IN RE: THE BERUBARI CASE: 14 MARCH, 1960

EQUIVALENT CITATIONS: AIR 1960 SC 845, 1960 3 SCR 250

History/ Facts

The issue was started during the partition of India.
Sir Cyril Radcliff, the Chairman of the Borders Commission, had the responsibility of delineating the border between East and West Bengal.
During partition in the Jalpaiguri area, certain thanas were to be divided.
The Radcliff Award merged the Berubari region of Jalpaiguri District into the Indian Union, but Thana Boda was omitted from the award.
This mistake made Pakistan claim territory of its own in 1948.
The Lord Bagge Tribunal was set up to address certain kinds of boundary disputes, and a report was submitted in 1950 that was never objected to by Pakistan.
The Government of Pakistan claimed its right over the Berubari Union again in 1952.
Bidhan Chandra Roy, the then Chief Minister of West Bengal, got the State Assembly to pass a resolution against the illegal demand of Pakistan.
In the meantime, an agreement was signed between India and Pakistan, known as the Nehru-Noon agreement, to divide the territory of the Berubari Union. The government of West Bengal opposed it. After this, the Union referred the matter to the Supreme Court.

Legal Issues

1. Is it necessary to take any legislative action to carry out an agreement relating to the Berubari union?

2. Is Article 3 of the Constitution of India, 1950, sufficient for such an agreement?

3. Is there a need for amendment under Article 368 of the Constitution for such action?

Arguments by Government

There is no cession of land
The agreement is only a mere settlement of a boundary dispute by exchanging land.
So there is no legislative intervention required

Arguments against exchange

According to the preamble of the Constitution of India, parliament has no right to alter the territory of the country
According to Article 1(3)(c) of the Constitution, the government can only acquire territories without ceding any territory.

Judgment delivered

The Supreme Court in the Berubari Union case concluded that:

‘Preamble is the key to opening the minds of the makers’ but the preamble is not a part of the Constitution. Therefore, it is not enforceable in a court of law.
The Parliament has the power to amend the Constitution, including Article 1.
Article 1(3)(c) does not confer power or authority on India to acquire territories.
Article 1 needs to be amended first by the parliament under Article 368 of the Constitution if it decides to first pass a law making amendments to Article 1 as stated above.
Legislative approval is necessary for the implementation of the agreement relating to the Berubari Union.

Conclusion

After the judgment in the Berubari case, Parliament passed the 9th Constitutional Amendment Act, 1960, which was enacted to provide the basis for the Nehru-Noon agreement.

Similarly, the 100th Constitutional Amendment Act, 2015, was enacted, which allows the exchange of territory between India and Bangladesh.

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