INDIAN CONSTITUTION
CONSTITUTION OF INDIA [INDEX]
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.
NOTE- It will appear from above provision that even if newly organized State can be split. It may be possible in future, if situation so warrants, the State of Telangana and the State of Andhra Pradesh can be re-united, as it appears from the language of Article 3(a) of the Constitution of India that by uniting two or more States or parts of States or by uniting any territory to a part of any State, a State can be formed.
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.
Other Provisions
356(1) – If the President on receipt of a report from the Governor of a State or otherwise is satisfied that a situation has arisen in which the Government of the State cannot be carried or in accordance with the provisions of this Constitution, the President may by Proclamation-
(a) * * * * *
(b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;
(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to any body or authority in the State.
NOTE-On reading of Article 3 and Article 174(1) of the Constitution, the President can suspend the power of the governor to summon the House or each House of the Legislature of the State, which by itself prevented the State Legislature from meeting, and also suspended the State Legislature from meeting, and also suspended so much of proviso to Article 3 of the Constitution relating to the reference by the President to the Legislature of the State.
Constitution of India [Full-Text View]
Article 3 has empowered Parliament to regulate and preserve Federalism as enshrined in the Constitution. In that sense, it is one part of basic structure of the Constitution. On a plain reading of the proviso, it appears that with the insertion thereof, the Legislature has merely made a provision regarding methodology with regard to formation of new States and alteration of areas, boundaries or names of existing States. According toit, with the insertion of the aforesaid proviso, no portion of the Constitution, much less any portion which relatable to basic structure, has been affected. It provided the following mechanism. A Bill has to be prepared for any of the purposes as above for introducing in either house of the Parliament on the recommendation of His Excellency the President and again if the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has to be referred by His Excellency 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.
Therefore, while making reference in ascertaining the views of State legislature before recommending the introduction of bill in Parliament by His Excellency, the President, the time has to be fixed for expressing the views. This safeguard measure has been provided by inserting the proviso in order to avoid any complaint of exercise of unbridled power of Parliament. The recommendation of the President and obtaining views of the State legislature concerned are sought to be made an essential part of this exercise of Parliament. This has not been left with Parliament alone and it has been made collective participation of Constitutional Authorities. The Court cannot review and rethink or probe into the mind of the Legislature, simply because it is not within the jurisdiction of this Court. It is for the Parliament and the Parliament alone can think of it with compliance as above. Recommendation of President and obtaining views of State concerned are sine qua non ( Babulal Parate v. The State of Bombay). Anything short of these two, exercise of Parliament can be judicially reviewed by the Constitution Court. Providing this machinery before introduction of the Bill to give effect to Article 3, is absolutely scientific and logical. His Excellency the President of India being de jure Head of the country, is Constitutionally deemed to be a wisest citizen of the country and he can with his experience think whether any recommendation should be given or not. It is the supreme power of the Parliament which has been given by the Constitution to act under Article 3 of Constitution of India as judiciary and executive can act within their own fields to the mutual exclusion of others, meaning thereby neither judiciary nor executive can create any new State.
It is important to bear in mind that accession of Indian States to the Dominion of India did not extinguish those States as entities. They only became part of Dominion of India as constituent States along with the provinces of erstwhile British India.
Interference by Court
The language of the aforesaid Articles is clear. Function in Article 3 is exclusively legislative one. It is regulated by its own procedure, no Court can interfere unless clear violation of provision of Constitution is established, as Courts’ function cannot be called into question by the legislature because it is governed by its own legally established procedure. Circumstances u/a-3 is within the exclusive domain of both the Houses of Parliament, and the State Legislature and the method and procedure regarding presentation of the bifurcation bill and, for that matter, preparation of the bill cannot be called in question before Court of law.
Article 122. Courts not to inquire into proceedings of Parliament.-
(1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.
(2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.
Article 212. Courts not to inquire into proceedings of the Legislature.-
(1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.
(2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.
There is no ground available to challenge original provision of the Constitution. In other words no original provision can be struck down by Court relying on some other constitutional provision. If any original provision is required to be deleted it can be done by lawful exercise of amending power of the Constitution by the Parliament under Article 368 of the Constitution of India. whether the aforesaid Article 3 itself hit any basic structure theory of the Constitution, we are of the view ‘No’, for the simple reason that Article 3 has been designed in such a way that enables the Parliament essentially to maintain the concept of federalism as Article 3 provides for separating or joining for reorganization of the States. Therefore, one of the basic structure, namely, federal character of the Constitution is reserved by Article 3 of the Constitution of India. Therefore, by any stretch of imagination the aforesaid Article cannot be said to be violating the basic structure, even if we assume that it is liable to be challenged. We, therefore, hold that the challenge to the vires of Article 3 of the Constitution of India on the ground that it purports to hit the basic structure of the Constitution of India.
The basic structure theory is not expressly provided in the Constitution and it was explained by the judicial pronouncements for the first time by the Supreme Court in His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala [AIR 1973 SC 1461]. The then Chief Justice Sikri, while presiding over the Bench, in paragraph 302 of the report, has broadly and without exhaustively, illustrated what is the basic structure. We just simply quote the language of the Ld Judge and we produce the same hereunder:
The basic structure may be said to consist of the following features.
(1) Supremacy of the Constitution;
(2) Republican and Democratic forms of Government;
(3) Secular character of the Constitution;
(4) Separation of powers between the legislature, the executive and the judiciary;
(5) Federal character of the Constitution.
Again Indian Constitution, unlike Constitution of United States of America and Australia, does not have express provision of separation of powers. However, the structure provided in our Constitution leaves no manner of doubt that the doctrine of separation of powers runs through the Indian Constitution. It is for this reason that this Court has recognized separation of power as a basic feature of the Constitution and an essential constituent of the rule of law. The doctrine of separation of powers is, though, not expressly engrafted in the Constitution, its sweep, operation and visibility are apparent from the Constitution. Indian Constitution has made demarcation without drawing formal lines between the three organs–legislature, executive and judiciary.
Case of Jammu and Kashmir
Historically, State of Jammu and Kashmir stands on a different footing from other States, as has been accepted by the Constitution of India itself (vide Article 370 of the Constitution of India now amended). The Constitution (Application to Jammu and Kashmir) Order, 1954 has been issued in exercise of the powers conferred by clause (1) of Article 370 of the Constitution by the President of India. Article 370(1)(d) of the Constitution provides as follows:
370. Temporary provisions with respect to the State of Jammu and Kashmir.-
(1) Notwithstanding anything in this Constitution,-
(a) … … …
(b) … … …
(c) … … …
(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify.
Therefore, the aforesaid provision for obtaining consent of State of Jammu and Kashmir has been made by way of modification and exception of the proviso to Article 3 of the Constitution of India. The non obstante clause in Article 370 of the Constitution makes it clear that it has got overriding effect to other provisions of the Constitution.
State reorganization laws
- States Reorganization Act 1956
- Punjab Reorganization Act 1966
- Bihar State Reorganisation Act
- U. P. State Reorganisation Act, 2000