This article is written by Soumyadutta Shyam. In this article, the historical background, facts, issues raised, arguments of the parties, legal aspects, and analysis of the case have been discussed. This landmark case dealt with the power of the Indian Government to transfer a portion of Indian territory to Pakistan, as well as the interpretation and significance of the Preamble to the Constitution of India.

Introduction

Territorial integrity is a necessary condition for the sovereignty of a State. India is a sovereign State as mentioned in the Preamble, it has the right to protect its own territory. But a difficult situation arises when a State voluntarily decides to give up a part of its own territory. Such a situation arose when the Nehru-Noon Agreement (1958) was signed between India and Pakistan.

In Re: Berubari Union and Exchange of Enclaves (1960) ( hereinafter referred to as ‘the case’), the significance of the Preamble and its role in construing the provisions of the Constitution was discussed. Here the authority of the Parliament to hand over a part of the Indian territory to a foreign nation was questioned.

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Historical Background

During the partition in India in 1947, the boundary line between India and the newly created nation of Pakistan was defined by Britain’s Cyril Radcliffe and the boundary line came to be called the “Radcliffe line”. Radcliffe divided the Jalpaiguri District by awarding some “thanas” to both India and Pakistan. Berubari Union no.12 was awarded to India and became a part of West Bengal of independent India. From the early 1950s, Pakistan started to assert its claim on Berubari. In 1958, the Nehru-Noon Agreement was ratified between the Prime Minister of India and the Prime Minister of Pakistan. Through this agreement, Prime Minister Nehru consented to give Berubari village to Pakistan. However, the Chief Minister of West Bengal was strictly against the decision of the Government. He believed that Berubari was an important part of West Bengal.

Facts of the Case

On September 10, 1958, the Government of India and the Government of Pakistan, considered 10 items of conflict among the two nations and ratified a joint note evidencing their agreement in relation to some dissensions, and presented it to their own Prime Ministers. The objective of this agreement was to eliminate reasons for tension, resolve disputes, and attain peaceful conditions along these border areas.

The main matters of concern in this Presidential Reference were item number 3 in paragraph 2 and 10 in paragraph 3 of the Agreement. Item number 3 stated that a portion of the Berubari Union no.12 was to be handed over to the East Pakistan province of Pakistan. Item number no. 10 stated the exchange of Old Cooch-Behar enclaves in Pakistan and Pakistan enclaves in India devoid of any demand for recompense for the additional area being given to Pakistan.

Afterward, confusion arose if the enforcement of the agreement regarding Berubari necessitated any legislative measure either through appropriate legislation of the Parliament related to Article 3 or Article 368 of the Constitution of India. Questions of a similar nature also arose regarding the exchange of enclaves.

Before independence, Berubari was situated within the Jalpaiguri District, which was a part of the Rajshahi Division of Bengal. It was however not expressly mentioned in the First Schedule of the Independence Act. If considered in relation to the aforementioned schedule, it was a portion of West Bengal. In 1947, the Governor-General declared that Bengal was to be divided. A boundary commission was nominated for the purpose. The boundary commission consisted of four judges of the High Courts and a chairman. Cyril Radcliffe was made the chairman of the commission. As for  Bengal, the terms of reference stipulated that the commission must delineate the frontier separating West Bengal for India and East Bengal for Pakistan. The commission carried out its inquiry, and after that delivered an award on August 12, 1947, that came to be called the “Radcliffe Award” (also referred to as the ‘Award’).

In August 1949, an agreement of merger was ratified by the Government of India with the Maharaja of Cooch Behar. In furtherance of the agreement, the Government of India acquired control of Cooch Behar in September 1949 and Cooch Behar became a portion of India. In 1950, the State of Cooch Behar was integrated into West Bengal. Following the incorporation of Cooch Behar State into West Bengal, its territories comprised those that were part of Cooch Behar State.

In certain areas which were part of Cooch Behar State and which afterward became a part of West Bengal, there were some Pakistan enclaves inside the territory of India. Likewise, there were some Indian enclaves in Pakistan. These enclaves were a source of dispute between India and Pakistan. Item 10 in the agreement was aimed at solving the problem of these enclaves.

