“The Knowledge Library”

Knowledge for All, without Barriers…

An Initiative by: Kausik Chakraborty.

“The Knowledge Library”

Knowledge for All, without Barriers……….
An Initiative by: Kausik Chakraborty.

The Knowledge Library

UNION AND ITS TERRITORY

Territory of India

    • As has been already stated, the political structure prescribed by the Constitution is a federal Union. The name of the Union is India or Bharat [Art. 1(1)]
    • The expression ‘Union of India’ should be distinguished from the expression ‘territory of India.’ While the ‘Union’ ‘includes only the States which enjoy the status of being members of the federal system and share a distribution of powers with the Union, the “territory of India” includes the entire territory over which the sovereignty of India, for the time being, extends.
    • Thus, besides the States, there are two other classes of territories, which are included in the ‘territory of India’, (I) ‘Union Temtortes’, and (ii) Such other territories as may be acquired by India.
    • The Union Territories are, since 1987, seven in number – Delhi, the Andaman & Nicobar Island; Lakshadweep; Dadra & Nagar Haveli; Daman & Diu; Pondicherry; and Chandigarh. For the Union territory of Pondicherry, the Parliament has by enacting a law, viz. Pondicherry (Administration) Act, 1962 under Art 239A made provision for a legislature, etc. By an amendment to the Constitution two new articles, viz. 239AA and 239AB were inserted in 1992 providing for a legislature and a ministry for Delhi which has been named as National Capital Territory of Delhi by Art. 239AA
    • The rest of the Union territories are Centrally administered areas, to be governed by the President, acting through an ‘Administrator’ appointed by him, and Issuing Regulations for their good government.
    • Any territory which may, at any time, be acquired by India by purchase, treaty, cession or conquest, will obviously form part of the territory of India. These will be administered by the Government of India subject to legislation by Parliament.
    • Thus, the French Settlement of Pondicherry (together with Karaikal, Mahe, and Yanam), which was ceded to India by the French Government in 1954, was being administered as an ‘acquired territory’ until 1962 inasmuch as the Treaty of Cession had not yet been ratified by the French Parliament. After such ratification, the territory of these French Settlements was constituted a ‘Union Territory’, in December 1962.

Constitutional developments in Sikkim

    • During British days, Sikkim was an Indian State under a hereditary Sikkim, a new monarch called Chogyal, subject to British paramountcy. Its external frontier in the Himalayas was demarcated by agreement with China, in 1890. The Chogyal was a member of the Chamber of Princes.
    • When India became independent, there was a section of public opinion in Sikkim for a merger with India, But the Princely Rule of that State and its strategic position stood in tHe way.
    • Hence, after the lapse of paramountcy, a treaty was entered between Sikkim and the Government of India, by which the latter undertook the responsibility with regard to the defence. external affairs and communications of Sikkim.
    • The government of India was represented in Sikkim by a Political Officer, who was also assigned to Bhutan. Sikkim thus became a Protectorate of the Union of India.
    • In May 1974, the Sikkimese Congress decided to put an end to monarchical rule, and the Sikkim Assembly passed the Government of Sikkim Act, 1974, for the Progressive realization of a fully responsible government in Sikkim and for furthering its relationship with India This Act empowered the Government of Sikkim to seek participation and representation of the people of Sikkim in the political institutions of India, for the speedy development of Sikkim in Social, economic and political fields.
    • The Chogyal was made to give his assent to the Government of Sikkim Bill. under which effective power went into the hands of a representative Sikkim Assembly and the Chogyal was turned into a normal constitutional head. The Sikkim Assembly, by virtue of its powers under the Government of Sikkim Act; passed a resolution, expressing its desire to be associated with the political and economic institutions of India and for seeking representation for the people of Sikkim in India’s Parliamentary system.

