New States, special status and the Scheduled and Tribal Areas - Indian Constitutional Law - New Challenges

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1. Articles 3 and 4: an indestructible Union of destructible States
2. Reorganisation in practice
3. Special status: Article 370 and Articles 371 to 371J
4. Scheduled Areas: the Fifth Schedule
5. Tribal Areas: the Sixth Schedule
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. Three syllabus items belong together: the creation of new States, the special status of certain States, and the Tribal and Scheduled Areas. Each is a form of asymmetric federalism: the Constitution does not treat every unit alike, and the Union holds the power to redraw the map. The answer needs the text, the history, the leading cases, and the question whether States in India have any guaranteed existence.

1. Articles 3 and 4: an indestructible Union of destructible States

Article 3 lets Parliament, by ordinary law, form a new State by separating territory from a State or uniting States, increase or diminish the area of a State, or alter its boundaries or name. The Bill needs the President’s recommendation, and the President must refer it to the legislature of each affected State for its views within a fixed period. Article 4 provides that such a law may make supplementary and consequential changes to the First and Fourth Schedules and is not an amendment under Article 368.

Babulal Parate v. State of Bombay, 1959 INSC 105: the views of the State legislature are not binding, and Parliament need not make a fresh reference each time it amends the Bill.
In re Berubari Union, 1960 INSC 49: Article 3 covers changes within India; ceding territory to a foreign State needs a constitutional amendment. The Ninth Amendment (1960) followed, and the Hundredth Amendment (2015) gave effect to the Land Boundary Agreement with Bangladesh.

The phrase usually borrowed is the reverse of the American one. Texas v. White (1869) called the United States “an indestructible Union, composed of indestructible States”; India is an indestructible Union of destructible States. In the United States a new State cannot be formed from an existing State without its legislature’s consent (Article IV, section 3); in Australia, section 123 of the Constitution requires the consent of the State Parliament and approval by referendum in that State.

2. Reorganisation in practice

The first reorganisation was linguistic: Andhra State (1953) after Potti Sriramulu’s fast, the States Reorganisation Commission chaired by Fazl Ali (1955), and the States Reorganisation Act 1956. Bombay was divided into Maharashtra and Gujarat in 1960, Punjab and Haryana in 1966; the north-eastern States were created in stages from Nagaland (1963) onwards. The second wave was about development and identity rather than language: Chhattisgarh, Uttarakhand and Jharkhand (2000) and Telangana under the Andhra Pradesh Reorganisation Act 2014, which was passed over the opposition of the Andhra Pradesh legislature.

The sharpest test came in 2019, when the Jammu and Kashmir Reorganisation Act turned a State into two Union Territories while the State was under President’s Rule. In In re: Article 370 of the Constitution, 2023 INSC 1058, the Court upheld the creation of the Union Territory of Ladakh under Article 3 read with its Explanation, but declined to decide whether Parliament could reduce a State to a Union Territory, relying on the Union’s statement that statehood would be restored. It directed elections to the Legislative Assembly by 30 September 2024, and they were held that autumn. The unresolved question, whether Article 3 permits a State to be extinguished as a State, is the federal question an LL.M. answer should press.

3. Special status: Article 370 and Articles 371 to 371J

Article 370 limited Parliament’s power over Jammu and Kashmir to matters agreed in the Instrument of Accession and extended other provisions only by Presidential order with the State government’s concurrence. In August 2019 Constitution Orders 272 and 273 applied the whole Constitution to the State and declared Article 370 inoperative. In the 2023 judgment the Court held, in substance, that Article 370 was a temporary provision; that the State retained no internal sovereignty after accession; that the President’s power under Article 370(3) survived the dissolution of the State’s Constituent Assembly; and that, although the route of amending Article 370 through the interpretation clause in Article 367 was not permissible, the President could apply all provisions of the Constitution to the State under Article 370(1)(d) without the State government’s concurrence. Critics argue that consent of the State was replaced by the consent of the Governor and Parliament acting for it during President’s Rule.