Issues raised 

The main concerns in front of the Court in this reference were as follows:-

  1. Is any legislative measure essential for the enforcement of the agreement regarding the Berubari Union?
  2. Is a legislation of the Parliament referable to Article 3 adequate for the objective, or is an Amendment of the Constitution in conformation to Article 368 essential along with it or is there another option?
  3. Is legislation of the Parliament referable to Article 3 adequate for the enforcement of the agreement regarding the exchange of enclaves or is an Amendment of the Constitution in conformance to Article 368 essential for the objective, additionally, or is there another option?

Arguments of the parties

Contentions by the Attorney General on behalf of the Union of India

The Attorney General arguing for the Union of India said that no legislative measure was essential for the enforcement of the agreement regarding the Berubari Union along with the exchange of enclaves. He contended that the agreement determined the accurate boundary between the two countries because of which there was a conflict between the two countries. The cause of the conflict was different interpretations of the relevant portion of the “Radcliffe Award” which contained the description of the border along the Jalpaiguri District. The agreement was the acknowledgment of the boundary in view of the award and it was not an alteration of the boundary. He highlighted that the delineation of the border in view of the award by which both the Governments were obligated, was not a transfer of the territory of India. When a conflict regarding a border takes place between two nations and it is solved in view of the award mandatory on them, the agreement that represents the resolution of that conflict is just a determination of the border between them and cannot be considered a relinquishment of territory by one for the other.

The issue of Cooch Behar enclaves was considered a component of the wider agreement regarding the Berubari Union. It was further argued that the determination and acknowledgment of the correct border could be acquired just by executive action. Therefore, the agreement negotiated between the two Prime Ministers can be enforced in the absence of any legislative measure.

The Attorney General claimed that the enforcement of the agreement in relation to Berubari did not require any amendment in the First Schedule to the Constitution, since the Berubari Union was not at any time lawfully incorporated into West Bengal.

Contentions against the decision of the Government

The opposing argument made by Adv. N.C Chatterjee was that even the Parliament had no authority to transfer any portion of India to another country whether by normal legislation or through an amendment of the Constitution. Thus, the agreement should be void and cannot be made operational even by any legislative procedure. It was asserted that the Preamble states with clarity that in a democratic republican type of government, the whole territory of India is above the authority of the Parliament. The framers of the Constitution were resolved to keep the whole territory of India inalienable. In this context, the starting sentence of the Preamble was quoted as, “We the people of India, having solemnly resolved to constitute India into a Sovereign, Democratic Republic.” He said that India must always remain democratic and republican. Another reason for disputing the agreement was Article 1(3)(c) which mentions that “the territory of India shall comprise such other territories as may be acquired.”

Involved legal aspects

Preamble

The Preamble aims to set forth the objects behind the provisions of the Constitution. The spirit of the Constitution is expressed in the Preamble. Sir Alladi Krishnaswami said that the Preamble expresses, “What we had thought or dreamt for so long.” It symbolises the ideals and principles that inspired the freedom movement against the British rulers.

The Preamble fulfils the objectives mentioned below:-

  1. It declares the origin from where the Constitution emanates i.e., the people of India.
  2. It incorporates the enacting clause that brings into force the Constitution.
  3. It proclaims the entitlements and liberties that the citizens of India wanted for themselves as well as the fundamental form of government and polity that was to be instituted.

The Preamble sets out that India is a “Sovereign Socialist Secular Democratic Republic”. The expressions “Secular” and “Socialist” were included by the 42nd Amendment. The term “Sovereign” means that India is no longer subordinate to any outside power. It indicates that India is self-governing and independent. India is a “Republic”, since the head of the State is not a hereditary ruler. In a republic political sovereignty is bestowed upon the people and the head of the state is a person elected by the people. The word “Democratic” shows that the Constitution has instituted a kind of government that draws its power from the mandate of the people. This word is used in the widest sense and includes, political democracy, as also social and economic democracy. “Secularism” denotes a State that does not consider any religion as a State religion. It views all religions neutrally. The idea of secularism was even earlier implied in the Constitution before the 42nd Amendment as the Preamble mentions the phrase, “liberty of…belief, faith, and worship”. Articles 25 to 28 vest upon every citizen the right to profess, practise and propagate their own religion. 

