Law and You > Constitutional Law > Formation of New States (Articles 2 to 4)

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. In this articles we shall study provisions related to formation of new states.

Part I and Articles 2 to 4 discuss the formation of new states. Under these Articles, Parliament can increase or decrease the area of any state or alter the boundaries or change the name of any state.

Article 1 elucidates India a “Union of States”. Article 1 of the Constitution classifies the territory of India into three categories i.e.:

1. Territories of the States
2. Union Territories
3. Territories that may be acquired by the government of India at any time by purchase, treaty, cession, conquest or any other method.

The names of states and union territories and their territorial extent are mentioned in the first schedule of the constitution. It says India is a Union of 28 states & 9 centrally administrated Union Territories.

Article 2:

Admission or Establishment of New States:

Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit.

Under Article 2 of the Constitution, Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit.

Article 2 provides the parliament with two powers:

• To admit into the Union new states. This power is applicable when the state to be admitted is duly formed and established also it is already in existence,
• To establish new states. This power is applicable when there is a formation of a new state which is not in existence.

In R. C .Poudyal v. Union of India, AIR 1993 SC 1804 case, the Article was discussed and it was observed: “It cannot be predicted that the article confers on Parliament an unreviewable and unfiltered power immune from judicial scrutiny. The power is limited by the fundamentals of the Indian constitutionalism and those terms and conditions which the Parliament may deem fit to impose, cannot be inconsistent and irreconcilable with the foundational principles of the Constitution and cannot violate or subvert the constitutional scheme. The validity of a statute is to be tested by the constitutional power of the Legislature at the time of its enactment by that Legislature, and if thus tested, it is beyond the legislative power, it is not rendered valid.

Article 3:

Formation of New States and Alteration of Areas, Boundaries or Names of Existing States:

Parliament may by law—

(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;

(e) alter the name of any State:

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, 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.

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 to any other State or Union territory.

Article 3(a) deals with the problem of the formation of a new state and indicates the modes by which a new state can be formed. Article 3(a) enables Parliament to form a new State and this can be done either by the separation of the 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. There can be no doubt that foreign territory which after the acquisition becomes a part of the territory of India under Article 1 (3) (c) is included in the last clause of Article 3 (a).

Article 3 (b) lays down that a law may be passed to increase the area of any State. This increase may be incidental to the reorganization of States under Article 3 (b) may have been taken out from the area of any state under Article 3(C).

Article 3 (d) refers to the alteration of the boundaries of any State and such alterations would be the consequence of any of the adjustments specified in Article 3 (a),(b),(c).

Article 3 (e) refers to the alteration of the name of any State.

a new state can 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 part of a state, or
4. by uniting any territory to a part of any state.

A new state may be formed and area, boundary or names of the existing states may be altered by a simple majority in the Parliament. The following are the conditions for passing such a law: –

1. No bill for the formation of new states or the alteration of the boundaries or names of the existing state shall be introduced in either House of Parliament except upon the recommendation of the President.
2. If the bill affects the area boundaries or names of the states, President, is required to refer the bill to the legislature of the state, so affected for expressing its views within the period specified by the President. The President may extend the period so specified. If the state legislature to which the bill has been referred does not express its views within the period specified or extended the Bill may be introduced in the Parliament even though the views of the state have not been obtained by the President. If the state legislature expresses its views within the time so specified or extended, the Parliament is not bound to accept or act upon the views of the state legislature. Further, it is not necessary to make fresh reference to the state legislature every time an amendment to the bill is proposed and accepted.

Article 4:

Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and consequential matters:

(1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary.

(2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368.

Under Article 4 of the Constitution, laws made under Articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and consequential matters.

Thus, it is clear that the very existence of a state depends upon the will of the Central Government. By simple majority and by the ordinary legislative process, Parliament may form a new state or alter the boundaries, etc. of existing states and thereby change the political map of India.

Case Laws:

In Babulal Parate v. State of Bomba,y AIR 1960 SC 51 case, the court observed that the intention seems to be given an opportunity to the State legislature to express its view within the time allowed. If the State Legislature fails to avail itself of the opportunity such failure would not invalidate the introduction of the Bill. There is nothing in the proviso to indicate that Parliament must accept or act upon the view of the State Legislature. Indeed, two State Legislatures may express totally divergent views. All that is contemplated is that the Parliament should have before it the views of the State legislature to the proposals contained in the Bill and then be free to deal with the bill in any manner it thinks fit and following the usual practice and procedure prescribed by and under the rules of business and it is not necessary that every time an amendment of the proposal contained in the bill is moved and accepted, a fresh reference should be made to the State Legislature. A fresh reference to the State Legislature is not necessary for an amendment of the Bill, if the amendment is proposed and accepted in accordance with the rules of procedure of Parliament and is germane to the subject matter of the original proposal or not a direct negation of it. Court further observed that the Parliament has been vested with the exclusive power of admitting or establishing new states, increasing or diminishing the area of an existing State or altering its boundaries, the legislature or legislatures of the States concerned having only the right to an expression of views on the proposals. For making such territorial adjustments it is not necessary even to invoke the provisions governing constitutional amendments.

