INTRODUCTION –
Re BERUBARI UNION CASE is related to the exchange of territories between India and Pakistan as per the Nehru-Noon Agreement of 1958.
BACKGROUND –
According to the Indian Independence Act, 1947, the boundaries of India and Pakistan were to be assessed by the ‘award’ of a boundary commission chosen by the Governor-General. The word ‘award’ denotes the decision of the chairman of the commission contained in his final report submitted to the Governor-General. Consequently, the Governor-General appointed a commission under the chairmanship of Sir Cyril Radcliffe.
But the ‘award’ determined by the Radcliffe committee was not accepted by India and Pakistan. Consequently, there arose boundary disputes between the two nations. To resolve these boundary disputes the then Indian Prime Minister Shri Jawaharlal Nehru and Prime Minister of Pakistan Mr. Feroze Khan Noon signed an agreement in 1958.
Among other things, the agreement provided for the division of the Berubari Union No. 12 and the exchange of enclaves between the two nations. The exchange was based upon the concept of ‘enclaves for enclaves’ without any consideration of territorial loss or gain.
The dimensions of the Berubari was 8.75 square miles. It had a population of nearly 12000 people. It is located in the District of Jalpaiguri, West Bengal.
As laid down by the agreement, ‘Berubari Union No. 12’ was to be divided horizontally, in such a way that half the area would be given to Pakistan and the other half would be retained by India.
LEGAL ISSUES RAISED –
Whether the execution of the Agreement concerning the Berubari Union and the exchange of Enclaves require any legislative actions either through a law of Parliament under Article 3 of the Constitution or by bringing in a suitable amendment to the constitution under Article 368 or both?
Consequently, the President thought that the issues raised are of such nature and importance that the opinion of the Supreme Court should be obtained. Accordingly, by exercising the power provided under Article 143 of the Constitution, he referred the following questions to the Supreme Court –
- Does the implementation of the agreement regarding the Berubari Union require legislative action?
- If so, will a law enacted by Parliament under Article 3 of our Constitution be sufficient for the execution of the agreement regarding the Berubari Union or an amendment to the Constitution under Article 368 of our Constitution required? And if necessary should it be considered in addition or as an alternative?
- If so, will a law enacted by Parliament under Article 3 of our Constitution be sufficient for the execution of the agreement regarding Exchange of Enclaves or an amendment to the Constitution under Article 368 of our Constitution required? And if necessary should it be considered in addition or as an alternative?
ARGUMENTS –
The Union Government contended that the agreement is merely a recognition of the boundary which had previously been decided and it is not a substitution of a new boundary or the alternation of the boundary. The settlement decided is not alienation or cession of the territory of India.
It was further contended that if any portion of land had to be yielded to Pakistan, according to the ‘award’ of boundary commission, it does not equate to the cession of territory as it is merely a mode of settling the boundary dispute.
Accordingly, the Union Government argued that legislative action is not required for the execution of the Agreement concerning the Berubari Union along with the exchange of enclaves.
Whereas, the other party contended that the Parliament did not have any power to cede any a portion of India in favor of a foreign State either by any legislation or even by the amendment to our Constitution.
They argued that the only opinion the Supreme Court could give regarding the Agreement was that it was void and cannot be made functional by a legislative process.
The argument was supported by the following points –
The preamble to our Constitution lays down that like the democratic republic form of government, the entire territory of India is out of reach of the Parliament and cannot be affected either by any legislation or even by an amendment.
Article 1(3)(c) of our Constitution has given the country the power to acquire other territories, but it has not made any provision for ceding any part of its territory.
JUDGMENT –
Concerning the contention of the Union Government in implementing the agreement, the Supreme Court concluded that the parties have accepted the most expedient and reasonable way to resolve the dispute. There was no need to interpret the ‘award’ or to ascertain what ‘award’ meant.
Concerning the rival contention, the Supreme Court held that the preamble is not a part of our Constitution, hence did not find any merit in the rival contention.
Concerning Article 1(3)(c) it was held that the article does not grant authority to India to acquire territories. It makes a provision for the absorption and integration of foreign territories that may be acquired by India. This provision is not supported by any expansionist political philosophy.
Regarding Article 368, it was held that the power to amend our Constitution includes the power to amend Article 1. Thus, logically it would include the power to cede national territory in favor of a foreign state.
Further, it was held that the power to acquire foreign territory and the power to cede a part of the national territory is essential attributes of sovereignty. Cession of the national territory
Equates to the transfer of sovereignty over the said territory by the owner state in favor of another state. So, legislation is required for the execution of the Agreement. Article 3 does not refer to the Union territories. So, the cession of a part of the Union territories would have to be carried out under Article 368 of our Constitution.
The Supreme Court concluded that it would not be qualified for the Parliament to make a law under Article 3 of our Constitution for the reason to execute the Agreement. This meant that the law required to execute the Agreement had to be passed under A-368 of the Constitution.
The Agreement amounts to a cession of a part of the territory of India in favor of Pakistan. So, its implementation would involve changes being made to Article 1 and the relevant part of the First Schedule of our Constitution, because the execution of the Agreement would lead to the diminution of the territory of India. Such an amendment can be made under Article 368 of our Constitution.
Thus, the Supreme Court answered the questions referred to it –
- Legislative action is necessary for the execution of the Agreement.
- A law of Parliament under Article 3 of our Constitution would be unqualified, and law under Article 368 of the Constitution will be qualified and necessary.
- For the exchange of enclaves too, the same procedure as to be followed.
CONCLUSION –
The Supreme Court in the Berubari Union case concluded that:
- The preamble is not a part of our Constitution.
- The Parliament has the power to amend our Constitution [including Article 1].
- A cession of a part of the territory of India would lead to the diminution of the territory of India. Such an amendment can be made under Article 368 of our Constitution.
SOURCE –
- P JAIN, Constitution of India, Justice Jasti Chelameswar and Justice Dama Seshadri Naidu, 8th edition, LexisNexis, Printed by Saurabh Printers Pvt limited (2018).
- N SHUKLA, Constitution of India, Mahendra Pal Singh, 13th edition, Easter Book Company, Printed by Gopsons Papers Ltd (2019).
- The Constitution of India, Ministry of Law and Justice (Legislative Department)
- https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-ninth-amendment-act-1960
- Image source – https://www.pngkey.com/detail/u2y3a9o0e6a9o0r5_the-border-enclaves-of-india-and-bangladesh-berubari/
This blog is written by Kushal, KLE Society’s Law College.
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