Formation of New State under Indian Constitution

The author discusses the fact that the states, regions and mandals of India are not static, unchanging and permanent and the framers had the maturity to accept that states would evolve and change, and therefore made provisions for creation of new states in Indian Union.

Introduction

The Indian Constitution is the supreme law of our country, therefore, all laws promulgated by the Indian government must be observed. We know that our constitution came into effect on January 26, 1950. Our constitution stipulates that the “Union of India” is a sovereign, democratic republic, ensuring justice, equality, and freedom for citizens and promoting fraternity. In 1976, a constitutional amendment added the words “socialist”, “secular”, “integrity” and “fraternity”. Our constitution is the longest recorded constitution of a sovereign country in the world. It contains 395 articles in 22 parts, 12 schedules and 94 amendments. There are a total of 117,369 words in our constitution.  Although constitutional amendments can be made by Parliament, the Supreme Court of India ruled that not all constitutional amendments are allowed. The amendment must respect the “basic structure” of the constitution. This procedure is stipulated in Article 368. Let us discuss the formation of new state.

One of the characteristics of the Union of India is that trade unions cannot be destroyed, but the power granted to Parliament is the power to establish a new state or new territory by merging certain territories of a state or union into another state or Union. National status may be changed or deleted by Parliament. The Constituent Assembly rejected a motion to take action to designate India as a “federation of states.”

Article 1 describes India as the “Union of States”. These states are mentioned in the first Schedule of the constitution. The first Schedule lists the states and territories of India and will also list whether their borders have changed. Articles 2, 3 and 4 allow the legislature to approve the new state in accordance with the law and increase or decrease the size of any state.

Formation of new State under the Indian Constitution

The author of the “Constitution of India” does not believe that unlike modern Indians, the states, regions and mandals of India are static, unchanging and permanent. They had the maturity to accept that states would evolve and change, and therefore made provisions for creation of new states in Indian Union.

Constitution of India

Under Article 3, a new state may be formed or established in the following ways:

  1. By separation of territory from any state or
  2. By uniting two or more states or
  3. By uniting any parts of states
  4. By uniting any territory to a part of any state

Parliament under this article can also increase or decrease the area of any state or alter the boundaries or change the name of any state. Article 3 deals with the formation of a new state out if the territories of the exiting states. The power to form new states under article 3 (a) 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 territory.

The constitution of India empowers the parliament to alter the territory or names of the states without the consent. It can form new states and alter boundaries or names of the existing states by a law passed by simple majority.

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The conditions laid down for making of such a law must be followed. It provide that

  • No Bill for the purpose of Article 3 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.
  • If the state legislature does not express its views within the time specified or extended, the parliament is not bound to accept or act upon the views of the state legislature.[1]        
  • Further, it is not necessary to make fresh reference to state legislature every time an amendment to the bill is proposed and accepted.[2]

Thus, the article explains the flexibility of the Indian constitution by a simple majority and by ordinary legislative process. Parliament may form a new state or later boundaries of the existing states and thereby change political map of India.

Cession of Indian Territory to a foreign country under the Indian Constitution

Under article 3(c) of the Indian Constitution parliament may be law increase or decrease the area of the state. The dominations of the area of the state may occur where part of the state is taken out and added to another state.; parliament has been empowered to cut away the entire area of a state to form a new state or to increase the area of any state.

Does the power of parliament of diminish the area of any state include also the power to cede Indian Territory to a foreign state?

The question came up before the supreme court of India in a reference made by the President of India under Article 143. The facts of the case were: the Indo-Pakistan Agreement entered intoning 1958 for resolving certain border disputes

  1. For the transfer of one half of the area of Berubari Union by India to Pakistan and
  2. For the exchange of old Cooch-Bihar enclaves.

Berubari union comprised an area of 9 sq. Miles in the state of West Bengal with a population of about 12000. When the central government sought to implement the agreement, a powerful political agitation was started against the proposed transfer of territory to Pakistan. Thereupon the president referred the matter to the Supreme Court for its Advisory opinion under Article 143. The question referred to were (I) is any legislative action necessary for the implementation of agreement relating to Berubari Union and (II) if so is law of parliament under article 3 sufficient or is an amendment of the constitution in accordance with article 368 necessary or both.

