CASE BRIEF
In Re: The Berubari Union and … vs Unknown
Decided On: on 14 March, 1960
Statutes referred: Indian Constitution – Preamble & Articles 1, 2, 3, 143, 368
Facts:
1. At the time of partition of India and Pakistan, the task of demarcation of boundaries was assigned to Sir Radcliffe. India and Pakistan area were fixed by Sir Radcliffe and the line was called Radcliffe Line after him.
2. The borders of India and Pakistan were to be evaluated by the ‘award’ of a boundary commission appointed by the Governor-General, according to the Indian Independence Act, 1947. The term ‘award’ applied to the decision of comprising the final report sent. Under Sir Cyril Radcliffe’s chairmanship, the Governor-General appointed a commission for the same.
3. It was decided that task of demarcation shall be assigned to a person who doesn’t know about geography of India and never visited it. This was to ensure that there be no bias while demarcation.
4. He distributed Thanas between India and Pakistan and the limits of such Thanas would going to be the ultimate boundary between India and Pakistan.
5. There was this Thana ‘Berubari’ in Jalpaigudi district of West Bengal. The dimensions of the Berubari were 8.75 square miles. It had a population of nearly 12000 people. It is located within the District of Jalpaiguri in West Bengal .
6. Radcliffe had divided the district of Jalpaigudi between India and Pakistan by awarding some thanas to one country and others to the other country. The border decided on the idea of the boundaries of the thanas. As laid down by the agreement, ‘Berubari Union No. 12’ was to be divided horizontally, in such how that half region would tend to Pakistan and therefore the partial would be retained by India.
7. In describing the limits Radcliffe overleaped one thing that – Thana Berubari Union No. 12 lies within Jalpaigudi thana, which is awarded to India. Unfortunately, it had been not mentioned within the transcription of the award.
8. Disputes arose because of the erroneous depiction of the maps by the Radcliffe Award The omission of the Thana Boda and the erroneous depiction on the map enabled Pakistan to claim that a neighborhood of Berubari belonged thereto .
9. It had been two years later that the question of Berubari Union was raised by the govt of Pakistan for initial time in 1952. During the entire of duration the Berubari Union continued to be within the possession of the Indian Union and was governed as a neighborhood of West Bengal .
10. It was under these circumstances that the present Agreement was reached between the two Prime Ministers on September 10, 1958 with a view to remove causes of tension and resolving border disputes and problems concerning Indo-Pakistan Border Areas and establishing peaceful conditions along those areas, the Prima Ministers, working on behalf of their respective Governments, entered into an agreement settling a number of the said disputes and problems.
Issue
1. Whether there is a necessity of legislative action for the implementation of an agreement relating to the Berubari union?
2. Whether the case where there is such a necessity, 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 constitution in accordance with article 368 of constitution necessary, additionally or in alternative?
3. Whether the legislature in relation to Article 3 of the Constitution of India empowered to implement the agreement relating to Berubari’s Union or is there a need for amendment under Article 368 of the Constitution of India for the aim of the implementation of the aforesaid agreement?
Contentions by the parties
The desire to “de-enclave” most of the enclaves was displayed during a 1958 agreement between Nehru and Feroz Khan Noon, the respective Prime Ministers, for an exchange between India and Pakistan without considering loss or gain of territory popularly known as Nehru-Noon agreement of 1958. Half of Berubari Union No. 12 was to tend to Pakistan and therefore the remaining adjacent to India was to be retained by India. In addition, four Cooch Behar enclaves contiguous of this part would even have gone to Pakistan. But the question arose, regarding authority of the parliament to transfer the territory of Berubari to Pakistan. Parliament of India wasn’t competent to form a law under article 3 for the implementation of the Nehru-Noon Agreement. The conflict in judiciary and legislature arose. The matter then worked into a Supreme Court case on reference by the president hence RE.
ATTORNEY GENERAL –
• On behalf of the Union of India the learned Attorney-General has contended that no legislative action is necessary for the implementation of the Agreement relating to Berubari Union as well as the exchange of enclaves.
• exchange cannot be said to involve cession of any territory.
• Attorney-General had further contended that the settlement and recognition of the true boundary can be effected by executive action alone, and so the Agreement which has been reached between the two Prime Ministers are often implemented with none legislative action.
Judgment
The Apex Court’s bench comprising of B Sinha, A S Shah, K Dasgupta, K S Rao, M Hidayatullah, P Gajendragadkar, S Das Held the following:
Supreme Court held that Preamble isn’t a section of The Constitution enough to be considered a part and will not be thought to be a source of any substantive powers and is created for the general purpose that some provisions are made within the Constitution.
There is no doubt that the declaration made by the people of India in the exercise of their sovereign will in the preamble to the Constitution is, in the words of Story, “a key to open the mind of the makers” which may show the general purposes for which they made the several provisions in the Constitution; but nevertheless, the preamble is not a part of the Constitution.’
Further, the preamble is not enforceable in the court of law. It is not a source of the several powers conferred on government under the provisions of the Constitution; Such powers embrace those expressly granted within the body of the Constitution and like could also be implied from those granted; what’s true about the powers is equally true about the prohibitions and limitations; The Preamble didn’t indicate the assumptions that the primary part of the Preamble postulates a really serious limitation on one among the vital attributes of sovereignty. The parliament has the power to amend the constitution including article one.
The Parliament isn’t competent to form a law relatable to Article 3 of the Constitution to implement the aim of the agreement as Article 3 doesn’t refer to the Union territories and there’s little question that Article 3 covers Union territories. If any part of Union territory was to be handed over law relatable to Article 3 would not be competent to make such decision.
Supreme court also stated that Article 3(c) of the Constitution confer the power on parliament to diminish the state territory but not to cede. Considering this it had been held that to implement the agreement laws relatable to Article 368 is to be made which says that an amendment are often initiated only by the introduction of the Bill in either of the houses and if the Bill is passed by the special majority it is to be passed to the President for his assent.
Stating that the parliament has to choose first to amend the article 3 first under article 368 only if the Parliament chooses first to pass a law amending Art. 3 as indicated above; therein case parliament may need to pass a law on those lines under Art. 368 then follow it up with a law relatable to the amended Art. 3 to implement the agreement as law relatable to article 3 would be incompetent in this context meaning A legislative action was deemed necessary for the implementation of the agreement relating to berubari union.
Rule of law
Whether the enforcement of the Agreement concerning the Berubari Union and therefore the exchange of enclaves involves some legislative intervention either through the law of the Parliament mentioned in Article 3 of the Constitution or through the necessary amendment of the Constitution referred to in Article 368, or both?
Conclusion
In conclusion it can be said that the legislature seeked advice on the Constitutionality and legality its own actions and Supreme Court attempted to interpret the constitution though the supreme court was erroneous in holding that preamble is not the of the constitution and neglecting the past history of preamble. The preamble forms the part of the basic structure which means that preamble can be used in resolving disputes arising out of the two ambiguous articles of the Indian constitution.
But the guidance to the government on the implementation of the agreement in re berubari for the agreements between india and Pakistan were a great save from ignominy.
Prepared by Faigha Naz
