BENCH: Chief Justice B. P. Sinha, Justice A. K. Sarkar, Justice J. C. Shah, Justice K. C. Das Gupta, Justice K. Subba Rao, Justice M. Hidayatullah, Justice P. B. Gajendragadkar, Justice S. K. Das
FACTS:
On September 10, 1958, India and Pakistan addressed ten points of conflict and formalized an agreement to ease tensions, resolve disputes, and establish peaceful conditions along their borders. The key issues in this Presidential Reference were Item 3 of Paragraph 2 and Item 10 of Paragraph 3 of the agreement. Item 3 proposed transferring a portion of Berubari Union No. 12 to East Pakistan, while Item 10 outlined the exchange of Cooch Behar and Pakistan enclaves without compensation for the additional land given to Pakistan. However, uncertainty arose regarding whether implementing the agreement required parliamentary legislation under Article 3 or Article 368 of the Indian Constitution.
Berubari was originally part of the Jalpaiguri District in the Rajshahi Division of Bengal but was not explicitly mentioned in the First Schedule of the Independence Act. The 1947 Radcliffe Award determined the India-Pakistan boundary, but disputes over certain enclaves persisted. In 1949, Cooch Behar merged with India and was later integrated into West Bengal, bringing with it Indian enclaves within Pakistan and vice versa. These enclaves remained a source of contention, and Item 10 of the agreement aimed to resolve the issue through territorial exchange.
ISSUES:
The key issues before the Court in this reference centered on the legislative requirements for implementing the agreement on the Berubari Union and the exchange of enclaves. The Court had to determine whether any legislative measure was necessary for enforcing the agreement concerning Berubari Union No. 12. It also needed to assess whether parliamentary legislation under Article 3 of the Constitution was sufficient or if a constitutional amendment under Article 368 was required, either separately or in conjunction with Article 3. Additionally, a similar question arose regarding the exchange of enclaves—whether Article 3 alone was adequate for implementation or if an amendment under Article 368 was also necessary, or if any alternative legal mechanism existed.
JUDGEMENT WITH REASONING:
The Supreme Court ruled that half of Berubari would be transferred to Pakistan, with the division running horizontally from the northeast point of Debiganj thana. Cooch Behar enclaves in Pachagar thana and Berubari Union No. 12 in West Bengal remained part of India. However, the Cooch Behar enclaves south of Boda thana and part of Berubari Union No. 12 were transferred to Pakistan as part of a broader enclave exchange.
The Supreme Court, after reviewing the agreement, concluded that the most practical way to resolve the border dispute was to divide the Berubari Union area in half. Though Berubari Union No. 12 was entirely within India, the agreement allowed for a portion to be transferred to Pakistan to promote peaceful relations. The Court found no need for legislation for the exchange of Cooch Behar enclaves, as it was part of the broader agreement. However, the Court rejected the Attorney General's claim that the transfer of Berubari did not require altering the First Schedule of the Constitution, as it would change the borders of West Bengal, necessitating an amendment.
The Court ruled that enforcing the agreement, which involved transferring a portion of India to Pakistan, would require modifying Article 1 and the First Schedule of the Constitution under Article 368. It also suggested that Parliament might need to amend Article 3 to handle such transfers. The Court clarified that the Preamble was not part of the Constitution and did not grant substantial powers. Regarding Article 3, the Court noted that if the proposed transfer impacted the borders of a state, it would need to be forwarded to the concerned state's legislature for their opinion. If Parliament proceeded under Article 368, it would need to meet all the requirements of that provision to enact the necessary legislation.
ANALYIS:
This case is crucial in understanding key Constitutional principles, especially concerning the cession of Indian territory to a foreign nation. The core issue was whether Parliament's authority to alter the area of a state includes the power to transfer Indian territory to another country. In 1958, India and Pakistan signed an agreement to resolve border issues, including transferring a portion of Berubari Union and exchanging Cooch Behar enclaves. The Central Government sought to enforce the agreement, but protests arose against ceding Indian land. The President then referred three key questions to the Supreme Court, including whether a legislative measure was necessary and whether Article 3 or an amendment under Article 368 was required for enforcement.
The Court ruled that the agreement involved transferring Indian territory, which went beyond Parliament's power under Article 3 to alter state boundaries. The Court emphasized that Article 3 only addresses internal rearrangements of state areas, not the transfer of territory to another nation. Thus, enforcing the agreement required a Constitutional amendment under Article 368. The Court also clarified that the Preamble was not part of the Constitution and did not grant substantive powers, a view later revised in the 1973 Kesavananda Bharati case, where the Court recognized the Preamble as part of the Constitution and significant in interpreting constitutional statutes.
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