Author: Soniya Kawade
AIR 1960 SC 845
Justice B.P. Sinha;
Justice J.C. Shah;
Justice K.C. Das Gupta;
Justice K. Subba Rao;
Justice M. Hidayatullah;
Justice P.B. Gajendragadkar; and
Justice S.K. Das.
In Re, Berubari Union, has itself gained its significant importance in the Indian history. This landmark judgment given by a seven judges bench had acquired a lot more clarity on the constitutional provisions and on the Article 1(3)(C) and 368 of the Indian Constitution. The Judgement was delivered in the year 1960 focusing more on, to give a clarity and clear-cut idea regarding the articles mentioned above and the role of the parliament. Since there isn’t any second party involved, the name of the case was given in reference to the particular area for which the legal suggestion was asked by the president of the country in reference to Article 143 of the Indian Constitution. On the same note, the “Re” mentioned in the name of the case denotes “in reference with the name of the place for which the legal suggestion was taken”. Also, the President of India had sought advice from the Supreme Court of India on the Nehru-Noon Agreement, which had been signed by the Prime Ministers of India and Pakistan.
The issue arose because the West Bengal State Government refused to cede any area in Berubari to Pakistan. The Central Government accepted the Nehru-Noon Agreement, whereby it declares unequivocally that the area of Berubari will be divided equally between India and Pakistan. As a result, the case was eventually heard by the Supreme Court of India. The points expressed in the Berubari case were reiterated and clarified in the Kesavananda Bharati judgement. The decision also said that the Preamble to the Constitution acts as a tool to open the ideas of the law framers. However, the preamble isn’t the basis of all the powers granted to the government by the Indian Constitution.
The following case analysis would be hereto dealing with the case history of this particular case and judgement given by the Supreme Court of India after the president of India asked for a legal suggestion under Article 143 of the Indian Constitution and how the government reacted, followed and took the decision on the said matter after the judgement was being delivered.
TITLE OF THE CASE
The title of this particular case is “In Re, Berubari Union (I)”. The title of the case is framed in such a way that it describes the topic for what the suggestion was taken by hon’ble president of the India under Article 143 of the Indian Constitution from the Supreme Court of India, during the time of partition of India and Pakistan.
“In Re” which is mentioned in the title of the case resembles “in reference with,” which means that the name of the case is given in reference with the location to which, where the incident took place during the partition of India and Pakistan wherein, the question of separation of the area of Berubari arose for which the President of the country seek an legal advice from the Supreme Court of India and the Judgment given by the court became one of the famous and landmark judgement of the country.
- On dated 20/2/1947 since the government was under the rule of the Britishers, the British government showed its intention to handover all the powers to the Indian government by June 1948.
- Then, on dated 03/06/1947 a statement regarding the method by which the transfer of powers would might get effected was been issued by the British government.
- Then on the way to resolve the matter the British parliament had passed the Indian Independence act of 1947, which came into force on 15th of August 1947 hence by the creation of India and Pakistan.
- Then under article 3 clause 1 of the Indian constitution the state of Bengal was decided to be divided into two new state namely East Bengal and West Bengal.
- Berubari is also among the small group of villages in Jalpaiguri district of today’s West Bengal that falls under the two thanas of Jalpaiguri and Boda. The area of this Berubari region is 8.75 sq miles and it is having a population of about ten to twelve thousand residents which was still not specifically mentioned in the 1st schedule of the Independence act and so the act did not really came into operation at all.
- On dated 30/06/1947 the Governor-General declared that the states of Bengal and Punjab should be divided into different regions of India and Pakistan and for that purpose a boundary commission was appointed and the chairman of that commission was Sir Cyril Radcliffe. Then on dated 12/08/1947, the formation of the Radcliffe Award took place.
- The territorial region of the state of West Bengal was never determined under the Schedule 1 of the Indian Independence Act, just because of the reason that the Radcliffe Award came into force just before the three days of the appointment under the independence act. Hence, but still the region was determined under the Award. Then ever since the Award was formed there was no point of dispute that arose because the Berubari Union became and had formed the part of the State of West Bengal and has been governed as such.
- West Bengal was also shown as one of the States in Part-A, also it was decided that the territory of the state of West Bengal should be comprised only of those territories which were there immediately before the commencement of the Indian Constitution. Hence, the region of Berubari was then considered to be a part of West Bengal and hence, a part of India.
- How-so-ever the matter of dispute arose between both the countries, i.e., India and Pakistan related to the distribution of boundaries within certain areas, for which a tribunal was set up to solve the dispute and adjudicate the matter which was arose between both the countries. The tribunal was named as, “Indo-Pakistan Boundaries Dispute Tribunal-made no reference to Berubari Union.”
- Then, in the year 1952, the government of Pakistan arose another issue, questioning the Radcliffe award, that some regions of the West Bengal which are governed under the territory of India should have been a part of East-Bengal and hence shall be given back to Pakistan.
