On February 20, 1947, the British Government announced its intention to transfer power in British India to Indian hands by June 1948. On June 3, 1947, the said Government issued a statement as to the method by which the transfer of power would be effected. On July 18, 1947, the British Parliament passed the Indian Independence Act, 1947. This Act was to come into force from August 15, 1947, which was the appointed day.
Indian Independence Act, 1947
As from the appointed day two independent Dominions, it was declared, would be set up in India to be known respectively as India and Pakistan. Section 2 of the Act provided that subject to the provisions of sub-ss. (3) and (4) of s. 2 the territories of India shall be the territories under the sovereignty of His Majesty which immediately before the appointed day were included in British India except the territories which under sub-s. (2) of s. 2 were to be the territories of Pakistan.
Section 3, sub-s. (1), provided, inter alia, that as from the appointed day the Province of Bengal as constituted under the Government of India Act, 1935, shall cease to exist and there shall be constituted in lieu thereof two new Provinces to be known respectively as East Bengal and West Bengal.
Sub-section (3) of s. 3 provided, inter alia, that the boundaries of the new Provinces aforesaid shall be such as may be determined whether before or after the appointed day by the award of a boundary commission appointed or to be appointed by the Governor-General in that behalf, but until boundaries are so determined,
(a) the Bengal District specified in the First Schedule of this Act…………..shall be treated as the territories which are to be comprised as the new Province of East Bengal;
(b) the remainder of the territories comprised at the date of the passing of this Act in the Province of Bengal shall be treated as the territories which are to be comprised in the new Province of West Bengal.
Section 3, sub-s. (4), provided that the expression “award” means, in relation to a boundary commission, the decision of the Chairman of the commission contained in his report to the Governor-General at the conclusion of the commission’s proceedings. The Province of West Bengal is now known as the State of West Bengal and is a part of India, whereas the Province of East Bengal had become a part of Pakistan and was then known as East Pakistan.
Berubari Union No. 12
Berubari Union No. 12, with which we are concerned, had an area of 8.75 sq. miles and a population of ten to twelve thousand residents. It was situated in the police station Jalpaiguri in the District of Jalpaiguri, which was at the relevant time a part of Rajashahi Division. It had, however, not been specified in the First Schedule of the Independence Act, and if the matter had to be considered in the light of the said Schedule, it would be a part of West Bengal. But, as we shall presently point out, the First Schedule to the Independence Act did not really come into operation at all.
Partition of Punjab and Bengal- Radcliffe Commission
On June 30, 1947, the Governor-General made an announcement that it had been decided that the Province of Bengal and Punjab shall be partitioned. Accordingly, a boundary commission was appointed, inter alia, for Bengal consisting of four judges of High Courts and a Chairman to be appointed later. Sir Cyril Radcliffe was subsequently appointed as Chairman.
So far as Bengal was concerned the material terms of reference provided that the boundary commission should demarcate the boundaries of the two parts of Bengal on the basis of ascertaining the contiguous areas of muslims and non-muslims; in doing so it had also to take into account other factors. The commission then held its enquiry and made an award on August 12, 1947, which is known as the Radcliffe Award (hereinafter called the award). It would be noticed that this award was made three days before the appointed day under the Independence Act.
The report showed that the Chairman framed seven basic questions on the decision of which the demarcation of a boundary line between East-West Bengal depended. Question No. 6 is relevant for our purpose; it was framed in this way:
“C. 6. Which State’s claim ought to prevail in respect of the districts of Darjeeling and Jalpaiguri in which the muslim population amounted to 2.42% of the whole in the case of Darjeeling and 23.08% of the whole in the case of Jalpaiguri but which constituted an area not in any natural sense contiguous to another non-muslim area of Bengal?”
It appears that the members of the commission were unable to arrive at an agreed view on any of the major issues, and so the Chairman had no alternative but to proceed to give his own decision. Accordingly, the Chairman gave his decision on the relevant issues in these words: –
“The demarcation of the boundary line is described in detail in the schedule which forms annexure A to the award and in the map attached thereto, annexure B. The map is annexed for the purposes of illustration, and if there should be any divergence between the boundary as described in annexure A and as delineated on the map in annexure B the description in annexure A is to prevail.”
