Making and Remaking States

The reference to the State legislature is the only provision in article 3 that looks like a federal safeguard, and three features make it very weak.

First, the State legislature expresses views; it does not consent. The proviso says the Bill shall be referred for the legislature "to express its views thereon within such period as may be specified". Nothing says the views must be accepted or even considered in any particular way.

Second, the period is fixed by the President, and if the legislature says nothing within it, Parliament may proceed.

Third, and least obviously, Parliament may change the proposal after the reference without referring it again.

Facts. Babulal Parate v. State of Bombay, AIR 1960 SC 51, (1960) 1 SCR 605, decided 28 August 1959. A Bill to reorganise the State of Bombay was referred to the State legislature under the proviso to article 3. The proposal referred was for three units. Parliament then adopted a materially different scheme, the bifurcation into Maharashtra and Gujarat. The petitioner said Parliament could not enact a scheme different from the one on which the State had been consulted without a fresh Bill and a fresh reference.

Held. No fresh reference is required. What the President must refer is the proposal contained in the Bill, and on a true construction the proviso does not contemplate that a subsequent modification by Parliament requires a fresh Bill or a fresh reference. The word "State" in article 3 refers back to article 1 and the First Schedule, and there is no warrant for importing doctrines of democratic theory prevalent in other countries, nor for giving the word an extended meaning. The requirements of article IV section 3 of the American Constitution are materially different.

Why it matters. It settles how thin the safeguard is. A State may be consulted on one scheme and reorganised under another, and the courts will not intervene.

Why the safeguard was made so weak

This looks like a drafting failure until you remember what the Constituent Assembly was doing.

In 1950 the map was provisional. The Constitution inherited the Provinces of British India, several hundred princely States which had acceded in 1947 and 1948, and territories still under foreign control. The First Schedule then divided the units into Part A, Part B, Part C and Part D States, which were governed differently. Nobody expected that arrangement to last, and the Assembly deliberately left Parliament the power to rationalise it without going through the amendment procedure each time.

The consequence is that a power created for a transitional problem is permanent. It has been used repeatedly since the transition ended.

How it has been used

A short chronology is enough for the short note, and the dates are worth having.

1953, Andhra was created from the Telugu-speaking areas of Madras, the first State formed on a linguistic basis, and it prompted the appointment of the States Reorganisation Commission.

1956, the States Reorganisation Act redrew the map wholesale on linguistic lines and abolished the Part A, Part B, Part C and Part D classification. The Constitution (Seventh Amendment) Act, 1956 accompanied it.

1960, Bombay was bifurcated into Maharashtra and Gujarat, which is the reorganisation Babulal Parate was about.

1963 to 1987, the north-eastern States were created in stages: Nagaland, Meghalaya, Manipur, Tripura, Mizoram, Arunachal Pradesh, and Goa in 1987, most of them carrying a special provision in article 371.

1966, Punjab was reorganised and Haryana created; Chandigarh became a Union territory serving as the capital of both.

2000, three States were created in a single year: Chhattisgarh from Madhya Pradesh, Uttaranchal, later Uttarakhand, from Uttar Pradesh, and Jharkhand from Bihar.

2014, Telangana was created from Andhra Pradesh, the most recent new State.

2019, the State of Jammu and Kashmir was reorganised into two Union territories, Jammu and Kashmir with a legislature and Ladakh without one. This is the only occasion on which a State has been reduced to Union territories, and it is dealt with in [Article 370].

What this does to the federal argument

The point to make in an essay is not that Parliament has used the power often, but what it means that the power exists at all.

Facts. State of West Bengal v. Union of India, AIR 1963 SC 1241, (1964) 1 SCR 371, decided 21 December 1962. The Union sought to acquire coal bearing land owned by the State of West Bengal under a central Act. The State argued that it was sovereign within its own sphere and its property could not be taken by Union legislation.

Held. The Act was valid. The Constitution is not truly federal in character; full sovereignty does not vest in the States; and, in the sentence that matters here, Parliament, which is competent under article 3 to destroy a State, cannot be held on a theory of absolute State sovereignty to be incompetent to acquire by legislation the property owned by that State.

Why it matters. It uses article 3 as the premise for a much wider conclusion about the nature of the Indian union. If the greater power exists, the lesser cannot be denied.

The counter-argument is worth knowing too. The existence of a power says nothing about the constraints on exercising it. Reorganisation in practice has followed sustained popular demand, usually after a commission or a long agitation, and no State has ever been abolished against a settled political consensus. On that view article 3 is a power that political reality restrains even though law does not. Whether a restraint that the Constitution does not impose is a federal guarantee at all is exactly the argument MU's phrase "trust and faith" is pointing at.

A worked example

A Bill under article 3 proposing to divide State R into two States is referred by the President to the legislature of State R, which is given sixty days to express its views. The legislature passes a resolution opposing the division outright. Parliament then amends the Bill so that instead of two States there are three, and passes it without any further reference.

Is the Act valid?

On the resolution opposing it. The proviso requires that the Bill be referred to the State legislature "to express its views thereon". It does not require consent, and Parliament is free to proceed against the view expressed.

On the modification. This is Babulal Parate exactly. What must be referred is the proposal contained in the Bill, and the proviso does not contemplate that a subsequent modification by Parliament requires a fresh Bill or a fresh reference. The three-State scheme is valid without a second reference.

On the majority. Article 4 provides that a law under article 3 is not an amendment for the purposes of article 368, so an ordinary majority suffices and the First and Fourth Schedules may be amended by the same Act.

What if the President had never referred it at all? That is different: the reference is a condition on the introduction of the Bill, not a formality about its content. Article 255 cures a missing recommendation or previous sanction where assent was given, and whether it reaches this proviso is a question worth flagging rather than asserting.

Quick revision

• Article 2 admits or establishes new States from outside the Union, on such terms as Parliament thinks fit; article 3 rearranges the units already inside it.
• Article 3 needs the President's recommendation and a reference of the Bill to the State legislature for its views. The views do not bind.
• Babulal Parate: Parliament may modify the proposal after the reference without referring it again.
• Article 4 makes such a law an ordinary law, expressly not an amendment under article 368.
• The chronology worth quoting: Andhra 1953, the States Reorganisation Act 1956, Bombay 1960, the north-east from 1963, Punjab 1966, three States in 2000, Telangana 2014, and Jammu and Kashmir reduced to Union territories in 2019.
• The federal significance: a unit that can be abolished by ordinary majority is not sovereign, and West Bengal v Union of India draws exactly that conclusion.

Test yourself

1. Distinguish article 2 from article 3, and give the five limbs of article 3.

2. What are the two conditions in article 3, and how far does the second protect a State? Answer with Babulal Parate.

3. Why does article 4 exist, and what would change if a law under article 3 had to satisfy article 368?

4. Give the chronology of State reorganisation from 1953 to 2019, and say what the 2019 reorganisation did that no earlier one had done.