Author: Dhanavel B 

Edited By: Aneel Meghani

ABSTRACT

Kutch is the place that exists between India and Pakistan. Due to natural instability of that region, none of valid boundaries had been marked between India and Pakistan in that region. The tribunal was constituted for demarcation of boundaries there. Later, the award was passed. Both governments agreed to the award. The Government of India took action to implement the award. But this present case was presented before the Hon’ble Supreme Court to restrict the implementation because the petitioners plead as the Government of India would transfer the places which belonged to India if it implements the award. It was the infringement of Fundamental rights of them which is guaranteed under Article 19(1)(d), (e) and (f). Further, cession of such Indian territories without constitutional amendment is unconstitutional. By considering the award of the tribunal and all materials placed before the apex court. It held, there was a demarcation of territories between India and Pakistan without cession of Indian territories. Therefore, no constitutional amendment needed for the implementation of the Award. Further, there was no infringement of fundamental rights. 

Keywords: India-Pakistan boundary dispute, demarcation of territory, cession of territory, implementation of international agreement, fundamental rights,  

CASE DETAILS 

 INTRODUCTION AND BACKGROUND OF JUDGEMENT 

Making treaties and implementing treaties are the exclusive powers of the sovereign states. The Constitution of India provides power to the Union to enter into the treaties or agreements and implement such treaties or agreements. Article 73 provides executive power to the Union to act in all matters with respect to power of making law of parliament and it has rights to act by virtue of any treaty or agreement. Therefore, it inherited the power which is provided by Article 253 for parliament for making law for implementing any treaty or agreement. So, it seems the executive branch of government can do any act to implement the treaties without the interference of the parliament. But it’s not the case, allowing the executive to do any acts for the implementation of treaties will cause total crises. Like, it can easily infringe the fundamental right of citizens, it can cede Indian territories to foreign countries, it can act against the constitution and so on. So, the Apex court provided various rulings to curtail the executive powers of the Union. Importantly, In the ruling of Inre Berubari Union and Exchange of Enclaves, any cession of the Indian territories only be done by the constitutional amendments. In the present case, the apex court observed the ruling of First and second Berubari cases. Further, it provided the conditions for implementing treaties by the Union executive. 

FACTS OF THE CASE

Procedural Background of the Case 

The present case before the Hon’ble Supreme Court presented by the seven parties. Those seven parties were Mr. Manikant Tiwari, Mr. Shiv Kumar Sharma, Mr. Madhu Limaye, Mr. Gulabshankar Amritlal Dholakia, Mr. Node Sadi Rau, Major Ranjit Singh and Mr. Maganbhai Ishwarbhai Patel were approached the apex court under separate writ petitions, Major Ranjit Singh was approached by appeal from the common judgment of the Delhi High Court and Mr. Maganbhai Ishwarbhai Patel was approached through the appeal by special leave of the apex court from the decision of the Gujarat High Court is in a writ petition filed by him. His writ petition was dismissed by the Gujarat High Court summarily. They sought to restrain the executive act of Government of India to transfer those territories without constitutional amendment and it rendered infringement of fundamental rights guaranteed under Article 19(1)(d), (e) and (f) of the constitution. The apex court delivered its judgement in 1969 after concluding the hearing.  

Factual Background of the Case 

India and Pakistan were created by the Act of the British Parliament which was the Indian Independence Act 1947. When India and Pakistan were created, different states were allocated to India and Pakistan separately, with separate demarcation lines. Sind province was included in Pakistan meanwhile the presidency of Bombay was becoming the Part of India. The places of Kutch exist between the province of Sind and the Presidency of Bombay. So, it’s the places that exist between India and Pakistan. Naturally, the places of Kutch were covered by water for 4 months of the year. The remaining time it is a place of soft mud or land of grass. No one ordinarily lives there and even there is no possibility of agriculture. But the boundaries of said land are not clear. In July 1948, Diplomatic Notes were exchanged between the governments of India and Pakistan concerning the boundary between the areas of India and Pakistan. Differences between those two governments regarding such boundaries led to direct hostilities.

