Article 308 provides the definition of ‘State’ for Part XIV of the Constitution. Article 308 as it stood prior to the Constitution (Seventh amendment) Act 1956 provides as follows:
“308. In this part, unless the context otherwise requires the expression ‘State’ means a State specified in Part A or Part B of the First Schedule.”
The States Reorganization Act 1956 and the consequential 1956 amendment altered the provisions of the First Schedule. Prior to the amendment in 1956, States were divided into three categories as specified in Parts A, B and C of the First Schedule of the Constitution. By the seventh amendment, Article 308 was amended and State for the purposes of Part XIV was defined as follows:
“308. In this Part, unless the context otherwise requires, the expression “State” does not include the State of Jammu and Kashmir.”
In terms of unamended Article 308, the definition of ‘State’ included Part A and Part B states of the First Schedule and did not include Part C States, since they were administered by the Union. After the 1956 Constitutional Amendment, Article 308 provides an exclusionary definition of ‘State’ by only excluding the State of Jammu and Kashmir. Article 308 does not provide any clarity on whether “State” includes Union Territories for the purposes of Part XIV.
Article 366 defines “State” with reference to Articles 246-A, 268, 269-A and Article 279-A to include a Union Territory with Legislature. Article 366 does not apply for the interpretation of any of the provisions in Part XIV of the Constitution. Thus, we must fall back on Article 367.
Article 367 stipulates that unless the context otherwise requires, the General Clauses Act shall apply for the interpretation of the Constitution. Section 3(58) of the General Clauses Act defines “State” to mean a State specified in the First Schedule and includes a Union Territory.
In Prem Kumar Jain[1], the judgment of the High Court of Delhi setting aside the establishment of a joint cadre exclusively for the Union Territories in the IAS was challenged. Article 312 stipulates that Parliament may by law create “All India Services” common to the Union and the States. A joint cadre of all the Union Territories was created under Rule 3(1) of the Indian Administrative Service (Cadre) Rules 1954.
The creation of a new joint cadre was challenged before the High Court on the ground that it was contrary to Article 312 of the Constitution and the All-India Services Act 1951. It was argued that Article 312 does not contemplate an all-India service common to Union territories because the term “State” in the provision does not include Union territories. The definition of “State” under Rule 2(c) of the 1954 Cadre Rules, which provides that a State means a “State specified in the First Schedule to the Constitution and includes a Union Territory” was also challenged.
In that context, the High Court held that Union territories could not be said to be “States”, and held the definition of “State” under Rule 2(c) of the Cadre Rules to be ultra vires the Constitution and the All India Services Act 1951. The High Court held that the Union Territories were not “States” for the purpose of Part XIV of the Constitution, in view of the definition of “State” in Article 308, which did not include Part C states before its amendment.
The High Court reasoned that Union territories are successors of Part C States, and accordingly Union Territories were excluded from the definition of ‘State’ in Part XIV. The High Court declined to place any reliance on the definition of the word ‘State’ in Section 3(58)(b) of the General Clauses Act, as amended in 1956. The High Court reasoned that only the adaptations made in the General Clauses Act under Article 372(2) applied to the interpretation of the Constitution in view of Article 367(1), and accordingly the adaptations made later, by Article 372A, were inapplicable. The High Court observed that:
‘(7) The next question, therefore, is whether the Union Territories are “State” for the purpose of Article 312(1). Article 312 is a part of Chapter XIV of the Constitution, which is significantly entitled ”Services under the Union and the States”. Part XIV does not create an All India Service. […] The key to the meaning of the word “State” used in Part XIV including Articles 309 and 312(1) is provided by the interpretation clause in Article 308. Before the Constitution (VII Amendment) Act, 1956 Article 308 was as follows:
“IN this part. unless the context otherwise requires the expression “State” means a State specified in Part A or Part B of the I Schedule”
This definition, thus, made it clear that the word “State” in Part XIV was not to include part C States. Union Territories are the successors of the Part C States. It follows, therefore, that they are also expressly excluded from the definition of “State” in Part XIV. There is nothing particular in the context of Article 313 which would require the word “State” therein to include a Union Territory. …
Article 367(1) of the Constitution applies to the interpretation of the Constitution the provision of the General Clauses Act as adapted under Article 372(2) of the Constitution. In view of Article 372(2)(a) such an adaptation had to be made within three years from the commencement of the Constitution. The definition of a “State” in section 3(58) of the General Clauses Act as adapted by the Adaptation of laws Order, 1950 issued under Article 372(2) of the Constitution […]”
In appeal, Supreme Court set aside the judgment of the High Court of Delhi.
