RE BERUBARI UNION CASE: AN ANALYSIS

June 7, 2023

Citation: AIR 1960 SC 845

Decided on March 14, 1960

Bench: B.P. Sinha, S.K Das, P.B. Gajendragadkar, A.K. Sarkar, K. Subba, M.

Hidaytullah, K.C. Das Gupta, J.C. Shah

INTRODUCTION

Cession or surrendering a territory is the transfer or surrender of territory to another foreign authority. This can happen when a country loses a war, engages into an accord, signs a treaty with a foreign country, and so on. It is an important step that a united nation takes. India, as a sovereign state, has every right to enter into such an agreement to acquire or surrender territory. A seven-judge court upheld these rights in the case of Re Berubari Union, AIR 1960. It was tied to the battle between India and Pakistan over the Berubari. The lawsuit clarified which clauses of the Indian Constitution provide for the reorganisation of India’s regions. The Berubari Union case, also known as the Re Berubari case, was a landmark case in the history of India’s constitutional law. The case dealt with the question of the extent of India’s territorial sovereignty and the rights of citizens in the border regions. The case arose from a territorial dispute between India and East Pakistan (now Bangladesh) over a small area called Berubari. After India gained independence from British rule in 1947, the partition of India created the separate states of India and Pakistan. However, the border between the two countries was not clearly defined, and there were several disputes over territory, including the Berubari Union.

BACKGROUND OF THE CASE

The Berubari Union case, also known as the Re Berubari case, was a watershed moment in Indian constitutional law. The issue developed because of a territorial dispute between India and East Pakistan (now Bangladesh) over a tiny territory known as Berubari. Here are some of the case’s important facts:

Berubari was a tiny hamlet in West Bengal’s Jalpaiguri district, close to the border between India and East Pakistan. The Berubari Union was formerly a part of the Indian state of West Bengal. The Indian government, however, approved the Berubari Union (Acquisition of Territory) Act in 1952, which intended to transfer Berubari to East Pakistan. The Act was challenged in court, and the case made it all the way to the Calcutta High Court. The High Court ruled in 1959 that India lacked territorial jurisdiction over Berubari. The Indian government filed an appeal with the Supreme Court of India against the High Court’s verdict. A five-judge panel heard the matter and finally decided that Berubari was part of Indian territory. The Supreme Court’s ruling was based on an interpretation of Article 3 of the Indian Constitution, which grants the Indian Parliament the authority to change state boundaries. The court ruled that the right to change state boundaries includes the capacity to transfer territory from one state to another, and so the Indian Parliament had the jurisdiction to move Berubari to West Bengal. However, the court emphasised the necessity of preserving citizens’ rights in border zones. To that aim, the court ruled that any transfer of land that affects people’ rights must be done with their permission. The Supreme Court’s decision was based on a reading of Article 3 of the Indian Constitution, which gives the Indian Parliament the ability to amend state borders. The court concluded that the ability to transfer land from one state to another is included in the power to modify state boundaries, and so the Indian Parliament had the authority to relocate Berubari to West Bengal. The court, however, emphasised the need of protecting citizens’ rights in border zones. To that end, the court determined that any property transfer that impacts people’s rights must be done with their consent.

ISSUES RAISED

The issue that came up before the Hon’ble Supreme Court were as follows:

Whether there is a necessity of legislative action for the implementation of an agreement relating to the Berubari union?
Whether the case where there is such a necessity, is a law of parliament in relation to Article 3 of the Constitution of India, 1950 sufficient for the purpose or is an amendment of constitution in accordance with article 368 of constitution necessary, in addition or in alternative?
Whether the legislature in relation to Article 3 of the Constitution of India empowered to implement the agreement relating to Berubari’s Union or is there a need for amendment under Article 368 of the Constitution of India for the purpose of the implementation of the aforesaid agreement?

