Know the Constitution[ Part III]: Union and Its Territory - Articles 1 To 4

Article 1-4: Union and its TerritorySpeaking at an event recently, Justice Gautam Patel of the Bombay High Court had noted that the "Constitutional Idea of India" lay not in the chapters on Fundamental Rights or Duties but rather in Article 1 of the Constitution."Everything in the Constitution flows from this Article. This has to be THE Idea of India for without which India cannot exist. What it tells us in this incredibly compact sentence is that while we may differ from state to state and region to region- all of us are one," he added while speaking about the significance of Art.1 of the Constitution. A nation is nothing without its territory and its people and for that reason, the first part of the Constitution titled 'Union and its Territory' specifies the territory of India and also lays down the conditions under which territories may be acquired or given away. Not only that, but this Part also recognizes that despite our cultural, regional, economic, and political difference, every person and every state is a part of this nation-state: India that is Bharat. India a Union of StatesArticle 1 of the Constitution describes the Republic of India as a "Union of States." The choice of the word "Union" in place of "Federation" was a deliberate choice of the members of the Constituent Assembly to signify that the Union of India is not the product of an agreement among existing states and therefore it is not open to any state to secede from the Constitution. Speaking in the Constituent Assembly, Dr.B.R. Ambedkar had stated:"Though India is to be a federation, the federation is not the result of an agreement by the States to join in a federation and that…no state has right to secede from it….the Americans had to wage a war to establish that the states have no right to secession and that their Federation was indestructible. The Drafting Committee thought that it was better to make it clear at the outset rather than to leave it to speculation."[1]This comparison with the American experience is crucial because, as observed by the Supreme Court in Babulal Parate v State of Bombay, none of the constituent units of the Indian Union was sovereign or independent at the time of Independence in the sense of the American colonies. Thus, unlike their American counterparts which had to wage a literal war to contest the right for states to secede, the Indian Constitution sought to make things amply clear from the outset that the constituent states of the 'federation' would have no right to secede from the Union of India. This difference has an important implication on the nature of Federalism that the world's oldest and largest democracies practice. Under the US model of Federalism, the Federation does not have the power to create new states or alter borders of existing states whereas the Indian Constitution expressly recognizes the power to alter existing boundaries of states. For this reason, while comparing the nature of federalism of the two democracies, the US has been described as a destructible union of indestructible states whereas India has been described as an indestructible union of destructible states. Though it flows from Article 1 of the Constitution that states have no right to secede from the Federation and vary their boundaries on their own free will, Article 2 and 3 contemplate acquisition and cessation of territories and changes in the territorial limits of the constituent states. Depending on the act in question, the Constitution lays down certain requirements.Article 1 specifies the constituent units of the Union as States, Union Territories and 'other territories as maybe acquired'. The States and Union Territories are specified in the First Schedule of the Constitution.Acquisition of TerritoryAs explained before, the Union of India has the right to acquire territories. After the commencement of the Constitution, the annexation of Sikkim, Goa, Daman and Diu, Dadra and Nagar Haveli, and Pondicherry have been examples of the acquisition of territory by the Union of India. In the case of the acquisition of territories by the Government of India, no parliamentary legislation is required to acquire the territory. The constitutional obligation to amend the Constitution/ enact a statute is dispensed with in the case of acquisition of territory because it is an inherent attribute of the sovereign State to acquire new territories. The Supreme Court of India explained in Re Berubari Union case that Article 1 merely states a factual situation and does not confer a power on the Parliament to acquire a foreign territory hence no constitutional amendment would be required.The cessation of Indian territory requires a Constitutional Amendment for the action to be constitutionally valid. As explained in the previous article in the series, the case of In Re Berubari Union, the question of the power of the Republic to undertake cessation of its own territory or settle boundary disputes with other nations in a...

Know the Constitution[ Part III]: Union and Its Territory - Articles 1 To 4

Sneha Rao

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