GS Notes

Polity Notes 07

16 min read

Constitutional Amendment Procedure: Type III

This procedure, outlined in Article 368(2) of the Constitution, is the most rigid method of amendment and is reserved for provisions that affect the federal structure of the Indian polity. It underscores the principle of ‘cooperative federalism’ as articulated by scholars like Granville Austin in his work “The Indian Constitution: Cornerstone of a Nation” (1966).

  • Procedure: An amendment bill of this nature must first be passed by a special majority in each House of Parliament. A special majority implies:

    1. A majority of the total membership of the House (i.e., more than 50%).
    2. A majority of not less than two-thirds of the members of the House present and voting.
    • After being passed by both Houses, the bill must be ratified by the legislatures of not less than one-half of the states. This ratification must be done by a simple majority in each state legislature (a majority of the members of the House present and voting). Once ratified, the bill is presented to the President for assent, which is obligatory under the 24th Constitutional Amendment Act, 1971.

  • Provisions Requiring this Procedure: These provisions form the core of the federal balance of power.

    • Election of the President (Article 54, 55): The President is elected by an electoral college comprising elected members of Parliament and state legislative assemblies. Any change to this affects the states’ role in choosing the head of the Union.
    • Executive Power of the Union and States (Article 73, 162): These articles define the extent of executive authority. Altering them could shift the balance of power, impacting state autonomy.
    • Supreme Court and High Courts (Part V Chapter IV, Part VI Chapter V): The judiciary acts as the arbiter in Union-State disputes. Changes to its structure, jurisdiction, or independence directly impact federal relations.
    • Representation of States in Parliament (Fourth Schedule): The allocation of seats in the Rajya Sabha is a cornerstone of state representation at the federal level.
    • Distribution of Legislative Powers (Part XI, Seventh Schedule): The Seventh Schedule, with its Union, State, and Concurrent lists, is the bedrock of legislative federalism. Any amendment to these lists requires state consent.
    • Article 368 itself: To prevent the Parliament from unilaterally making the amendment process easier or more difficult, any change to Article 368 also requires state ratification.

Criticism of the Amendment Process

The Indian constitutional amendment process, while lauded for its balance between rigidity and flexibility, has faced several academic and political criticisms.

  • No Provision for a Special Amending Body: Unlike the United States, where constitutional conventions can be called to propose amendments, the power to initiate amendments in India is vested solely in the Parliament. Critics like legal scholar H.M. Seervai in “Constitutional Law of India” (1967) argued that this concentrates too much power in the hands of the central legislature, potentially undermining the Constitution’s supremacy. This concentration has led to allegations that amendments are often driven by political expediency rather than constitutional necessity, such as the numerous amendments during the Emergency (1975-77).
  • Limited Role for State Legislatures: States cannot initiate any constitutional amendment bill. Their only direct role is in the ratification of amendments affecting federal features. Even in the creation or abolition of a Legislative Council (Article 169), the state legislature can only pass a resolution to request Parliament to act; the final decision and the implementing law are Parliament’s prerogative, and such a resolution is not binding. This is a significant departure from classical federations where constituent units often have a more proactive role.
  • Absence of Time-frame for State Ratification: The Constitution does not specify a time limit within which states must ratify or reject an amendment bill referred to them. This can lead to indefinite delays and uncertainty in the amendment process.
  • No Mechanism for Resolving Deadlocks: If there is a disagreement between the Lok Sabha and the Rajya Sabha on an amendment bill, there is no provision for a joint sitting (as available for ordinary bills under Article 108). A deadlock means the bill lapses, which gives the Rajya Sabha (Council of States) a significant, potentially obstructionist, power despite its members being indirectly elected.

Part I: The Union and its Territory (Articles 1-4)

