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CAN PARLIAMENT GIVE INDIAN TERRITORY TO A FOREIGN STATE? OVERVIEW RE BERUBARI UNION CASE

Author: Utkarsh Soni, II year of B.A.,LL.B. from Hidayatullah national law university


Introduction

The question in which the project is based on “Whether the power of Parliament to diminish the area of any state includes the power to cede Indian Territory to a foreign state? Critically analyse in the light of Re Berubari Union Case AIR 1960 SC 845.” So the main question is that whether the parliament can cede any part of the Indian Territory to any other foreign country. Also in the project we will discuss the important case of Re Beruberi union case AIR 1960 SC 845. The issue in this case was related to the agreement between India and Pakistan, the Nehru-Noon Agreement of 1958 where the area of berubari was ceded to Pakistan.


All the powers of the parliament comes from the document called constitution of India. Constitution is a legal document. India’s constitution is the lengthiest constitution in the world and it include 448 article divided into 25 parts and 12 schedules. Under the document all the rules, orders, powers of the parliament are given. So to alter any state or to increase the area or cede the area the parliament must be grated with these powers from the constitution of India. The part one of the constitution talks the union and its territory and it is covered in article 1 to 4.


The union and its territories (Article 1-4)

The article 1 of the constitution states, “1. Name and territory of the Union

(1) India, that is Bharat, shall be a Union of States

(2) The States and the territories thereof shall be as specified in the First Schedule

(3) The territory of India shall comprise.”[1]

Under the constitution the first article clearly states that, “India, that is, Bharat as a ‘union of states’”. It is clearly mentioned by Dr. Ambedkar because it was to make sure that no state shall withdraw from the union. In the assembly he stated that, “The Drafting Committee wanted to make it clear that while Indian was going to be a federation, the federation was not the product of an agreement between states to join the federation, and that since the federation was not the consequence of an agreement, no State had the right to withdraw from the federation. The Union is a federation because it is indestructible. Although for the convenience of administration, the country and people can be divided into different States, the country is an integral whole, its people a single people living under a single imperium coming from a single source. The Americans had to wage a civil war in order to make sure that their federation was indestructible and the States had no right of secession. The Drafting Committee was of the opinion that it was better to make it clear at the outset than to avoid speculation or dispute”.

“Article 2: Admission or establishment of new states: Parliament may by law admit into the Union or establish, new States on such terms and conditions, as it thinks fit.”[2]

Article 2 of the Indian constitution gives absolute powers to parliament to admit into union or establish a new states in the terms decided in the house and the house thinks fit. For example the settlements with French for pondicherry etc. Article 2 but restricts the power only to addition of new states which are not with of India. The establishment specifically not be the part of India.

Article 3 of the constitution provides that what all parliament can do the provision of law.

Art 3(a). States that parliament may by law form a new state by separating a part of state or either parliament can join two states and make one state or can join two territory and make one state.(b) Also parliament can increase the area of the state. (c) Parliament can reduce the area of any state, (d) Parliament canchenge the boundaries of any state, (e) also parliament can change the name of any state according to its discretion.


The 1st Schedule which gives names of the States in the Union of India and the 4th Schedule can both be changed consequentially under Article 4. (Number of seats allocated by each State to the Rajya Sabha). Additionally, it states that this doesn’t take an Article 368 constitutional change into consideration. Additionally, it declares that no measure establishing a new State or amending an existing State would be regarded as a constitutional amendment. It indicates absolute power of the center over the territory of the various States of the center and is consistent with earlier laws requiring a simple majority in Parliament.


ReBerubariunion case [AIR 1960 SC 845]

Introduction

This is the case where the executive head of India had consulted the apex court of India regarding the agreement made between India and Pakistan by Prime Minister Nehru also known as Nehru-Noon agreement. According to the agreement the central government wanted to give territory of berubari to Pakistan but the local state government of west Bengal in which the territory was there did not wanted to give a single piece of land to Pakistan. Therefore this matter went to Supreme Court. Also the point made in this case was again cleared and pointed out in the case of Kesavananda bharti decision which provided more clarity on the issue. Also the judgment provided idea of the preamble.


Facts

After the 1947 Independence Act, also known as the Mountbatten Plan, was passed, the two-nation hypothesis predicted that India would be split into Pakistan and India.


The issue now was what would be provided to India, and Pakistan faced a similar issue. The map for the same was not completed on that day as a result. In the coming five weeks, the region of India and Pakistan was to be divided by a surveyor named Sir Cyril John Radcliffe.


Even Radcliffe admitted to being somewhat perplexed, therefore he utilised the majoritarian concept to split the regions into those with the majority of residents in each. For instance, Pakistan was given the territories having a predominance of Muslims, whereas India was given the regions with a predominance of Hindus.


Radcliff granted India a territory in West Bengal's Jalpaiguri district known as Berubari, but he sadly neglected to include it in his printed map. Due to Pakistan taking advantage of the circumstance and beginning to claim Berubari, a disagreement between India and Pakistan developed as a result.


The Nehru-Noon Agreement was established in 1958 to address this problem. Through this arrangement, it was determined that India and Pakistan would split the Berubari territory evenly. But the President decided to pursue the issue under Article 143 of the Indian Constitution and sought advice from the Supreme Court.

Provisions concerned

1. Article 1(3)(c) of the Indian constitution.

2. Article 3 of the Indian constitution

3. Article 368 pf the Indian constitution.


Issue

1. Can parliament grant any part of land of a state to another foreign country as per article 3 of the constitution?


Arguments by government

The central government of India said that they are not cede land but they are giving land in exchange they are getting lands. So basically they are exchanging land therefore no legislative intervention is needed.


Exchange Enclaves’sarguments

The Preamble asserts that the parliament is powerless to alter the boundaries of the nation. In addition, Article 1(3)(c) states that the parliament may purchase territories but may not grant any territories to a foreign government.


Judgment

According to the Supreme Court, Article 3 of the Indian Constitution prohibits the parliament from transferring any state's territory to another nation. Only after changing Article 368 of the Indian Constitution may Parliament take such action. The Preamble is not a part of the Indian Constitution, according to the Supreme Court's subsequent ruling. Additionally, Article 1(3)(c) exclusively refers to gaining territories and does not mention ceding any land. Article 368 does, however, grant the authority to alter the Constitution, and Parliament is also permitted to amend Article 1 of the Constitution, but only after amending Article 368. The territory cannot be given to East Pakistan before that time. This indicates that both chambers of parliament must approve the Nehru-Noon Agreement. Only after revising Article 1 with a special majority of parliament may any Indian territory be surrendered to a foreign nation.


CONCLUSION

The supreme law of the land is the constitution. The body which is empowered to make is laws for the betterment and welfare of the state is parliament and the laws which the parliament make should not be derogatory with the constitution and should not breach the basic structure.


In the case of Berubari union the supreme court held that the parliament do not have any power to alter or give the territory to any other foreign national country under article 3 of the Indian constitution but they can do only after amending article 368 of the Indian constitution.


Therefore the parliament had to amendment the act and they brought 9th amendment act in 1960 and added schedule 1 of the Indian constitution and they finally the agreement between Nehru and Noon implemented and transferred the berubari union to Pakistan.

[1] Art.1 constitution of India 1949. [2] Art. 2 constitution of India 1949

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