Judgments

IN RE : THE BERUBARI UNION AND EXCHANGE OF ENCLAVES (CASE SUMMARY)

The Supreme Court in  “ In Re : The Berubari Union And Exchange of Enclaves : 1960 3 SCR 250”  was of the opinion that and Constitution has to be amended under Article 368 to give effect to an agreement between Indian and any other Country in respect of cessation of territory.

FACTS OF THE CASE

Boundary Commission under Chairmanship of   Sir Cyril Radcliffe was appointed under Section 3 of the Indian Independence Act, 1947 for drawing boundary between India and Pakistan. Boundary Commission made an award known as Radcliffe Award. Certain disputes arose out of interpretation of award.  With mutual consent of Dominion of India and Dominion of Pakistan, a Tribunal under chairmanship of Hon’ble Lord Justice Algot Bagge was set up to resolve the disputes, which delivered awards known as “Bagge Awards”.

Further Dispute arose between Government of India and Government of Pakistan in respect of Berubari Union No. 12 in District of Jalpaiguri and certain other territories. To resolve these disputes Government of India and Government of Pakistan entered into Indo-Pakistan Agreement.

Dr. Rajendra Prasad, the President of India, referred the matter to the Supreme Court under Article 143 of the Constitution of India for opinion on following issues  in respect of  Berubari Union No. 12 and Cooch Behar enclaves.

(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 Exchange of Enclaves or an amendment of the Constitution in accordance with Article 368 of the Constitution necessary for the purpose, in addition or in the alternative?

OPINION OF THE COURT

The Supreme Court observed that parties to the agreement  came to conclusion that the most expedient and reasonable way to resolve the dispute would be divide the area in question in half and half. There was no trace of in the Agreement of any attempt to interpret the Radcliffe Award or to determine what the Award really meant.  The Agreement says that though the whole of area of Berubari Union No. 12 was within India, India was prepared to give half of it to Pakistan in spirit to give and take in order to ensure friendly relations between the parties and remove causes of tensions between them. The Supreme Court noted that it was difficult to accept argument that the agreement amounts to no more than ascertainment and delineation of the boundaries in the light of the award.

The Supreme Court held that the Agreement in respect of Berubari Union No. 12 and Cooch-Behar enclaves involve cessation of territory.

It was contended before the Supreme Court that Parliament does not have power to cede any territory in favour of foreign state relying on Preamble and Article 1 (3) (c) of the Constitution. The Supreme Court rejected this argument. Supreme Court observed that Preamble is not part of the Constitution and it can not be regarded as the source of any substantive power.

The Supreme Court observed that it is universally recognized that one of attributes of sovereignty is the power to cede parts of national territory if necessary.

The Supreme Court concluded that it would not be competent for the Parliament to make a law relatable to Article 3 of the Constitution for purpose of implementing of agreement involving cessation of territory. Law necessary to implement the agreement has to passed under Article 368 of the Indian Constitution.   

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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

Mukesh Kumar Suman

Mukesh Kumar Suman

Mukesh Kumar Suman is an advocate based at Delhi. He has rich experience in civil, criminal, commercial, arbitration and corporate insolvency matters. He regularly appears before District Courts, NCLT, NCLAT, High Court and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

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