Subject : Constitution

 
   Title :       A Succinct Note On Formation Of New States In India (in The Light Of Relevant The Constitutional Amendment Acts And Case Law)
   Author : Mr. Y. Srinivasa Rao  
   
 

Introduction :

The Constitution of India is the supreme law of our country and hence every law enacted by the government of India must conform to it. We know that it came into effect on 26th January, 1950. Our Constitution avows the ''Union of India'' to be a sovereign, democratic republic, assuring its citizens of justice, equality, and liberty and to promote among them all fraternity. In 1976, by constitutional amendments, the words 'socialist', 'secular' and 'integrity' and 'Fraternity' were added. Our Constitution is the longest written constitution of any sovereign country in the entire world. It contains 395 (three hundred and ninety five) articles in 22 (twenty two) parts, 12 (twelve) schedules and 94 (ninety four) amendments. There are totally 117,369 words in our constitution. It was written in English. That too, it was also translated into Hindi language officially. Amendments to the constitution can be made by Parliament, yet the Hon'ble Supreme Court of India held ( though it is rather controversial) that not every constitutional amendment is permissible. An amendment should respect the 'basic structure' of the constitution, which is immutable. The procedure is laid out in Article 368.1

One of special features of the Union of India is that the union is indestructible but the power conferred on Parliament includes the power to form a new state or union territory by uniting a part of any State or Union territory to other State or Union territory. The identity of States can be altered or even expunged by the Parliament. The Constituent Assembly declined a motion in concluding stages to designate India as '' Federation of States''.

Article 1 elucidates India a ''Union of States''. These states are specified in the First Schedule of the constitution. First Schedule lists the States and Territories of India and also lists if any changes to borders of them. Articles 2, 3 and 4 enable parliament by law admit a new state, increase, decrease the area of any state.

Dr. Bhimrao Ramji Ambedkar, as chairman of the Constitution Drafting Committee, who was the Chief Architect of The Constitution of India. explained the position as to '' Federation of States'' as infra :

''... that though India was to be a federation, the federation was not the result of an agreement by the states to join in a federation and that the federation not being the result of an agreement, no state has the right to secede from it. The federation is a union because it is indestructible. Though the country and the people may be divided into different states for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source. ...''2

The proviso of Article 3 makes it compulsory on the part of the President to refer the bill to the legislature of the 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.

Our constitution provides the prospective changes including alteration of boundaries. In 1968, some changes were incorporated as to the states Bihar and Uttar Pradesh, in consequence of that in same territory in Shahbad District of Bihar lying between the fixed boundary and the deep stream of the river Ganga being transferred from the State of Bihar to the Uttar Pradesh state.

Fifth Amendment to the constitution :

'' Under the proviso of Article 3 of the constitution, no bill for the purpose of forming a new state, increasing or decreasing the area of any state or attending the boundaries or name of any state could be introduced in parliament, unless the views of the state legislature concerned with respect to the provisions of the bill has been ascertained by the President. It was considered desirable that when a reference was made to the state legislatures for the said purpose, the President should be able to prescribe the period within which the states should convey their views, and should be open to the President to extend such period whenever he considered it necessary. It was also considered desirable to provide that bill would not be introduced until after the expiry of such period''. In this context, I deem that it is apt to mention THE CONSTITUTION (FIFTH AMENDMENT) ACT, 1955. which reads as infra :

'' THE CONSTITUTION (FIFTH AMENDMENT) ACT, 19553

[24th December, 1955.]

An Act further to amend the Constitution of India.

BE it enacted by Parliament in the Sixth Year of the Republic of India as follows:---

1.Short title.- This Act may be called the Constitution (Fifth Amendment) Act,1955.

2. Amendment of article 3.--

In article 3 of the Constitution, for the proviso, the following proviso shall be substituted,namely:-

"Provided that no Bill for the purpose 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 specified in Part A or Part B of the First Schedule, 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."3 ''

The constitution (Eighteenth Amendment) Act,1966 is a sequel to the supreme Court ruling in Ram Kishore vs Union of India :

The constitution (Eighteenth Amendment) Act, 1966 was a sequel to the supreme Court decision in Ram Kishore's4 case. In this case, it was made clear that the term '' state'' in article 3 includes a ''Union Territory''. Accordingly, two explanations were added to article 3 by this amendment. By the first explanation, it is provided that the term 'state' includes a Union Territory. But in the provision inserted by the constitution (Fourth Amendment) Act,1955, it is stated that the word 'state' doest not include a Union Territory. The reason for this is that in the case of alteration of boundaries of a state, it is necessary to elicit the opinion of the affected states, but it would be superfluous to include union territories in the proviso, inasmuch as the Union territories are governed by the parliament.