Article 1: Name and territory of the Union

  • Article 1(1) states, “India, that is Bharat, shall be a Union of States.” The use of both “India” and “Bharat” in the Constituent Assembly was a compromise to satisfy different factions, reflecting both the modern and the traditional names of the nation.
  • “Union of States” vs. “Federation of States”: This phrasing was a deliberate choice. During the Constituent Assembly debates, Dr. B.R. Ambedkar, Chairman of the Drafting Committee, explained on November 4, 1948, that the term ‘Union’ was preferred for two specific reasons:
    1. The Indian Federation is not the result of an agreement among the states to form a union, unlike the American Federation where sovereign states came together contractually.
    2. The states have no right to secede from the federation. The Union is indissoluble. This was a critical provision given the context of the Partition of 1947 and the challenge of integrating over 500 princely states.
  • This structure led to the description of India as an “Indestructible Union of Destructible States.” The Union government can unilaterally alter the boundaries, name, or existence of a state (under Article 3), but no state can legally secede from the Union. This contrasts sharply with a ‘classic federation’ like the USA, where the territorial integrity of states is generally inviolable by the federal government without their consent. The US model is often termed ‘an indestructible union of indestructible states’.
  • GoI Act, 1935 and its Federal Scheme: The 1935 Act proposed an ‘All-India Federation’ comprising British Indian provinces and princely states. However, it was never fully implemented because the accession of a sufficient number of princely states, which was a prerequisite, never occurred. The scheme was weak, with significant powers retained by the centre and opt-outs for princely states.
  • Territory of India: According to Article 1(3), the territory of India comprises: a. The territories of the States. b. The Union territories specified in the First Schedule. c. Such other territories as may be acquired.
    • The term “Territory of India” is a wider expression than the “Union of India” because the latter includes only the states, while the former includes states, UTs, and territories that may be acquired in the future.
  • Acquisition of Territory: India can acquire new territories according to modes recognized by international law:
    • Cession: Acquiring territory through a treaty, purchase, gift, or plebiscite. Examples include the acquisition of French settlements like Puducherry, Karaikal, Mahe, and Yanam (Treaty of Cession, 1954) and Portuguese colonies like Goa, Daman, and Diu (acquired by military action in 1961 and later integrated).
    • Occupation: Taking possession of territory that is hitherto unoccupied by a recognized sovereign.
    • Conquest or Subjugation: Acquiring territory through military victory.
    • Accretion: The addition of land through natural processes, like the formation of new islands within territorial waters.

Article 2: Admission or establishment of new States

  • This article grants Parliament the power to admit into the Union of India, or establish, new states on such terms as it deems fit.
  • This power pertains to states that are not currently part of the Union of India. It covers two scenarios: a. Admission of states which are already in existence: For example, the integration of Sikkim. Sikkim was first made an ‘associate state’ by the 35th Amendment Act, 1974, and then a full-fledged state of the Union by the 36th Amendment Act, 1975. b. Establishment of new states which were not in existence before.

Article 3: Formation of new States and alteration of areas, boundaries or names of existing States

  • This article empowers the Parliament to internally reorganize the states. The powers include: a. Forming a new state by separation of territory from any state or by uniting two or more states or parts of states. (e.g., Telangana from Andhra Pradesh, 2014). b. Increasing or diminishing the area of any state. c. Altering the boundaries of any state. d. Altering the name of any state (e.g., United Provinces to Uttar Pradesh in 1950, Madras to Tamil Nadu in 1969, Mysore to Karnataka in 1973).
  • Conditions for a Bill under Article 3:
    1. The bill can be introduced in either House of Parliament only on the prior recommendation of the President.
    2. Before recommending the bill, the President must refer it to the legislature of the concerned state(s) for expressing its views within a specified period.
    • Critically, the Parliament (or the President) is not bound by the views of the state legislature and can proceed with the changes even if the state expresses disapproval. This was famously demonstrated during the creation of Telangana in 2014, when the Andhra Pradesh legislative assembly rejected the Reorganisation Bill, but the Parliament passed it nonetheless.

Article 4: Laws made under Articles 2 and 3

  • Article 4(1) clarifies that any law made under Article 2 or 3 shall contain provisions for the amendment of the First Schedule (names of states and UTs) and the Fourth Schedule (allocation of seats in Rajya Sabha) as may be necessary.
  • Article 4(2) is highly significant: It explicitly states that no such law “shall be deemed to be an amendment of this Constitution for the purposes of Article 368.”
  • This means that the reorganization of states can be done through the ordinary legislative process by a simple majority, highlighting the immense power of the Union over the states and reinforcing the ‘destructible states’ doctrine.
  • Ceding of Territory: A major constitutional question arose regarding whether Parliament’s power to ‘diminish the area of any state’ under Article 3 included the power to cede Indian territory to a foreign country.
    • In the In re Berubari Union case (1960), which arose from the Nehru-Noon agreement to transfer the Berubari Union territory to Pakistan (now Bangladesh), the Supreme Court held that the power under Article 3 does not extend to ceding Indian territory. It ruled that such an act diminishes the territory of the country as a whole and can only be effected by a constitutional amendment under Article 368.
    • Consequently, the 9th Constitutional Amendment Act, 1960 was passed to transfer the said territory.
    • However, in a later judgment in Maganbhai Ishwarbhai Patel vs. Union of India (1969), the Supreme Court clarified that a settlement of a boundary dispute does not amount to a cession of territory and can be implemented by the executive without a constitutional amendment.
    • The 100th Constitutional Amendment Act, 2015 was enacted to ratify the Land Boundary Agreement (LBA) between India and Bangladesh, which involved the exchange of enclaves. This followed the precedent of the Berubari case, as it involved the transfer of territory, not just a boundary settlement.

