In accordance with the directives issued by the Prime 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 Prime 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 Prime Ministers, acting on behalf of their respective Governments, entered into an agreement 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.
This agreement also contained the provision of partition of some land between both countries. The present case also concerns to that aspect of agreement.
Item 3 in paragraph 2 of the Agreement reads as follows: –
“(3) Berubari Union No. 12.
This will be so divided as to give half the area to Pakistan, the other half adjacent to India being retained by India. The Division of Berubari Union No. 12 will be horizontal, starting from the north-east corner of Debiganj Thana. The division should be made in such a manner that the Cooch-Behar Enclaves between Pachagar Thana of East Pakistan and Berubari Union No. 12 of Jalpaiguri Thana of West Bengal will remain connected as at present with Indian territory and will remain with India.
The Cooch-Behar Enclaves lower down between Boda Thana of East Pakistan and Berubari Union No. 12 will be exchanged along with the general exchange of enclaves and will go to Pakistan.”
Similarly, item 10 of the Agreement is as follows: –
“(10) Exchange of Old Cooch-Behar Enclaves in Pakistan and Pakistan Enclaves in India without claim to compensation for extra area going to Pakistan, is agreed to.”
Legal Puzzle after that
Subsequently a doubt had arisen whether the implementation of the Agreement relating to Berubari Union requires any legislative action either by way of a suitable law of Parliament relatable to Art. 3 of the Constitution or by way of a suitable amendment of the Constitution in accordance with the provisions of Art. 368 of the Constitution or both; and that a similar doubt has arisen about the implementation of the Agreement relating to the exchange of Enclaves;
and it further appeared that there is a likelihood of the constitutional validity of any action taken for the implementation of the Agreement relating to Berubari Union as well as the Agreement relating to the exchange of Enclaves being questioned in courts of law involving avoidable and protracted litigation; that is why the President thought that questions of law which had arisen are of such nature and of such importance that opinion of the Supreme Court of India should be obtained on this matter; and so, in exercise of the powers conferred upon him by clause (1) of Art. 143 of the Constitution, he referred the following three questions to Supreme Court for consideration and report thereon :-
(1) Is any legislative action necessary for the implementation of the Agreement relating to Berubari Union?
(2) 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?
(3) 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?
The Court Analysis
Ist- Preamble is the part of the Constitution
Contention was raised against the agreement that Parliament has no power to cede any part of the territory of India in favour of a foreign State either by ordinary legislation or even by the amendment of the Constitution; and so, according to him, the only opinion court can give on the Reference is that the Agreement is void and cannot be made effective even by any legislative process.
It was suggested that the preamble to the Constitution clearly postulates that like the democratic republican form of government the entire territory of India is beyond the reach of Parliament and cannot be affected either by ordinary legislation or even by constitutional amendment. The very first sentence in the preamble which declares that “We, the people of India, having solemnly resolved to constitute India into a sovereign democratic Republic“, irrevocably postulates that India geographically and territorially must always continue to be democratic and republican.
The other ground on which this contention was raised is founded on Art. 1(3)(c) of the Constitution which contemplates that “the territory of India shall comprise such other territories as may be acquired”, and it is argued that whereas the Constitution has expressly given to the country the power to acquire other territories it has made no provision for ceding any part of its territory; and in such a case the rule of construction, viz., expressio unius est exclusio alterius must apply.
But the court did not find any substance in these contentions. The court said that there is no doubt that the declaration made by the people of India in exercise of their sovereign will in the preamble to the Constitution is, in the words of Story, “a key to open the mind of the makers” which may show the general purposes for which they made the several provisions in the Constitution; but nevertheless the preamble is not a part of the Constitution, and, as Willoughby has observed about the preamble to the American Constitution, “it has never been regarded as the source of any substantive power conferred on the Government of the United States, or on any of its departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted”.
It is universally recognised that one of the attributes of sovereignty is the power to cede parts of national territory if necessary. At the highest it may perhaps be arguable that if the terms used in any of the articles in the Constitution are ambiguous or are capable of two meanings, in interpreting them some assistance may be sought in the objectives enshrined in the preamble.
IInd- Article 1(3)(c) does not confer power or authority on India to acquire territories.
There was other argument that the inclusion of the power to acquire must necessarily exclude the power to cede or alienate.
The court answered that Article 1(3)(c) does not confer power or authority on India to acquire territories. There can be no doubt that under international law two of the essential attributes of sovereignty are the power to acquire foreign territory as well as the power to cede national territory in favour of a foreign State. What Art. 1(3)(c) purports to do is to make a formal provision for absorption and integration of any foreign territories which may be acquired by India by virtue of its inherent right to do so. It may be that this provision has found a place in the Constitution not in pursuance of any expansionist political philosophy but mainly for providing for the integration and absorption of Indian territories which, at the date of the Constitution, continued to be under the dominion of foreign States; but that is not the whole scope of Art. 1(3)(c).
