Berubari Union Case
In Reference:
The Berubari Union and Exchange of Enclaves vs Reference under Article 143(1) of the Constitution of India
Citation: AIR [1960] SC 845
Jurisdiction : India
Facts :
The focal point of this case was around Berubari in the Jalpaiguri district of West Bengal, also known as Berubari Union No. 12, with an area of 8.75 square miles. In 1947, British rule ended in the Indian subcontinent creating India and Pakistan. The Bengal province was also divided into East Pakistan (East Bengal) and West Bengal (in India). The Bengal Boundary Commission was formed, headed by Cyril John Radcliffe. This commission demarcated the boundaries of East Pakistan and West Bengal. This commission prepared the Radcliffe Award which showed the southern part (2.64 square miles) of Berubari Union No. 12 as the territory of East Pakistan. But later it was discovered that the entire Berubari Union No. 12 was included in West Bengal, India. The Pakistani government did not object to this matter.
Besides, it was discovered that 111 enclaves of India remained in East Pakistan and 51 enclaves of East Pakistan remained in West Bengal. On May 4, 1948, the ‘Inter Dominion Conference, 1948’ was held in Delhi where a recommendation was made to form a committee for resolving the border disputes between the two nations. On December 14, 1948, this committee recommended the formation of a tribunal for the settlement of boundary disputes. Subsequently, the ‘Indo-Pakistan Boundary Disputes Tribunal’ was formed. During the proceedings of the tribunal, no objection was raised by either two countries regarding Berubari Union no.12. This tribunal provided an Award in 1950.
Two years later, Pakistan raised objections about Berubari Union No. 12. Pakistan claimed that according to the Radcliffe Award, the southern part (2.64 square miles) of Berubari Union No. 12 was East Pakistani territory, which was later mistakenly considered as Indian territory. Later, the prime ministers of the two nations signed an agreement in 1958 according to which, “The southern part (2.64 square miles) of Berubari Union No. 12 would be given to Pakistan, all enclaves of Pakistan inside India would be owned by India, and Pakistan would get all enclaves of India inside Pakistan.” But the West Bengal government strongly protested against the decision to cede any part of Berubari Union No. 12 to Pakistan. For this reason, according to Article 143(1) of the Constitution of India, this agreement was sent to the Supreme Court of India for legal opinion, which is known as the Berubari Union Case, 1960. In this matter, the President of India sent 3 issues to the supreme court of India for legal opinion. These are-
Issues :
1. Whether any legislative action is necessary for the implementation of the ‘Nehru-Noon’ agreement relating to Berubari Union?
2. If legislative action is required for the implementation of this agreement, is it sufficient for Parliament to enact a law under Article 3 of the Indian Constitution, or is it also necessary to amend the Constitution under Article 368?
3. Is it sufficient for parliament to enact a law under Article 3 of the constitution for implementation the issues related to the enclaves mentioned in the agreement, or is it necessary to amend the constitution in accordance with Article 368?
Arguments :
Argument by the attorney general on behalf of the Government of India:
The learned attorney general argued that there was no need to enact any law to implement the ‘Nehru-Noon’ agreement, regarding the exchange of Berubari Union and enclaves; rather this agreement could be implemented solely by the executive authority. He further contended that this agreement merely recognized the boundaries previously determined by Radcliffe Commission and did not transfer any territory of India to Pakistan. He said that if any part of Indian territory was shown as part of Pakistan under the Radcliffe Award, then its transfer under this new agreement did not constitute a fresh ceding of Indian land to Pakistan. Rather, the ‘Nehru-Noon’ agreement only aimed to resolve a long-standing border dispute between the two countries, in accordance with the original intent of the Radcliffe Award. As per the Radcliffe Award, it was clearly evident that the 2.64 square mile area of Berubari Union No. 12 fell within the boundaries of East Pakistan.
Argument against the decision of the Government:
The learned advocate N.C. Chatterjee argued that, according to the preamble of the Indian constitution, India is declared a ‘Sovereign Republic State’. Therefore, the territory of India is beyond the intervention of parliament and it can’t be altered either by any laws of the parliament or by amending the constitution under Article 368. He added that the preamble of the Indian constitution prevents the Government from transferring any part of Indian territory to a foreign country. He also states that, ceding any part of Indian territory to a foreign country would undermine the sovereign character of India, as declared in the preamble of the Indian constitution. Besides, Advocate N.C. Chatterjee raised his second argument. He argued, article 1(3)(c) of the Indian constitution mentions the acquisition of new territory but there is no provision in the constitution that allows for the ceding of any territory of India to a foreign country. Based on this article, he stated that the 2.64 square mile area in the southern part of Berubari Union No. 12 can’t be transferred to Pakistan.
