Political Philosophy
Territory and Consent: The Clauses That Say This Is Not an Amendment
26 August 2026 · 10 min read
The procedure for amending a constitution is usually treated as a complete account of how its text can change. In India that account is Article 368: a majority of the total membership of each House, a two-thirds majority of those present and voting, and for a listed class of subjects, ratification by the legislatures of not less than one-half of the States.
The account is incomplete. In at least five places the Constitution contemplates a law that alters its own text and then provides that the law is not, for the purposes of Article 368, an amendment. Article 4(2) says so of laws forming or altering States. Article 169(3) says so of laws abolishing or creating a Legislative Council in a State. Article 239A(2) says so of a law creating a body to function as a Legislature for the Union territory of Puducherry, and says it in unusually candid terms — such a law "shall not be deemed to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending this Constitution." Paragraph 7 of the Fifth Schedule and paragraph 21 of the Sixth Schedule do the same for the administration of Scheduled Areas and tribal areas.
These are not drafting conveniences. A clause that exempts a category of change from the amending procedure is a decision about that category: it says the subject matter does not need protection from an ordinary parliamentary majority. The most consequential of the five is Article 4, because of what falls inside it.
What a reorganisation law does to the text
Article 3 gives Parliament power, by law, to form a new State by separation of territory from any State or by uniting two or more States or parts of States; to increase the area of any State; to diminish the area of any State; to alter the boundaries of any State; and to alter the name of any State.
Article 4(1) then requires that any such law "shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law", and permits it to contain supplemental, incidental and consequential provisions, "including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law".
The two Schedules named are not incidental registers. The First Schedule is the list of the States and the description of their territories — the enumeration to which Article 1 refers when it says that India, that is Bharat, shall be a Union of States. The Fourth Schedule allocates seats in the Council of States. A law under Article 3 therefore rewrites the constitutional list of the units of the federation and the constitutional distribution of seats in the second chamber. Article 4(1) does not merely permit this; it directs that the law contain it.
Article 4(2) then removes the whole operation from Article 368. The requirement is an ordinary majority in each House and the President's assent. On that footing a State may be renamed, reduced, enlarged, divided, merged into another, or brought into existence where none stood before, and the composition of the Council of States adjusted to match.
The consultation, and what it is not
The proviso to Article 3 supplies the only procedural protection the affected State has. No Bill may be introduced except on the recommendation of the President, and, where the proposal affects the area, boundaries or name of a State, not unless the Bill has been referred by the President to the Legislature of that State "for expressing its views thereon" within a period specified in the reference or such further period as the President may allow, and that period has expired.
Three features of that sentence do the work. The first is the noun: views, not consent. The provision is complied with when the period expires, whatever the views are, and whether or not any are expressed. The second is the time limit, which was not in the Constitution as adopted. It was inserted by the Constitution (Fifth Amendment) Act, 1955. The proviso as adopted fixed no period at all, which left a reorganisation Bill exposed to indefinite delay in the State legislature to which it had been referred; the amendment moved control of the clock from the State to the President. The third emerged from litigation: in Babulal Parate v. State of Bombay, AIR 1960 SC 51, the Supreme Court held that the proviso does not require a fresh reference each time the proposal contained in the Bill is modified by amendment in Parliament. The reference is to a proposal, and the proposal need not survive into the enacted law.
Taken together, the obligation is to ask once, about a draft that may change, of a body whose answer has no operative effect, within a period the asking authority fixes. It is an obligation of process and not of agreement, and the Constitution's own vocabulary — "expressing its views" — states as much on its face.
What the amending procedure protects instead
The comparison that matters is not between Article 3 and some stricter version of Article 3. It is between Article 4(2) and the proviso to Article 368(2), which points in the opposite direction.
That proviso requires ratification by the legislatures of not less than one-half of the States before an amendment can be presented for assent, if the amendment seeks to make a change in Articles 54, 55, 73, 162, 241 or 279A; or in Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI; or in any of the Lists in the Seventh Schedule; or in "the representation of States in Parliament"; or in Article 368 itself.
