Judges: B.P. Sinha, C.J., A.K. Sarkar, J.C. Shah, K.C. Das Gupta, K. Subba Rao, M. Hidayatullah, P.B. Gajendragadkar and S.K. Das, JJ.

Facts:

Berubari Union No. 12 was included in West Bengal as a consequence of the Radcliffe Award from August 12, 1947, and has been ruled as such ever since the Constitution went into effect on January 26, 1950.

After the Radcliffe Award, there were certain disagreements between India and Pakistan. However, Berubari was not at issue when those disagreements were brought to the Badge Commission, which the parties had agreed to form in order to settle those disagreements.

The decision was given by that commission on January 26, 1950.

In 1952, Pakistan first brought up the issue of Berubari, claiming that it should have been included in East Bengal and not West Bengal due to the Radcliffe Award.

The Ruler of the State of Cooch-Behar signed a merger agreement with the Government of India on August 28, 1949. On January 1, 1950, that Government assumed control of Cooch-Behar's administration so that it would become a component of West Bengal.

It was discovered that following the partition, certain regions that belonged to the State of Cooch-Behar became enclaves in Pakistan, while in a similar manner, some enclaves in Pakistan fell in India.

On September 10, 1958, the Prime Ministers of India and Pakistan signed an agreement known as the Indo-Pakistan Agreement in order to ease the tension and conflict it caused.

Items 3 and 10 of that agreement called for the exchange of Cooch-Behar Enclaves between Pakistan and India as well as the division of the Berubari Union on half between the two countries.

Following the emergence of doubts regarding the execution of the aforementioned items, the President of India referred the present case to the Supreme Court in accordance with Article 143(1) of the Constitution.

Issues:

(i) Whether division of Berubari Union and exchange of Cooch-Behar Enclaves involve cession of territory?

(ii) Whether preamble is a part of the Constitution and can restrict Parliament's authority to cede any portion of the national territory?

(iii) Whether any legislative action necessary for the implementation of the Agreement relating to Berubari Union?

(iv) If so, is a law of Parliament relatable to Article 3 of the Constitution sufficient for the purpose or is an amendment of the Constitution in accordance with Article 368 of the Constitution necessary, in addition or in the alternative?

(v) 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 in the alternative?

Law:

Constitution of India - Article 1 - Defines India / Bharat, as a Union of States. Elaborates on the name and territory of the States and the Unions.

Constitution of India - Article 3 - Deals with formation of new States and alteration of areas, boundaries or names of existing States.

Constitution of India - Article 368 - Deals with the powers of the Parliament to amend the Constitution and its procedure.

Contentions:

Union Government

The purpose of the Agreement is to determine or define the precise border that was the subject of a disagreement between the two nations due to their differing interpretations of the relevant description in the award. The aforementioned Agreement just confirms or acknowledges the pre-existing border. In no way does it indicate that India's geographical boundaries have changed or that a new boundary has been substituted.

If control of any land needs to be given to Pakistan as a result of determining the correct border in light of the award, this does not constitute a cession of territory; rather, it is only a method of determining the boundary.

The swapping of Cooch-Behar Enclaves is ancillary to the larger and more comprehensive accord on the Berubari Union. Given the aforementioned circumstances, it cannot be stated that even this trade involves the cession of any area.

The agreement reached between the two prime ministers may be put into effect without the need for legislative action since the settlement and acknowledgment of the genuine boundary can be accomplished only via executive action.

Opposite Party

Parliament did not have any power to cede any portion of India in favour of a foreign State. This can neither be done by any legislation, nor by the amendment to our Constitution.

The preamble to the Constitution states unequivocally that the whole territory of India, like the democratic republican system of government, is outside the purview of Parliament. It cannot be impacted by regular legislation or even constitutional amendment.

Analysis:

Division of Berubari Union and exchange of Cooch-Behar Enclaves involve cession of territory

(i) It is clear from item NO. 3 of the Agreement that the parties intended to divide the area 50/50 in order to reach an amicable, ad hoc resolution of the issue. Absolutely nothing in it suggests that they were attempting to interpret the Award and establish the border in accordance with that interpretation.

(ii) Therefore, the issue of Berubari must be seen from the perspective that it entails the transfer of a portion of India's territory to Pakistan. This is especially true of the agreement pertaining to the exchange of the enclaves.

Preamble cannot restrict Parliament's authority to cede any portion of the national territory.