Decisions :
The Supreme court of India held that there were many ambiguities in the Radcliffe award regarding Berubari. Based on the contents of the award, it could not be concluded that the 1958 agreement was made in accordance with it. So, the court considered the entire Berubari Union as ‘Indian Territory’ and said the ‘Nehru-Noon’ agreement amounted to a ‘surrender of Indian territory to a foreign country’.
The Supreme court further stated that the ‘Nehru-Noon’ agreement involves the ceding of some parts of Indian territory to a foreign nation. As a result, the parliament has to make a law to execute this agreement. But this agreement can’t be executed only by enacting a law under Article 3 of the Indian constitution. Rather, according to article 368, article 1 and 3 must first be amended. Then this agreement can be executed by making law under article 3 of the Indian constitution. The Supreme court also said that Article 3 needs to be amended to implement the provisions related to the exchange of enclaves which is mentioned in ‘Nehru-Noon’ agreement. Only then this agreement can be executed by enacting a law under Article 3 of the constitution.
In addition to this, the supreme court, opposing the argument which was raised by advocate N.C. Chatterjee based on the preamble of the Indian constitution, came to a decision that, preamble is not a part of the Indian constitution. Thus, in this matter, the supreme court gave 3 arguments –
1. If the preamble is removed from the constitution, there will be no defect in the constitution.
2. The preamble is not mandatory for a constitution.
3. The preamble can’t increase the power of the government and it can’t control the government.
[Article 1(3)(c) of the Indian constitution mentions the acquisition of new territory but there is no provision in the constitution that allows for the ceding of any territory of India to a foreign country.
Article 1(3)(c) said that-
“The territory of India shall comprise –
Such other territories as may be acquired”.
Besides, Article 3(c) said that-
“Parliament may by law-
Diminish the area of any state.”
If this article is taken literally, it could be assumed that the parliament can implement the ‘Nehru-Noon’ agreement solely through this article. However, the Supreme Court clarified that since the agreement involves the transfer of some part of Indian territory to a foreign country, Article 3(c) cannot be used to implement this agreement. This article can be applied only when the area of a state of India is reduced and the reduced area is merged with another state of India.]
Subsequent Development :
After the decision of the Supreme Court, the Indian government gave legal validity to the ‘Nehru-Noon’ agreement by amending the 1st schedule of the Indian constitution through the 9th amendment in 1960. Thus, the ‘Nehru-Noon’ agreement was incorporated into the First Schedule of the Indian Constitution. However, due to rising tensions between India and Pakistan, the ‘Indo-Pak war’ broke out in 1965, As a result, the southern part of Berubari Union No 12 was not ceded to ‘East Pakistan’ and the enclaves, as promised in the agreement, were not exchanged. After the ‘Indo-Pak’ war of 1965, the war of Independence of Bangladesh started in 1971. Consequently, East Pakistan was separated from Pakistan and the People’s Republic of Bangladesh emerged as an independent state. Thus, Bangladesh inherited the dispute over enclaves including the southern part of Berubari Union No 12. On May 16,1974, the ‘Mujib-Indira’ agreement was signed between the prime ministers of Bangladesh and India regarding the Berubari Union, enclaves and other boundaries. According to this agreement, the southern part of Berubari Union No 12 (2.64 square mile) was included in India and in return, the Dahagram-Angarpota enclave was given to Bangladesh. Besides, a corridor (measuring 178 meters×85 meters) was permanently leased to Bangladesh for connecting with the Dahagram-Angarpota enclave.
In addition to this, this agreement also included the matter of exchanging the enclaves.
Later, Kazi Mukhlesur Rahman, an advocate of the supreme court of Bangladesh, filed a writ petition against this agreement which led to the landmark case of ‘Kazi Mukhlesur Rahman vs Bangladesh‘. In 1974, the Third amendment of the constitution of Bangladesh was enacted as a result of this case and the ‘Mujib-Indira’ agreement was given legal validity and through this amendment, Article 2(a) of the Bangladesh constitution was also amended. After the signing of the agreement, the exchange of enclaves was made possible through the Third amendment of the Constitution of Bangladesh in 1974 and the 100th Amendment of the Indian Constitution in 2015. As a result, 51 enclaves of Bangladesh inside India and 111 enclaves of India inside Bangladesh were exchanged after many years.
Besides, in this case, it is to be noted that the supreme court of India held that, “Preamble is not a part of the constitution”. However, later, in the case of ‘Keshavananda Bharati vs State of Kerala’ [AIR 1973 SC 1461] the supreme court of India ruled that “Preamble is the integral part of the constitution.”
Relevant Laws :
- Indian Constitution
- Article : 1(3)(c), 3(c), 143(1)
- The Constitution of the People’s Republic of Bangladesh
- Article : 2(a)
Author :
1. Fahim Ahmed
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