The following are the goals that the Preamble enshrines:-

Justice – social, economic, and political;

Liberty – of thought, expression, belief, faith, and worship;

Equality – of status and of opportunity; and to promote among them all;

Fraternity – Assuring the dignity of the individual and the unity and integrity of the Nation.

“Liberty, Equality, and Fraternity” that the Constitution strives to guarantee for the citizens of India is to serve the main goal of securing social, economic, and political justice. The achievement of the common good which is distinct from the individual good is the primary object of delivering justice.

In this instance, the Apex Court ruled that the Preamble is not a part of the Constitution and cannot be considered as the origin of any real authority. However, the Court highlighted the importance of the Preamble by saying, it is a means to open the mind of the framers and signifies the broader aspiration for which many provisions were incorporated in the Constitution.

Article 1: Name and territory of Union

Clause (1) of the Article says that India i.e. Bharat is a Union of States. The Second clause mentions States and territories that constitute the Union of India shall be stated in the First Schedule.

The Union of India will be composed of:-

(1) The territories of the States;

(2) Union Territories;

(3) Territories such as may be acquired by India.

The Apex Court in this instance observed that the agreement in issue in this instance would result in the transfer of a portion of India to Pakistan, therefore to implement it, alteration of Article 1, as well as the appropriate portion of the First Schedule, would be required. The rationale behind this was that implementation of the said agreement would have resulted in a diminution of the area of the territory of India.

Article 3: Formation of new States and alteration of areas, boundaries, or names of existing States

Article 3(1) lays down that the Parliament can through suitable legislation constitute a new State by separating a territory from any State, by joining two or more States or by adding any territory to a portion of any State; increase the area of any State; reduce the area of any State; alter the borders of any State or change the name of any State.

The proviso to this Article provides that if the proposal contained in the Bill modifies the area, boundaries, or name of any of the States, the Bill shall be forwarded by the President to the Legislature of the concerned State for conveying its opinion on the subject inside such term as may be mentioned in the reference. The President may grant an extension of the abovementioned time period, according to his discretion.

The Apex Court in this instance ruled that in order to enforce the agreement the Parliament will have to pass a law amending Article 3. It was further observed that the proviso to Article 3 states that when the proposal contained in the Bill shall be forwarded by the President to the Legislature of the concerned State for its opinion on it inside the term mentioned therein. The Attorney General said that if it is considered that Parliament should act as per Article 368 and not according to Article 3 to enforce the agreement, it will thus deny the Legislature of West Bengal a chance to put forward its opinion on the transfer of the territory in issue. This will be an inevitable outcome in such a situation.

Article 368: Power of the Parliament to amend the Constitution and procedure thereof

The three methods for amending a provision of the Constitution in Article 368 are as follows:-

1. Amendment by simple majority 

Some articles can be amended by Parliament by a simple majority in a similar manner as ordinary laws are passed. The amendments in Articles 5, 6, and 239-A can be affected by a simple majority. These provisions are in particular excepted from the scope of the process laid down in Article 368.

2. Amendment by special majority

Articles of the Constitution that can be amended by special majority as prescribed in Article 368 are all the provisions of the Constitution, except those mentioned above. They must be made by a majority of the total membership of each House of the Parliament and by a majority of not less than 2/3 of the members present and voting.

3. By special majority and ratification of the States

There are certain provisions that require, apart from a special majority, approval by not less than 1/2 of the State Legislatures. These are subjects where States have significant authority under the Constitution and any one-sided alteration by Parliament may crucially impact the basic essence of the Constitution. The provisions that require a special majority and ratification of the States are:-

  • Articles 54 and 55.
  • Articles 73 and 162.
  • Articles 124 to 147, 214 to 231,  and 241.
  • Articles 245 to 255.
  • Any of the Lists in the 7th Schedule.
  • Representation of the States in the Parliament.
  • Article 368 itself.