Set clause (d) of that list beside Article 4. To alter the principle by which States are represented in Parliament, the concurrence of half the States is required. To abolish a particular State and redistribute the seats it held under that principle, no State's concurrence is required at all — only its opportunity to comment. The same is true of the legislative Lists: the division of subjects between the Union and the States is entrenched, while the identity of the States among whom the division operates is not.
The pattern is consistent enough to be read as a choice rather than an oversight. What the amending procedure guards is the scheme — the formula of representation, the allocation of legislative competence, the machinery of the executive and the judiciary. What it leaves to ordinary legislation is the question of who occupies the positions the scheme creates. The office is entrenched; the occupant is not.
The premise underneath
Constitutions that were made by their units draft this differently, and the difference is visible on the face of the text. Article IV, Section 3 of the United States Constitution permits Congress to admit new States, but provides that no new State shall be formed within the jurisdiction of any other State, nor formed by the junction of two or more States or parts of States, "without the Consent of the Legislatures of the States concerned as well as of the Congress". Consent, from the affected legislature, as a condition of the power.
The Indian provision withholds exactly that word, and the Constituent Assembly recorded why. Introducing the Draft Constitution on 4 November 1948, the Chairman of the Drafting Committee explained the choice of the word "Union" in Article 1: the Committee wished to make clear that though India was to be a federation, the federation was not the result of an agreement by the States to join it, and that, not being the result of an agreement, no State had a right to secede from it. The country and the people might be divided into different States for convenience of administration, but the country was one integral whole.
Article 2 completes the picture from the other end. Parliament may by law admit into the Union, or establish, new States "on such terms and conditions as it thinks fit" — the terms of entry are set unilaterally by the body already in existence, not negotiated with the entrant.
Article 4(2) follows from that premise rather than qualifying it. If the States are not parties to a compact but subdivisions created for the convenience of administration, then rearranging them is administration, and there is no counterparty whose consent could be constitutionally required. The absence of a consent requirement is not a gap in the protection of federalism; it is a statement about what kind of federalism is being protected.
Where the technique stops
The exemption is not unbounded, and the boundary is instructive. In In re: The Berubari Union and Exchange of Enclaves, AIR 1960 SC 845, the Supreme Court, answering a reference under Article 143, held that Article 3 could not be used to cede Indian territory to a foreign State. The power to "diminish the area of any State" operates upon the internal distribution of territory among the units; ceding territory outside the Union reduces the territory of India as described in Article 1 and the First Schedule, and that required a constitutional amendment. The Constitution (Ninth Amendment) Act, 1960 was enacted to give effect to the agreement in question.
The line drawn there is the same line the rest of the scheme draws. The outer boundary of the Union is constitutional identity and is protected by the amending procedure. The internal partition of what lies inside that boundary is arrangement, and is not. A State's territory is safe against transfer to another sovereign for the same reason it is unsafe against transfer to a neighbouring State: in both cases the question is whether what is being altered is the Union or only its subdivisions.
What follows for reading the Constitution
The practical consequence is a caution about a natural assumption. It is easy to read Part I as though the existence of a State were a constitutional fact of the same order as the existence of the High Courts or the Council of States — something that could be changed only by the procedure that changes the Constitution. It is not. The existence of any particular State is a statutory fact, held in a Schedule that an ordinary law is directed to rewrite whenever a reorganisation requires it. Article 368 does not stand behind it.
The same structure repeats at smaller scale. Under Article 169 a State's own second chamber may be abolished or created by an ordinary law of Parliament, on a resolution of the State's Legislative Assembly passed by a majority of its total membership and two-thirds of those present and voting; and clause (3) provides that no such law shall be deemed an amendment of the Constitution. Under Article 239A the body that functions as a Legislature for the Union territory of Puducherry rests on ordinary law, expressly notwithstanding that the law amends the Constitution. The institutions that the Constitution treats as arrangements are, in each case, the ones whose form was expected to change with administrative need.
None of this decides whether the design is a good one. It does decide what the text is doing. The clauses that say "this is not an amendment" are the Constitution's own list of the parts of itself it did not think it necessary to place beyond the reach of a majority — and the States, as particular named entities, are on that list. Where a constitution draws that line is one of the more direct statements it makes about what it takes its own units to be.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.