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Re Berubari : Case Analysis by Mayurakshi Sarkar

 Re Berubari : Case Analysis

Introduction

In the case of Re Berubari Case, the States of Bengal and Punjab were to be partitioned. A boundary commission was appointed under the chairmanship of Sir Cyril Redcliffe for the purpose of apportionment of Bihar. A boundary was fixed between India and Pakistan known as the Redcliffe line. After this, there arose disputes between the two countries on the exact location of the apportionment. Sir Radcliffe apportioned the district of Jalpaiguri between the two countries by giving some thanas to India while others to Pakistan. During such a process, he omitted one thana, Berubari Union No. 12 and was later awarded to India on 12th August, 1947. The omission made by the commission and erroneous depiction on the map gave Pakistan the liberty to claim the territory belonged to it.

During all these, the Constitution of India came into force on 26th January, 1950. Article 1 of the Constitution of India provided that India shall be a Union of States and these shall be mentioned in the Part A, B and C of the First Schedule. West Bengal was included in Part A and Berubari Union No. 12 was also included in it as it was awarded by the Commission to India.

The Pakistani Government questioned the Berubari Union for the first time in 1952. The land remained to be in possession of India till such time was a part of West Bengal. The dispute was resolved in 1958 by way of an agreement wherein half of the Berubari Union was awarded to India while the other half was retained by India.

The then-President of India referred to the Supreme Court as to whether the Parliament possesses the power to transfer a territory to another country or not.

Issues:

The issue that came up before the Hon’ble Supreme Court were as follows:

  1. Whether there is a necessity of legislative action for the implementation of an agreement relating to the Berubari union?

  2. Whether the case where there is such a necessity, is a law of parliament in relation to Article 3 of the Constitution of India, 1950 sufficient for the purpose or is an amendment of constitution in accordance with article 368 of constitution necessary, in addition or in alternative?

  3. Whether the legislature in relation to Article 3 of the Constitution of India empowered to implement the agreement relating to Berubari’s Union or is there a need for amendment under Article 368 of the Constitution of India for the purpose of the implementation of the aforesaid agreement?

Rules:

Article 3(c) of the Constitution of India, 1950 states that parliament may by law ‘diminish the area of any state’. Even the widest interpretation of this Article would be insufficient to accept the argument that any territory of India may be transferred to a foreign State.

Article 368 of the Constitution of India, 1950 includes the Parliament’s power to amend the Constitution and also consists of the procedure for the same. With the help of this Article, the Parliament may make a law with which the Agreement can be enforced for the transfer of the part of Berubari Union No. 12 to Pakistan.

Analysis:

The Supreme Court interpreted the Articles in question in order to respond to the President’s query. The Court was of the opinion that Article 3 was incompetent in itself for the purpose of the implementation of the Agreement in question. It also said it is competent and necessary for a law to be made under Article 368 for the implementation. Also, there would be a necessity of a law of Parliament both in relation to Article 3 and 368 if there was an amendment to be made first in Article 3 and this would follow the use of the Amended Article for the implementation of the Agreement.

The Supreme Court must have considered that Article 3 is one of the initial parts of our Constitution. The Amendment to the same meant we are altering what the Constitution makers wanted for us and would make our Constitution seem weak in front of other countries. Instead of such a wide interpretation, the Supreme Court must have just said that a legislation under Article 368 would suffice to perform the agreement entered into.

Conclusion:

There are certain instances when the legislature seeks advice on the Constitutionality and legality of some of its actions. In my opinion, the Supreme Court must try to interpret the laws in such a way that it does not lower down the standard of the Indian Constitution our forefathers have given to us and it also does not fall down in the eyes of other countries tarnishing the image of the lengthiest Constitution of the world.


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