The article has been written by Mr. Rajdeep Hembram, a 1st year LLM student from University Law College, Hazaribagh, Jharkhand
Introduction
The Berubari Union case was a dispute between India and Pakistan over the possession of the Berubari Union, a small area located within the Jalpaigudi district of West Bengal. The dispute was resolved through the Nehru-Noon Agreement of 1958, which provided for the division of the Berubari Union between India and Pakistan. The question of whether the Indian parliament had the power to cede territory to a foreign country under the Indian Constitution was brought before the Supreme Court of India.
The case was related to Article 1(3)(c), Article 3, Article 368
According to Article 1(3)(c) states that Indians can acquire foreign territory.
According to Article 3 gives power to the parliament to increase, decrease or alter the boundary of any state. The parliament can even alter the name of any state.
According to Article 368 provides power to the parliament to amend the Constitution and its procedures as per the rules laid down in this Article.
Facts of the case
As per the Indian Independence Act, of 1947, the boundaries of India and Pakistan were to be assessed by the ‘award’ of a boundary commission chosen by the Governor-General. The term “award” refers to the conclusion drawn by the commission’s chairman and included in his final report and submitted to the Governor-General. Consequently, under the chairmanship of Sir Cyril Radcliffe Governor-General appointed a commission.
India and Pakistan did not accept the “award” that the Radcliffe committee determined it to be. Consequently, boundary disputes between the two nations arose. To resolve these boundary disputes Indian Prime Minister Shri Jawaharlal Nehru and Prime Minister of Pakistan Mr. Feroze Khan Noon signed an agreement in 1958.
Nehru-Noon Agreement, clearly stated that the territory of Berubari will be equally distributed between India and Pakistan. Therefore, the President took the matter to the Supreme Court under Article 143. The points made in the Berubari Union Case were repeated in the Kesavananda Bharati Case decision and provided clarity.
The Supreme Court’s judgment also mentioned that the Preamble of the constitution serves as a guide to open the minds of the makers of the law. But the Preamble of the Indian Constitution is not the source of all the powers given to the Indian Government by the Constitution of India.
Issues
The main issues before the court were:
Whether the Indian parliament had the power to cede territory to a foreign country under the Indian Constitution.
Whether legislative action was necessary for the implementation of the Nehru-Noon Agreement.
The government argued that it was not ceding territory but rather exchanging it, and that no legislative intervention was required.
The Exchange of Enclaves argued that the Preamble of the Constitution did not give the parliament the power to make changes to the country’s territory, and that Article 1(3)(c) of the Indian Constitution only allowed for the acquisition of foreign territories, not the ceding of Indian territory to a foreign country.
LEGAL PROVISIONS DISCUSSED IN THE CASE
PART 1 of the constitution of India explains the provisions related to states and the Union The territory of India. It consists of four articles, i.e. Articles 1 to 4. The articles have been briefly discussed below:
Article 1
The article defines the name and territory of India. As per this India is a “union of states” which will also be called Bharat. The states and territories shall be specified in the first schedule. And the territories will comprise of the states, union territories, and any other territories which may be acquired by India.
Article 2
This article supplies power to the parliament to add or establish a new state into the union. It is concerned with the territories which are not part of India.
Article 3
According to this article, the parliament of India may by law has the authority to form any new states or alter the area, boundaries or names of existing states. The term “State” in the article also includes “Union territory”.
Article 4
It states that any law referred to in Articles 2 or 3 shall include the regulations necessary to change the 1st Schedule and IV Schedule to give effect to the provisions of the law. In the case of Mangal Singh v. Union of India, the court observed that when the parliament exercise power under article 2 and 3, then this may change or amends the First Schedule of the Constitution. The first schedule sets out the States name and description of territories.
Article 368
It gives the power to the parliament of India to amend the constitution. The article provides unrestricted powers to the parliament to amend the constitution. However, the judiciary through several verdicts has tried to remind the parliament about the basic structure of doctrine. The doctrine puts limits on parliament that it cannot amend the fundamental structure of the constitution.
Nehru Noon agreement
The Nehru-Noon Agreement of 1958 and the Agreement Concerning the Demarcation of the Land Boundary between India and Bangladesh and Related Matters of 1974 (referred to as 1974 LBA) sought to find a solution to the complex nature of the border demarcation involved. However, three outstanding issues pertaining to an un-demarcated land boundary of approximately 6.1 km, exchange of enclaves and adverse possessions remained unsettled. The Protocol (referred to as the 2011 Protocol) to the 1974 LBA, signed on 6th September 2011 during the visit of the Prime Minister to Bangladesh, paves the way for a settlement of the outstanding land boundary issues between the two countries. This historic agreement will contribute to a stable and peaceful boundary and create an environment conducive to enhanced bilateral cooperation. It will result in better management and coordination of the border and strengthen our ability to deal with smuggling, illegal activities and other trans-border crimes.