Evolution of States in India

  • Integration Post-Independence: At independence in 1947, India consisted of British Indian Provinces and 565 Princely States. Through the efforts of Sardar Vallabhbhai Patel and V.P. Menon, most states acceded to India.
  • The Linguistic Reorganisation Debate:
    • During the freedom struggle, the Indian National Congress had promised the reorganization of provinces on a linguistic basis.
    • However, after independence, the leadership, including Nehru and Patel, feared that such a move could foster sub-nationalism and threaten national unity, especially in the wake of Partition.
    • The Dhar Commission (1948), headed by S.K. Dhar, was appointed to examine the issue. It recommended reorganization on the basis of administrative convenience rather than linguistic factors.
    • This led to widespread resentment. In response, the Congress appointed the JVP Committee (1948), comprising Jawaharlal Nehru, Vallabhbhai Patel, and Pattabhi Sitaramayya. While it formally rejected language as the basis for reorganization, it stated that the issue could be reconsidered if there was a strong public demand.
  • Creation of Andhra and the Fazl Ali Commission:
    • The demand for a separate Telugu-speaking state of Andhra from the Madras Province intensified. The death of Potti Sreeramulu after a 56-day hunger strike in 1952 led to widespread riots and forced the government’s hand.
    • In October 1953, Andhra State was created, becoming the first state formed on a linguistic basis.
    • This triggered similar demands across the country. To address this, the States Reorganisation Commission (SRC) was established in 1953, chaired by Fazl Ali, with H.N. Kunzru and K.M. Panikkar as its other members.
  • States Reorganisation Act, 1956:
    • The SRC submitted its report in 1955. It broadly accepted language as the basis of reorganization but rejected the ‘one language-one state’ theory. It emphasized that national unity, security, and financial viability must be primary considerations.
    • Based on its recommendations, the States Reorganisation Act, 1956, and the 7th Constitutional Amendment Act, 1956, were passed. This led to the creation of 14 states and 6 union territories on November 1, 1956, largely along linguistic lines.
  • Subsequent Reorganisations:
    • 1960: The bilingual state of Bombay was divided into Maharashtra (for Marathi speakers) and Gujarat (for Gujarati speakers).
    • 1963: Nagaland was carved out of Assam.
    • 1966: Following the recommendation of the Shah Commission, the state of Punjab was bifurcated to create a Punjabi-speaking Punjab and a Hindi-speaking Haryana. The hill areas were merged with Himachal Pradesh, and Chandigarh was made a Union Territory and the joint capital.
    • 1970s: States like Himachal Pradesh (1971), Manipur, Tripura, and Meghalaya (1972) were granted statehood. Sikkim was integrated in 1975.
    • 1987: Arunachal Pradesh, Mizoram, and Goa became full-fledged states.
    • 2000: Three new states were created based on socio-economic and developmental factors rather than language: Chhattisgarh (from Madhya Pradesh), Uttarakhand (from Uttar Pradesh), and Jharkhand (from Bihar). This marked a new phase in state creation, focusing on addressing regional backwardness and distinct tribal identities.
    • 2014: After a long and often violent agitation, Telangana was carved out of Andhra Pradesh. The demand was rooted in historical, economic (disputes over water and revenue), and cultural differences between the erstwhile Nizam-ruled Telangana region and the coastal Andhra region, which was part of the British Madras Presidency. The Srikrishna Committee (2010) had studied the issue and provided various options before the UPA government proceeded with bifurcation.

