(This post was written by Pooja Jasani from Gujarat National Law University, Gandhinagar)
In Re: Berubari Union case was decided on 14th March 1960. It was decided by a seven-judge bench of the Honourable Supreme Court.
Brief facts and Procedural History
- In the present case, Bengal and Punjab had to be partitioned. For the purpose of portioning Bengal, a boundary commission was appointed with Sir Cyril Redcliffe as its chairman. He fixed the boundary of India and Pakistan known as Redcliffe line. However, dispute arose between the two governments by reason of different interpretations put by them in the award. Dispute arose in respect of the exact location of the said boundary. Berubari Union no. 12 has an area of 8.75 sq. miles. Radcliffe had divided the district of Jalpaigudi between India and Pakistan by awarding some thanas to one country and others to the other country. The boundary line was determined on the basis of the boundaries of the thanas. In describing this boundary, Radcliffe omitted to mention one Thana. Berubari Union No. 12 lies within Jalpaigudi thana and it was awarded to India. The commission presented the award on 12th August, 1947. However, the omission of the Thana Boda and the erroneous depiction on the map enabled Pakistan to claim that a part of Berubari belonged to it.
- Meanwhile, on 26th January, 1950 the constitution of India came into force. Article 1 of the Constitution provides that India, that is Bharat, shall be a Union of States and that the States and the territories thereof shall be the States and their territories specified in Parts A, B and C of the First Schedule. West Bengal was shown as one of the States in Part A. In the light of the award Berubari Union No. 12 was treated as a part of the Province of West Bengal.
- The question of Berubari union was raised by Pakistan government for the first time in 1952. Till this period, it continued to be a possession of Indian Union and a part of West Bengal. The dispute was brought to an end by the agreement in the year 1958 according to which half of the Berubari Union was awarded to Pakistan and half of it adjacent to India was retained by India. Four cooch behar enclave contiguous of this part was also awarded to Pakistan.
- The President referred to the Supreme Court that whether Parliament possesses the power to transfer the territory to Pakistan or not.
Issues before Supreme Court
- Is there any legislative action necessary for the implementation of agreement relating to Berubari union?
- If so, is a law of parliament relatable to article 3 of constitution sufficient for the purpose or is an amendment of constitution in accordance with article 368 of constitution necessary, in addition or in alternative?
- Is a law of parliament relatable to article 3 of the constitution sufficient for implementation of agreement relating to exchange of enclaves or is an amendment of the constitution in accordance with article 368 of constitution necessary for purpose in addition or in the alternative?
Ratio of the Court (As authored by Justice Gajendragadkar)
- The Supreme Court, in the present case, mentioned that there is no trace in the Agreement of any attempt to interpret the award or to determine what the award really meant. India was prepared to give half of the area to Pakistan to ensure friendly relations and remove causes of tension between them.
- It also went further to mention that a sovereign state can acquire foreign territory and can, in case of necessity, cede a part of its territory in favour of a foreign State, and this can be done in exercise of its treaty-making power. Cession of national territory in law amounts to the transfer of sovereignty over the said territory by the owner-State in favour of another State. The treaty-making power would have to be exercised in the manner contemplated by the Constitution and subject to the limitations imposed by it. Whether the treaty made can be implemented by ordinary legislation or by constitutional amendment will naturally depend on the provisions of the Constitution itself.
- Article 3 of the Constitution of India mentions how parliament by law may form a new state, increase, diminish or alter the boundaries of any state. Article 3(c) states that parliament may by law ‘diminish the area of any state’. Even if Art. 3(c)receives the widest interpretation it would be difficult to accept the argument that it covers a case of cession of a part of national territory in favour of a foreign State. The diminution of the area of any State to which it refers postulates that the area diminished from the State in question should and must continue to be a part of the territory of India.
- Therefore, the Supreme Court concluded that it would not be competent to parliament to make a law relatable to art 3 for purpose of implementing the agreement. Law necessary to implement the agreement has to be passed under art 368. Article 368 states the power of parliament to amend the constitution and procedure for the same. According to Art. 368 Parliament may make a law to give effect to, and implement, the Agreement in question covering the cession of a part of Berubari Union No. 12 as well as some of the Cooch-Behar Enclaves which by exchange are given to Pakistan. Parliament may, however, if it so chooses, pass a law amending Art. 3 of the Constitution so as to cover cases of cession of the territory of India in favor of a foreign State. If such a law is passed then Parliament may be competent to make a law under the amended Art. 3 to implement the Agreement in question. On the other hand, if the necessary law is passed under Art. 368 itself that alone would be sufficient to implement the Agreement.
- If the law in regard to the implementation of the Agreement is to be passed under Art. 368 it has to satisfy the requirements prescribed by the said Article; the Bill has to be passed in each House by a majority of the total membership of the House and by a majority of not less than two-thirds of the House present and voting; that is to say, it should obtain the concurrence of a substantial section of the House which may normally mean the consent of the major parties of the House.
The Supreme Court held that the legislative action is necessary for implementation of agreement relating to Berubari union. (a) A law of Parliament relatable to Art. 3 of the Constitution would be incompetent; (b) A law of Parliament relatable to Art. 368 of the Constitution is competent and necessary; (c) A law of Parliament relatable to both Art. 368 and Art. 3 would be necessary only if Parliament chooses first to pass a law amending Art. 3 as indicated above; in that case parliament may have to pass a law on those lines under Art. 368 and then follow it up with a law relatable to the amended Art. 3 to implement the agreement. Same procedure would be followed for implementation of agreement relating to exchange of enclaves.