- To solve this issue, and to remove the problems caused due to the border disputes, along with the problems caused due to the Indo-Pakistan border areas, an agreement was formed between India and Pakistan on 10th of September 1958.
- Later the agreement was signed by both the nations, naming the argument as, “Nehru-Noon agreement”, which stated that the Berubari region would be handed over to Pakistan only if the equal part of the lands would be handed over back to India.
- But still there were various issues that remained unresolved after signing the agreement and for the same a judicial advice under Article 368 of the Indian Constitution was taken by the former president of the country Dr. Rajendra Prasad.
- Wherein the issues were raised before the under the concerns raised by the former president of the country and similarly the court presented its judgment in accordance to the issues raised before the hon’ble court. These issues and judgement are laid down below.
- Whether there is any need for a legislative action that is to be necessary for implementing the agreement relating to the Berubari Union?
- If so, is the situation, then to solve the purpose is Article 3 of the constitution of India sufficient for implementation of the purpose or is there any need in accordance of Article 368 of the Indian Constitution for dealing with the purpose?
- For the exchange of the Enclave between the territories, will article 3 under the constitution of India be sufficient for applying of the same, or there is any need for an amendment in accordance with article 368 of the Constitution of India, to solve the purpose?
To answer the first issue, stated above, then yes, it was proved by the outcomes of the third and second issues that there is a need for a legislative action that is necessary for implementing the agreement related to the Berubari Union. (A) a law of the parliament relating to Article 3 of the Indian Constitution would be incompetent or amateurish. (B) It was also found that, Article 368 of the Indian Constitution is relatable to the law of the parliament and hence, is necessary and competent to be implied. (C) Similarly, a law of the parliament is relatable to both the articles, i.e., Article 368 and Article 3 under the Constitution of India, also, it would become necessary only when the parliament first chooses to pass a law that amends Article 3 under the Constitution of the India, as indicated above. Under such a case, parliament first needs to pass a law on those lines under Article 368 and then follow it with the law relating to the amendment under Article 3 and then implementing the agreement.
All the points mentioned under (A), (B) and (C) answers to that of the issues raised under question 2 and 3. So, Article 368, on the other hand, grants the right to modify the Constitution, and parliament could also amend Art1 of the Constitution, but only after amending Article 368. Only then can the area be handed up to East Pakistan. This implies that the Nehru-Noon Agreement must be approved by both chambers of parliament. Any land of India can be transferred to a foreign country only by changing Article 1 with the special majority of parliament. 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.
The landmark judgement of the Re, Berubari, Union (I), led a great impact over the judiciary, in India and also symbolized the rights of the legislature under Article 368 of the Indian Constitution. The case raised various issues in front of the Honorable Supreme Court of India such as, can a territory be ceded from India and if so, then which article of the constitution permits it and if not, then what are the other ways in which if a parliament, if it wants then can ceded a part of land to other countries. Such issues were answered in such a manner that it had made easier for the parliament for taking its decision on the said matter.
Honorable Supreme Court stated that there is nowhere in the constitution mentioned that some part of the territory can be ceded away from the region of India even Article 1(3)(c) also talks about adding of the other regions into the territory of India. In order to answer to the President’s question, the Supreme Court construed the relevant Articles. The court believed that Article 3 proved ineffective in and of itself for carrying out the Agreement in issue. Additionally, it stated that making a statute under Article 368 is both appropriate and required for the execution.
Additionally, if a modification to Article 3 was to be made first and this was to be followed by the application of the augmented Article for the execution of the agreement, a statute of the parliament would be required in connection to both Article 3 and 368. The Supreme Court should have taken into account the fact that Article 3 constitutes one of our Constitution’s founding documents. The same amendment implied that we were changing what the authors of our constitution intended for us, which would make it appear weak to other nation. The Supreme Court should have simply said that a law enacted in accordance with Article 368 would be sufficient to carry out the contract instead of giving it such a broad meaning. Under such a situation the Supreme Court suggested that if with respect to Article 3 and article 368 of the Indian Constitution if parliament amends Article 1(3)(c) of the constitution then it could cede the part of region from India as well.
Author believes that, the decision as well as the suggestion given by the Supreme Court is absolutely evident, since it gave a clearer and broader idea to the parliament while taking the decision for which the advice was seek for. Hence the parliament came to the conclusion of ceding some part of the territory to Pakistan and including the same amount of land from Pakistan into India.
The above-mentioned case of the Berubari Union, led a great importance on 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. Under which the suggestion and decision given by the Honorable Supreme Court of India, helped the parliament while taking the decision as to ceding a territory from the region of India. The case would widely help the reader to understand the importance and the significance of articles mentioned in the case along with the powers that the parliament possess.
The Honorable Supreme Court of India also emphasized that Article 3(c) allows the legislature the authority to reduce State Territory but not to transfer it. It is not enough to simply practice 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.
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