In Re: The Berubari Union & Exchange of Enclaves
AIR 1960 SC 845
Case Summary
[Amendment to the Constitution]
[Cession of Territory]
Facts
The Berubari Union case arose from a territorial dispute between India and Pakistan. Under the Radcliffe Line, Berubari Union No. 12 was originally allocated to India in the Partition. However, due to errors and ambiguities in the Radcliffe Award and maps, the boundary line dividing India and East Pakistan (now Bangladesh) became unclear, leading both countries to claim Berubari Union. To resolve the issue, the Nehru-Noon Agreement of 1958 was signed, stipulating the exchange of territories between India and Pakistan, including the transfer of Berubari Union to Pakistan. Following this agreement, a presidential reference under Article 143(1) of the Indian Constitution sought the Supreme Court's opinion on the legality of ceding Indian territory without amending the Constitution
Issues
The primary issue in the case was whether the Indian government could cede territory, specifically Berubari Union, to Pakistan without amending the Constitution.
Key Legal Provisions
1. Article 3 of the Constitution of India – This article empowers Parliament to create new states or alter state boundaries within the Union of India. However, it does not specifically allow ceding Indian territory to a foreign nation.
2. Article 143 – The President of India can seek the Supreme Court’s opinion on questions of law or fact of public importance under Article 143.
Judgement
The Supreme Court held that India could not transfer any part of its territory to a foreign nation without a constitutional amendment. The Court reasoned that Article 3 allows Parliament to alter state boundaries but does not authorize the cession of Indian territory to a foreign country. Consequently, any territorial exchange affecting India's sovereignty would require a constitutional amendment under Article 368. The Court further clarified that Article 143, which allows for the President's reference, does not authorize actions beyond the Constitution’s provisions. Thus, the Nehru-Noon Agreement, without a constitutional amendment, could not facilitate the transfer of Berubari Union.
Vikas Meena
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