35th Amendment

    • The Constitution (35th Amendment) Act, 1974. was promptly passed to give effect to this resolution. The main provisions of this Amendment Act were–
    • Sikkim will not be a part of the territory of India, but an ‘associate State’, which was brought within the framework of the Indian Constitution by inserting Art. 2A and 10th Schedule in the Constitution which were subsequently omitted by the Constitution (36th Amendment) Act, 1975.
    • Sikkim would be entitled to send two representatives to the two Houses, whose rights and privileges would be the same as those of other members of Parliament, except that the representatives of Sikkim would not be entitled to vote at the election of the President or Vice-President of India. They would also be subject to the disqualifications for members of Parliament under the Indian Constitution.
    • The defence, communications, external affairs, and social welfare of Sikkim would be a responsibility of the Government of India and the people of Sikkim would have the right of admission to institutions for higher education, the All-India Services, and the political institutions in India.
    • The Government of Sikkim shall retain residual power on all matters not provided for in lOth Schedule to the Constitution of India, There is little doubt that the 35th Amendment Act, 1974, introduced innovations into the original scheme of the Constitution of India. There was no room for any ‘associate State’ under the Constitution of 1949.
    • India was a federal union of ‘States’. Union ‘Territories and ‘acquired territories’ (Art. 1(3)]. Of course, Article 2 empowered the Parliament of India to admit new ‘States’ into the ‘Union’. But the Constitution (35th Amendment) Act did not seek to admit Sikkim as a new State of the Indian Union. It was to be a territory associated with India and would have representatives in the Indian Parliament without being a part of the territory of India.
    • The criticism of the introduction of the status of an ‘associate State’ into the Indian federal system has, however, lost all practical significance. because Sikkim has shortly thereafter been admitted into the Indian Union as the 22nd state in the First Schedule of the Constitution of India.
    • While the Indian Parliament was enacting the Constitution (35th Amendment) Act, the Chogyal resented and sought to invoke international intervention. This provoked the progressive sections of the people of Sikkim and led to a resolution being passed by the Sikkim Assembly on April 10, 1975, declaring that the activities of the Chogyal were prejudicial to the democratic aspirations of the people of Sikkim and ran counter to the Agreement of May 1974, executed by the Chogyal.
    • This resolution of the Assembly was submitted to the people of Sikkim for their approval. At the referendum so held, there was an overwhelming majority, and the Chief Minister of Sikkim, on behalf of his Council of Ministers, urged the Government of India to implement the result of the referendum.
    • This led to the passing by the Indian Parliament of the Constitution (36th Amendment) Act, 1975, which was later ratified by the requisite number of States under Art. 368(2), Proviso. By the 36th Amendment Act, Sikkim has been admitted into the Union of India as a State, by amending the First and the Fourth Schedules, Art. 80-81, and omitting Art. 2A and the 10th Schedule, with retrospective effect from 26-4-1975.
    • Art. 371F has. further, been inserted to make some special provisions relating to the administration of Sikkim.
    • It has already been pointed out that the Indian federation differs from the traditional federal system insofar as it empowers Parliament to alter the territory or integrity of its units, namely, the States, without their consent or concurrence.
    • Where the federal system Is the result of a compact or agreement between the states, It is obvious that the agreement cannot be altered without the consent of the parties to it.
    • This Is why the American federation has been described as “an indestructible Union of indestructible States”. It Is not possible for the national Government to redraw the map of the United States by forming new States or by altering the boundaries of the States as they existed at the time of the compact without the consent of the Legislatures of the States concerned.
    • But since the federation in India was not the result of any compact between independent States, there was no particular urge to maintain the initial organization of the States as outlined in the Constitution even though the interests of the nation as a whole demanded a change in this respect.
    • The makers of our Constitution, therefore, empowered Parliament to reorganize the States by a Simple procedure, the essence of which Is that the affected State or States may express their views but cannot resist the will of Parliament.
    • The reason why such liberal power was given to the national government to reorganize the States is that the grouping of the Provinces under the Government of India Acts was based on historical and political reasons rather than the social, cultural, or linguistic divisions of the people themselves.
    • The question of reorganizing the units according to natural alignments was indeed raised at the time of the making of the Constitution but then there was not enough time to undertake this huge task, considering the magnitude of the problem.

Article related to State reorganization – Article 3, 4

    • article 4 provides that any law made under Article 3 may make supplemental, incidental, and consequential provisions for making itself effective and may amend the First and Fourth Schedules of the Constitution, without going through the special formality of a law for the amendment of the Constitution.
    • These Articles, thus, demonstrate the flexibility of our constitution. By a simple majority and by the ordinary legislative process Parliament may form new States or alter the boundaries, etc., of existing States and thereby change the political map of India. The only conditions laid down for the making of such a law are-
    • No Bill for the purpose can be introduced except on the recommendation of the President.
    • The President shall, before giving his recommendation, refer the Bill to the Legislature of the State which is going to be affected by the changes proposed in the Bill, for expressing its views on the changes within the period specified by the President. The President is not, however, bound by the views of the State Legislature, so ascertained.
    • Here is, thus, a special feature of the Indian federation, viz., that the territories of the units of the federation may be altered or redistributed if the Union Executive and Legislature so desire.
    • A similar transfer of certain territories from West Bengal and Assam to Pakistan under the aforesaid agreement was provided for by enacting the Constitution (9th Amendment) Act, 1960 because the Supreme Court opined that no territory can be ceded from India to a foreign country without amending the Constitution.

Introduction

India is described as a Union of states, not a federation as it is not formed due to an agreement between states like the American federation. Also, the states can’t cede from the union hence India is an indestructible union of destructible states. The states are created only for the convenience of administration.

Articles related to Union and its territory

Article 1: Territories of India include States, UT, and any territory acquired by the country. The provisions of states given in the constitution are applicable to all states except J&K. Special provisions for certain states are given and also provisions for scheduled areas and tribes.

Article 2: Admission or establishment of states that are not in the union of India.

Article 3: Alter the name and boundary of any state. Form a new state by uniting two or more states or parts.

Provisions related to this Part

A bill under article 3 can be introduced in parliament only after a recommendation by the president. This approval can be given only after referring the bill to the concerned state assemblies. If UT is involved then no need to refer to the bill for reference. The president isn’t bound by the recommendation of the states.

The bill to alter names, territories, or create new states from existing is not considered an amendment to parliament, hence can be passed with a simple majority.

Cessation of territory doesn’t come under this article and needs a constitutional amendment. However, settling a boundary dispute doesn’t need an amendment.



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KAUSIK CHAKRABORTY

KAUSIK CHAKRABORTY

Founder Director

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