Paragraph 1 in annexure A is material. It provided that “a line shall be drawn along the boundary between the Thana of Phansidewa in the District of Darjeeling and the Thana Tetulia in the District of Jalpaiguri from the point where that boundary meets the Province of Bihar and then along the boundary between the Thanas of Tetulia and Rajganj, the Thanas of Pachagar and Rajganj and the Thanas of Pachagar and Jalpaiguri, and shall then continue along with northern corner of Thana of Debiganj to the boundary of the State of Cooch-Behar. The district of Darjeeling and so much of the district of Jalpaiguri as lies north of this line shall belong to West Bengal, but the Thana of Patgram and any other portion of Jalpaiguri District which lies to the east or south shall belong to East Bengal.”
Since the award came into operation three days before the day appointed under the Independence Act the territorial extent of the Province of West Bengal never came to be determined under Schedule I to the said Independence Act but was determined by the award. There was no dispute that since the date of award Berubari Union No. 12 had in fact formed part of the State of West Bengal and had been governed as such.
The Constitution of Constituent Assembly
Meanwhile the Constituent Assembly which began its deliberations on December 9, 1946, reassembled as the Sovereign Constituent Assembly for India after midnight of August 14, 1947, and it began its historic task of drafting the Constitution for India. A drafting committee was appointed by the Constituent Assembly and the draft prepared by it was presented to the Assembly on November 4, 1948. After due deliberations the draft passed through three readings and as finalised it was signed by the President of the Assembly and declared as passed on November 26, 1949.
On that date it became the Constitution of India; but, as provided by Art. 394, only specified articles came into force as from that date and the remaining provisions as from January 26, 1950, which day is referred to in the Constitution as the commencement of the Constitution.
Article 1 of the Constitution provides, inter alia, that India, that is Bharat, shall be a Union of States and that the States and the territories thereof shall be the States and their territories specified in Parts A, B and C of the First Schedule. West Bengal was shown as one of the States in Part A; and it was provided that the territory of the State of West Bengal shall comprise the territory which immediately before the commencement of the Constitution was comprised in the Province of West Bengal. In the light of the award Berubari Union No. 12 was treated as a part of the Province of West Bengal and as such has been treated and governed on that basis.
Boundary Issues between both countries
Subsequently, certain boundary disputes arose between India and Pakistan and it was agreed between them at the Inter-Dominion Conference held in New Delhi on December 14, 1948, that a tribunal should be set up without delay and in any case not later than January 31, 1949, for the adjudication and final decision of the said disputes. This tribunal is known as Indo-Pakistan Boundaries Disputes Tribunal, and it was presided over by the Hon’ble Lord Justice Algot Bagge. This tribunal had to consider two categories of disputes in regard to East-West Bengal but on this occasion no issue was raised about the Berubari Union. In fact no reference was made to the District of Jalpaiguri at all in the proceedings before the tribunal. The Bagge Award was made on January 26, 1950
The Question of Berubari Union
It was two years later that the question of Berubari Union was raised by the Government of Pakistan for the first time in 1952. During the whole of this period the Berubari Union continued to be in the possession of the Indian Union and was governed as a part of West Bengal. In 1952 Pakistan alleged that under the award Berubari Union should really have formed part of East Bengal and it had been wrongly treated as a part of West Bengal.
Apparently correspondence took place between the Prime Ministers of India and Pakistan on this subject from time to time and the dispute remained alive until 1958. In accordance with the directives issued by the Prima Ministers of India and Pakistan, on September 10, 1958, the Commonwealth Secretary, Ministry of External Affairs, Government of India and the Foreign Secretary, Ministry of Foreign Affairs and Commonwealth, Government of Pakistan, discussed 10 items of dispute between the two countries and signed a joint note recording their agreement in respect of the said disputes and submitted it to their respective Prima Ministers;
and with a view to removing causes of tension and resolving border disputes and problems relating to Indo-Pakistan Border Areas and establishing peaceful conditions along those areas, the Prima Ministers, acting on behalf of their respective Governments, entered into an agreement on Sep 10, 1958, settling some of the said disputes and problems in the manner set out in the said joint note. This agreement was called the Indo-Pakistan Agreement.
After the agreement, the question related to its promulgation arose and president referred the matter to supreme court for its advice.
Re: The Berubari Union v. Unknown (1960)