powers of the Government. It doesn’t require any amendment and can be done by executive order.
Leasing of Territory
In Sukumar Sengupta v. Union of India, Supreme Court held that where territory was leased to another State (in this case, it was leased to Bangladesh), it wasn’t necessary to Amend the Constitution. There was no cessation and abandonment of the Sovereignty of India over the territory.