On 30 June 1965, the two governments agreed to cease fire and constitute a tribunal for settling the boundary dispute between them. As per the Agreement, the tribunal was established. During the hearing, about 350 maps were exhibited by India and Pakistan. After the conclusion of the Investigation, the Tribunal awarded the areas of Kanjarkot, Dharabanni Chhadbet, and the two inlets to Pakistan. Both governments had accepted the award of the tribunal. The Indian government was taking steps to implement the award of the tribunal. Before the implementation of the award. This case was brought before the Hon’ble Supreme Court by those seven parties to restrict the implementation of that award. 

LEGAL ISSUES RAISED 

1. Whether the implementation of the award was led to cession of the territories of India? 
2. Whether the constitutional amendment needed for the implementation of the award? 
3. Whether the Implementation of the award would cause infringement of fundamental rights which is guaranteed by Article 19(1)(d), (e) and (f)? 

PETITIONER / APPELLANT’S ARGUMENTS 

1. The Petitioners argued the areas of Kanjarkot, Dharabanni, Chhadbet and two inlets on either side of Nagar Parkar are Indian territories. They argued India exercised administrative control over those areas at the time of the creation of two dominions. Therefore, those are the part of Indian territory. 
2. They argued cession of those Indian territory is not the executive act of the government. By the ruling of Inre Berubari case, the constitutional amendment needed for cession of those Indian territories. 
3. Further, they argued cession of those Indian territories by the government of India was the infringement of fundamental rights which is guaranteed to them by Article 19(1)(d), (e) and (f). 

RESPONDENT’S ARGUMENTS

1. The Respondents argued, the places of the Kutch were unstable due to the changing nature of the sea and land. So, the boundaries were uncertain there. Besides, establishing a police outpost with 171 personnel and polling booths for them was not effective administrative control by India over there.  
2. They denoted the award of the tribunal defined the boundaries of India and Pakistan in that particular region. Therefore, true areas of India and Pakistan were demarcated without cession of Indian territories.   
3. Further, they argued implementing the Award of the tribunal was not involving cession. Therefore, there is no need for constitutional amendments and it is not an infringement of fundamental rights. 

RELATED LEGAL PROVISIONS 

• Constitution of India 

• Article 1: – “Name and territory of the Union.

1. India, that is Bharat, shall be a Union of States.  
2. The States and the territories thereof shall be as specified in the First Schedule  
3. The territory of India shall comprise —  

                              (a) the territories of the States;  

                              (b) the Union territories specified in the First Schedule; and              

                              (c) such other territories as may be acquired”1. 

• Article 3: – “Formation of new States and alteration of areas, boundaries or names of existing States. — Parliament may by law —                                              (a) Form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State

        (b) Increase the area of any State

        (c) Diminish the area of any State

        (d) Alter the boundaries of any State  

        (e) Alter the name of any State 

Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired. 

Explanation I. — In this article, in clauses (a) to (e), “State” includes a Union territory, but in the proviso, “State” does not include a Union territory.  

Explanation II. — The power conferred on Parliament by clause (a) includes the power to form a new State or Union territory by uniting a part of any State or Union territory to any other State or Union territory”2. 

• Article 19(1)(d): – “To move freely throughout the territory of India”3. 

• Article 19(1)(e): – “To reside and settle in any part of the territory of India”4. 

• Article 19(1)(f): – “To acquire, hold, and dispose of property”5. 

• Article 32: – “Remedies for enforcement of rights conferred by this Part.

1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.  
2. The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.  
3. Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).  
4. The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution”6. 

• Article 73: – “Extent of executive power of the Union.

1. Subject to the provisions of this Constitution, the executive power of the Union shall extend.  
2. to the matters with respect to which Parliament has power to make laws; and  
3. to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement: Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.
4. Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution”7. 

• Article 253: – “Legislation for giving effect to international agreements.  Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body”8. 

• Entry 14 of List I: – “Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries”9. 

• Entry 15 of List I: – “War and peace”10.