The second explanation provides that the power conferred on Parliament under clause (a) of Article 3 includes the power to form a new state or union territory by uniting a part of any State or Union territory to other State or Union territory.

At this conjuncture, it is apt to read '' THE CONSTITUTION (FOURTH AMENDMENT) ACT, 1955.

'' THE CONSTITUTION (FOURTH AMENDMENT) ACT, 19553

Statement of Objects and Reasons appended to THE CONSTITUTION (Fourth Amendment) Bill, 1954 which was enacted as the Constitution (Fourth Amendment) Act, 1954

STATEMENT OF OBJECTS AND REASONS

This Bill seeks to amend articles 31, 31A and 305 of, and the Ninth Schedule to, the Constitution.

2. Recent decisions of the Supreme Court have given a very wide meaning to clauses (1) and (2) of article 31. Despite the difference in the wording of the two clauses, they are regarded as dealing with the same subject. The deprivation of property referred to in clause (1) is to be construed in the widest sense as including any curtailment of a right to property. Even where it is caused by a purely regulatory provision of law and is not accompanied by an acquisition or taking possession of that or any other property right by the State, the law, in order to be valid according to these decisions, has to provide for compensation under clause (2) of the article. It is considered necessary, therefore, to re-state more precisely the State's power of compulsory acquisition and requisitioning of private property and distinguish it from cases where the operation of regulatory or prohibitory laws of the State results in "deprivation of property". This is sought to be done in clause 2 of the Bill.

3. It will be recalled that the zamindari abolition laws which came first in our programme of social welfare legislation were attacked by the interests affected mainly with reference to articles 14, 19 and 31, and that in order to put an end to the dilatory and wasteful litigation and place these laws above challenge in the courts, articles 31A and 31B and the Ninth Schedule were enacted by the Constitution (First Amendment) Act. Subsequent judicial decisions interpreting articles 14, 19 and 31 have raised serious difficulties in the way of the Union and the States putting through other and equally important social welfare legislation on the desired lines, e.g., the following:-

(i) While the abolition of zamindaris and the numerous intermediaries between the State and the tiller of the soil has been achieved for the most part, our next objectives in land reform are the fixing of limits to the extent of agricultural land that may be owned or occupied by any person, the disposal of any land held in excess of the prescribed maximum and the further modification of the rights of land owners and tenants in agricultural holdings.

(ii) The proper planning of urban and rural areas require the beneficial utilisation of vacant and waste lands and the clearance of slum areas.

(iii) In the interest of national economy the State should have full control over the mineral and oil resources of the country, including in particular, the power to cancel or modify the terms and conditions of prospecting licenses, mining leases and similar agreements. This is also necessary in relation to public utility undertakings which supply power, light or water to the public under licenses granted by the State.

(iv) It is often necessary to take over under State management for a temporary period a commercial or industrial undertaking or other property in the public interest or in order to secure the better management of the undertaking or property. Laws providing for such temporary transference to State management should be permissible under the Constitution.

(v) The reforms in company law now under contemplation, like the progressive elimination of the managing agency system, provision for the compulsory amalgamation of two or more companies in the national interest, the transfer of an undertaking from one company to another, etc., require to be placed above challenge.

It is accordingly proposed in clause 3 of the Bill to extend the scope of article 31A so as to cover these categories of essential welfare legislation.

4. As a corollary to the proposed amendment of article 31A, it is propsed in clause 5 of the Bill to include in the Ninth Schedule to the Constitution two more State Acts and four Central Acts which fall within the scope of sub-clauses (d) and (f) of clause (1) of the revised article 31A. The effect will be their complete, retrospective validation under the provisions of article 31B.

