In the Supreme Court of India
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
Cession or ceding a territory is transferring or giving up territory to the other foreign entity. This can be achieved when a nation loses a war, enters an agreement, signs a treaty with a foreign nation, etc. It is a crucial step that a unified nation carries. India, a sovereign state has every right to enter into such an arrangement either to acquire or cede its territories. These rights have been observed in the case of Re Berubari Union, AIR 1960, by a seven-judge bench. It was linked to the India-Pakistan conflict over the Berubari. The case clarified which articles of the Constitution of India lays down the provisions for the reorganisation of the territories of India.
Berubari, an 8.57 square miles town, was situated in the district of Jalpaiguri which at the period was part of the Rajshahi division. It was deemed to be a part of West Bengal, India. The dispute over Berubari between India and Pakistan has been rooted since the demarcation of boundaries of both nations by Sir Radcliff. India was awarded the Berubari by Sir Radcliff which became part of West Bengal after the enactment of the constitution.
The acquisition of Berubari was challenged by Pakistan arguing that it falls in East Bengal, which then was part of Pakistan. Boundary disputes arose between India and Pakistan which led to the formation of the Indo-Pakistan boundaries disputes Tribunal in 1948. Nothing happened for the next two years. In 1950, the question was raised by Pakistan about Berubari. The dispute remained alive till 1958 when the Prime Ministers of both nations settled to divide Berubari Union into two halves horizontally.
Soon after the agreement, the decision of the division was challenged in a court of law. It was then that the President of India referred three questions of laws to the Supreme Court, by exercising his power by Article 143(1). Following are the questions raised before the Supreme Court of India:
(1) Is any legislative action necessary for the implementation of the Agreement relating to the 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 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 article 368 of the Constitution necessary for the purpose, in addition, or in the alternative?”
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:
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.
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.
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”.
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.
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.
Following are the observation made by the Honorable Supreme Court after hearing the statements of both sides and considering all the relevant facts:
- India is a sovereign state and has the power to amend Constitution under article 368. This infers that parliament can without any limit amend article 1, and can include the power to cede the territories of India in favour of any foreign state. Therefore, it rejects the contention of Mr Chatterjee that parliament has no right to cede any part of Indian territory or even pass any amendment.
- Since it was found that the Berubari union was a part of West Bengal and not any offer. Being part of the Union, it was necessary to cede a part of the territory according to laws and not through treaties or agreements.
- The first answer to the question referred to by the President was “Yes”. That means it was necessary to take legislative action related to the Berubari Union.
- To answer the second question, the court observed that it is necessary and competent to cede a part of the state under article 368.
- In dealing with the third question, the court was of the view that parliament to cede a part of the territory of India, foremost it must amend article 3 of the constitution as per article 368. Because article 3 is not competent to reorganise any part of India in favour of foreign territory. Hence, parliament has no power to cede a part of India in favour of a foreign state under article 3(c) of the constitution unless it is amended.
There are several instances when the government has sought pieces of advice from the Honorable Supreme Court regarding the constitutionality of any law. In Re Berubari Union, the court has clarified such inquiry of the government. It provided all the provisions related to ceding any part of the Union in favour of any foreign territory. That is now India can cede its territory to any other foreign state after passing an amendment under article 368. About the matter constitution was silent until then.