The “Re Berubari Case 1960 UPSC” an Important Case related to Preamble of the Indian Constitution
The Re Berubari Case 1960 is an important topic in any exam be it the Civil Services Exam of UPSC or State Services, Judicial Services Exam, or any other exam. This article gives details of the Re Berubari Case 1960.
Table of Contents
What is Berubari and where is it located?
Before India’s independence in 1947, Berubari was situated in the Jalpaiguri district of West Bengal. During the 1947 partition, a boundary commission led by Cyril Radcliffe was established to delineate the border between India and Pakistan. On August 12, 1947, Radcliffe drew the boundary, known as the Radcliffe Line, which divided India and Pakistan, including what later became Bangladesh.
Radcliffe Line delineating the border between India and Pakistan
Berubari town lies in the Jalpaiguri district of West Bengal.
Image Source: Google Map
A Small Error That Led to the Dispute
The boundary demarcation by Radcliffe contained several ambiguities and issues. One such issue involved the Berubari Union No. 12 enclaves within the larger Berubari area. According to the 1951 Census of India, Berubari Union No. 12 covered approximately 8.75 square miles (22.7 square kilometers) and had a population of around 12,000 people predominantly Hindus. Although Radcliffe assigned Berubari Union No. 12 to India, he failed to clearly indicate this on his map.
Clusters, including Berubari Union No. 12, between India and Bangladesh
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Pakistan identified this oversight in 1952 and began to claim Berubari Union No. 12 as part of East Bengal, and thus part of Pakistan. To address the dispute, the issue was referred to the Indo-Pakistan Boundary Disputes Tribunal, established in 1948 to resolve boundary issues between the two countries. However, the tribunal was unable to resolve this particular dispute.
Nehru-Noon Agreement, September 1958
After the tribunal failed to resolve the boundary disputes, the issue was addressed politically. On September 10, 1958, the Prime Minister of India, Jawaharlal Nehru, and the Prime Minister of Pakistan, Feroze Khan Noon, signed an agreement to divide the Berubari Union horizontally between the two countries. This agreement became known as the India-Pakistan Agreement or the Nehru-Noon Agreement.
Prime Minister of India Jawaharlal Nehru with Prime Minister of Pakistan, Firoz Khan Noon in September 1958,
Image Source: https://www.noon-foundation.org/in-memory-of-vn
Prime Minister Nehru was of the opinion that the agreement can be implemented without the need of any legislation as there was no mutual gain or loss of territory and it was just mutual transfer of equal territories between the two countries.
However, the Chief Minister of West Bengal at the time, Bidhan Chandra Roy, opposed the partition of the Berubari Union. Moreover, no opinion of people was being taken into account, particularly of the affected region.
One of the points in the India-Pakistan Agreement was related to Berubari Union No. 12. This point is given below:
“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.”
President Seeks Opinion of the Supreme Court, 1959
When the agreement came before the then President, Dr. Rajendra Prasad, he had doubts about its implementation. To seek clarity, and in accordance with Article 143(1) of the Constitution of India, on April 1, 1959, President Dr. Rajendra Prasad requested the opinion of the Supreme Court of India. He raised the following questions:
- Is any legislative action necessary for implementing the Agreement relating to Berubari Union No. 12?
- If so, is a law of Parliament under Article 3 of the Constitution sufficient, or is a constitutional amendment under Article 368 necessary, either additionally or alternatively?
- Is a law of Parliament under Article 3 sufficient for implementing the Agreement relating to the Exchange of Enclaves, or is a constitutional amendment under Article 368 necessary, either additionally or alternatively?
“In Re: The Berubari Union and Exchange of Enclaves, 1960” or the Berubari Case
The Supreme Court of India formed an eight-judge bench, headed by Chief Justice B. Sinha, to address these questions. On March 14, 1960, the Supreme Court delivered its judgment in the case “In Re: The Berubari Union and Exchange of Enclaves.”
Note: “In Re” is a Latin phrase meaning “in regard to” or “in reference to.” It is used in cases where the Supreme Court exercises its advisory jurisdiction under Article 143(1) of the Indian Constitution.
Parts and Articles of the Constitution Discussed in the Berubari Case
During the arguments, the following parts of the Constitution were discussed:
- The Preamble, as it says India to be a sovereign nation and cessation of territory would mean compromising with the sovereignty of the nation.
- Article 1, which defines India as a Union of States and details the names and territories of the States and the Union.
- Article 3, which addresses the formation of new States and the alteration of areas, boundaries, or names of existing States.