In building this agreement, the two sides (India and Bangladesh) have taken into account the situation on the ground and the wishes of the people residing in the areas involved. As such, the 2011 Protocol does not envisage the displacement of populations and ensures that all areas of economic activity relevant to the homestead have been preserved. The 2011 Protocol has been prepared with the full support and concurrence of the State Governments concerned (Assam, Meghalaya, Tripura and West Bengal).
Detailed programmes for demarcation work for the field season, Provisions made in the Ground Rules for speeding up demarcation work and for consequential exchange of territorial jurisdiction
West Bengal-East Pakistan Boundary
Over 1200 miles of this boundary have been demarcated. The boundary between West Bengal and East Pakistan in the areas of Mahananda, Burung and Karatoa rivers, it was agreed that demarcation will be made in accordance with the latest cadastral survey maps supported by relevant notifications and record-of-rights.
Tripura-East Pakistan Boundary
Exploratory discussions revealed that the problem had not been carefully studied as all the material on each side had not been examined and there was divergence of opinion as to whether the Kar Creed maps or the revenue survey maps should be taken as the basis of demarcation. It was agreed that copies of the relevant records available with both sides should be supplied to each other and facilities given to see the originals and the experts on both sides should, within a period of two months, be ready with their appreciation of the records and indicate: (i) the difference in the area involved if either the Kar-Creed or revenue survey maps were adopted as the basis of demarcation; (ii) their respective positions as to how the boundary should run in the upper and lower reaches of the Feni river with necessary evidence in support of their view. The two Governments or their representatives will, on receipt of this material, discuss the matter further and decide what should be adopted as the basis of demarcation in these various regions of the Tripura-East Pakistan Border.
Assam-East Pakistan Boundary
The three pending disputes have been settled along the lines given below in a spirit of accommodation:
The dispute concerning Bagge Award III has been settled by adopting the following rational boundary in the Patharia Forest Reserve region.
the dispute concerning Bagge Award IV in the Kushiyara river region has been settled by adopting the thana boundaries of Beani Bazar and Karlmganj as given in Assam Government Notification No. 5133-H dated 28th May, 1940, as the India-East Pakistan boundary in this region, relevant portion of line BA given in the Radcliffe map being varied accordingly.
Tukergram. : The East Pakistan-India boundary in this region given by Sir Cyril Radcliffe as the boundary between the districts of Sylhet and Cachar is confirmed. India’s territorial jurisdiction in the whole of Tukergram village will be immediately restored.
Use of Common Rivers
The need for evolving some procedures for the purpose of mutual consultations in regard to utilisation of water resources of common rivers was recognised by both sides.
Impartial Tribunals
It was agreed that all outstanding boundary disputes on the East Pakistan – India and West Pakistan-India border raised so far by either country should be referred to an impartial tribunal consisting of three members, for settlement and implementation of that settlement by demarcation on the ground and by exchange of territorial jurisdiction, if any. Any dispute which may have been referred to the tribunal can be withdrawn by mutual agreement.
Judgement
The court putted some question and answered subsequently
whether the implementation of the 1958 Agreement relating to Berubari Union and the exchange of Enclaves requires any legislative action either by way of a suitable law of the Parliament relatable to Article 3 of the Constitution or in accordance with the provisions of Article 368 of the Constitution or both. Accordingly, in exercise of the powers conferred upon him by clause (1) of Article 143 of the Constitution, the President of India referred the following three questions, to this Court for consideration:
(1) Is any legislative action necessary for the implementation of the agreement relating to Berubari Union?
(2) If so, is a law of Parliament relatable to Article 3 of the Constitution sufficient for the purpose or is an amendment of the Constitution in accordance with Article 368 of the Constitution necessary in addition or in the alternative?
(3) Is a law of Parliament relatable to Article 3 of the Constitution sufficient for implementation of the agreement relating to the exchange of Enclaves or is an amendment of the Constitution in accordance with Art. 368 of the Constitution
This Court answered the questions as follows.
So far as question no. 1 Was concerned, it was answered in affirmative. So far as second question was concerned, this Court answered it by saying that a law of Parliament relatable to Art. 3 of the Constitution would be incompetent and a law of Parliament relatable to Art. 368 of the Constitution is competent and necessary and also by saying that a law of Parliament relatable to both Article 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. Question NO. 3 was also answered as aforesaid. The said decision is reported in Re. The Berubari Union and Exchange of Enclaves [1960] SCR 3 250. Ninth Amendment to the Constitution was made thereafter.
In 1960, the Indian Parliament was forced to pass the 9th Amendment Act, which altered Schedule 1 of the constitution of India. The Nehru-Noon Agreement was ultimately executed, and the Berubari union was ceded to Pakistan.
Conclusion
From the above discussion on Berubari case it led a great importance to Articles 1(3)(c), 3 and 368 of the Indian Constitution, by keeping its main focus on the rights of the parliament covered under Article 368 of the Indian constitution. The court has clarified that India can cede its territory to any other foreign state after passing an amendment under article 368.
References
Berubari case
https://main.sci.gov.in/jonew/judis/7513.pdf
Nehru noon agreement