In Berubari Union (1) re, AIR 1960 SC 845 Case, the Court held that under Article 3 Parliament does not have the power to cede any Indian territory to a foreign state. In this case, the Government of India entered into an agreement with Pakistan Government for resolving certain boundary disputes which provided for the transfer of certain territory to Pakistan. It was held that Parliament could not do so by passing a law under Article 3 of the Constitution. The court held that this could only be done by the amendment of the Constitution under Article 368.

In State of West Bengal v. Union of India AIR 1963 SC 1241 case, the Court held that Clause (c) of the article deals with the diminution of the area of any State which may occur due to taking away part of the area of the State and its addition to another State. Parliament can even take away the entire area of a State to form a new State or to increase the area of another State. There is no constitutional guarantee continuing the existence of a State that existed at the time of commencement of the Constitution or came into existence later.

In Ram Kishore Sen v. Union of India AIR 1966 SC 644 case, the court held that the provisions of Articles 2, 3 and 4 are applicable to Union territories also.

In Mangal Singh v. Union of India AIR 1967 SC 944 case the court held that no state can be formed, admitted or set up by law under Article 4 by Parliament which does not have effective legislative, executive or judicial organs. Thus before creating such State the legislative, executive, and judicial organs for that state should be set up.

In Maganbhai v. Union of India, AIR 1969 SC 783 case, a dispute regarding the adjustment of a boundary line in Runn of Kutch between India and Pakistan was referred to a Tribunal. The Supreme Court explicitly held that a settlement of boundary dispute cannot amount to a cession of territory. It was observed by the Court that adjustment of boundary between two sovereign nations is well-recognised in International Law and should also be recognised by domestic courts. Court further held that there is no need of amendment of the Constitution to implement order of Tribunal.

In Union of India v Sukumar Sengupta, AIR 1990 SC 1692 the Supreme Court held that there was no cession of territory in favour of Bangladesh under the agreements of 1974 and 1982 as the territories in question were de facto and de jure part of East Pakistan and not India. The Court clarified that cession of territory in the context of International Law is understood as actual and physical transfer of home territory to a foreign nation which would then have the exclusive right to treat the transferred territory as part of its own territory and exercise full control and sovereignty over the same.

Chronology of States’ Bifurcation in India till date

• 1947 – Existing provinces were merged with provinces from roughly 550 princely states.
• 1953 – Madras was divided into Andhra Pradesh and Telangana.
• 1953 – The Northeast Frontier Agency (NEFA) was established.
• 1956 – 14 new states and six new UTs were established.
• 1960 – The state of Bombay was divided into two parts: Maharashtra and Gujarat.
• 1963 – Assam was created out of Nagaland.
• 1966 – Punjab was divided into two states: Haryana and Himachal Pradesh.
• 1972 – The states of Meghalaya, Manipur, and Tripura were established.
• 1975 – Sikkim became a part of the Indian Union.
• 1987 – Arunachal Pradesh and Goa became states (earlier, these were UTs).
• 2000 – Uttaranchal was formed from Uttar Pradesh, Jharkhand was formed from Bihar, and Chhattisgarh was formed from Madhya Pradesh.
• 2014 – Telangana is formed out of Andhra Pradesh on June 2, 2014.

Conclusion:

The authors of Indian constitution, unlike the current generation of Indians, did not believe that the states, districts and mandals within India are static, unchanging, and permanent. They had the maturity to accept that states would evolve and change, and hence made provisions for creation of new states in Indian Union.

The constitutional provision under Article 3 was incorporated with a benevolent idea to realize geographical and economic unification of India but now it seems that this provision has become a tool for satisfying regional and linguistic aspirations of people and an instrument to achieve electoral gains. The two terms “Linguistic” and “Cultural” have never been more misused than in recent times.

Suggestions:

Under the cover of reorganization of states, a gradual balkanization of the country should not be encouraged, as that would defeat the Preamble mandate of and our persistent quest for ‘national integrity’. The need of the hour is to concentrate more on development of the states already existing. It is immaterial whether the state is small or big; what is required is a strong political will to govern with full honesty and sincerity. Development requires a conducive atmosphere to be created by both; leaders and citizens and not division of states on the claims of aiding the development of the states.

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