Part-2 THE UNION AND ITS TERRITORY

Rorganisations of States

The grouping of the states at independence was done more on the basis of historical and political principles than social, cultural or linguistic divisions. There was not enough time to undertake a proper reorganisation of the units at the time of making the Constitution. Article 2 empowers Parliament to admit into the Union, or establish, new States on such terms and conditions as it thinks fit. By Article 3, Parliament has the power by law to form a new State from the territory of any State or by uniting two or more states, increase or decrease the area of any State, or alter the boundaries or the name of any State. The only conditions laid down for the making of such a law are that (i) such a bill must be introduced only on the recommendation of the President is to refer it to be the concerned State Legislature which would express its views within a specified period. The President is not, however, bound by the views of the State Legislature. However, in the case of Jammu and Kashmir, the consent of the State Legislature is required before a bill on such alterations is introduced in Parliament. Article 4 stipulates that any such law may make supplemental, incidental or other consequential provisions and may amend the First and Fourth Schedules without going through the Constitutional Amendment process. A simple majority and ordinary legislature procedure is enough for Parliament to form new States or alter existing State boundaries.

 

It may be noted that these Article does not apply to cession of territory to a foreign state. Any treaty or agreement involving ceding Indian Territory to an outside authority requires a constitutional amendment to be implemented.

 

First States Reorganization Commission

The Government appointed a commission under S.K. Dhar to examine the feasibility of reorganisation of States on linguistic basis. The S.K.Dhar Commission preferred reorganization for administrative convenience rather than on a linguistic basis. A Congress Committee under Jawaharlal Nehru, Sardar Patel and Pattabhi Sitaramayya (the JVP Committee) too did not favour a linguistic base. However, in 1953 the first linguistic state came into being in Andhra Pradesh, created by separating the Telugu speaking areas from the State of Madras. This followed a prolonged agitating and the death of Potti Sriamulu after a 56- day hunger strike. As there were several more demands for States on a linguistic basis, a commission was set up under justice F.Fazl Ali with H.N. Kunzru and K.M. Panikkar, as members to study the demand. This commission is known as the First States Reorganization Commission. It submitted its report in 1955. Its suggestions were accepted with modifications and the States Reorganisation Act was passed in 1956. As a result, the fourfold distribution of States was replaced by 14 States and six Union Territories (Andaman and Nicobar Islands, Delhi, Himachal Pradesh, Laccadive, Minicoy and Amandivi, Manipur and Tripura) vide the Seventh Constitution Amendment.

 

Acquired Territories

Besides, the States and Union Territories, the territories of India include any area acquired by India by purchase, treaty, cession or conquest. These are to be administered by the Government of India subject to legislation by Parliament. Thus, the French settlement of Pondicherry which was ceded to India by the French Government in 1954 was being administered as an acquired territory till 1962 when it was constituted as a Union Territory. The Portuguese territories of Goa, Daman and Diu were acquired by annexation and administered as acquired territory till they were incorporated as Union Territory in 1961. Goa was given the status of a State in 1987. Sikkim was admitted as a full-fledged State of the Indian Union after a referendum in that country favoured its becoming a constituent unit of India.

 

It does not matter how the acquisition has been brought about. It may be by conquest, it may be by cession following treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler, or it may be under the terms of an agreement between two States. In cases where the only fact available is the de facto exercise of complete sovereignty by one State in a particular area, the sovereignty of that State over that area and the area being regarded as part of the territory of that State would prima facie. Follow. But this would apply normally only to cases where sovereignty and control was exercised by unilateral action. Where, however, the exercise of power and authority and the right to administer is referable to an agreement between two States, the question whether the territory has become integrated with and become part of the territory of the State exercising de facto control, depends wholly on the terms upon which the new government was invited or permitted to exercise such control and authority.

 

WHAT IS AN ‘ACQUIRED TERRITORY’?

A territory can be said to have been acquired when the Indian Union acquires sovereignty over such territory. The expression ‘acquired’ should be taken to be a reference to ‘acquisition’ as understood in public international law. If there was any public notification, assertion or declaration by which the Government of India had declared or treated a territory as part and parcel of India, the courts would be bound to recognise an ‘acquisition’ as having taken place, with the consequence that the territory would be part of the territory of the Union within Articles 1(3) (c). A statement by the Government of India that it did not consider a particular area to have been acquired by it is binding on the Court.

 

The precedents are clear that no cession of Indian territory can take place without a constitutional amendment. However, an agreement to refer the dispute regarding boundary line dividing two neighbouring countries and the very fact of referring such a dispute implies that the executive may do such acts as are necessary for permanently fixing the boundary. A settlement of a boundary dispute cannot, therefore, be held to be, a cession of territory. It contemplates a suitable boundary, and it is so fixed. The case is one in which each contending State ex facie is uncertain of its own right and therefore, consents to the appointment of arbitral machinery. Such a case is plainly distinguishable from a case of cession of territory known to be home territory.