In this instance, the Supreme Court ruled that the agreement in issue could be implemented only by amendment of Article 3 in accordance with Article 368. If legislation relating to the enforcement of the agreement has to be approved in conformance with Article 368 it has to fulfil the requisites stipulated by the said Article.

Judgment of the case

The Supreme Court ruled half of Berubari would be transferred to Pakistan, while the rest of the half adjoining India would be kept back by India. The division was horizontal, stretching from the northeast point of Debiganj thana. Cooch Behar enclaves amidst Pachagar thana of East Pakistan and Berubari Union no.12 of Jalpaiguri thana of West Bengal remained linked to Indian territory and were retained as a part of India. The Cooch Behar enclaves south of Boda thana of East Pakistan and Berubari Union no.12 were transferred with the wider exchange of enclaves and transferred to Pakistan.

The Court answered the questions posed before it in this reference in the following manner:-

  1. The first question was answered in the affirmative. This implied that a legislative measure was essential for enforcing the agreement regarding the Berubari Union.
  2. (a) As far as the first part of the second question was involved, a law referable to Article 3 would be unsuitable.

(b) The answer to the second part of the question was that legislation of the Parliament referable to Article 368 is appropriate and essential.

(c) A legislation of the Parliament referable to both Article 368 and Article 3 would be essential if Parliament decides to first approve legislation amending Article 3; in such a scenario, the Parliament may have to approve legislation in that regard as per Article 368 and then subsequently enact legislation referable to amend Article 3 to enforce the agreement.

The third question was replied in a similar manner as the second question.

Rationale behind the Judgement

The Supreme Court after reviewing the agreement said that the parties came to the agreement that the most convenient and rational manner to solve the conflict regarding this border was to carve the concerned area in half. There was no effort in the agreement to construe or ascertain what the award actually contemplated. The agreement states that although the entire tract of Berubari Union no.12 was inside India, it was ready to transfer a portion of it to Pakistan to secure amicable relations and eliminate causes of hostility between them. As far as Cooch Behar enclaves were concerned it was said that there was no legislation required for this exchange as a part of the larger agreement.

The Court also dealt with another contention of the Attorney General. He argued that the enforcement of the agreement in relation to the Berubari Union did not require any alteration in the First Schedule of the Constitution since Berubari was never lawfully a part of India. The Supreme Court rejected this argument. In consequence of the enforcement of this agreement the borders of West Bengal would be modified and the subject of entry 13 of the First Schedule should be affected.

The Court concluded by saying that since it was established that the agreement would amount to the transfer of a portion of India to Pakistan, thus its enforcement would require modification of the subject and following that amendment of Article 1 and the appropriate part of the 1st Schedule. The reason for this is that such enforcement would result in a reduction in the area of the Union of India. This alteration can be effected in accordance with Article 368. The Parliament may have to enact a law to execute and enforce the agreement in issue. The Parliament may also decide to enact a law amending Article 3 so that it can deal with cases of transfer of a portion of the territory of India to another nation. If that legislation is approved then the Parliament shall be authorised to enact a law as per the modified Article 3 to enforce the agreement. If required, the law made as per Article 368 would be enough to enforce the agreement.

The Supreme Court in this case opined that the Preamble is not a part of the Constitution. It cannot be considered as the origin of any substantial powers. These powers are clearly vested in the provisions of the Constitution. The Preamble is a means to open the minds of the framers and the broader objective and they incorporated many provisions of the Constitution.

While discussing the proviso to Article 3, the Court said under the provision it is stipulated that when the proposition comprised in the Bill impacts the area, borders or name of a state, it must be forwarded by the President to the Legislature of the concerned state for its opinion on it in the term mentioned therein. It was claimed by the Attorney General that if it is considered that Parliament should act in accordance to Article 368 and not according to Article 3 to enforce the agreement, it would therefore deny the legislature of West Bengal a chance to give its opinion on the transfer of the territory in issue. On its fair and rational interpretation, Article 3 is inapplicable, such a consequential outcome is unavoidable. However, if the legislation relating to the enforcement of the agreement is to be enacted as per Article 368 it has to fulfil the requisites stipulated by the said provision. 

