Part I of the Constitution of India

Constitution of India
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Part I—The Union and Its territories is a compilation of laws pertaining to the constitution of India as a country and the union of states that it is made of.

This part of the constitution contains the law in the establishment, renaming, merging or altering the borders of the states or union territories. This part contains four articles. These articles were invoked when West Bengal was renamed, and for formation of relatively new states such as Jharkhand, Chhattisgarh.^[1]

Articles 1 & 2

Part I of the constitution says that India shall be a union of states composed of states and union territories (as listed in Schedule 1) and any acquired territories as admitted in article 2. Article 1 mandates a federal structure in which all the citizens of the country shall have at least two tier governance with second tier as locally elected state government unless it is not feasible due to unavoidable limitations. With the seventh amendment to the constitution in 1956, the concept of union territories is brought to administer areas which are very small in area or governed by international agreements or politically not evolved for locally elected governance. Sikkim was admitted as a state in Indian union on 26 April 1975. There is no other area forming part of India excluding its states and union territories. The representation of seats in council of states (Rajya Sabha) shall be given in Schedule 4 of the constitution.The territorial waters and the exclusive economic zones shall also become part of the states or union territories in the absence of any listing of them separately in Schedule 1 and 4 of the constitution. There is no separate representation in parliament though people inhabit on these offshore areas for exploiting resources such as fisheries, oil and gas, etc.

The constitution (40th amendment) act, 1976, was passed during the emergency period and received Presidential assent on 27 May 1976. It substituted a new Article 297 so as to vest in Union of India all lands, minerals, and other things of value underlying the ocean within the territorial waters or continental shelf or exclusive economic zone of India.^[2]

The territorial waters, continental shelf, exclusive economic zone and other maritime zones act, 1976 was enacted by the Indian government to notify the sovereign rights on these areas for dealings with other countries.^[3]

However, it is not clear whether states are debarred from imposing taxes or royalty on the minerals extracted from the territorial waters and the exclusive economic zone (which are still under states jurisdiction) as per serial no. 50 of state list in seventh schedule of the constitution.^[4]

Article 3

Article 3 provison says that the views of the state assembly shall be taken by the president before recommending for changing the boundary of a state.^[5] The original proviso of Article 3 was amended by Constitution (fifth amendment) Act, 1955 on 24 December 1955.^[6]^[7] In case of union territories the provision for finding the views of the assembly is not applicable. The proviso of Article 3 would become redundant / superfluous if the views expressed by the state assembly is not of any concern for the president/central government in reorganisation of a state.

The supreme court judgement in the case known as "Babulal Parate vs The State Of Bombay on 28 August, 1959"^[8] ruled that the Parliament has power to amend / modify substantially the bill sent to it on the recommendation of the president for making law. In this case, the Joint Select Committee of Parliament made its report on 16 July 1956. Some of the clauses of the Bill were amended substantially in Parliament and on being passed by both Houses by simple majority subject to Articles 107 (2), 245 and 4 (2), it received the President's assent on 31 August 1956, and became known as the States Reorganisation Act, 1956. This legislation is in line with the Supreme Court verdict in Golaknath case, 1967 which states that parliament can also amend the constitution by normal legislation under Article 245, Article 248 and entry 97 of union list in the seventh schedule. In 1973, this verdict was over ruled or made invalid by the later judgement of Supreme Court in Kesavananda Bharati case where it is made clear that constitutional amendments are to be enacted under its constituent power only as per procedure given in Article 368 and no other article or provision of the constitution is applicable.^[9] However, in the case of Andhra Pradesh Reorganisation Act, 2014, the bill sent by the President to the state legislature of undivided Andhra Pradesh for expressing its views was rejected by the state legislature.^[10] The rejected bill was further substantially modified by the Central Government and President recommended the bill to Parliament for its enactment without getting views again of the state legislature before recommending to the parliament. The substantially modified bill with an amendment motion was passed by simple majority in to law without referring to the Joint Select Committee of Parliament and discussion on the bill in the Parliament. Many petitions were lodged in the Supreme Court challenging the validity of Andhra Pradesh Reorganisation Act, 2014 under Article 3.^[11]

Article 4

Article 4 is invoked when a law is enacted under Article 2 or 3 for the marginal, incidental and the consequential provisions needed for changing boundary of a state or union territory. As per Article 4 (2), no such law framed under Article 4 (1), shall be deemed to be an amendment of the constitution for the purposes of article 368.

Before 1971, there were few articles [Articles 4 (2), 169 (3)-1962, 239A (2)-1962, 244A (4)-1969, para 7(2) of Schedule V and para 21(2) of Schedule VI] other than Article 368 which permitted marginal amendments to the constitution. However Article 4 (2) got superseded by the 24th amendment in the year 1971 to Article 368 (Power of Parliament to amend the Constitution and Procedure there for). Article 368 (1) was added by 24th amendment which says that notwithstanding anything in this Constitution,^[12] parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.^[13] Constituent power means eligibility to frame constitution and make amendments to the constitution.^[14] Supreme court observed that article 368 (1) clearly defined the scope of constituent power which is power to make amendments, variations or deletions to the constitution.^[15] Constituent power conferred on the parliament must be exercised by it in accordance with the procedure given in article 368 (2) and can not be subjected to an inferior legislative procedure under article 4 or delegated to an outside agency.^[15]^[10] Thus there is only one procedure for bringing an amendment (including of marginal nature) to the constitution which is the procedure given in Article 368. However, these superseded articles [Articles 4 (2), 169 (3), 239A (2), 244A (4), 356 (1)c, para 7(2) of Schedule V and para 21(2) of Schedule VI] have been in use for enacting laws for not contesting their validity in the court of law.

References

↑ Ministry of Law. "Constitution of India - Part 1" (PDF).
↑ Mirchandani, G. G (1 January 1977). Subverting the Constitution (pages 187 & 188) by G. G. Mirchandani. ISBN 9788170170570. Retrieved 16 September 2013.
↑ "The territorial waters, continental shelf, exclusive economic zone and other maritime zones act, 1976" (PDF). Retrieved 16 September 2013.
↑ "THE CONSTITUTION OF INDIA". Retrieved 21 March 2012.
↑ Proviso: The name of a clause inserted in an act of the legislature, which generally contains a condition that a certain thing shall or shall not be done, in order that an agreement contained in another clause shall take effect
↑ "Original unamended constitution of India, January, 1950". Retrieved 2014-04-17.
↑ "5th Amendment". Indiacode.nic.in. 1955-12-24. Retrieved 2011-11-19.
↑ "Babulal Parate vs The State Of Bombay And Another on 28 August, 1959". Retrieved 2014-07-10.
↑ "Paras 41, 44 & 506e of Kesavananda Bharati v. State of Kerala, (AIR 1973 SC 1461)". 1973. Retrieved 2014-12-01.
1 2 "Invalid Andhra Pradesh Reorganisation Act, 2014". Retrieved 3 August 2014.
↑ "supreme court admits petition against formation of telangana". Hindu.
↑ "Interpretation of "notwithstanding anything"". Retrieved 5 May 2014.
↑ "Constitution Amendment in India (page 11)"" (PDF). Retrieved 15 August 2014.
↑ "constituent power verses legislative power". Retrieved 23 August 2014.
1 2 "Pages 311 & 312 of original judgement: A. K. Roy, Etc vs Union Of India And Anr on 28 December, 1981". Retrieved 23 August 2014.

External References

Supreme court verdict on Non-obstante clause

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