5. A recent judgment of the Supreme Court in Saghir Ahmed v. the State of U.P. has raised the question whether an Act providing for a State monopoly in a particular trade or business conflicts with the freedom of trade and commerce guaranteed by article 301, but left the question undecided. Clause (6) of article 19 was amended by the Constitution (First Amendment) Act in order to take such State monopolies out of the purview of sub-clause (g) of clause (1) of that article, but no corresponding provision was made in Part XIII of the Constitution with reference to the opening words of article 301. It apears from the judgment of the Supreme Court that notwithstanding the clear authority of Parliament or of a State Legislature to introduce State monopoly in a particular sphere of trade or commerce, the law might have to be justified before the courts as being "in the public interest" under article 301 or as amounting to a "reasonable restriction" under article 304(b). It is considered that any such question ought to be left to the final decision of the Legislature. Clause 4 of the Bill accordingly proposes an amendment of article 305 to make this clear.

Statement of Objects and Reasons appended to THE CONSTITUTION (Fourth Amendment) Bill, 1954 which was enacted as the Constitution (Fourth Amendment) Act, 1954

STATEMENT OF OBJECTS AND REASONS

This Bill seeks to amend articles 31, 31A and 305 of, and the Ninth Schedule to, the Constitution.

2. Recent decisions of the Supreme Court have given a very wide meaning to clauses (1) and (2) of article 31. Despite the difference in the wording of the two clauses, they are regarded as dealing with the same subject. The deprivation of property referred to in clause (1) is to be construed in the widest sense as including any curtailment of a right to property. Even where it is caused by a purely regulatory provision of law and is not accompanied by an acquisition or taking possession of that or any other property right by the State, the law, in order to be valid according to these decisions, has to provide for compensation under clause (2) of the article. It is considered necessary, therefore, to re-state more precisely the State's power of compulsory acquisition and requisitioning of private property and distinguish it from cases where the operation of regulatory or prohibitory laws of the State results in "deprivation of property". This is sought to be done in clause 2 of the Bill.

3. It will be recalled that the zamindari abolition laws which came first in our programme of social welfare legislation were attacked by the interests affected mainly with reference to articles 14, 19 and 31, and that in order to put an end to the dilatory and wasteful litigation and place these laws above challenge in the courts, articles 31A and 31B and the Ninth Schedule were enacted by the Constitution (First Amendment) Act. Subsequent judicial decisions interpreting articles 14, 19 and 31 have raised serious difficulties in the way of the Union and the States putting through other and equally important social welfare legislation on the desired lines, e.g., the following:-

(i) While the abolition of zamindaris and the numerous intermediaries between the State and the tiller of the soil has been achieved for the most part, our next objectives in land reform are the fixing of limits to the extent of agricultural land that may be owned or occupied by any person, the disposal of any land held in excess of the prescribed maximum and the further modification of the rights of land owners and tenants in agricultural holdings.

(ii) The proper planning of urban and rural areas require the beneficial utilisation of vacant and waste lands and the clearance of slum areas.

(iii) In the interest of national economy the State should have full control over the mineral and oil resources of the country, including in particular, the power to cancel or modify the terms and conditions of prospecting licenses, mining leases and similar agreements. This is also necessary in relation to public utility undertakings which supply power, light or water to the public under licenses granted by the State.

(iv) It is often necessary to take over under State management for a temporary period a commercial or industrial undertaking or other property in the public interest or in order to secure the better management of the undertaking or property. Laws providing for such temporary transference to State management should be permissible under the Constitution.

(v) The reforms in company law now under contemplation, like the progressive elimination of the managing agency system, provision for the compulsory amalgamation of two or more companies in the national interest, the transfer of an undertaking from one company to another, etc., require to be placed above challenge.

It is accordingly proposed in clause 3 of the Bill to extend the scope of article 31A so as to cover these categories of essential welfare legislation.

4. As a corollary to the proposed amendment of article 31A, it is proposed in clause 5 of the Bill to include in the Ninth Schedule to the Constitution two more State Acts and four Central Acts which fall within the scope of sub-clauses (d) and (f) of clause (1) of the revised article 31A. The effect will be their complete, retrospective validation under the provisions of article 31B.

