Gorkhaland a constitutional view point

By Poonam Kumar Sharma on July 22,2008

The demand of the state of Gorkhaland

A constitutional view point

By Poonam Kumar Sharma, Advocate

Article 3 of the constitution Of India states as follows:

Parliament may by law -
a) Form a new State by separation of territory from any State or by uniting two or more
States or parts of States or by uniting any territory to be a part of any State.
b) Increase the areas of any State
c) Diminish the area of any State
d) Alter the boundaries of any State;
e) Alter the name of any State

Provided that no Bill for the purpose shall be introduced in either House of Parliament
except on the recommendation of the President and unless where the proposal contained
the Bill affects the area, boundaries or name of any of the States, the Bill has been
referred by the President of the Legislature of that State for expressing it views thereon
within such period as may be specified in the reference or within such further period as
the President may allow an the period so specified or allowed has expired.

Explanation I – In this article in clause (a) to (e) “State” includes a Union territory, but in
the proviso, “State” does not include a Union territory.

Explanation II – The power conferred on Parliament by clause (a) includes the power to
for a new State or Union territory by uniting a part of any State or Union territory to any
other State or Union Territory.

Plain reading of the above article reveals that the Indian Parliament ha a power to create,
A new State, increase or diminish the area of any State, alter the boundaries of any State,
And even alter the name of any State.

In order to introduce a Bill to create a new State, increase or diminish the area of any
State, alter the boundaries of any State, the parliament must fulfill the following
conditions:

1. The bill has to be introduced only on the recommendation of the State for expressing
its views within specified time.
2. The President has to refer the bill to the Concerned legislature of the State for
expressing its views within specified time.
In AIR 1960 SC SI Justice S K Das has observed that the article gives a certain power to
Parliament, viz., the power to make a law in respect of any of the matters mentioned in
clause (a) to (e) thereof. This power includes the making of a law to increase the areas of
any State; diminish the areas of any State; and alter the name of any State. The
substantive part is followed by a provision, which lays down certain conditions of the
exercise of the power. It states that no Bill for the purpose shall be introduced in either
House of Parliament except on the recommendation of the President and unless, where
the proposal contained in the Bill affects the area, boundaries, or name of any of the
States, the Bill has been referred by the President to the Legislature of that State for
expressing its views. Thereon. The period within which the State Legislature are must
repress its views has to be specified by the President, but the President may extend the
period so specified.

If, however the period specified or extended expresses and no views of the State
Legislature are received, the second condition laid down in the proviso is fulfilled in spite
of the fact that the views of the State Legislature have not been expressed. Nor is there
anything in the proviso to indicate that Parliament must accept or act upon the views of
the State Legislature.

Thus the Parliament of the Indian Constitution has ample jurisdiction to change the
geography and territorial limit of a given State and hence the constitution does not
guarantee the territorial integrity of a particular State. Justice Gagendragadkar in AIR
1960 SC 845 in para 857 has clearly observes that in constructing Article 3 we should
take into account the fact that the constitution contemplated changes the territorial limits
of the constituent states and there was no guarantee about their territorial integrity.

Hence, as far as the demand for creation of the separate of State of Gorkhaland within the
framework of the Article 3 of Indian Constitution it has noting to do with so called highly
propagated aspect of the territorial integrity of the State of West Bengal and the demand
is constitutionally valid if it is raised democratically.