On behalf of the union government, it was contended that the agreement did nothing more than to ascertain the true boundary of India and therefore its implementation did not involve handling over any Indian Territory but only territory which did not belong to Pakistan and this could be done in exercise of the executive power of the union. The Supreme Court rejected this contention and held that the transfer agreement involves cession of territory included in the schedule and it was outside the scope of parliamentary legislation. The power of parliament under article 3 to diminish the area of any state does not cover ceding of Indian Territory to a foreign state. Accordingly, the court held that the parliament had no power under article 3(c) to make a law to implement the Bari agreement an agreement, entered into with the government of a foreign state ceding Indian Territory to a foreign state. The said agreement could only be implemented by an amendment of the constitution in accordance with the Article 368. The territory ceded may be a part of the state or union territory.[3] Construing the scheme of the territories of the constituent states of India. The area diminished under article 3(c) continues to be part of the territory of India. Article 3(c) does not, therefore provide for cession of the territory of India. Article 3 (c) does not therefore provide for cession of the territory to a foreign state. Hence an agreement involving a transfer of territory to a foreign state cannot be implemented by simply passing a law under Article 3. Hence an amendment for the constitution is necessary for this.

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This does not however mean that there is no power to acquire or cede territory. The power to acquire and cede territory is an attribute of sovereignty and India being a sovereign state has power to acquire and cede territory both under international law and under the Preamble.

Supreme Court verdict

Constitutional democracy also refers to legal judgments that decide on the interpretation and set a precedent for the applicability of certain provisions of the Indian Constitution.

In 1960, the Indian Parliament proposed a bill to form the states of Maharashtra and Gujarat. The President referred the bill to State Assembly for their opinions. After receiving comments, the bill was passed by Parliament. In response, Babu lal Parante submitted a petition to the Bombay High Court claiming that the provisions of the Act passed are in contravention to the Article 3 of the Indian constitution. The appeal was dismissed as the legislature of Bombay had not given an opportunity of expressing views on the establishment of the composite state.

In this case, Babu Lal Parante v. State of Bombay[4], the Court explains the provisions of Article 3 of Indian Constitution:

The length of time the state legislature must express an opinion must be designated by the president. However, the President can extend the designated period. However, if the specified or extended time period has expired and the state’s view are not received, the second condition listed in the prerequisites is also met, although the state’s view is not expressed.

The purpose of this seems to be to give the state legislature the opportunity to express its position within the time allowed. Even if the state legislature fails to avail opportunity, this failure will not invalidate the bill.

 There is no condition that the legislature must accept or abide by the opinions of the state legislature.

Obviously, the “Constitution of India” envisages a situation where the states refuse to express their own opinions or raise negative opinions on the establishment of a new country, so no matter how state Assembly opposes it. , the Parliament has given full powers to take the decision.

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Further, an agreement to refer a boundary dispute to a tribunal does not requires for its implementation any Parliamentary Legislation. In Maganbhai v. Union of India[5] a dispute regarding the adjustment of a boundary line in Runn of Kutch between India and Pakistan was referred to a tribunal. The government wanted to implement the award without any parliamentary legislation. It was held that such agreement does not amount to cession of territory to a foreign country and hence an amendment was not necessary for its implementation. It could be implemented by government of India under its executive power.

Conclusion

The constitutional provisions in Article 3 of the Indian Constitution are combined with benevolent ideas to achieve the geographical and economic unity of India, but these provisions are now aimed at satisfying people’s regional and language desires. This is a tool that seems to be a way to achieve election gains. Nowadays, the term “linguistics” and “culture” are being abused so badly.

It is difficult to understand what happened to our assimilation process and why the mood of language and regional fanaticism is rising every day. The increasing demand for new states is clearly reflected in this trend in our country. Unfortunately, our government has further strengthened this problem by establishing more states.

The concept of “small is beautiful” seems great. If anyone thinks that building a new state is a panacea, it will be the most serious mistake. The need for time is to focus more energy on the development of existing countries. It doesn’t matter whether the condition is big or small. What is needed is a strong political will to rule with complete integrity and integrity. Development requires both parties to create a good atmosphere.

The provisions of Article 3 of the Indian Constitution can undermine the survival of the country by selectively changing the borders of the country because it is actually prevalent in our country in federal clothing. It depicts a unified government in action. The basic principle that the alliance relies on the territorial integrity of the country seems to be ignored.

The further division of the country has led to turmoil and turmoil in the country, leading to increasing demand for the establishment of a new country in which everyone wants their own whimsical and fantasy country. Regional relations have become stronger, making regional roots a stage of superiority beyond national unity and integrity. People are being on roads asking for their own state in a way that state is nothing but a toy which can be handled and modified according to them. All of this work is done in the name of the Linguistics to support the development of the state and ensure better governance.

Also read Definition of State: Article 12 of the Constitution of India


[1] Babulal v. State of Bombay, AIR 1960SC 51

[2] Re Berubari, AIR 1960 SC 858 p.860

[3] Ram kishore v. Union of India AIR 1966 SC 644

[4]  1960 AIR 51, 1960 SCR (1) 605

[5] AIR 1969 SC 783