Supreme Court Rules Legislative Action Under Article 368 Necessary for Ceding Indian Territory to Foreign State

In Berubari Union and Cooch-Behar Enclaves Case, SC Declares Parliament Cannot Implement Territorial Cession via Ordinary Law Under Article 3; Constitutional Amendment Required

In a landmark constitutional reference, the Supreme Court of India (Constitutional Bench) on March 14, 1960, delivered a detailed opinion on the implementation of the Indo-Pakistan Agreement concerning the division of Berubari Union No. 12 and the exchange of Cooch-Behar enclaves. The reference, made by the President of India under Article 143(1) of the Constitution, arose from doubts about the nature of legislative action necessary to give effect to the agreement, which involved ceding parts of Indian territory to Pakistan.

The Court examined three crucial questions: whether any legislative action was necessary for implementation; if so, whether a law under Article 3 of the Constitution sufficed, or an amendment under Article 368 was required; and if the exchange of enclaves could be implemented by a law under Article 3 or required constitutional amendment.

Background:

The dispute traces back to the partition of British India and the Radcliffe Award (August 1947), which demarcated boundaries between East and West Bengal. Berubari Union, an area of 8.75 sq. miles within West Bengal, had been under Indian administration since partition. Pakistan later claimed Berubari was part of East Bengal, leading to tensions.

In 1958, India and Pakistan agreed to settle the dispute by dividing Berubari Union horizontally, giving half the area to Pakistan, and exchanging enclaves to reduce border tensions. However, questions arose over whether Parliament could implement this agreement through ordinary legislation or whether a constitutional amendment was necessary.

Key Findings:

1. Nature of the Agreement: The Court held that the agreement did not merely ascertain the true boundary in light of the Radcliffe Award but independently decided to divide Indian territory and cede part of it to Pakistan. This amounted to cession or alienation of Indian territory.

2. Legislative Powers under Article 3: Article 3 empowers Parliament to alter State boundaries and areas but only within the territory of India. The Court interpreted Article 3(c) (diminution of State area) as not extending to cession of territory to a foreign country. Additionally, Article 3 does not deal with Union Territories’ boundaries, which require constitutional amendment for alteration.

3. Necessity of Constitutional Amendment under Article 368: Since ceding Indian territory to a foreign state involves altering the content of Article 1 (territory of India) and the First Schedule, such change cannot be effected by ordinary legislation under Article 3. The Court ruled that implementation of the agreement requires a constitutional amendment under Article 368.

4. Legislative Safeguards: The amendment process under Article 368 requires a special majority in Parliament and ratification by at least half of the States, thus providing a safeguard for such significant territorial changes.

5. Executive Powers and Treaty Implementation: The Court rejected the contention that the executive alone could implement the agreement without legislation, emphasizing that treaty-making power involving territorial cession must be exercised in accordance with constitutional provisions.

6. Precedents and International Law: The Court referred to international law principles confirming that sovereign states may cede territory by treaty but must do so within the limits of their constitutional framework. Cases like Ram Jawaya Kapur v. State of Punjab and international examples were discussed.

7. Effect on State Legislature’s Role: Unlike laws under Article 3, constitutional amendments under Article 368 do not mandate consultation with the affected State Legislature, as Article 3’s proviso requiring referral does not apply to Article 368 amendments.

Conclusion:

The Supreme Court answered the President’s reference as follows:

- Legislative action is necessary to implement the Indo-Pakistan Agreement relating to Berubari Union and exchange of enclaves.

- A law under Article 3 alone is insufficient and incompetent.

- A constitutional amendment under Article 368 is competent and necessary. Parliament may amend Article 3 itself under Article 368 if it so desires, followed by legislation under the amended Article 3, but this is not mandatory.

This judgment clarifies the constitutional procedure required for ceding Indian territory to foreign states and emphasizes the supremacy of constitutional amendments in matters affecting India’s territorial integrity.

Statutory provisions

Constitution of India - Articles 1, 2, 3, 4, 53, 73, 74, 143(1), 245, 246, 248, 253, 368; Government of India Act, 1935 (Sections 290A, 290B); Indian Independence Act, 1947; States Merger (Governors' Provinces) Order, 1949; Chandernagore Merger Act, 1954.

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This news report comprehensively covers the judgment’s factual background, legal issues, Court’s reasoning, and the final opinion on the constitutional provisions relevant to territorial cession under the Indo-Pakistan Agreement.

Reference by The President of India under Article 143(1) , (SC) (Constitutional Bench) : Law Finder Doc Id # 143960