(Reference by the President of India under Article 143(1) of the Constitution of India on
the implementation of the Indo-Pakistan Agreement relating to Berubari Union and
Exchange of Enclaves)
P.B. GAJENDRAGADKAR, J – 2. In the present Reference we are concerned with
two items of the agreement; Item 3 in para 2 of the agreement reads as follows:
“(3) Berubari Union 12:
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 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 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 12 will be
exchanged along with the general exchange of enclaves and will go to Pakistan.”
Similarly Item 10 of the Agreement is as follows:
“(10) Exchange of old Cooch-Behar Enclaves in Pakistan and Pakistan Enclaves in
India without claim to compensation for extra area going to Pakistan, is agreed to.”
3. It appears that subsequently a doubt has arisen whether the implementation of the
Agreement relating to Berubari Union requires any legislative action either by way of a
suitable law of Parliament relatable to Article 3 of the Constitution or by way of a suitable
amendment of the Constitution in accordance with the provisions of Article 368 of the
Constitution or both; and that a similar doubt has arisen about the implementation of the
Agreement relating to the exchange of Enclaves; and it further appears that there is a
likelihood of the constitutional validity of any action taken for the implementation of the
Agreement relating to Berubari Union as well as the Agreement relating to the exchange of
Enclaves being questioned in courts of law involving avoidable and protracted litigation; that
is why the President thought that questions of law which have arisen are of such nature and of
such importance that it is expedient that the opinion of the Supreme Court of India should be
obtained thereon; and so, in exercise of the powers conferred upon him by clause (1) of
Article 143 of the Constitution, he has referred the following three questions to this Court for
consideration and report thereon:
38
(1) Is any legislative action necessary for the implementation of the Agreement
relating to Berubari Union?
(2) If so, is a law of Parliament relatable to Article 3 of the Constitution sufficient for
the purpose or is an amendment of the Constitution in accordance with Article 368 of the
Constitution necessary, in addition or in the alternative?
(3) Is a law of Parliament relatable to Article 3 of the Constitution sufficient for
implementation of the agreement relating to Exchange of Enclaves or is an amendment of
the Constitution in accordance with Article 368 of the Constitution necessary for the
purpose, in addition or in the alternative?
4. On 20-2-1947, the British Government announced its intention to transfer power in
British India to Indian hands by June 1948. On 3-6-1947, the said Government issued a
statement as to the method by which the transfer of power would be effected. On July 18,
1947, the British Parliament passed the Indian Independence Act, 1947. This Act was to come
into force from August 15, 1947, which was the appointed day. As from the appointed day
two independent Dominions, it was declared, would be set up in India to be known
respectively as India and Pakistan. Section 2 of the Act provided that subject to the provisions
of sub-sections (3) and (4) of Section 2 the territories of India shall be the territories under the
sovereignty of His Majesty which immediately before the appointed day were included in
British India except the territories which under sub-section (2) of Section 2 were to be the
territories of Pakistan. Section 3, sub-section (1), provided, inter alia, that as from the
appointed day the Province of Bengal as constituted under the Government of India Act,
1935, shall cease to exist and there shall be constituted in lieu thereof two new Provinces to
be known respectively as East Bengal and West Bengal. Sub-section (3) of Section 3
provided, inter alia, that the boundaries of the new Provinces aforesaid shall be such as may
be determined whether before or after the appointed day by the award of a boundary
commission appointed or to be appointed by the Governor-General in that behalf, but until
boundaries are so determined, (a) the Bengal District specified in the First Schedule of this
Act … shall be treated as the territories which are to be comprised as the new Province of East
Bengal; (b) the remainder of the territories comprised at the date of the passing of this Act in
the Province of Bengal shall be treated as the territories which are to be comprised in the new
Province of West Bengal. Section 3, sub-section (4), provided that the expression “award”
means, in relation to a boundary commission, the decision of the Chairman of the commission
contained in his report to the Governor-General at the conclusion of the commission’s
proceedings. The Province of West Bengal is now known as the State of West Bengal and is a
part of India, whereas the Province of East Bengal has become a part of Pakistan and is now
known as East Pakistan.
