Decided : 14th March, 1960
BENCH: Justice B Sinha, Justice A S Shah, Justice K Dasgupta, Justice K S Rao, Justice M Hidayatullah, Justice P Gajendragadkar, Justice S Das
JUDGEMENT-: Justice P Gajendragadkar
FACTS
Following the adoption of the Mountbatten Plan, commonly known as the Independence Act, in 1947, the division of India into two distinct regions, Pakistan and India, was agreed upon based on the two-nation idea. However, the question of what precise regions would be awarded to India and Pakistan arose. As a result, the detailed map delineating these limits was not completed at the time. Sir Cyril John Radcliffe, a surveyor, was assigned to finish the job in five weeks. During this time, even Radcliffe struggled with his own perplexity. He eventually used the notion of majoritarianism to divide areas depending on the majority people that lived there. For example, areas with a mostly Muslim population were awarded to Pakistan, while areas with a predominantly Hindu population were awarded to India. Berubari, a territory in West Bengal's Jalpaiguri district, was mistakenly deleted from Radcliffe's printed map and awarded to India. Pakistan took advantage of the occasion to claim Berubari, resulting in a dispute between India and Pakistan. As a remedy to this problem, the Nehru-Noon Agreement was introduced in 1958. The Berubari region would be shared evenly between India and Pakistan under this deal. However, the President sought the Supreme Court's advice on the case under Article 143 of the Indian Constitution.
ISSUES
1) Is any legislative action required to enforce the Berubari Union agreement?
2) If so, can a Parliament law under Article 3 of the Constitution be used to achieve this or is it necessary, alternatively or in addition, to amend the Constitution in accordance with Article 368 of the Constitution?
3) Can a Parliamentary law under Article 3 of the Constitution suffice for the execution of the agreement regarding the exchange of Enclaves or is it necessary, alternatively or in addition, to amend the Constitution in accordance with Article 368 of the Constitution for this purpose?
RATIO DECIDENDI & JUDGMENT
1) In respect of issue no. 1
It is worth noting that Article 3 does not directly reference Union territory. As a result, regardless of whether they are included in the final clause of Article 3(a), they are unquestionably outside the scope of Articles 3(b), (c), (d), and (e). In layman's terms, the court ruled In the Re Berubari Case, any proposal to enlarge or diminish the territories of the Union territories, or to modify their boundaries or names, cannot be enacted through legislation connected to Article 3. This viewpoint is especially important when interpreting Article 3(c). Article 3(c) expressly tackles the subject of any State's area being reduced.
2) In respect of issue no. 2
The Berubari Union case established that the Agreement involved losing a portion of India's territory to Pakistan. As a result, its implementation entails changing the text of and revising Article 1 and the appropriate section of the First Schedule to the Constitution. India's territory would be reduced as a result of such adoption. Such an alteration is permissible under Article 368. This is not a contested or challenged position. As a result, Parliament can legislate laws to give effect to and implement the Agreement, which covers the cession of a portion of Berubari Union No. 12, as well as certain Cooch-Bihar Enclaves traded with Pakistan, by acting under Article 368.
Parliament may also, if it so desires, introduce legislation amending Article 3 of the Constitution to include cases of transferring Indian land to a foreign state, as held in the In Re Berubari Case. If such a bill is passed, Parliament will have the authority to pass laws to implement the Agreement in issue under the revised Article 3. However, if the necessary legislation is passed under Article 368, that alone would be sufficient to implement the Agreement.
3) In respect to issue no. 3
In this regard, the Berubari Union decision found that altering Article 1 of the Constitution following the cession of any part of India's territory to a foreign State does not activate the safeguards stated in the proviso to Article 368. This is because neither Article 1 nor Article 3 are mentioned in the proviso's list of entrenched constitutional provisions. It is not for us to investigate or assess whether it is acceptable to include these two Articles under the proviso; it is for Parliament to deliberate and determine.
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