Introduction:
By law and enforcement, a new State can be formed by the Parliament by separation of territories from any State or by merging of two or more States or parts of any State. Parliament can also reduce or expand the area or alter the boundaries of any State or even change its name and rename it. In order to do so first, a bill by the President on the matter has to be referred to the legislature of the affected state as to why the legislature can express its view within some certain stipulated period. Once the President has ascertained some kind of views of the State Government a resolution is tabled before the Assembly. And after the resolution is passed by the Assembly, it has to pass a bill creating the new state and its laws. Apparently, on the matter, a separate bill is also introduced on the recommendation by the President in the Parliament. As soon as this bill passes by only two-thirds of the majority and when it’s ratified by the President the new state is being formed and its laws are commenced. The Parliament or the President are not bound to the views of any state legislature and could accept or reject those, even the views that are received on time. Further, that’s not necessary to build a new or fresh reference to any state legislature every single time an amendment to the particular bill is conveyed and being accepted in the Parliament. Exclusively in cases of union territories, no reference is needed to be made to the concerned legislature for ascertaining its views and the Parliament can itself takes actions that deem to be fit.
Constitutional Provisions
Article 2 of the Indian Constitution
This Article has vested the powers to the Parliament to be approved by law into the union or to be established, new states on these terms thinks and considers it fit. The power that is given into Article 2 is very wide. Parliament admitted using this very power example-the French Settlements of Pondicherry, Karaikal,1674 etc. Supreme Court in RC Poudyal v.union of India[1] interpreted that the expression on such terms or conditions as it considers fit is being used in Article 2 which held that it doesn’t confer unfettered power on Parliament. This power is being limited by the fundamentals of our Constitutionalism and on such terms, it cannot be more inconsistent with the foundational principles of the Indian Constitution. Similarly in Mangal Singh vs Union of India[2] the SC held that power conferred under Article 2 isn’t a power to override the constitutional scheme.
Article 3 of the Indian Constitution
This Article authorises the Indian Parliament in:
(a) forming a new state by separating territory or by uniting two or more states from any State or parts of states or by uniting any territory to a part of any state,
(b) expanding the area of any state of the country,
(c) diminishing the area of any state of the country,
(d) altering the boundaries of any state, and
(e) altering names of any state.
However this article lays down 2 conditions in regards to 1) a bill contemplating the above changes could be introduced to the Parliament only when the prior recommendation of President is there, and 2) before recommendation of the bill, the President has to convey the same to the state legislature concerned with expressing its views by a stipulated period.
Initially, the powers of Parliament to form any new states involve the power of forming a new state or union territory by uniting part of any state or union territory with any other state or union territory.
Some recent examples would be: The reorganisation of the erstwhile state Jammu and Kashmir into two Union territories falls under the country’s attention to Article 3 of the Indian Constitution. Among the 4 articles were invoked while West Bengal was renamed and for the formation of relatively New states like Jharkhand, Chhattisgarh, Sikkim, and very recently Telangana.
In Raja Ram Pal v. Speaker Lok Sabha[3], the Supreme Court reiterated that power in Article 3 is vested solely and exclusively with Parliament. That is the reason why it has mentioned that ‘India is the indestructible union of destructible States’. There are, however, two conditions that are to be satisfied in this procedure.
- No Bill in the above-mentioned Provisions shall be presented before any houses of the Parliament not without the prior recommendation by the President.
- If the Bill proposes to affect areas or boundaries, or the name of the state, the President is required to recommend the Bill to the state legislature for its views. If the State Legislature does not express its views within the time specified the Bill can be presented in the Parliament.
Although the state legislature has expressed its views, the Parliament is never bound to approve or act upon such views. This position was clarified by the SC in the case of Babulal Parate vs. State of Mumbai, AIR 1960, SC 51[4].
The term ‘State’ in Article 3 includes ‘Union Territory’ but in the proviso, the term ‘State’ does not include ‘Union Territory’. If only the parliament has its view before it, the mandate of the Provision to Article 3 would be declared negated.
When Parliamentary Legislation is required?
