Berubari Union v. Unknown (1960) – A case of land and sovereignty
Introduction:
- The Berubari Union case was a dispute between India and Pakistan over the possession of the Berubari Union, a small area located within the Jalpaigudi district of West Bengal.
- The dispute was resolved through the Nehru-Noon Agreement of 1958, which provided for the division of the Berubari Union between India and Pakistan.
- The question of whether the Indian parliament had the power to cede territory to a foreign country under the Indian Constitution was brought before the Supreme Court of India.
Background:
- Berubari Union case arose out of the partition of India and Pakistan in 1947.
- The task of demarcating the boundaries between the two countries was assigned to Sir Cyril Radcliffe, who was appointed as the chairman of a boundary commission.
- Berubari Union was a small area located within the Jalpaigudi district of West Bengal.
- Radcliffe awarded the Berubari Union to India, but unfortunately, he forgot to mention it in his written map.
- Pakistan claimed that a part of the Berubari Union belonged to it.
- The dispute was resolved through the Nehru-Noon Agreement of 1958, which provided for the division of the Berubari Union between India and Pakistan.
- Under the agreement, half of the Berubari Union was to be given to Pakistan, and the other half was to be retained by India. Additionally, four Cooch Behar enclaves contiguous to this part would also have gone to Pakistan.
Issues before the Court:
- The main issues before the court were:
- Whether the Indian parliament had the power to cede territory to a foreign country under the Indian Constitution.
- Whether legislative action was necessary for the implementation of the Nehru-Noon Agreement.
- The government argued that it was not ceding territory but rather exchanging it, and that no legislative intervention was required.
- The Exchange of Enclaves argued that the Preamble of the Constitution did not give the parliament the power to make changes to the country’s territory, and that Article 1(3)(c) of the Indian Constitution only allowed for the acquisition of foreign territories, not the ceding of Indian territory to a foreign country.
Judgement:
- The Supreme Court held that the parliament does not have the power to give territory of a state to a foreign country under Article 3 of the Indian Constitution.
- Legislative action is necessary for the implementation of the Nehru-Noon Agreement, and that such action must be in the form of an amendment to the Constitution under Article 368.
- The Preamble of the Constitution serves as a guide to open the minds of the framers of law, but it is not the source of all the powers given to the government by the Constitution of India.
- Preamble cannot be used to declare any part of the Constitution as ambiguous, and it cannot deprive the legislature from performing its functions.
Implications of the Case:
- The Berubari Union case has important implications for the power of the parliament to transfer territory to a foreign country.
- The judgement clearly states that the parliament does not have the power to cede territory under Article 3 of the Constitution, but that it may do so through an amendment under Article 368.
- The case also highlights the importance of the Preamble of the Constitution and its role in interpreting the Constitution.
| Article 1(3)(c): states that India can acquire foreign territory. Article 3: grants the parliament the authority to alter the boundaries or change the name of any state within India. Article 143(1): empowers the President to seek an advisory opinion from the Supreme Court on any question of law or fact of public importance. Article 368: enables the parliament to amend the Constitution and its procedures as outlined in the Article. |
This article is part of the series “Landmark Judgements that Shaped India” under the Indian Polity Notes & Prelims Sureshots. We aim to make the articles comprehensive while leaving out unnecessary information from the UPSC perspective. If you think this article is useful, please provide your feedback in the comments section below.
