Berubari Union was a small group of villages, located in the Jalpaiguri district of West Bengal sharing border with erstwhile East Pakistan (now Bangladesh), having an area of 22 sq. kms. and a population of around ten thousand. After the Partition of India and Pakistan, in 1947, the boundaries in the Berunari region, determined by the Radcliffe Committee were disputed between India and Pakistan, which subsequently led an agreement in 1958 between the then Prime Ministers of India and Pakistan, Jawahar Nehru and Feroze Khan Noon respectively, famously known as the Nehru Noon Agreement. This agreement was based on an exchange of areas of the Berubari Union No. 12 between both the countries.
The Nehru Noon agreement led to protests among the villagers of Berubari against the decision to cede away territory of India, terming the agreement as unconstitutional and beyond the authority of the Executive. The villagers cut their fingers and wrote a letter to the then President of India, Dr. Rajendra Prasad expressing their dissent. As a consequence, the President of India, by the power of Article 143, asked the Supreme Court for its expert opinion on the case where following questions were supposed to be answered:
Unanswered Legal Queries
1. Was the Executive decision sufficient for the implementation of Nehru Noon agreement or is there a requirement for any Legislative action?
2. Does the Article 3 of the Indian Constitution allow the Executive to cede away territory belonging to India, or a constitutional amendment is required with the powers bestowed by Article 368?
3. Does the Parliament have the right to amend any Article of the Constitution?
4. Is preamble a part of the Constitution?
Arguments against Exchange
The arguments against the Nehru Noon agreement were on the grounds that neither the executive, nor the Parliament had any power to cede away territory of India to a foreign state. In addition, the Parliament could not by its own discretion, through ordinary laws or amendment of Constitution handover the ownership of a part of any territory of India to another country.
According to Article 1 of the Constitution, “India, which is Bharat, shall be the Union of
States”. It is not written that India “may be” Union of state. The statement “Bharat shall be a union of states” indicates “Bharat is an unconditional Union.” Therefore, it would not be possible for any state to cede away from India, regardless of any reason.
According to the Preamble, the Parliament has no power to alter the territory of India. By ceding away territory, the Parliament is limiting the sovereignty of India, which goes against the Preamble.
Article 3(c) only talks about the Parliament’s authority to diminishing the area of any state by law. Even the widest interpretation of this Article would not justify the transfer of a territory of India to a foreign State.
Arguments by Government
The Attorney General argued that there was no cession of land or territory in this agreement. It was merely settling the boundary dispute by exchanging enclaves. Hence, no legislative intervention was required. The agreement was simply an acknowledgement of a previously agreed boundary and was in not for a new boundary or any alteration of boundary. This therefore does not involve cessation of territories of India. Even though the Executive was responsible to the Legislative, in this particular case, there was no need for a Legislative involvement.
C.J. Justice Gajendragadkar of the Supreme Court held that Article 3 (c) of the Constitution is insufficient for the enforcement of Nehru Noon agreement, since it talks about diminishing the area of the State and not ceding away the territory.
The Court opined that the Government independently executed the “Award” issued by the Indo-Pakistan Border Disputes Tribunal and therefore, the Agreement cannot be treated as a mere settlement of the boundary dispute as a result of the Award.
However, the Parliament could incorporate the powers of ceding away territory by making suitable amendments provided under Article 368.
Even though the Preamble was considered to be “a key to unlock the mind of the framers”, it was held that it is not a part of Indian Constitution. It is not the source of power of the Constitution. It is also not a limitation of the Government.
The Parliament has the power to amend the constitution including Articles 1 and 3.
The judgment of Berubari case paved the way for the Parliament to bring the 9th
Constitutional Amendment Act, 1960, thereby amending the First Schedule of the Constitution to enforce the Nehru Noon Agreement. The Berubari Union was thereafter divided and the areas were exchanged on the basis of enclaves for enclaves without any consideration of territorial loss or gain.
This article is written by Rakesh Behera of sambalpur university.