All kinds of legislative proposals need to be in the form of Bills before the Parliament. Since Bill is a statute of draft and cannot become a law until and unless it is being received and approved from both the Houses of Parliament and the assent is given by the President of India.
The process which lawmaking begins with the introduction of a Bill in either House of Parliament. The Bill could be introduced either by a Minister or any member other than the Minister. In the former case, it is called a Government Bill and in the latter case, it is known as a Private Member’s Bill.
A Bill processes three readings in each of the House (the Lok Sabha and the Rajya Sabha) before its submission to the President for its assent.
Bill Process in Parliament
First Reading
The First Reading states a motion for leave to be introduced to a Bill in the House on any adoption of which the Bill is being introduced or b. in the case of any Bill originating in and enacted by the other House, the laying on tables of the House of the Bill, though enacted by other House.
Second Reading
The Second Reading has two stages: The first Stage forms discussion on principles of the Bill and their provisions usually on the motions like – that the Bill could be taken into consideration, or the Bill be referred to any selected committee of the House, or also the Bill could be referred to a Joint Committee of the Houses along the concurrence of other House or the Bill is being circulated for the purpose of obtaining opinions Thereupon. The second stage forms the clause by clause consideration of this Bill, as per the introduction in the House or as reported by a Selected or Joint Committee as per the case requirement.
Third Reading
The Third Reading is about the discussion about the Bill or the Bills as amended should be enacted. Although a similar procedure is being followed in the case of Rajya Sabha is in respect of the Bills that are introduced in the House. Post any Bill has been passed by the Houses of the Parliament, it is submitted to President for the approval. After that Bill is approved by the President, then it becomes the law of that land.
Case Laws
Berubari Union Case, 1960[5]
In this particular case, the SC held, that the power of the Parliament to decrease the area of a state under Article 3 has not been covered the cession of Indian territory to any foreign country. Indian territories could be ceded to any foreign state only if the Amendment to the Constitution under Article 368 is being enforced. Exclusively, the 9th Constitutional Amendment Act, 1960 was being passed to transfer the mentioned territory to Pakistan. The SC during 1960 ruled the Settlement of any boundary disputes between India and any other country does not need a Constitutional amendment, It could be done by executive action because it does not include cession of Indian territory to any foreign country. If the agreement to Berubari doesn’t amount to any mere settlement of boundary then the legislation by the Parliament related to Article 3 of the Constitution would be sufficient but also the legislation under Article 368 will be incompetent and Part 1 is a self-contained code of dealing with territories of the union.
Ram Kishore Sen vs. Union of India[6]
The Constitutional Act (18th amendment) 1966 adds two explanations to Article 3, incorporating the Judgement of the Supreme Court in this case, which clarified the term “State” in term “States” which also involved the term “Union Territories” but since there aren’t such necessities with regards to the provisions of Article 3, this also provides that the term “State” does not include the term “Union Territories” in it. Because of this reason, in any event of changes and alternation in the borders of the state, it is held necessary to seek the opinions of any states concerned, but ever since the union territory is governed by the Parliament itself, the inclusion of union territory in term “State” would be excessed or be unnecessary. The second explanation clarifies the Parliament’s Power. It provides that Parliament’s power under Article 3 clause – a that includes the power of forming a new state or union territory by merging a part of any state or union territory with any other state or union territory.
Conclusion
Thus, it is and believed that the Constitution of the country is the supreme law of the land. Whereas the Parliament is the body established to make laws for the welfare of its citizens and the state, but in enforcing so the members of the Parliament must ensure that the legislation that is presented and enacted does not derogate from the Constitution and despite everything shouldn’t have to be in breach of the main basic structure of the Indian Constitution.
References:
[1] RC Poudyal v. Union of India, AIR 1993 SC 1804,
[2] Mangal Singh v. Union of India, AIR 1967 SC 944,
[3] Raja Ram Pal v. Speaker, Lok Sabha and Others ( on 10th January 2007) 3 SCC 184,
[4] Babula Parate v. State of Mumbai, AIR 1960, SC 51,
[5] The Berubari Union And. vs Unknown , 1960
[6] Ram Kishore Sen v. Union of India, AIR 1966 SC 644, 648 (1966) 1 SCR 430
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