The scope of Article 3
Article 2 of the Constitution provides that Parliament may admit new States into the Union or establish new States:
“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.”
Article 3, as it now stands, is extracted below:
“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; 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.”
In exercise of the power under Article 3, Parliament has enacted legislations which reorganised the constituent units of the country at various points in time.
- It has altered the names of Karnataka (previously Mysore), Tamil Nadu (previously Madras), Uttarakhand (previously Uttaranchal) and Odisha (previously Orissa).
- The erstwhile State of Bombay was divided into Gujarat and Maharashtra.
- The State of Nagaland was carved out from the State of Assam.
- The State of Meghalaya was established, which was previously an autonomous state within the State of Assam.
- The State of Haryana was carved out of the State of Punjab.
- The State of Chhattisgarh was carved out of the State of Madhya Pradesh.
- Sikkim was admitted into the Union of India in 1975 and was granted the status of a full State.
- Uttarakhand (previously Uttaranchal) was carved out of the State of Uttar Pradesh.
- Similarly, Jharkhand was carved out of the State of Bihar.
- Most recently, the State of Telangana was carved out of the State of Andhra Pradesh.
It is evident from these examples that Parliament admitted and established new States in India. In the process, some States such as the State of Bombay appear to be “extinguished” (so to speak). Some may argue that the alteration of names of the States similarly “extinguishes” the older State.
However, the difference between extinguishing a State and extinguishing the character of a constituent unit as a State is of great consequence. A particular State may cease to exist because it is divided to create two (or more) new States. Similarly, a particular State may cease to exist because it is divided to create a State (or more than one State) and a Union territory (or more than one Union territory). In both cases, the alteration of the area (or at least some part of the area) does not result in it losing its character as a State, with the attendant constitutional implications.
A constituent unit can be said to lose its character as a State only if it is converted into a Union territory in full, with no part of it retaining statehood. A change in the boundaries or the name of a State does not result in the change of its character as a State because such a character is derived not from its name or boundaries but from its relationship with the Union Government – one characterised by autonomy.
These characteristics of States are not usually lost when its boundaries, size, or name are changed.
The Autonomy of States
States under the Indian Constitution have their own independent constitutional existence. The various organs of governance such as the State Governor, the State Legislature, the High Courts, the Public Service Commissions, and the State Elections Commissions are all creatures of the Constitution. As Dr Ambedkar noted in the Constituent Assembly:
“As to the relation between the Centre and the States, it is necessary to bear in mind the fundamental principle on which it rests. The basic principle of federalism is that the legislative and executive authority is partitioned between the Centre and the States not by any law to be made by the Centre but by the Constitution itself. This is what the Constitution does. The States under our Constitution are in no way dependent upon the Centre for their legislative or executive authority. The centre and the States are coequal in this matter.”
Dr Ambedkar highlighted that power of the States to govern emanated from the Constitution and not Parliament. The exact significance of this understanding of States’ powers may be demonstrated by reference to the decision in State of Himachal Pradesh v. Union of India.[1] That case concerned an inter-State dispute over the sharing of power from a hydroelectric plant between the States of Punjab and Himachal Pradesh. The State of Himachal Pradesh argued that it was entitled to 12% free power based on its status as the ‘mother-State’ of the power project.
The State of Punjab sought to repel this argument by contending that Himachal Pradesh’s claim of 12% free power was based on a notion that Himachal Pradesh had some pre-existing rights over the land and water, which could not be accepted as the territory of States, and potentially the very existence of States, owed their existence to Parliamentary legislation under Article 3. If Parliament could unilaterally alter the territory of Himachal, how could Himachal claim any pre-existing rights over its land and water?
Rejecting this argument, the Division Bench in State of Himachal held:
“93. We find that under the provisions of Article 3 of the Constitution, Parliament has the power to 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, increase the area of any State, diminish the area of any State, alter the boundaries of any State and alter the name of any State, but under Article 3, Parliament cannot take away the powers of the State executive or the State legislature in respect of matters enumerated in List II of the Seventh Schedule to the Constitution.”
As Dr Ambedkar explained to the Constituent Assembly, the division of executive and legislative authority between the Union and the States, the hallmark of a federal constitution, is enshrined in constitutional text. As a result of this, the Union cannot alter the division of powers between the Union and the States absent a constitutional amendment which would require ratification by a majority of the States.
In State of Himachal Pradesh (supra), the Division Bench highlights an important corollary of this logic. If Parliament cannot alter the division of powers between the Union and all States absent a constitutional amendment, can it logically alter the division of powers between the Union and one State by extinguishing its territory (and hence existence) under Article 3? The Division Bench held it cannot.
Reference
Re: article 370 of the constitution, 2023
[1] 2011 (13) SCC 344.