IN BERUBARI UNION & EXCHANGE OF ENCLAVES AIR 1960 SC 845

IN BERUBARI UNION & EXCHANGE  OF ENCLAVES AIR 1960 SC 845

 

FACTS

Following the enactment of the Mountbatten Plan of 1947, also known as the Independence Act, it was decided that India would be divided into two separate entities - Pakistan and India - in accordance with the two-nation theory. However, the exact demarcation of borders, particularly with regard to the region of Berubari in the Jalpaiguri district of West Bengal, was not finalized on that day. Sir Cyril John Radcliffe, a surveyor, was tasked with dividing the territory of India and Pakistan within a five-week timeframe. Radcliffe adopted the principle of majoritarianism, dividing areas based on the majority population residing in each area. For example, regions with a majority Muslim population were allocated to Pakistan, while areas predominantly Hindu were assigned to India.

However, a dispute arose because Radcliffe inadvertently omitted Berubari from his written map, leading Pakistan to assert a claim over the region. Consequently, a disagreement emerged between India and Pakistan over the status of Berubari. In 1958, the Nehru-Noon Agreement was introduced to resolve the issue, proposing an equal division of the Berubari region between India and Pakistan. Nonetheless, the matter was referred to the President under Article 143 of the Indian Constitution for consultation with the Supreme Court.

 

ISSUES:

• Whether Parliament possesses the authority, under Article 3 of the Indian Constitution, to grant any territory of the state to a foreign country.
• Whether legislative action is necessary to implement the provisions of the Nehru-Noon Agreement.

 

GOVERNMENT’S CONTENTIONS:

The government argued that it was not ceding any land but rather exchanging land, asserting that no legislative intervention was required.

 

CONTENTIONS AGAINST THE GOVERNMENT:

Opponents argued that, in accordance with the Preamble and Article 1(3)(c) of the Constitution, Parliament did not have the authority to alter the country's territory. Article 1(3)(c) specifically stated that Parliament could acquire territories but not cede any territory to a foreign country.

 

JUDGMENT:

• The Supreme Court held that Parliament did not possess the authority to cede territory of a state to another country under Article 3 of the Indian Constitution. Such an action could only be carried out by amending Article 368 of the Indian Constitution.
• The Supreme Court further concluded that the Preamble was not a substantive part of the Indian Constitution. Additionally, Article 1(3)(c) exclusively addressed the acquisition of territories and did not permit the cession of territory.
• However, Article 368 granted the power to amend the Constitution, and while Parliament could amend Article 1 of the Constitution, it could do so only by amending Article 368. Thus, any cession of Indian territory to a foreign country required the approval of both houses of Parliament. Therefore, the Nehru-Noon Agreement was contingent upon an amendment to Article 1 through a special majority in Parliament.
• As a result, the Parliament had to enact the 9th Amendment Act in 1960 to amend Schedule 1 of the Indian Constitution. This amendment facilitated the implementation of the Nehru-Noon Agreement, resulting in the transfer of the Berubari Union to Pakistan.

 

IMPACT:

The enactment of the 9th Amendment Act in 1960 was instrumental in amending Schedule 1 of the Indian Constitution, thereby facilitating the implementation of the Nehru-Noon Agreement and the transfer of the Berubari Union to Pakistan.