JUDGEMENT  

RATIO DECIDENDI

1. The Hon’ble Supreme Court held due to the instability of nature of the places. India did not have a valid boundary there. As per the materials placed before the tribunal and materials placed before this court did not provide India a de jure claim over those territories. The establishment of a police outpost and polling booth for them was not an administrative control of India over there. Therefore, claims of India over those territories were neither de jure nor de facto.
2. It held, the ruling of Inre Berubari Union and Exchange of Enclaves11, the executive power of government not extend to the cession of Indian territories to foreign countries. It can only be done by constitutional amendments. It still stands. 
3. Further, the ruling of Ram Kishore Sen and Ors v. Union of India and Ors12 (The second Berubari case), transferring of territories which are temporarily controlled by India but not legally belonged to India does not require any constitutional amendments. It also still stands.
4. The Hon’ble Supreme Court ruled in this case as, previous rulings of this apex court are valid and still stand. This case is not the kind of those cases. The present case is only a case of demarcation of boundaries between two governments. The places mentioned as part of Indian territories by petitioners were neither de jure nor de facto territories of India. Therefore, it was not a cession of Indian territories because those territories were not belonged to India. So, there was no need for the constitutional amendments for the implementation of awards.
5. The court further observed that the claims of petitioners over those places exercise rights to move freely throughout the territory of India under Article 19(1)(d), to reside and settle in any part of the territory of India under Article 19(1)(e) and to hold, acquire and dispose of property under Article 19(1)(f) cannot arise because those territories were not de jure and de facto territories of India. Therefore, the implementation of the award may not cause the infringement of fundamental rights.

GUIDELINES 

The Hon’ble Supreme Court held as:

Any Implementation of agreement or treaty by Union under Article 73 which is like cause infringement of fundamental rights of the Indian citizens or modifies any law in force or cession of any Indian territory require the valid law of Parliament which is empowered under article 253, entry 10 and 14 of List I. Further, it held demarcation of territories without the cession of actual territories of India does not require any valid law of parliament. 

OBITER DICTA 

1.  The Hon’ble Supreme Court observed the background of the award. The award was passed by the tribunal which is mutually established by the two governments.  The tribunal awarded the areas of Kanjarkot, Dharabanni, Chhadbet and two inlets on either side of Nagar Parkar to Pakistan. Both governments agreed to implement the award. Therefore, there was no question of validity of the award and it was not an appeal against the award. Further, the petitioners also did not bring those questions before the court.
2. The court further observed the boundary of India over there was uncertain due to changing nature of place, no one resident there and no agriculture or profession carry over there.
3. It pointed out that none of the materials which were placed before the court showed the places which were awarded to Pakistan were owned by India. Therefore, the fundamental rights guaranteed by the constitution of India are not applicable to the places which are not the Indian territories. 

CONCLUSION & COMMENTS 

This case considered as one of Landmark cases regarding the implementation of the treaties or agreements entered between India and foreign countries. Though the petitioners failed in their case, Court provided mandatory conditions for implementing the foreign treaties to secure the fundamental rights of citizens and Territorial integrity of India in that case. The judgment of this case remains a significant precedent to deal about the executive power of Union in boundary disputes and the implementation of international agreements. 

REFERENCES 

Important Cases Referred 

1. Inre Berubari Union and Exchange of Enclaves, [1960] 3 S.C.R. 250. 
2. Ram Kishore Sen and Ors v. Union of India and Ors, 1966 SCR (1) 430. 

Important Statutes Referred 

1. The Constitution of India, 1950, Art. 1. 
2. The Constitution of India, 1950, Art. 3. 
3. The Constitution of India, 1950, Art. 19(1)(d). 
4. The Constitution of India, 1950, Art. 19(1)(e). 
5. The Constitution of India, 1950, Art. 19(1)(f). 
6. The Constitution of India, 1950, Art. 32. 
7. The Constitution of India, 1950, Art. 73. 
8. The Constitution of India, 1950, Art. 253 
9. The Constitution of India, 1950, Entry 14 of List I, Seventh Schedule. 
10. The Constitution of India, 1950, Entry 15 of List I, Seventh Schedule.