Critical analysis

This case is of vital importance in understanding the various crucial aspects of the Constitution. It delved into the Constitutional validity of ceding a portion of Indian territory to a foreign nation. It also examined the nature of the Preamble and its relation to the substantive provisions of the Constitution.

In this instance, the issue was, whether the prerogative of Parliament to reduce the area of any state also involved the authority to transfer Indian territory to another nation. The President put forward the issue to the Apex Court. In 1958, India and Pakistan engaged in an agreement to resolve specific border dissension for the handing over of a portion of the tract of Berubari Union by India to Pakistan, and for the exchange of old Cooch-Behar enclaves. When the Central Government tried to enforce the agreement, widespread protests were initiated against the handover of Indian territory to Pakistan. The President then put forward three questions for the advice of the Supreme Court. The main questions put forth to the Court were:- 

  1. Is any legislative measure essential for the enforcement of the agreement regarding Berubari Union;
  2. Is legislation of the Parliament in conformance with Article 3 enough or is an amendment of the Constitution as per Article 368 essential.

From the side of the Central Government, it was asserted that the agreement just sought to determine the correct border and thus its enforcement did not involve transferring any Indian territory and that was possible to be performed in the utilisation of the executive authority of the Union. The Court dismissed this argument and laid down that the agreement involved the transfer of the territory mentioned in the First Schedule and it was above the authority of Parliamentary legislation. The authority of Parliament in Article 3 to decrease the area of any state does not cover the transfer of Indian territory to another country. Therefore, the Court ruled that the Parliament had no authority as per Article 3(c) to pass a law to enforce the agreement in issue. The agreement in issue could be enforced by an amendment of the Constitution as per Article 368. Interpreting the scheme of Article 3 the Court ruled that the provision relates to the internal rearrangement of the area of the states of India. The area reduced as per Article 3 continues to be a part of India. This provision does not provide for the transfer of a territory to another nation. Accordingly, an agreement relating to handing over territory to another nation cannot be enforced just by making a law under Article 3. This can be done through an amendment of the Constitution. This is essential. 

In this instance, the Apex Court ruled that the Preamble is not a part of the Constitution. It could not be considered the origin of any real powers. However, subsequently, in the Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr (1973), the Supreme Court dismissed the stance taken in this case and ruled that the Preamble is a part of the Constitution. In regular statutes not much significance is given to the Preamble, all significance has to be given to the Preamble in a Constitutional statute.

Conclusion

In this matter, the President requested the advice of the Supreme Court regarding the implementation of the agreement between India and Pakistan by which India was to transfer half of the Berubari Union and exchange the old Cooch-Behar enclaves. The main issue in this case was whether a law under Article 3 would be sufficient to enforce the agreement or whether an amendment of the Constitution was necessary as per Article 368. The Apex Court ruled that an amendment to the Constitution was essential to enforce the agreement.

This case dealt with the nature of various provisions of the Constitution. First, the Court opined that to enforce this agreement an amendment of Article 1 as well as the First Schedule would be required. Secondly, to enforce this agreement Article 3 also had to be amended. Pursuant to this the Constitution was amended in 1960 to execute this agreement.

The Apex Court also discussed the nature of the Preamble in his case. It was opined that the Preamble was not a part of the Constitution and could not be considered as a reference point for any substantive powers. However, the Court highlighted its significance by saying that it is “a key to open the mind of the makers” and indicates the general aim for which they incorporated many provisions in the Constitution. 

Frequently Asked Questions (FAQs)

What are enclaves?

An enclave is a territory of a country which is surrounded on all sides by the territory of another country.

What are Cooch Behar enclaves?

Cooch Behar enclaves are several enclaves along the border of the Cooch Behar district of West Bengal in India and the Rangpur Division of Bangladesh (Formerly East Pakistan).

Which legislation was passed to enforce the Indo-Pakistan Agreement regarding the Berubari Union?

In furtherance of the judgement in Re Berubari Union and Exchange of Enclaves (1960) , the Constitution (9th Amendment) Act, 1960 was passed to enable the transfer of territory from India to Pakistan under the Indo-Pakistan Agreement.

References

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