The demand of the state of Gorkhaland

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.
(darjeelingtimes.com)

2 Responses

  1. I found your site on technorati and read a few of your other posts. Keep up the good work. I just added your RSS feed to my Google News Reader. Looking forward to reading more from you down the road!

  2. G’day,

    District Darjeeling is part of Nepal – the 76th district of Present Nepal

    Thank you
    N-epal.com

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