5. A recent judgment of the Supreme Court in Saghir Ahmed v. the State of U.P. has raised the question whether an Act providing for a State monopoly in a particular trade or business conflicts with the freedom of trade and commerce guaranteed by article 301, but left the question undecided. Clause (6) of article 19 was amended by the Constitution (First Amendment) Act in order to take such State monopolies out of the purview of sub-clause (g) of clause (1) of that article, but no corresponding provision was made in Part XIII of the Constitution with reference to the opening words of article 301. It appears from the judgment of the Supreme Court that notwithstanding the clear authority of Parliament or of a State Legislature to introduce State monopoly in a particular sphere of trade or commerce, the law might have to be justified before the courts as being "in the public interest" under article 301 or as amounting to a "reasonable restriction" under article 304(b). It is considered that any such question ought to be left to the final decision of the Legislature. Clause 4 of the Bill accordingly proposes an amendment of article 305 to make this clear.

THE CONSTITUTION (FOURTH AMENDMENT) ACT, 19553

[27th April, 1955.]

An Act further to amend the Constitution of India.

BE it enacted by Parliament in the Sixth Year of the Republic of India as follow:-

1. Short title.-This Act may be called the Constitution (Forth Amendment) Act, 1955.

2. Amendment of article 31.-In article 31 of the Constitution, for clause (2), the following clauses shall be substituted, namely:---

"(2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; and no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate.

(2A) Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property.".

3. Amendment of article 31A.-In article 31A of the Constitution,--

(a) for clause (1), the following clause shall be, and shall be deemed always to have been, substituted, namely:-

"(1) Notwithstanding anything contained in article 13, no law providing for-

(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or

(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or

(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or

(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or

(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, 

shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31:

Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent."; and

(b) in clause (2),-

(i) in sub-clause (a), after the word "grant", the words "and in the States of Madras and Travancore-Cochin, any janman right" shall be, and shall be deemed always to have been, inserted; and

(ii) in sub-clause (b), after the word "tenure-holder", the words "raiyat, under-raiyat" shall be, and shall be deemed always to have been, inserted.

4. Substitution of new article for article 305.-For article 305 of the Constitution, the following article shall be substituted, namely:-

"305. Saving of existing laws and laws providing for State mono- polies.-Nothing in articles 301 and 303 shall affect the provisions of any existing law except in so far as the President may by order otherwise direct; and nothing in article 301 shall affect the operation of any law made before the commencement of the Constitution (Fourth Amendment) Act, 1955, in so far as it relates to, or prevent Parliament or the Legislature of a State from making any law relating to, any such matter as is referred to in sub-clause (ii) of clause (6) of article 19.".

5. Amendment of the Ninth Schedule.-In the Ninth Schedule to the Constitution, after entry 13, the following entries shall be added, namely:-

"14. The Bihar Displaced Persons Rehabilitation (Acquisition of Land) Act, 1950 (Bihar Act XXXVIII of 1950).

15. The United Provinces Land Acquisition (Rehabilitation of Re- fugees) Act, 1948 (U.P. Act XXVI 1948).

16. The Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (Act LX of 1948).

17. Sections 52A to 52G of the Insurance Act, 1938 (Act IV of 1938), as inserted by section 42 of the Insurance (Amendment) Act, 1950 (Act XLVII of 1950).

18. The Railway Companies (Emergency Provisions) Act, 1951 (Act LI of 1951).

19. Chapter III-A of the Industries (Development and Regulation) Act, 1951 (Act LXV of 1951), as inserted by section 13 of the Industries (Development and Regulation) Amendment Act, 1953 (Act XXVI of 1953).

20. The West Bengal Land Development and Planning Act, 1948 (West Bengal Act XXI of 1948), as amended by West Bengal Act XXIX of 1951.". ]''3

A fortiori, it is essential to know about THE CONSTITUTION (EIGHTEENTH AMENDMENT) ACT, 1966. it is reads as follows :

THE CONSTITUTION (EIGHTEENTH AMENDMENT) ACT, 19663

Statement of Objects and Reasons appended to the Constitution (Twentieth Amendment) Bill, 1966 which was enacted as the Constitution (Eighteenth Amendment) Act, 1966

STATEMENT OF OBJECTS AND REASONS

Article 3 of the Constitution provides for the formation of new States and alteration of areas, boundaries, or names of existing States. Before the Constitution (Seventh Amendment) Act,1956, was enacted,the expression"States"occurring in that article meant Part A States, Part B States and also Part C States. By the Seventh Amendment of the Constitution in 1956, the concept of "Union territories" was introduced in our Constitution but article 3 was not amended to include in terms "Union territories". It is considered proper to amend this article to make it clear that "State" in clauses (a) to (e) of that article (but not in the proviso)includes "Union territories". It is also considered proper to make it clear that power under clause (a) of article 3 includes power to form a new State or Union territory by uniting a part of a State or Union territory to another State or Union territory.

