Article 3 woes

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In the wake of the perceived threats that Manipur may end up dismembered, causing in its wake violent upheavals that the state can ill afford, there has been a demand to have a clause added to Article 3 which allows the Union government by an Act of the Parliament to 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 a part of any State; increase the area of any State; diminish the area of any State; alter the boundaries of any State; alter the name of any State among others”. All this would also be with or without the consent of the concerned State. The recent Manipur Assembly’s resolution seeks an assurance that the Union government would exercise the power of this Article only with the consent of the state in the case of Manipur. While the anxiety is understandable, it must be said this is a very tall order. For one, we all know in the post Emergency era, it is now virtually impossible for the Parliament to alter the basic structure of the Constitution. The list of what constitutes the basic structure of the constitution is not exhaustive, and the Supreme Court is given power to interpret and bring in what has not already been included in it as and when the question arises. What needs to be kept in mind is, altering Article 3, may also come to be interpreted as altering the basic structure of the Constitution. There is also a debate on whether altering an original Article of the Constitution should be treated as rewriting the Constitution or merely amending it. Amending Article 3, therefore will be mired in numerous technicalities and constitutionality debates, therefore may not be easy to convince the Union government to make the effort.

There is another reason why the Union government may not be too eager to respond to such a request. The most obvious reason for this is, there are others demanding its invocation. The most immediate of these is the demand for creation of a Gorkhaland state, by severing Darjeeling and the Duar region from West Bengal. Here too, while the West Bengal government opposes it, Darjeeling is demanding its provisions be pressed into action. Under the circumstance, the Union government may not be so inclined to court controversy, or displease one section to please another. The intent of this editorial is not to discourage the Manipur government to address the overwhelming anxiety of the state’s territorial integrity being hurt, but a caution that the government as well as the public should not put all their eggs in this one basket. For there are distinct possibilities of it not working as planned, and the disappointment can be big. Sometimes, even if in spirit all agree a certain move is righteous and deserving, there can be serious legal hurdles before its actualisation. The fate of the three Bills which together were meant to do what the Inner Line System does, is too recent for anybody to forget just as yet. It may be recalled, of the three Bills, the first which defined “Manipur People” and which was the only original of the three, was rejected, while the other two, which only sought to amend two existing bills to incorporate the understanding “Manipur People” as defined by the first Bill, were returned for reconsideration. It is our opinion that, apart from the agitation in Churachandpur, the legal objection to the first Bill was the cut-off year of 1951 in defining domicile status. Considering the chaos the state went through on account of this flaw, the government needs to be careful in making future proposals with legal and constitutional implications, lest the state ends up in disappointment and disillusionment again.

There is another reason why we believe this will not be an easy thing to achieve. One of the best known legal luminaries of the country who had once campaigned for the dropping of Article 3 from the Constitution is Fali S. Nariman. In a presentation he made in 2004 during an international conference on federalism in New Delhi, he had argued that this Article is a verbal refutation of the spirit of a federal republic that India chose to adopt in Article 1, which says: “India, that is Bharat, will be a union of states”. In a federation, the states are partners, not subordinates. Updated versions of Nariman’s paper have been reproduced in numerous journals, and in all of them he held on which this view that Article 3 is a slur on India’s federalism and deserves to be removed. However, in the latest version of this article published in his book “The State of the Nation”, he has reconciled with the current reality that removing the Article may not be feasible anymore, and so instead recommends it to be treated as a relic of the insecurity that India went through in the wake of the Partition and the existential threat it continued to face from rebelling Princely States, but never to be used again. This shift of opinion of a renowned constitutional expert also ought to be a lesson for the Manipur government.


Source: Imphal Free Press

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