State Building in India II: Indian Constitution and new states

31 Jul

I had written this post in 2009 when Telengana first became a major political issue. I am re-posting it since major decisions about the creation of Telengana are underway. Minor edits and updates have been made and are provided in italics. 

In my earlier post on the issue of Telengana’s statehood, I tried to provide a look at the high-handed exercise of the central government’s power to start processes for the creation of new states.  In this part, I try to look at two issues (1) Constitutional provisions regarding state formation, and (2) centre-state relations in relation to state formation.

The provisions for creating new states, and changing the boundaries of new states are provided in Articles 2-4 of the Constitution.  Simply put, a simple law passed by both the Lok Sabha and Rajya Sabha is enough to create a new state.  However, only the central government (“President”) can introduce a Bill for this purpose.  And before introducing the Bill, the states which will be affected have to be consulted.

The process of consultation followed has the following features: (1) The matter is referred to the legislatures of the affected states.  (2) No specific time period within which states have to send their decision back to the centre has been mentioned in the Constitution.  The central government can specify the time period while referring the matter. (3) The Constitution does not mention that the state legislatures have to agree to the proposed creation/alteration of states.  The Parliament can therefore, pass a law creating a new state even if affected states do not agree to the proposal.

Lastly, the names of the states in the Union are mentioned in the First Schedule of the Constitution.  Similarly, the Fourth Schedule lists the number of seats each state is allotted in the Rajya Sabha.  Any law creating a new state would necessarily affect these two Schedules.  Schedules to the Constitution are usually considered parts of the Constitution, and any change to the Schedules has to be done through a constitutional amendment.  However, Article 4(2) of the constitution clearly says that no law creating or altering a new state will be considered a constitutional amendment.

The implications of these provisions are clear: for all practical considerations, the Constitution only requires that the central government should have a simple majority in both houses of Parliament.  The obvious question to ask is whether this system is representative enough to create a new state, and this brings me to the second issue highlighted at the beginning of the page.

These provisions in the Constitution were created at a time when India’s security and sovereignty was at stake, when a number of independent states were forced to merge with the larger Indian state.  There were obvious concerns about giving greater representative power to states who had recently agreed to be governed under the Indian union.  Over the years however, threats of secessionist politics have reduced greatly.  People almost throughout the country acknowledge themselves to be part of a greater Indian union.

However, maintaining the status quo in the Constitutional scheme has greatly reduced political space for raising legitimate regional or geopolitical aspirations within the country.  The Parliament maybe the supreme representative platform for raising issues affecting citizens, it may however not be representative enough.  Though there is no bar for state legislatures on discussing these issues, there seems to be little substantive gain from debating issues they have no practical control over.

Therefore, not only does the present constitutional scheme make it exceedingly simple for the central government to pass laws  creating new states, the procedure involved also undermines the importance of local governments, constituents and state legislatures in the consensus-building process.  It is little wonder then, that groups resort to violence to attract national consciousness.

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12 Responses to “State Building in India II: Indian Constitution and new states”

  1. Adv. Nimisha Mishra October 30, 2010 at 1:10 pm #

    The article is excellent and very helpfull.

  2. SHARMA February 24, 2011 at 10:24 am #

    What is the actual hitch in the formation of Telangana State in the background of the above provisions in the Constitution ? So many lives are lost, so much unrest in the region, heart burning among politicians being spilled into general public also for the past one and half a years.

  3. causes of back pain March 26, 2013 at 3:45 am #

    I quite like reading a post that can make men and women think.

    Also, many thanks for allowing for me to comment!

  4. Pavan Srinath July 31, 2013 at 11:46 am #

    Great post, enjoyed reading it.

    Just one tiny note – we refer to the Union government erroneously as the ‘Central government’, and much too often. Using the word “Centre” gives it overwhelming power.

    • aburman July 31, 2013 at 11:48 am #

      Thanks Pavan. I prefer to use the terminology merely out of habit, and ease of understanding, since as you put it, it is used often!

      • Aishwarya Mohan Gahrana July 31, 2013 at 2:50 pm #

        Is there any legal difference in “Union Government” or “Central Government” or only one term is legally correct?

      • aburman July 31, 2013 at 2:53 pm #

        I believe the Constitution uses the term “union executive”, so “union government” would be more appropriate. However, many people use the term central government, as I have done, and it is not legally “incorrect” either.

      • Pavan Srinath July 31, 2013 at 3:00 pm #

        Sure thing. :)

  5. krishna rao October 5, 2013 at 11:11 pm #

    The provisions of law for creating a new State are so simple it can be misused for political gains of PARTY IN POWER. As rightly mentioned AGITATION & VIOLENCE is the way people are adopting to achieve or prevent a result

  6. M K Rao October 20, 2013 at 8:25 pm #

    Yes agitation and violence is only the way people are adopting to gain their aspirations. Bapuji way of agitation SATYAGRAHA is being used noway days in many forms.There no place for Violence in cool India. Everyone should condemn the violence.
    .

  7. ajay January 3, 2014 at 7:01 am #

    When you write that the changing first and fourth schedule needs a constitutional amendment and that creating or altering state is not a constitutional amendment, how is the new state added in the first schedule? And number of representatives of the state in the fourth schedule?

    • aburman February 7, 2014 at 12:16 pm #

      Ajay, sorry for the belated response. Article 4(2) of the Constitutions states: “(2) No such law as aforesaid shall be deemed to be an amendment of this
      Constitution for the purposes of article 368.” This ensures that though the constitution is being amended, the procedure laid down in Article 368 does not have to be followed.

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