In Re Berubari Union and Exchange of Enclaves
An agreement was entered between India and Pakistan to resolve the boundary dispute. Certain questions of law emerged with regard to implementation of agreement and President of India, in exercise of the powers under Article 143( I) of the Constitution, referred three questions to the Supreme Court for its advice:
Is any legislative action necessary for the implementation of the Agreement relating to Berubari Union?
If so, is a law of Parliament relatable to Article 3 of the Constitution sufficient for the purpose or is an a1nend1nent of the Constitution in accordance with Artic1e 368 of the Constitution necessary, in addition or in the alternative?
Is a law of Parliament relatable to Article 3 of the Constitution sufficient for implementation of the agreement relating to Exchange of Enclaves or is an amendment of the Constitution in accordance with Article 368 of the Constitution necessary for the purpose, in addition or ill the alternative?
Attorney General contended that the said Agreement is merely the recognition or ascertainment of the boundary which had already been fixed and in no sense is it a substitution of a new boundary or the alteration of the boundary implying any alteration of the territorial limits of India. He emphasises that the ascertainment or the settlement of the boundary in the light of the award by which both Governments were bound, is not an alienation or cession of the territory of India, and according to him, if, as a result of the ascertainment of the true boundary in the light of the award, possession of some land has had to be yielded to Pakistan it does not amount to cession of territory; it is merely a mode of settling the boundary.
In view of this factual position there should be no difficulty in holding that it falls within the territories which immediately before the commencement of the Constitution were comprised in the Province of West Bengal. Therefore, as a result of the implementation of this Agreement the boundaries of West Bengal would be altered and the content of Entry 13 in the First Schedule to the Constitution would be affected.
Mr. Chaterjee raises contention that Parliament has no power to cede territory and agreement must be declared void as:-
Framers were determined to keep the entire territory of India as inviolable and sacred. The very first sentence in the preamble, which declares that “We, the people of India, having solemnly resolved to constitute India into a sovereign democratic republic”, says Mr Chatterjee, irrevocably postulates that India geographically and territorially must always continue to be democratic and republican.
it is argued that whereas the Constitution has expressly given to the country the power to acquire other territories it has made no provision for ceding any part of its territory; and in such a case the rule of construction viz. expressio unius est exclusio alterius must apply.
Court held that the preamble is not a part of the Constitution, and, “it has never been regarded as the source of any substantive power conferred on the Govenm1ent of the United States, or on any of its departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted”.
On a true construction of Article 1(3) (c) it is erroneous to assume that it confers specific powers to acquire foreign territories.
There can be no doubt that a sovereign State can exercise its right to cede a part of its territory to a foreign State.
In the Indian Constitution, the emphasis on the preservation of the territorial integrity of the constituent States is absent.
It may, therefore, be assumed that in construing Article 3 we should take into account the fact that the Constitution contemplated changes of the territorial limits of the constituent States and there was no guarantee about their territorial integrity.
The acquisition of foreign territory by India in exercise of its inherent right as a sovereign State automatically makes the said territory a part of the territory of India. After such territory is thus acquired and factually made a part of the territory of India the process of law may assimilate it either under Article 2 or under Article 3(a) or (b).
Can Parliament legislate in regard to the agreement under Article 3? Broadly stated Article 3 deals with the internal adjustment inter se of the territories of the constituent States of India. Article 3(a) enables Parliament to form a new State and this can be done either by the 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. There can be no doubt that foreign territory which after acquisition becomes a part of the territory of India under Article 1(3) (c) is included in the last clause of Article 3(a) and that such territory may, after its acquisition, be absorbed in the new State which may be formed under Article 3(a). Thus Article 3(a) deals with the problem of the formation of a new State and indicates the modes by which a new State can be formed.
Article 3(c) deals with the problem of the diminution of the area of any State. Such · diminution may occur, where the part of the area of a State is taken out and added to another · State, and in that sense Articles 3(b) and 3(c) may in some cases be said to be correlated; but does Article 3(c) refer to a case where a part of the area of a State is taken out of that State and is not added to any other -State but is handed over to a foreign State? If the power to acquire foreign territory which is an essential attribute of sovereignty is not expressly conferred by the Constitution there is no reason why the power to cede a part of the national territory which is also an essential attribute of sovereignty should have been provided for by the Constitution. Both of these essential attributes of sovereignty are outside the Constitution and can be exercised by India as a sovereign State. Therefore, even if Article 3(c) receives the widest interpretation it would be difficult to accept the argument that it covers a case of cession of a part of national territory in favour of a foreign State. 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 Ai1icle 3 or other relevant provisions of the Constitution, but it would not cease to be a part of the territory of India. It would be unduly straining the language of Article 3(c) to hold that by implication it provides for cases of cession of a part of national territory. Therefore, we feel no hesitation in holding that the power to cede national territory cannot be read in Article 3(c) by implication.
It would not be competent to Parliament to make a law relatable to Article 3 of the Constitution for the purpose of implementing the Agreement. This· conclusion must inevitably mean that the law necessary to implement the Agreement has to be passed under Article 368.
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 Article I 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 Article 368. Parliament may, however, if it so chooses, pass a law amending Article 3 of the Constitution so as to cover cases of cession of the territory of India in favour of a foreign State.
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