Constitutional Provisions

Article 1 talks about the Name and Territory of the Union.

Article 1(1): Lays down that India that is Bharat, shall be a Union of states. The emphasis on India being a Union was to convey the fact that it was not the result of a compact or agreement between the constituent units but a fortnight declaration by the Constituent assembly which derived its power and authority from the sovereign people of India. No State could therefore secede from the Union. Dr Ambedkar said in the Constituent assembly: The Americans had to wage a civil war to establish that the States have no right of secession, and their Federation was indestructible. The Drafting Committee thought that it was better to make it clear at the outset rather than to leave it to speculation or to

Article 1(2): The State and territories shall be specified in the First schedule.

Article 1(3): The territory of India shall comprise:

1. The territories of States
2. The Union territories
3. Any territories that may be acquired e g. Pondicherry, Goa, Daman and Diu which were added by the 14^th,12^th, and 10^th Constitutional amendment following their de jure transfer to India.

Article 1(3)(c) does not expressly confer power on the Government of India to acquire new territories, but, it is the inherent right of a sovereign State to acquire a foreign territory and no Parliamentary legislation is required for this purpose.

This Clause merely states that a new territory, which may be acquired by the Government of India, shall be automatically absorbed or assimilated into the territory of India. The expression acquired means mode of acquisition as per international law like occupation, cessation, subjugation, conquest and prescription. 

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

It confers two different powers on the Parliament, viz.,

1. The power to admit into the Union new States
2. The power to establish new States.

The first refers to the admission of States which are duly formed and established and are already in existence. The second refers to the admission and formation of a State which was not in existence before. It is to be noted that Article 2 deals with admission or establishment of new States into the Union of India which may be formed of the territories not included in the sting States.

• Article 2 provides that a new State can be admitted to the Union by Parliament “by law”. The expression “by law” is significant. It requires legislative action on the part of the Parliament for the admission of a new State. Therefore, the acquisition of a foreign territory by India, in the exercise of its inherent right as a sovereign State, automatically makes the said territory a part of the territory of India under Article 1 (3) (c), but the said territory can be admitted, as a State, into the Union, by the process of law, enacted by the Parliament under Article 2.

Article 3: It states that the Parliament may by law form a new State by separation of a territory from any State or by uniting two or more States completely or in parts or by uniting any territory to a part of any State. It deals with the following –

(a) Form a new State by separation of territory from a State or by uniting two or more States or parts of States;

(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:

Thus, Parliament can increase or diminish the area of any State or can alter the boundaries or names of any State. 

Parliament follows the following procedures in this regard.

Step-1: Either House of the Parliament, only on the recommendation of the President, can introduce a Bill giving effect to any or all the changes stated above.

Step-2: If such a bill affects the boundary or name of a State, then the President will refer the Bill to the concerned State Legislature before introducing it in the Parliament for their opinion.

Step-3: If the State Legislature fails to express an opinion within the given time limit then it is deemed that it has expressed its views. Parliament is not bound to accept or act upon the views of the State Legislature even if the State has submitted their views within the time period.

In the case of Union Territories, it is not necessary to seek the views of Legislatures of Union Territories before such a Bill.

Article-4:

• It says that any law referred to in Article-2 or Article-3 will contain such provisions for the amendment of the 1^st Schedule and the IVth Schedule necessary to provide effects to the provisions of law and may also contain such supplemental, incidental, and consequential provisions, as the Parliament may deem necessary.
• This Article allows for consequential changes in the I^st Schedule i.e. names of the States in the Union of India and IVth Schedule i.e. a number of seats allotted in the Rajya Sabha for each state. The Constitution will not treat any such law altering existing States or creating a new State, as the amendment.

Alteration of area, boundary or name of a Union Territory

• In Re Berubari Union and Exchange of Enclaves, it was observed that Article 3 did not refer to Union Territories. To provide for this omission, the Constitution (Eighteenth Amendment) Act, 1966, inserted Explanation I in Article 3. This Explanation makes clear that the term “State” in Clauses (a) to (e) of Article 3 includes a “Union Territory”.
• It also provides that the power conferred on Parliament by Clause (a) of Article 3, to form a new State, includes the power to form a new Union Territory also.

Cessation of Indian Territory to a Foreign State: Cession of a territory means the transfer of sovereignty over such territory from one State to another. As an attribute of sovereignty, a sovereign State possesses the power not only to acquire new territory but also to cede any part of its territory to a foreign State.68

There is no provision in the Constitution of India providing for the cession of Indian territory to a foreign State. Clause (c) of Article 3 empowers the Parliament by law to diminish the area of any existing State. Parliament, under this Clause, may even cut away the entire area of a State. But, the scope of this Clause is restricted to inter-State adjustments and does not cover the case of cession of a part of the territory of India to a foreign State.

The question relating to the cession of a part of the territory of India came up for consideration before the Supreme Court in Re Berubari Union case: 

• The power of Parliament under Article 3 (c) does not cover ceding the Indian territory to a foreign State. It is for interstate adjustments only. Transfer of a territory to a foreign state can only be done by constitutional amendment.
• On the other hand, the Supreme Court in 1969 ruled that settlement of a boundary dispute between India and another country does not require a constitutional amendment. It can be done by executive action as it does not involve cession of Indian Territory to a foreign country.

100th Constitutional Amendment Act:

100th CAA: exchange of certain enclave territories with Bangladesh and conferment of citizenship rights to residents of enclaves consequent to signing Land boundary Agreement (LBA) treaty between India and Bangladesh.