Article 3 authorises the Parliament to:
(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, and
(e) alter the name of any state.
However, Article 3 lays down two conditions in this regard: one, a bill contemplating the above changes can be introduced in the Parliament only with the prior recommendation of the President; and two, before recommending the bill, the President has to refer the same to the state legistature concerned for expressing its views within a specified period.
Further, the power of Parliament to form new states 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 territory3.
The President (or Parliament) is not bound by the views of the state legislature and may either accept or reject them, even if the views are received in time. Further, it is not necessary to make a fresh reference to the state legislature every time an amendment to the bill is moved and accepted in Parliament4. In case of a union territory, no reference need be made to the concerned legislature to ascertain its views and the Parliament can itself take any action as it deems fit.
It is thus clear that the Constitution authorises the Parliament to form new states or alter the areas, boundaries or names of the existing states without their consent. In other words, the Parliament can redraw the political map of India according to its will. Hence, the territorial integrity or continued existence of any state is not guaranteed by the Constitution. Therefore, India is rightly described as ‘an indestructible union of destructible states’. The Union government can destroy the states whereas the state governments cannot destroy the Union. In USA, on the other hand, the territorial integrity or continued existence of a state is guaranteed by the Constitution. The American Federal government cannot form new states or alter the borders of existing states without the consent of the states concerned. That is why the USA is described as ‘an indestructible union of indestructible states.’
Moreover, the Constitution (Article 4) itself declares that laws made for admission or establishment of new states (under Article 2) and formation of new states and alteration of areas, boundaries or names of existing states (under Articles 3) are not to be considered as amendments of the Constitution under Article 368. This means that such laws can be passed by a simple majority and by the ordinary legislative process.
Does the power of Parliament to diminish the areas of a state (under Article 3) include also the power to cede Indian territory to a foreign country? This question came up for examination before the Supreme Court in a reference made by the President in 1960. The decision of the Central government to cede part of a territory known as Berubari Union (west Bengal) to Pakistan led to political agitation and controversy and thereby necessitated the Presidential reference. The Supreme Court held that the power of Parliament to diminish the area of a state (under Article 3) does not cover cession of Indian territory to a foreign country. Hence, Indian territory can be ceded to a foreign state only by amending the Constitution under Article 368. Consequently, the 9th Constitutional Amendment Act (1960) was enacted to transfer the said territory to Pakistan.
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.
The 100th Constitutional Amendment Act (2015) was enacted to give effect to the acquiring of certain territories by India and transfer of certain other territories to Bangladesh in pursuance of the agreement and its protocol entered into between the Governments of India and Bangladesh. Under this deal, India transferred III enclaves to Bangladesh, while Bangladesh transferred 51 enclaves to India. In addition, the deal also involved the transfer of adverse possessions and the demarcation of a 6.1-km undemarcated border stretch. For these three purposes, the amendment modified the provisions relating to the territories of four states (Assam, West Bengal, Meghalaya and Tripura) in the First Schedule of the Constitution. The background of this amendment is as follows:
On 16th May, 1974, the Agreement between India and Bangladesh concerning the demarcation of the land boundary and related matters was signed between both the countries to find a solution to the complex nature of the border demarcation involved. This Agreement was not ratified as it involved, inter alia, transfer of territory which requires a Constitutional Amendment. In this connection, it was also required to identify the precise area on the ground which would be transferred. Subsequently, the issues relating to demarcation of un-demarcated boundary; the territories in adverse possession; and exchange of enclaves were identified and resolved by signing a Protocol on 6th September, 2011, which forms an integral part of the Land Boundary Agreement between India and Bangladesh, 1974. The Protocol was prepared with support and concurrence of the concerned State Governments of Assam, Meghalaya, Tripura and West Bengal.
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