- Article 368, which outlines the powers and procedures for Parliament to amend the Constitution.
Supreme Court Judgment in the Berubari Case “In Re: The Berubari Union and Exchange of Enclaves, 1960”
The main points of the Supreme Court’s judgment in the Berubari Case regarding the three questions raised by the President were:
- Dividing Berubari Union No. 12 involves ceding Indian territory.
- The Preamble cannot limit Parliament’s authority to cede any part of the national territory. The Supreme Court noted that the Preamble states, “We, the people of India, having solemnly resolved to constitute India into a sovereign democratic Republic,” and clarified that “the preamble is not a part of the Constitution.”
- Article 1(3)(c) of the Constitution does not provide the right to acquire foreign territories or cede domestic territory. Under Article 368 of the Constitution, Parliament can amend Article 1(3)(c) to enable the transfer of national territory.
- Amending the Constitution according to Article 368 is necessary for ceding any part of the country’s territory.
- Article 3 of the Constitution specifies that if a Bill affects the area, boundaries, or name of any State, the Bill must be referred by the President to the Legislature of that State. The State must provide its views within the prescribed period. If the law to implement the Agreement is passed under Article 368, it must meet the requirements of that Article.
The Constitution (Ninth Amendment) Act, 1960
In December 1960, the Union Government led by Prime Minister Jawaharlal Nehru enacted the Constitution (Ninth Amendment) Act, 1960. This Act facilitated the cession of Berubari Union No. 12 to Pakistan as outlined in the Indo-Pakistan Agreement of 1958 and the Supreme Court’s judgment in the Berubari Case or the “In Re: The Berubari Union and Exchange of Enclaves” case.
The Constitution (Ninth Amendment) Act, 1960, was challenged in the Supreme Court in the “Ram Kishore Sen & Ors. v. Union of India” writ. In 1966, the Supreme Court dismissed the petitions challenging the Act.
No Division of Berubari Union No. 12
Following the Constitution (Ninth Amendment) Act, 1960, the Union Government scheduled the exchange of territories with Pakistan in the western region for January 17, 1961. However, no date was set for the exchange of territories in the eastern region. Consequently, the planned division of the Berubari Union did not occur, and no enclaves were exchanged or partitioned.
In March 1971, East Pakistan declared independence from Pakistan and became Bangladesh.
Gandhi-Mujibur Agreement, 1974
On May 16, 1974, the Prime Minister of India, Indira Gandhi, and the Prime Minister of Bangladesh, Sheikh Mujibur Rahman, signed an agreement, known as the Land Boundary Agreement, to resolve outstanding boundary disputes, including those in the Berubari region. This agreement required parliamentary enactment. However, due to a political crisis faced by Indira Gandhi’s government, no law was passed to ratify the agreement, causing delays.
Prime Minister of India, Indira Gandhi with Prime Minister of Bangladesh, Sheikh Mujibur Rahman, in May 1974 in the newspaper headlines.
Image Source: https://www.daily-sun.com/printversion/details/482012/Bangabandhu-in-India
The Constitution (One Hundredth Amendment) Act, 2015
In 2015, during the administration of Prime Minister Narendra Modi, the Parliament passed the Constitution (One Hundredth Amendment) Act, 2015. President Pranab Mukherjee gave his assent to the Act on May 28, 2015. This Act amended the Constitution of India to facilitate the acquisition of territories by India and the transfer of certain territories to Bangladesh, as per the agreement and its protocol between the Indian and Bangladeshi governments.
Transfer of Enclaves
On June 6, 2015, Prime Minister Narendra Modi ratified the agreement during his visit to Dhaka, the capital of Bangladesh. In the presence of Modi and Bangladeshi Prime Minister Sheikh Hasina, the foreign secretaries of the two countries signed the instruments for the land exchange. The exchange of enclaves, land parcels in adverse possession, and boundary demarcation were implemented in phases from July 31, 2015, to June 30, 2016. The enclaves were officially exchanged at midnight on July 31, 2015.
Prime Minister of India, Narendra Modi with Prime Minister of Bangladesh, Sheikh Hasina, in June 2015.
Image Source: https://www.voanews.com/a/indian-prime-minister-seals-border-other-deals-with-dhaka/2810892.html
Thus it was logical end of the Berubari Case of 1960.
Source: https://www.mea.gov.in/Uploads/PublicationDocs/24529_LBA_MEA_Booklet_final.pdf
Written By: Brijesh Singh