Constitutional Law I- session 9.pptx

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1. The Union and its Territory Article 1 : the Sovereign democratic Republic of India shall be the Union of States Draft Committee described the Union for two reasons : a) that the Union of India is not result of an agreement among the units like the American Federation and consequently, b) the States have no right to secede from the federation The Purpose of the word ‘Union’ India to be an integral whole, living under single imperium derived from a single source.

2. The Name of the Union is India (Bharat) The Members of the Union at present are the States specified in the First Schedule The Territory of India 1. State Territories 2. Union Territories 3. Territories which may be acquired by Government of India

3. Before Constitution (7 th Amendment) Act, 1956, Union was classified in Four main categories : Part A : 10 Part A States Part B : 8 Part B States Part C : 9 Part C States Part D : 1 Part D States The 7 th Amendment Act abolished the categories and placed all the States on the same footing by States Regorganization Act 1956

4. The Union Territories Centrally administered area Governed by the President Acting through an Administrator appointed by him; unless the Parliament provides otherwise The President may appoint a Governor of a State as Administrator of an adjoining Union Territory Governor in that capacity exercise his functions independently of the Councils of Ministers

5. Any Territory which may be acquired by India will be included in the definition of Union Territory To acquire new territory is Sovereign power; No need of parliamentary legislation The Modes of acquiring the Territory are : Cession ; Occupation Subjugation; Acquisition Prescription; Accretion; Conquest Art. 2 : Admission of new State into the Union Art. 3 : merging into an existing State

6. The Accession of Indian States to the dominion of India : States has their own entities They are a Part of Dominion of India as Constituent States alongwith Provinces Art. 2 : Parliament may by law - admit into the Union or establish new States Parliament has wide discretion for the adding or altering of boundaries of the new State by simple majority (such act will not be deemed to be an amendment)

7. Formation of new States and alteration of Boundaries of Existing States Art. 3 : a new State may be formed or established in the ways : 1. by separation of territory from any State 2. by uniting two or more States 3. by uniting any parts of States 4. by uniting any territory to a part of any State Indian Constitution empowers Parliament to alter the territory or names of the State without their consent or concurrence

8. Parliament’s power to alter, add or change the territory of any State by simple majority : 1. no Bill for the formation of new State or the alteration of the boundaries or the names of the existing State shall be introduced in either House of Parliament except the recommendation of the President 2. Such Bill if affects the area, boundaries or names of the States the President is required to refer the Bill to the Legislature of the State

9. Cession of Indian Territory to foreign country: Under Art. 3(c) Parliament may : By law increase or diminish the area of any State Diminution – when the part of any State is taken out and added to another State Parliament is empowered to cut away the entire area of a State to form a new State or increase the area of any state Does the power include to cede Indian territory to a foreign State ?

10. Berubari case Facts : the Indo-Pakistan Agreement entered into in 1958 for resolving certain border disputes Provided inter alia for the transfer of one-half of the area of Berubari Union by India to Pakistan Exchange of old Cooch Bihar enclaves Berubari Union comprised and area of 9 square miles in the State of West Bengal with a population of about 12000 When the Central Government sought to implement the agreement, it was agitated strongly

11. As a result of the Radcliffe Award dated August 12, 1947, Berubari Union No. 12 fell within West Bengal and was treated as such by the Constitution which came into force on January 26, 195o, and has since been governed on that basis. Certain disputes arose between India and Pakistan subsequent to the Radcliffe Award but Berubari was not in issue before the Badge Commission set up by agreement between the parties to decide those disputes.

12. That commission made its award on January 26, 1950. Pakistan raised the question of Berubari for the first time in 1952 alleging that under the Radcliffe Award it should form part of East Bengal and was wrongly included in West Bengal. Besides it claim on the enclaves that was also under the governance of India

13. On August 28, 1949, the Ruler of the State of Cooch-Behar entered into an agreement of merger with the Government of India and that Government took over the administration of Cooch-Behar which was ultimately merged with West Bengal on January 1, 1950, so as to form a part of it. It was found that certain areas which belonged to the State of Cooch- Behar became enclaves in Pakistan after the partition, and similarly certain Pakistan enclaves fell in India.

14. In order to remove the tension and conflict caused thereby the Prime Ministers of India and Pakistan entered into an agreement , called the Indo-Pakistan Agreement on September 10 , 1958, and items 3 and 10 of that agreement provided for a division of Berubari Union half and half between India and Pakistan and for an exchange of Cooch-Behar Enclaves in Pakistan and Pakistan Enclaves in India

15. Doubts having subsequently arisen regarding the implementation of the said items , the President of India referred the matter to the Supreme Court under Art. 143(1) of the Constitution Held, that item NO. 3 of the Agreement leaves no mater of doubt that the parties to it were thereby seeking to settle the dispute apart from the Award, amicably, and on ad hoc basis by dividing the territory half and half . There is absolutely no indication in it that they were seeking to interpret the Award and determine the boundary on that basis .

16. The question relating to Berubari must, therefore, be considered on the basis that it involves cession of : (1) part of India’s territory to Pakistan and this applies with greater force to the agreement relating to the exchange of the enclaves. There can be no doubt that the implementation of the Agreement would alter the boundary of West Bengal and affect Entry 13 in the First Schedule to the Constitution, since as a matter of fact Berubari was treated as a part of West Bengal and governed as such from the date of the Award and was thus comprised therein before the commencement of the Constitution. Any argument to the ’contrary cannot be accepted.

17. It was not, therefore, correct to say that the preamble could in any way limit the power of Parliament to cede parts of the national territory. Nor was it correct to say that Art . 1(3 )(c) did so . the Constitution under Art. 368 gives the Parliament the power to amend Art. 1(3)(c) so as to include the power to cede national territory as well. The power to acquire and cede territory is an attribute of sovereignty India being a Sovereign State has power to acquire and cede territory both under International law and Preamble