Articles 371 to 371J remain, and they are the more durable form of asymmetry:

Article 371: development boards for regions of Maharashtra and Gujarat.
Article 371A (Nagaland) and 371G (Mizoram): no Act of Parliament on religious or social practices, customary law and procedure, or ownership and transfer of land applies unless the State Assembly so resolves.
Articles 371B (Assam) and 371C (Manipur): committees of the Assembly for the tribal and hill areas; Article 371F: the terms on which Sikkim joined in 1975; Article 371H: the Governor of Arunachal Pradesh has special responsibility for law and order.
Article 371D: equitable opportunities in public employment and education for regions of Andhra Pradesh (now also Telangana).
Article 371J (Ninety-eighth Amendment, 2012): a development board and reservation in education and local employment for the Hyderabad-Karnataka region, now called Kalyana Karnataka.

4. Scheduled Areas: the Fifth Schedule

Under Article 244(1) and the Fifth Schedule, the President declares Scheduled Areas in States other than those covered by the Sixth Schedule. The Governor reports to the President on their administration, a Tribes Advisory Council must be consulted, and the Governor may direct that an Act of Parliament or of the State shall not apply, or shall apply with modifications, and may make regulations prohibiting the transfer of land by or among Scheduled Tribes and regulating money-lending.

Lingappa Pochanna Appelwar v. State of Maharashtra, 1984 INSC 226: a law restoring to tribals land transferred to non-tribals was upheld as a measure under Article 46.
Samatha v. State of Andhra Pradesh (1997): leases of land in Scheduled Areas to non-tribals, including private mining companies, were void; the State itself was a “person” barred from transferring such land to non-tribals.
Chebrolu Leela Prasad Rao v. State of A.P., 2020 INSC 344: a Governor’s order reserving all teacher posts in Scheduled Area schools for Scheduled Tribes was struck down; the Fifth Schedule power cannot override Part III.
The Panchayats (Extension to Scheduled Areas) Act 1996 gives gram sabhas a say in land acquisition, minor forest produce and customary dispute resolution, and in Orissa Mining Corporation v. Ministry of Environment and Forest, 2013 INSC 267, the Court left the Niyamgiri mining decision to the gram sabhas.

5. Tribal Areas: the Sixth Schedule

Article 244(2) and the Sixth Schedule apply to tribal areas in Assam, Meghalaya, Tripura and Mizoram. They create autonomous district councils and regional councils with elected members, power to make laws on land, forests (other than reserved forests), shifting cultivation, inheritance, marriage and social customs, their own courts for disputes between tribals, and powers of taxation. Laws of Parliament and the State may be excluded or modified in their application. This is self-government, not merely protection, which is why demands to extend the Sixth Schedule, including from Ladakh after 2019, recur.

Evaluation. The Fifth Schedule depends on the Governor, who has rarely used the power to modify laws, and on Tribes Advisory Councils that meet infrequently; the gap between protective text and displacement by mining and dams is wide. The Sixth Schedule gives real autonomy but has produced conflict between councils and State governments over funds. Internationally, India ratified ILO Convention No. 107 (1957), which is assimilationist, but not Convention No. 169 (1989), and it voted for the UN Declaration on the Rights of Indigenous Peoples (2007) while maintaining that all its citizens are indigenous. A good answer links all three topics: asymmetry is how the Constitution holds together a diverse Union, and the Union’s power under Article 3 is the reason that asymmetry depends on political goodwill.

How this is examined

Essays: “Indian federalism and the creation of new States”; “Is India an indestructible Union of destructible States?”; the Article 370 judgment and federalism; constitutional protection of Scheduled and Tribal Areas. Short notes: Article 3, Article 371J, the Fifth Schedule, the Sixth Schedule, PESA. Lead with the text of Article 3, then Babulal Parate and Berubari, the 2019 episode, and a comparative paragraph.