It refers broadly to all foreign territories which may be acquired by India and provides that as soon as they are acquired they would form part of the territory of India. Thus, on a true construction of Art. 1(3)(c) it is erroneous to assume that it confers specific powers to acquire foreign territories. The other answer to the contention is provided by Art. 368 of the Constitution.
That article provides for the procedure for the amendment of the Constitution and expressly confers power on Parliament in that behalf. The power to amend Constitution must inevitably include the power to amend Art. 1, and that logically would include the power to cede national territory in favour of a foreign State; and if that is so, it would be unreasonable to contend that there is no power in the sovereign State of India to cede its territory and that the power to cede national territory which is an essential attribute of sovereignty is lacking in the case of India.
III-Whether legislation or amendment needed for implementing a treaty?
The court answered that whether the treaty made can be implemented by ordinary legislation or by constitutional amendment will naturally depend on the provisions of the Constitution itself.
It was urged on behalf of the Union of India that if any legislative action is held to be necessary for the implementation of the Agreement a law of Parliament relatable to Art. 3 of the Constitution would be sufficient for the purpose; and if that be so, there would be no occasion to take any action under Art. 368 of the Constitution. The decision of this question will inevitably depend upon the construction of Art. 3 itself.
In the Indian Constitution, by contrast with other Federal Constitutions, the emphasis on the preservation of the territorial integrity of the constituent States is absent. The makers of the Constitution were aware of the peculiar conditions under which, and the reasons for which, the States (originally Provinces) were formed and their boundaries were defined, and so they deliberately adopted the provisions in Art. 3 with a view to meet the possibility of the redistribution of the said territories after the integration of the Indian States.
Article 3(c) deals with the problem of the diminution of the area of any State. Such diminution may occur where the part of the area of a State is taken out and added to another State, and in that sense Arts. 3(b) and 3(c) may in some cases be said to be co-related; but the question was, “does Art. 3(c) refer to a case where a part of the area of a State is taken out of that State and is not added to any other State but is handed over to a foreign State?”
The Attorney-General contended that the words used in Art. 3(c) are wide enough to include the case of the cession of national territory in favour of a foreign country which causes the diminution of the area of the State in question. But this contention could not impress the court.
The court was of the view that prima facie it appears unreasonable to suggest that the makers of the Constitution wanted to provide for the cession of national territory under Art. 3(c). If the power to acquire foreign territory which is an essential attribute of sovereignty is not expressly conferred by the Constitution, there is no reason why the power to cede a part of the national territory which is also an essential attribute of sovereignty should have been provided for by the Constitution. Both of these essential attributes of sovereignty are outside the Constitution and can be exercised by India as a sovereign State.
Therefore, even if Art. 3(c) receives the widest interpretation it would be difficult to accept the argument that it covers a case of cession of a part of national territory in favour of a foreign State. The diminution of the area of any State to which it refers postulates that the area diminished from the State in question should and must continue to be a part of the territory of India; it may increase the area of any other State or may be dealt with in any other manner authorised either by Art. 3 or other relevant provisions of the Constitution, but it would not cease to be a part of the territory of India. It would be unduly straining the language of Art. 3(c) to hold that by implication it provides for cases of cession of a part of national territory. Therefore, the court held that the power to cede national territory cannot be read in Art. 3(c) by implication. If a part of the Union territories has to be ceded to a foreign State, no law relatable to Art. 3 would be competent in respect of such cession.
The court further said that if that be the true position cession of a part of the Union territories would inevitably have to be implemented by legislation relatable to Art. 368; and that, in our opinion, strongly supports the construction which we are inclined to place on Art. 3(c) even in respect of cession of the area of any State in favour of a foreign State. It would be unreasonable, illogical and anomalous to suggest that, whereas the cession of a part of the Union territories has to be implemented by legislation relatable to Art. 368, cession of a part of the State territories can be implemented by legislation under Art. 3.
Therefore, the court did not accept the contention of the Attorney-General that, an agreement which involves a cession of a part of the territory of India in favour of a foreign State can be implemented by Parliament by passing a law under Art. 3 of the Constitution.
If not Article 3 then Article 368?
The court concluded that t it would not be competent to Parliament to make a law relatable to Art. 3 of the Constitution for the purpose of implementing the Agreement. It was conceded by the Attorney-General that this conclusion must inevitably mean that the law necessary to implement the Agreement has to be passed under Art. 368.
On this, the court answered that they have already held that the Agreement amounts to a cession of a part of the territory of India in favour of Pakistan; and so its implementation would naturally involve the alteration of the content of and the consequent amendment of Art. 1 and of the relevant part of the First Schedule to the Constitution, because such implementation would necessarily lead to the diminution of the territory of the Union of India. Such an amendment can be made under Art. 368. This position is not in dispute and has not been challenged before them; so it follows that acting under Art. 368 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. Parliament may, however, if it so chooses, pass a law amending Art. 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 Art. 3 to implement the Agreement in question. On the other hand, if the necessary law is passed under Art. 368 itself that alone would be sufficient to implement the Agreement.
Re: Berubari Union v. unknown (1960)