(i) It may be accurate to refer to the preamble as a window into the minds of the framers of the Constitution. It is not a part of the Constitution and cannot be viewed as the source of any substantive powers that the Constitution alone can grant to the government, either explicitly or implicitly. Therefore, it was incorrect to claim that the preamble could in any way restrict Parliament's authority to cede any portion of the national territory.

(ii) Article 1(3)(c) of the Constitution does not grant the right to acquire foreign territories. If correctly interpreted, Article 1(3)(c) does not grant the right to acquire foreign territories. It merely recognises automatic absorption of any territories that India may acquire in the exercise of its sovereign right. As a result, the right to cede domestic territory is not implied by this interpretation.

Agreement could not be validated by a legal procedure.

(i) Parliament has the authority to amend Article 1(3)(c) to add the authority to transfer national territory under Article 368 of the Constitution. It was false to claim that the sovereign State of India lacked the two fundamental characteristics of sovereignty, namely the ability to acquire foreign territory and the ability to renounce national territory. Therefore, the relevant Agreement could not be validated by a legal procedure.

(ii) The right of a sovereign State to do so in the exercise of its treaty- making power and subject to such limitations as the Constitution may, expressly or by necessary implication, impose, can never be in doubt. The question of whether the treaty / agreement can be implemented by ordinary legislation or by constitutional amendment must defer to the Constitution in all cases, even though such cession of territory, which amounts in law to a transfer of sovereignty, must cause great hardship from the human perspective.

Amendment of the Constitution in accordance with Article 368 of the Constitution necessary for cession of a part of the territory

(i) Agreement amounts to a cession of a part of the territory of India in favour of Pakistan. Its implementation would naturally involve the alteration of the content of and the consequent amendment of Article 1 of Constitution. This would also include consequent amendment of the relevant part of the First Schedule to the Constitution.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 of Constitution.

(ii) Acting under Article 368 of Constitution, Parliament may make a law to give effect to, and implement, the Agreement in question covering the cession of a part of Berubari Union No. 12 as well as some of the Cooch-Behar Enclaves which by exchange are given to Pakistan.

(iii) 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. If such a law is passed then Parliament may be competent to make a law under the amended Article 3 of Constitution to implement the Agreement in question. On the other hand, if the necessary law is passed under Article 368 of Constitution itself that alone would be sufficient to implement the Agreement.

(iv) Under the proviso to Article 3 of the Constitution, it is prescribed that where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has to be referred by the President to the Legislature of that State. The State has to give its views thereon within such period as is therein prescribed. If the law in regard to the implementation of the Agreement is to be passed under Article 368 of Constitution, it has to satisfy the requirements prescribed by the said Article.

(v) The Bill has to be passed in each House by a majority of the total membership of the House and by a majority of not less than two-thirds of the House present and voting.

(vi) Article 3 of the Constitution discusses the territorial adjustment of the Indian Constituent States as a whole, rather than just their reorganisation on linguistic or other grounds. It is illogical to imply that Article 3(c), which deals with diminution of the area of a State, is broad enough to include cession of national territory.

The Constitution does not officially authorise either the purchase of foreign territory or the ceding of domestic land, but every sovereign State already has the ability to do so. This is the actual situation. As a result, legislation related to Article 3 of Constitution cannot be used to implement the Agreement. Article 368 related legislation is thus required.

Therefore, the Parliament, acting under Article 368, may either pass a law amending Article 3 to include cases of cession of Indian Territory before passing a law under the amended Article 3 to implement the Agreement, or it may act to give effect to and implement the Agreement in question, covering both Berubari and the Enclaves.

Conclusions:

(i) The preamble is not a part of the Constitution.

(ii) A law of Parliament relatable to Article 3 of the Constitution would be incompetent.

(iii) Parliament does not have the power to give the territory of any state to another country under Article 3 of the Constitution.

(iv) A law of Parliament relatable to Article 368 of the Constitution is competent and necessary.

(iv) A law of Parliament relatable to both Articles 368 and 3 of the Constitution would be necessary only if Parliament chooses first to pass a law amending Article 3 as indicated above.

(v) In that case Parliament may have to pass a law on those lines under Article 368 of the Constitution and then follow it up with a law relatable to the amended Article 3 of the Constitution to implement the agreement.

(vi) Agreement in question is subject to the approval of both the houses of Parliament. Any territory of India can be ceded to, by the Union Government, to a foreign country, only after making suitable amendments in Article 1 of the Constitution with the special majority of parliament.

Important Precedents:

(i) The State of Australia v. The State of Victoria

(ii) The State of South Australia v. State of Victoria