The questions whether the Preamble of the Constitution of India is the part of the Constitution or not is dealt with in two cases i. Berubari Case and Kesavananda Bharati Case. Berubari case was the Presidential Reference Under Art. The case is considered by a bench of eight Judges.
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It was decided by a seven-judge bench of the Honourable Supreme Court. For the purpose of portioning Bengal, a boundary commission was appointed with Sir Cyril Redcliffe as its chairman.
He fixed the boundary of India and Pakistan known as Redcliffe line. However, dispute arose between the two governments by reason of different interpretations put by them in the award. Dispute arose in respect of the exact location of the said boundary. Berubari Union no. Radcliffe had divided the district of Jalpaigudi between India and Pakistan by awarding some thanas to one country and others to the other country.
The boundary line was determined on the basis of the boundaries of the thanas. In describing this boundary, Radcliffe omitted to mention one Thana. Berubari Union No. The commission presented the award on 12th August, However, the omission of the Thana Boda and the erroneous depiction on the map enabled Pakistan to claim that a part of Berubari belonged to it. Meanwhile, on 26th January, the constitution of India came into force.
Article 1 of the Constitution provides 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. In the light of the award Berubari Union No. The question of Berubari union was raised by Pakistan government for the first time in Till this period, it continued to be a possession of Indian Union and a part of West Bengal.
The dispute was brought to an end by the agreement in the year according to which half of the Berubari Union was awarded to Pakistan and half of it adjacent to India was retained by India. Four cooch behar enclave contiguous of this part was also awarded to Pakistan. The President referred to the Supreme Court that whether Parliament possesses the power to transfer the territory to Pakistan or not. Issues before Supreme Court Is there any legislative action necessary for the implementation of agreement relating to Berubari union?
If so, is a law of parliament relatable to article 3 of constitution sufficient for the purpose or is an amendment of constitution in accordance with article of constitution necessary, in addition or in alternative?
Is a law of parliament relatable to article 3 of the constitution sufficient for implementation of agreement relating to exchange of enclaves or is an amendment of the constitution in accordance with article of constitution necessary for purpose in addition or in the alternative?
Ratio of the Court As authored by Justice Gajendragadkar The Supreme Court, in the present case, mentioned that there is no trace in the Agreement of any attempt to interpret the award or to determine what the award really meant. India was prepared to give half of the area to Pakistan to ensure friendly relations and remove causes of tension between them. It also went further to mention that a sovereign state can acquire foreign territory and can, in case of necessity, cede a part of its territory in favour of a foreign State, and this can be done in exercise of its treaty-making power.
Cession of national territory in law amounts to the transfer of sovereignty over the said territory by the owner-State in favour of another State. The treaty-making power would have to be exercised in the manner contemplated by the Constitution and subject to the limitations imposed by it. Whether the treaty made can be implemented by ordinary legislation or by constitutional amendment will naturally depend on the provisions of the Constitution itself.
Article 3 of the Constitution of India mentions how parliament by law may form a new state, increase, diminish or alter the boundaries of any 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.
Therefore, the Supreme Court concluded that it would not be competent to parliament to make a law relatable to art 3 for purpose of implementing the agreement. Law necessary to implement the agreement has to be passed under art Article states the power of parliament to amend the constitution and procedure for the same. According to Art. If the law in regard to the implementation of the Agreement is to be passed under Art.
Decision Held The Supreme Court held that the legislative action is necessary for implementation of agreement relating to Berubari union.
Same procedure would be followed for implementation of agreement relating to exchange of enclaves.
Kesavananda Bharati Vs. State of Kerala – Case Summary
Download What is the Berubari case ? At the time of partition of India and Pakistan, the task of demarcation of boundaries was assigned to Sir Radcliffe. This was to ensure no bias while demarcation He distributed Thanas between India and Pakistan and the boundaries of such Thanas would going to be the ultimate boundary between India and Pakistan. Radcliffe awarded it to India but unfortunately it was not mentioned in the written text of the award. This gave opportunity to Pakistan to claim on Berubari, citing a reason that Berubari falls in the map of Pakistan. Dispute continued till Nehru-Noon agreement was signed in between India and Pakistan.
Indian Constitution Mcqs
Road connecting Dahgram-Angarpota enclave with mainland Bangladesh. The border fence around Tin Bigha Corridor. Bangladesh did hand over the sovereignty of the smaller South Berubari to India instantly in India, however, could not transfer the Tin Bigha Corridor to Bangladesh as it required constitutional amendment which could not be done due to political reasons. South Berubari, meanwhile, would remain in the possession of India. The area of the four Cooch Behar enclaves which would also have to go to Bangladesh was 6. The Bangladesh enclaves, Dahagram and Angorpota, were to be transferred to India.