Firstly, the Court held that in view of the amended definition of the expression “State” under Section 3(58) of the General Clauses Act, as adapted by the Adaptation of Laws Order 1956, there was nothing repugnant to the subject or context to make that definition inapplicable to Part XIV of the Constitution. The Court reasoned that Article 372A was incorporated in the Constitution since Parliament felt the necessity of giving a power akin to Article 372 to the President for the purpose of bringing the provisions of any law in force immediately before the commencement of the 1956 Constitution Amendment in accordance with the provisions of the Constitution, as amended by the 1956 Constitution Amendment. The Court held that Article 372-A gave a fresh power to the President which was equal and analogous to the power under Article 372(2). This Court held that:
“8. It follows therefore that, as and from November 1, 1956, when the Constitution (Seventh Amendment) Act, 1956, came into force, the President had the power to adapt the laws for the purpose of bringing the provisions of any law in force in India into accord with the provisions of the Constitution.
It was under that power that the President issued the Adaptation of Laws (No. 1) Order, 1956, which, as has been shown, substituted a new clause (58) in Section 3 of the General clauses Act providing, inter alia, that the expression “State” shall, as respects any period after the commencement of the Constitution (Seventh Amendment) Act, 1956, mean “a State specified in the First Schedule to the Constitution and shall include a Union Territory”.
It cannot be said with any justification that there was anything repugnant in the subject or context to make that definition inapplicable. By virtue of Article 372A(1) of the Constitution, it was that definition of the expression “State” which had effect from the first day of November, 1956, and the Constitution expressly provided that it could “not be questioned in any court of law”.
The High Court therefore went wrong in taking a contrary view and in holding that “Union territories are not ‘States’ for purposes of Article 312(1) of the Constitution and the preamble to the Act of 1951”. That was why the High Court erred in holding that the definition of “State” in the Cadre Rules was ultra vires the All India Services Act, 1951 and the Constitution, and that the Union territories cadre of the service was “not common to the Union and the States” within the meaning of Article 312(1) of the Constitution, and that the Central Government could not make the Indian Administrative Service (Cadre) Rules, 1954 in consultation with the State Governments as there were no such governments in the Union territories.”
In Prem Kumar Jain (supra), the Court did not find anything repugnant to the subject or context of Part XIV of the Constitution or Article 312 specifically to make the definition of ‘State’ in terms of amended Section 3(58)(b) of the General Clauses Act inapplicable. Hence, the expression ‘State’ as occurring in Part XIV was held to include Union Territories.
Section 3(58) of the General Clauses Act, by virtue of Article 367(1) of the Constitution, applies to the construction of the expression ‘State’ in the Constitution, unless there is something repugnant in the subject or context of a particular provision of the Constitution. The burden is on the party opposing the application of the definition under the General Clauses Act to the interpretation of a constitutional provision to prove that the context requires otherwise.
There is nothing in the subject or context of Part XIV of the Constitution which would exclude its application to Union territories. Rather, the application of the inclusive definition of “State” as provided under Clause 3(58) would render the constitutional scheme envisaged for Union Territories workable.
Reference
Govt of NCT of Delhi v. Union of India (2023)
[1] Prem Kumar vs The Union Of India And Ors. on 25 September, 1969