It is always profitable to remember that a Constitution is “written in blood rather than ink”. The Constitution of India is living instrument with capabilities of enormous dynamism.
~Justice Dipak Misra[1]
ABSTRACT:
Since the dawn of independence of India brought new hopes and ambitions for the entire population of the nation, but unfortunately sideways the biggest partition in the history of the world was taking place.
The problems and difficulties faced by the country was becoming endless and even after more than 10 years of settlement the issue of Berubari arose.
The research analysis after overviewing about the history of the case further continues to present the issues arosed and the judgement given by the supreme court in its solution.
This research article also informates about the amendments in the constitution in the light of this case.
INTRODUCTION:
In the Honble’ Supreme Court of India
Citation: AIR 1960 Supreme Court 845
Bench: 8 [B. P. SINHA. C. J., S. K. DASP. B. GAJENDRAGADKAR, A. K. SARKAR, K, SUBBA RAO, M. HIDAYATULLAH, K. C. DAS GUPTA AND J. C. SHAH, JJ.]
Decided on: 14th March, 1960
Reference by The President of India under Article 143 (1) of the Constitution of India on the implementation of the Indo-Pakistan Agreement relating to Berubari Union and Exchange of Enclaves.
BACKGROUND:
- Since the transfer of rule from the British Queen to the Indian Government as manifested by the Indian Independence Act of 1947; that was passed on 18th of July; the subcontinent of British India was divided into two separate independent dominions; namely the – India and Pakistan.
- The boundaries were demarcated under the Radcliff committee under the chairmanship of Sir Cyril Radcliffe Governor-General.
- In 1958, Pakistan began to create an issue on it by contending that this territory of Berubari in West Bengal belongs to it; and also India advocated about its claim on the same.
- To resolve the issue the then prime ministers of both the countries; entered into an agreement known as the Nehru-Noon agreement in 1958.
- The Indian president Dr. Rajendra Prasad, at that time using his powers mentioned under the Article 143 of the Indian Constitution consulted the Supreme Court of India.[1]
- The court further gave its opinion; which is later to be scrutinized in the research article itself.
ISSUES RAISED:
(1) Is any legislative action necessary for the implementation of the agreement related to Berubari Union?
(2) If so, is a law of Parliament relatable to Art. 3 of the Constitution sufficient for the purpose or is an amendment of the Constitution in accordance with Art. 368 of the Constitution necessary, in addition or in the alternative?
(3) Is a law of Parliament relatable to Art. 3 of the Constitution sufficient for implementation of the agreement relating to the exchange of Enclaves or is amendment of the Constitution in accordance with of Art. 368 of the Constitution necessary for the purpose, in addition or in the alternative?[2]
STATUTES CONCERNED:
Article 3, 143 and 368 of the Indian constitution.
These articles are read as follows:-
3.Formation of new States and alteration of areas, boundaries or name 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 a 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:
Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.[3]
143. Power of President to consult Supreme Court.-(1) If at any time appears to the President that a question of law or fact has arisen, or is like to arise, which is of such a nature and of such public importance that expedient to obtain the opinion of the Supreme Court upon it, he may the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.[4]
368.Power of Parliament to amend the Constitution and procedure
therefore.-(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.
(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.[5]
Involvement in the particular case:
Constitution of India, Arts. 3, 143 (1), 368 Indo-Pakistan Agreement relating to division of Berubari Union and Exchange of Cooch-Bihar Enclaves—Involves cession of national territory in favour of Pakistan – Implementation of agreement by legislative action essential Law relatable to Art. 368 Would be sufficient Law relatable to Art, 3 when would be competent indicated.[6]
Constitution of India, Art. 1 (3) (c) Scope—Does not confer power to ac- quire foreign territories.
Under international law two of the essential attributes of sovereignty are power to acquire foreign territory as well as the power to cede national territory in favour of a foreign State.[7]
Article 1(3) (c) does not purport to confer power on India to acquire territories; it merely provides for and recognises automatic absorption or assimilation into the territory of India of territories which may be acquired by India by virtue of its inherent right as a sovereign State to acquire foreign territory.