RATIO DECENDI

In the Berubari Union case, the Supreme Court of India held that Berubari was a part of Indian territory, and the transfer of the area to East Pakistan was unconstitutional. The court’s decision was based on the interpretation of Article 3 of the Indian Constitution, which empowers the Indian Parliament to alter the boundaries of states. The court ruled that the right to change state boundaries includes the capacity to transfer territory from one state to another, and so the Indian Parliament had the jurisdiction to move Berubari to West Bengal. However, the court emphasised the necessity of preserving citizens’ rights in border zones. To that aim, the court ruled that any transfer of land that affects people’ rights must be done with their permission. The ratio decidendi of the Berubari case union can be summarised as below:

The right to change state boundaries, as specified in Article 3 of the Indian Constitution, includes the authority to transfer territory from one state to another.
The Indian Parliament has the ability to transfer land from one state to another, but any transfer that affects residents’ rights must be approved by them.
Before any transfer of territory may take place, the people who live in the affected region must give their agreement.
Without the permission of the people impacted by the transfer, the Indian Parliament does not have the authority to surrender Indian land to a foreign government.

In order to answer to the President’s question, the Supreme Court construed the relevant Articles. The Court determined that Article 3 was ineffective in and of itself for the purposes of implementing the Agreement in issue. It further said that a statute under Article 368 is competent and required for execution. Furthermore, if a change was to be made first in Article 3 and this would be followed by the use of the Amended Article for the execution of the Agreement, a statute of Parliament would be required in connection to both Article 3 and 368. The Supreme Court must have considered that Article 3 is one of our country’s founding documents. The Amendment to the same meant that we were changing what the Constitution makers wanted for us, which made our Constitution appear weak in comparison to other countries. Instead of such a broad interpretation, the Supreme Court could have simply said that legislation under Article 368 would serve to carry out the agreement reached.

RELEVANCE OF THE CASE

The Supreme Court of India ruled in the case and emphasised that Article 3(c) allows the legislature the authority to reduce State Territory but not to transfer it. It is not enough to simply practise and use this ability under Article 3. Article 358 states that Parliament must modify the Constitution using both Power and Procedure. It should be noted that whereas Article 3 can be implemented with an ordinary majority in Parliament, Article 368 requires a special majority. As a result, the 9th Constitutional Amendment Act of 1960 was established to serve as the foundation for the accord. It is now clear why the 100th Constitutional Amendment Act, which provides for the exchange of enclaves between India and Bangladesh, was passed in 2015. The Berubari Union issue is still significant today, particularly in the context of India’s ties with its neighbours and border territories. The case established significant constitutional law issues, such as the limits of the Indian Parliament’s capacity to change the country’s geographical boundaries and the necessity to preserve people’ rights in border regions. Today, the Berubari principles continue to guide the Indian government’s approach to border disputes and territorial claims. For example, India’s current conflict with China over the border area of Ladakh emphasises the need of preserving individuals’ rights in border regions, as well as the importance of diplomacy and discussion to settle territorial issues. Furthermore, the Berubari case emphasises the need of ensuring that any transfer of land is done with the permission of those impacted. This concept applies not just to territorial disputes, but also to land acquisition for development projects and other comparable operations. To summarise, the Berubari Union case is still significant today since it continues to shape the Indian government’s attitude to territorial disputes and residents’ rights in border districts. The ideas established in the case remain an essential reference point in discussions about India’s constitutional legislation and its ties with its neighbours.

CONCLUSION

The court’s ruling in the Berubari case showed that the Indian Parliament had the authority to change state boundaries, but it also acknowledged the necessity of preserving residents’ rights in border areas. The court ruled that any transfer of land that affects citizens’ rights must be done with their permission. Furthermore, the court ruled that the Indian Parliament lacked the authority to transfer Indian land to a foreign country without the permission of the persons impacted by the transfer. Overall, the Berubari Union case remains relevant in modern times, particularly in the context of India’s relationship with its neighboring countries and border regions. The principles established in the case continue to guide the Indian government’s approach to territorial disputes and the rights of citizens in border regions, and the case continues to be an important reference point in debates over India’s constitutional law.

REFERENCE