Prelims Pointers

  • Article 1 describes India as a ‘Union of States’.
  • The phrase ‘Union of States’ was adopted from the Constitution of Canada.
  • Dr. B.R. Ambedkar explained that ‘Union of States’ was preferred over ‘Federation of States’ to indicate that the Indian federation is not the result of an agreement by the states and that states have no right to secede.
  • India is described as an ‘Indestructible Union of Destructible States’.
  • The ‘Territory of India’ under Article 1(3) includes states, UTs, and acquired territories.
  • Parliament can admit or establish new states (that are not part of the Union) under Article 2.
  • Parliament can alter the area, boundaries, or name of existing states under Article 3.
  • A bill for the purpose of Article 3 requires the prior recommendation of the President.
  • The President must refer the bill under Article 3 to the concerned state legislature, but its views are not binding.
  • Laws made under Article 2 and 3 are passed by a simple majority and are not considered constitutional amendments under Article 368.
  • Ceding Indian territory to a foreign country requires a constitutional amendment under Article 368, as held by the Supreme Court in the Berubari Union case (1960).
  • 9th Constitutional Amendment Act, 1960: Facilitated the transfer of the Berubari Union territory to Pakistan.
  • 100th Constitutional Amendment Act, 2015: Ratified the Land Boundary Agreement between India and Bangladesh.
  • Dhar Commission (1948): Recommended state reorganization based on administrative convenience.
  • JVP Committee (1948): Comprised Jawaharlal Nehru, Vallabhbhai Patel, and Pattabhi Sitaramayya. It formally rejected language as the basis for reorganization.
  • Andhra State (1953): First state to be created on a linguistic basis.
  • Fazl Ali Commission (1953): States Reorganisation Commission. Accepted language as a basis for reorganization but rejected the ‘one language, one state’ theory.
  • States Reorganisation Act, 1956: Created 14 states and 6 union territories.

Mains Insights

1. The Nature of Indian Federalism: Unitary Bias vs. Cooperative Federalism

  • Cause-Effect: The historical context of partition, secessionist tendencies in princely states, and communal violence led the Constituent Assembly to create a strong centre. This is reflected in Article 3, which gives Parliament the unilateral power to alter state boundaries.
  • Debate: Is India truly federal?
    • Quasi-Federal View: Scholars like K.C. Wheare described India as “quasi-federal” or “a federation with a strong centralizing tendency,” pointing to provisions like Article 3, Emergency powers, and the Governor’s role.
    • Cooperative Federalism View: Granville Austin argued that Indian federalism is not a static model but a dynamic “cooperative federalism,” where the Centre and States are partners in governance. The amendment procedure for federal provisions (requiring state ratification) is an example of this cooperation.
    • Analysis: The power under Article 3 is the most potent example of the unitary bias. While it was deemed necessary for national integration in the initial years, its use must be balanced against federal principles to prevent its misuse for political motives.

2. State Reorganisation: A Tool for National Integration or Disintegration?

  • Historiographical Viewpoint: Initially, leaders like Nehru feared that linguistic states would balkanize India. However, historical experience suggests the opposite. The creation of linguistic states has largely strengthened national unity by accommodating regional aspirations, promoting regional languages and cultures, and allowing for more democratic participation.
  • Shift in Rationale: The basis for state creation has evolved from language (1950s-60s) to addressing regional backwardness, administrative inefficiency, and distinct ethnic/tribal identities (e.g., Jharkhand, Chhattisgarh, Uttarakhand in 2000).
  • Challenges of Small States: The demand for smaller states (e.g., Vidarbha, Gorkhaland) raises critical questions:
    • Pros: Better governance, targeted development, closer administration, fulfillment of democratic aspirations.
    • Cons: Economic non-viability, increased inter-state water/boundary disputes, potential for a weak state to be dominated by the Centre, proliferation of administrative costs (new capitals, assemblies, etc.).
    • Analysis: The creation of new states is a complex political and administrative exercise. A balanced approach is needed, perhaps through a permanent States Reorganisation Commission, to evaluate demands objectively based on a clear set of criteria rather than political expediency.

3. Constitutional Amendment: Balancing Rigidity and Flexibility

  • Flexibility for Unity: The simple majority procedure under Article 4 for reorganizing states provides the necessary flexibility to adapt to changing socio-political demands, which has been crucial for India’s integrity.
  • Rigidity for Federalism: The procedure under Article 368 requiring state ratification protects the core federal structure from being unilaterally altered by the Centre.
  • Critique: The process is criticized for being controlled entirely by political institutions (Parliament and state legislatures) with no provision for popular referendum or a dedicated constitutional convention. This can lead to amendments that serve the interests of the ruling party. The ‘Basic Structure Doctrine’ evolved by the judiciary in the Kesavananda Bharati case (1973) acts as a crucial check against the Parliament’s power to amend the constitution, ensuring its fundamental tenets are not destroyed.

Graph View