THE CONSTITUTION (EIGHTEENTH AMENDMENT) ACT, 19663

[27th August, 1966.]

An Act further to amend the Constitution of India.

BE it enacted by Parliament in the Seventeenth Year of the Republic of India as follows:-

1. Short title.-This Act may be called the Constitution (Eighteenth Amendment) Act, 1966.

2. Amendment of article 3.- In article 3 of the Constitution, the following Explanations shall be inserted at the end, namely:-

Explanation I.- In this article in clauses (a) to (e), "State" includes a Union territory, but in the proviso, "State" does not include a Union territory.

Explanation II.- The power conferred on Parliament by clause (a) includes the power to form a new State or Union territory by uniting a part of any State or Union territory any other State or Union territory.3

Article 1 (3) (c) provides that ''such other territories as may be acquired''. By mixture of the provisions, the territories comprising in Goa, Daman and Diu under the Portuguese rule were annexed by the Government of India bu conquest on 20th December,1961 were made a part of India. By the constitution (Twelfth amendment) Act, 1962, Goa, Diu and Daman were added as entry 5 in part II of the first schedule to the constitution and as d. (d) in Article 240 of the constitution with retrospective effect from the date of their annexation. Ours is a constitution where there is a combination of federal with unitary features. While in a unitary state, there is only one government, federal state involves multi-governments, namely national or federal government and the governments of component states. A federal state, in short is a fusion of several states into a single state is regard to matters affecting common interest leaving each component state to join autonomy in regard to other matters.

Let us see, THE CONSTITUTION (TWELFTH AMENDMENT) ACT, 1962. It reads thus:

'' THE CONSTITUTION (TWELFTH AMENDMENT) ACT, 19623

Statement of Objects and Reasons appended to the Constitution (Twelfth Amendment) Bill, 1962 which was enacted as the Constitution (Twelfth Amendment) Act, 1962

STATEMENT OF OBJECTS AND REASONS

On the acquisition of the territories of Goa, Daman and Diu with effect from the 20th December, 1961, these territories have, by virtue of sub-clause (c) of clause (3) of article 1 of the Constitution, been comprised within the territory of India from that date and they are being administered as a Union territory by the President through an Administrator in accordance with article 239 of the Constitution. It is, however, considered desirable that Goa, Daman and Diu should be specifically included as a Union territory in the First Schedule to the Constitution. It is also considered that clause (1) of article 240 should be suitably amended to confer power on the President to make regulations for the peace, progress and good government of Goa, Daman and Diu, as has been done in the case of Dadra and Nagar Haveli.

The Constitution (Twelfth Amendment) Bill, 1962 seeks to make the above mentioned provisions.

THE CONSTITUTION (TWELFTH AMENDMENT) ACT, 19623

[27th March, 1962.]

An Act further to amend the Constitution of India.

BE it enacted by Parliament in the Thirteenth Year of the Republic of India as follows:-

1.Short title and commencement.-(1) This Act may be called the Constitution (Twelfth Amendment) Act, 1962.

(2) It shall be deemed to have come into force on the 20th day of December 1961.

2. Amendment of the First Schedule to the Constitution.-In the First Schedule to the Constitution, under the heading "THE UNION TERRITORIES", after entry 7, the following entry shall be inserted, namely:-

8. Goa, Daman The territories which immediately before and Diu the twentieth day of December, 1961 were comprised in Goa, Daman and Diu.".

3. Amendment of article 240.-In article 240 of the Constitution, in clause (1), after entry (c), the following entry shall be inserted, namely:- "(d) Goa, Daman and Diu.". ''

In view of the above the Constitutional Amendment Acts and the relevant case law, one can understand the procedure to form a new State . The effort made to present this article may kindly be appreciated.

 

____________________

* M.A(English)., B.Ed., Topper IN Ll.M, Judicial Officer, Andhra Pradesh

1. I have read the article '' Constitution of India'' from Wikipedia website

2. Constituent Assembly Debates, Reprint; Vol VII, Paper 43.

3. "This information is downloaded from the website of Ministry of Law and Justice (Legislative Department)".

4. Ram Kishore vs Union of India.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   

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