Protecting States’ territorial integrity

Among the world’s major federations, India is almost unique in one unsettling respect. Elsewhere, the territorial integrity of constituent units — States, Provinces, Länder, Cantons or Autonomous Communities — is constitutionally entrenched. Their boundaries cannot be altered, nor can they be abolished or downgraded, without their own consent and, in many cases, the direct approval of their people through referendums and stringent amendment procedures. India’s Constitution adopts a markedly different scheme.

Article 1 proclaims India to be a “Union of States”. Article 2 deals with the admission of new territory into the Union and the establishment of State(s) for such territory, as in the case of Sikkim. That is essentially an external matter, involving foreign policy, treaty obligations and strategic integration, where flexibility and speed may be necessary. A simple parliamentary law is therefore appropriate. Article 3, however, concerns the formation and reorganisation of States out of existing territory within the Union.

Yet even in this sensitive domain, Parliament may create, merge, divide, rename, enlarge, diminish or reorganise States — and even convert part of a State into a Union Territory — through ordinary legislation. The only procedural safeguard is the President’s reference of the Bill to the affected State Legislature for its “views”; those views are not binding.

Article 4 further weakens the federal safeguard by declaring that such a law shall not be deemed a constitutional amendment under Article 368. The result is a grave constitutional anomaly. A State’s constitutional status may be permanently altered without the consent of its Legislature or its people, through an ordinary parliamentary law passed by a simple majority of members present and voting. Since Article 100(3) fixes quorum at only one-tenth of the total membership of each House, such a Bill could, in theory, pass the Lok Sabha with 55 members present and 28 voting in favour, and the Rajya Sabha with 25 members present and 13 voting in favour. Such a meagre threshold is troubling for ordinary legislation; for measures altering the federal compact itself, it is indefensible.

These provisions were framed in the shadow of Partition and amid the formidable task of integrating the 14 Provinces and 552 princely States that constituted India at Independence in 1947. The princely States varied enormously in size and population — from Jammu & Kashmir, with an area of 2,18,779 sq.km., to Vejanoness, a mere 0.75 sq. km.; and from Hyderabad, with a population of 163 lakh, to Bilbari, with just 27 inhabitants. In this landscape of extreme asymmetry, large-scale territorial reorganisation was regarded as unavoidable, and wide latitude for the Union was considered necessary.But the Constituent Assembly was not without dissenting voices.

KT Shah wanted all such proposals to originate in the State legislatures and also suggested referendums. He warned that allowing the Union unilaterally to alter State boundaries would be both anti-federal and undemocratic. Thakur Das Bhargava likewise urged that boundary changes should be decided by the people themselves through referendums, not by legislatures or Parliament alone. Shibban Lal Saxena argued that alteration of State boundaries was a matter of very vital consequence and should not be left to a mere majority or treated as ordinary legislation. He further cautioned that, even if territorial reorganisation was kept outside the ordinary amendment procedure, such an arrangement should not become a permanent feature of the Constitution. Nonetheless, Articles 3 and 4 were adopted in their present form.

In its December 1948 report, the Linguistic Provinces Commission, appointed by the Constituent Assembly and chaired by Justice SK Dhar, strongly opposed linguistic States, warning that they would promote regionalism and imperil national unity. Amid public resentment, the Congress Party appointed the JVP Committee, comprising Jawaharlal Nehru, Vallabhbhai Patel and Pattabhi Sitaramayya, to review the issue. Reporting in April 1949, it broadly endorsed the Dhar Commission’s view, but conceded that where public sentiment was “insistent and overwhelming”, and practical conditions were satisfied, a linguistic State could be considered. What followed is well known.

Potti Sriramulu’s 58-day fast-unto-death, ending in his death on December 15, 1952, galvanised support for a separate Telugu-speaking State and triggered similar demands across India. Under intense pressure, Parliament created Andhra State with effect from October 1, 1953, carving it out of the Telugu-speaking districts of the old Madras State.  The Union Government then appointed the States Reorganisation Commission under Justice Fazl Ali in December 1953. The Commission’s September 1955 report recommended a broad linguistic reorganisation of States. Its proposals were implemented through the States Reorganisation Act, 1956, which came into force on November 1, 1956.

In later decades, more States were created, Sikkim was admitted under Article 2, some Union Territories became States, and Jammu and Kashmir was downgraded. India now has 28 States and 8 Union Territories. Articles 2–4 gave Parliament the flexibility to carry out sweeping territorial reorganisations with relative ease. But what was justified once is not necessarily justified for all time. The former princely States have long disappeared; linguistic reorganisation has refixed State boundaries broadly in accordance with the sentiments of the people concerned; and India is now a stable federal democracy.

Yet Articles 3 and 4 remain unchanged in letter and spirit. The Jammu and Kashmir Reorganisation Act, 2019, shows how Article 3’s flexibility can be weaponised. By bifurcating a State and downgrading it into two Union Territories during President’s Rule, the Union exposed the fragility of the existing procedural safeguards.