The diminution of the area of any State to which it refers postulates that the area diminished from the State in question should and must continue to be a part of the territory of India; it may increase the area of any other State or may be dealt with in any other manner authorised either by Art. 3 or other relevant provisions of the Constitution; but it would not cease to be a part of the territory of India. Hence an agreement which involves a cession of a part of the territory of India in favour of a foreign State cannot be implemented by Parliament by passing a law under Art.3 of the Constitution. [8]
India is an indestructible Union of destructible units. Article 3 and Article 4 of the Constitution together empower Parliament to make laws to form a new State by separation of the 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, and in so doing to increase or diminish the area of any State and to alter its boundaries. [9]
SIMILAR CASES:
It was held by the Privy Council that a boundary line dividing the two colonies, and that it therefore implicitly gave to the executive of the two colonies power to do such acts as were necessary for fixing acts such boundaries.[10]
THE JUDGEMENT:
About the fact that whether this cession be prompted under Art. 3:
It is significant that Art. 3 in terms does not refer to the Union territories and so, whether or not they are included in the last clause of Art. 3 (a) there is no doubt that they are outside the purview of Art. 3 (b), (c), (d) and (e). In other words, if an increase or diminution in the areas of the Union territories is contemplated or the alteration of their boundaries or names is proposed, it cannot be effected by law relatable to Art. 3. This position would be of considerable assistance in interpreting Art. 3(c).
Article 3(c) deals with the problem of the diminution of the area of any State.
Power to amend Art. 3 by the Parliament for persisting the agreement:
We have already held that the Agreement amounts to a cession of a part of the territory of India in favour of Pakistan; and so its implementation would naturally involve the alteration of the content of and the consequent amendment of Art. 1 and of the relevant part of the First Schedule to the Constitution, because such implementation would necessarily lead to the diminution of the territory of the Union of India. Such an amendment can be made under Art. 368. This position is not in dispute and has not been challenged before us; so it follows that acting under Art. 368 Parliament may make a law to give effect to, and implement, the Agreement in question covering the cession of a part of Berubari Union No. 12 as well as some of the Cooch- Bihar Enclaves which by exchange are given to Pakistan. Parliament may, however, if it so chooses, pass a law amending Art. 3 of the Constitution so as to cover cases of cession of the territory of India in favour of a foreign State. If such a law is passed then Parliament may be competent to make a law under the amended Art. 3 to implement the Agreement in question. On the other hand, if the necessary law is passed under Art. 368 itself that alone would sufficient to implement the Agreement.
Matter of consideration by the Parliament:
In this connection it may incidentally be pointed out that the amendment of Art. 1 of the Constitution consequent upon the cession of any part of the territory of India in favour of a foreign State does not attract the safeguard prescribed by the proviso to Art. 368 because neither Art. 1 nor Art. 3 is included in the list of entrenched provisions of the Constitution enumerated in the proviso. It is not for us to enquire or consider whether it would not be appropriate to include the said two Articles under the proviso. That is a matter for the Parliament to consider and decide.
We would accordingly answer the three questions referred to us as follows:(Issues Raised)
Q. 1. Yes.
Q. 2. (a) A law of Parliament relatable to Art. 3 of the Constitution would be incompetent;
(b) A law of Parliament relatable to Art. 368 of the Constitution is competent and necessary;
(c) A law of Parliament relatable to both Art. 368 and Art, 3 would be necessary only if Parliament chooses first to pass a law amending Art. 3 as indicated above; in that case Parliament may have to pass a law on those lines under Art. 368 and then follow it up with a law relatable to the amended Art. 3 to implement the agreement.
Q. 3. Same as answers (a), (b) and (c) to Question 2..AIR 1960 Supreme Court 845[11]
CONCLUSION:
- At times the President of India has used the constitutional powers provided and consulted with the Honble’ Supreme Court of India in matters substantially critical to the country and its 135 crore population.
- As Indian constitution supports the idea of separation of power and balance between the three organs of the government, the independence judiciary of the nation provides its greater role towards it.
- The parliament has been directed by the apex court and the fundamental values of the constitution are made to be well preserved and dominant.
[1] Manoj Narula vs Union of India (2014) 9 SCC 1
[1] Art. 143, the Constitution of India;
[2] AIR 1960 Supreme Court 845
[3] Art. 3, the Constitution of India
[4] Art. 143, the Constitution of India
[5] Art. 368, the Constitution of India
[6] AIR 1960 Supreme Court 845
[7] Para 30,33; Ibid 846
[8] Para 41,42; Ibid 847
[9] Raja Ram Pal v. Speaker, Lok Sabha & Ors., (2007) 3 SCC 184.
[10] State of South Australia v. State of Victoria, 1914 AC 283 at p. 309
[11] AIR 1960 Supreme Court 845; p.862
Written by: Madhav Puri, BA.LL.B, Panjab University, Swami Sarvanand Giri, Hoshiarpur.
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