Author: Devi Prasad Mishra, Law Student at Lajpat Rai Law College, Sambalpur University

Edited By: Manik Tindwani, Law Student at University Five Year Law College, University of Rajasthan, Jaipur

ABSTRACT

Berubari union case was instituted by a special reference made by the president of India to the Supreme Court. It clarified the constitutional provision relating to the territorial reorganization of the state by parliament. While prime ministers of Pakistan and India agreed to settle border disputes between them, the question arose whether any legislative action was necessary to enforce an agreement. It set a precedent to follow a due legislative procedure when it comes to national boundaries. Also, it made it clear that the constitution is a living document and it needs to be interpreted and amended where necessities arise.

Keywords: Territorial dispute, Parliament, Article 3, Constitution of India, Special reference

CASE DETAILS

INTRODUCTION

Article 143 empowers the president of India to consult the Supreme Court to seek its opinion on any question of law or fact of such importance. Re Beubari union was such a case where the then president Dr. Rajendra Prasad consulted the Supreme Court to execute the Nehru-Noon agreement to settle the border dispute between India and Pakistan.

BACKGROUND OF JUDGEMENT

The Re Berubari Union case, otherwise known as the Berubari Union case, was a landmark case held by the Supreme Court of India in the year 1960. The case settled the dispute between India and Pakistan over the division of the Berubari Union, a town located in the district of Jalpaiguri in the West Bengal state of India. The court addressed important questions such as the power of parliament to amend the constitution and transfer any territory to a foreign state. This case also deals with the status of the preamble of the constitution of India.

FACTS OF THE CASE

1. The dispute over Berubari emerged after the demarcation of boundaries between India and Pakistan, after partition, by Sir Radcliffe. In that commission partition of the Berubari region was not explicitly mentioned, despite the commission, it was administered by West Bengal state after the enactment of the Constitution.
2. In 1952, Pakistan claimed the region and to be given to East Pakistan.
3. In 1958, by way of the Nehru-Noon agreement both prime ministers agreed to divide the territory of Berubari into two parts.
4. Since there were doubts arising out of this agreement, the president of India referred this matter to the Supreme Court.

LEGAL ISSUES RAISED

In the above case, three legal issues were raised

1. The first issue was regarding the necessity of any legislative action in order to enforce an agreement signed by two states.
2. Secondly whether the parliament has the power to give any part of the territory under Article 3?
3. Whether the case where there is such a requirement is a law of parliament in relation to Article 3 of the Constitution of India, 1950 sufficient for the purpose or is an amendment of the constitution according to Article 368 of the constitution necessary

PETITIONER’S ARGUMENTS

The counsel representing the union government submitted before the court that the agreement simply acknowledges the previously decided boundary line, it does not create any new or alter the existing boundary of the state. Further, it was submitted that it was a formal setup for border dispute settlement and not surrender of any Indian territory to another state.

RESPONDENT’S ARGUMENTS

The counsel against of government submitted that the preamble of the constitution confers no power on parliament over any territory to transfer it. Also under Article 1 (3) territory of India can be extended but it cannot be cessed. 

RELATED LEGAL PROVISIONS

In the present case, the following legal provisions were discussed. The court discussed the relevant articles of the constitution in order to resolve the dispute

Article 1 in the Constitution of India

‘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 required.’

Article 2 in the Constitution of India

‘2. Admission or establishment of new States

Parliament may by law admit into the Union, or establish, new States on such terms and conditions, as it thinks fit, territories as may be acquired.’

Article 3 in the Constitution of India

‘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.’

Article 4 in the Constitution of India

‘4. Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental, and consequential matters

(1)Any law referred to in Article 2 or Article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary. (2)No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368.’

Article 368 in the Constitution of India

‘368. The power of Parliament to amend the Constitution and procedure therefor

(1)Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.(2)An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:Provided that if such amendment seeks to make any change in–(a)article 54, article 55, article 73, article 162 or article 241, or(b)Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or(c)any of the Lists in the Seventh Schedule, or(d)the representation of States in Parliament, or(e)the provisions of this article. the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. (3)Nothing in Article 13 shall apply to any amendment made under this article. (4)No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground. (5)For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.’

JUDGEMENT

• Ratio Decedendi

After hearing the arguments from both counsels the court held that executive action alone is insufficient to transfer any territory of the state without parliamentary approval. It was also decided that the Berubari Union was part of West Bengal and not East Bengal, and therefore, it was necessary to cede a part of the territory according to laws and not through treaties or agreements. On the other hand, the parliament has the power to amend the Constitution under Article 368, including the power to cede territories of India to a foreign state. Parliament cannot cede a part of India in favor of a foreign state under Article 3 of the Constitution unless it is amended

• Obiter Dictum

While addressing one of the arguments the court was of the opinion that the Preamble to the Constitution is not a part of the Constitution itself, rather it is the key to opening the mind of the constitution makers. It shows the general purpose of making several provisions in the Constitution.

CONCLUSION & COMMENTS :

The case clarified the constitutional provisions related to the territorial reorganization of the state. The case set a precedent of protecting citizen’s rights when any territorial dispute is being settled by the state. The decision underscores the importance of following due legislative process while the executive is dealing with national boundaries.

In this regard, it is worth mentioning that the decision concluded that changing Article 1 in response to cession of any portion of Indian territory to any foreign country does not activate the safeguards under any proviso of Article 368

REFERENCES

Important Statutes Referred

Constitution Of India,1950