5. Berubari Union 12, with which we are concerned, has an area of 8.75 sq miles and a
population of ten to twelve thousand residents. It is situated in the Police Station Jalpaiguri in
the District of Jalpaiguri, which was at the relevant time a part of Rajashahi Division. It has,
however, not been specified in the First Schedule of the Independence Act, and if the matter
had to be considered in the light of the said Schedule, it would be a part of West Bengal. But,
39
as we shall presently point out, the First Schedule to the Independence Act did not really
come into operation at all.
6. On 30-6-1947, the Governor-General made an announcement that it had been decided
that the Province of Bengal and Punjab shall be partitioned. Accordingly, a boundary
commission was appointed, inter alia, for Bengal consisting of four judges of High Courts and
a Chairman to be appointed later. Sir Cyril Radcliffe was subsequently appointed as
Chairman. So far as Bengal was concerned the material terms of reference provided that the
boundary commission should demarcate the boundaries of the two parts of Bengal on the
basis of ascertaining the contiguous areas of muslims and non-muslims; in doing so it had
also to take into account other factors. The Commission then held its enquiry and made an
award on 12-8-1947, which is known as the Radcliffe Award (“the award”). It would be
noticed that this award was made three days before the appointed day under the Independence
Act.
8. Subsequently, certain boundary disputes arose between India and Pakistan and it was
agreed between them at the Inter-Dominion Conference held in New Delhi on 14-12-1948,
that a tribunal should be set up without delay and in any case not later than 31-1-1949, for the
adjudication and final decision of the said disputes. This Tribunal is known as Indo-Pakistan
Boundaries Disputes Tribunal, and it was presided over by the Hon’ble Lord Justice Algot
Bagge. This Tribunal had to consider two categories of disputes in regard to East-West
Bengal but on this occasion no issue was raised about the Berubari Union. In fact no reference
was made to the District of Jalpaiguri at all in the proceedings before the Tribunal. The Bagge
Award was made on 26-1-1950.
9. It was two years later that the question of Berubari Union was raised by the
Government of Pakistan for the first time in 1952. During the whole of this period the
Berubari Union continued to be in the possession of the Indian Union and was governed as a
part of West Bengal. In 1952 Pakistan alleged that under the award Berubari Union should
really have formed part of East Bengal and it had been wrongly treated as a part of West
Bengal. Apparently correspondence took place between the Prime Ministers of India and
Pakistan on this subject from time to time and the dispute remained alive until 1958. It was
under these circumstances that the present Agreement was reached between the two Prime
Ministers on 10-9-1958. That is the background of the present dispute in regard to Berubari
Union 12.
14. On behalf of the Union of India the learned Attorney-General has contended that no
legislative action is necessary for the implementation of the Agreement relating to Berubari
Union as well as the exchange of enclaves. In regard to the Berubari Union he argues that
what the Agreement has purported to do is to ascertain or to delineate the exact boundary
about which a dispute existed between the two countries by reason of different interpretations
put by them on the relevant description contained in the award; the said Agreement is merely
the recognition or ascertainment of the boundary which had already been fixed and in no
sense is it a substitution of a new boundary or the alteration of the boundary implying any
alteration of the territorial limits of India. He emphasises that the ascertainment or the
settlement of the boundary in the light of the award by which both Governments were bound,
40
is not an alienation or cession of the territory of India, and according to him, if, as a result of
the ascertainment of the true boundary in the light of the award, possession of some land has
had to be yielded to Pakistan it does not amount to cession of territory; it is merely a mode of
settling the boundary. The award had already settled the boundary; but since a dispute arose
between the two Governments in respect of the location of the said boundary the dispute was
resolved in the light of the directions given by the award and in the light of the maps attached
to it. Where a dispute about a boundary thus arises between two States and it is resolved in the
light of an award binding on them the agreement which embodies the settlement of such a
dispute must be treated as no more than the ascertainment of the real boundary between them
and it cannot be treated as cession or alienation of territory by one in favour of the other.
According to this argument there was neither real alteration of the boundary nor real
diminution of territory, and there would be no occasion to make any alteration or change in
the description of the territories of West Bengal in the First Schedule to the Constitution.
15. It is also faintly suggested by the learned Attorney-General that the exchange of
Cooch-Behar Enclaves is a part of the general and broader agreement about the Berubari
Union and in fact it is incidental to it. Therefore, viewed in the said context, even this
exchange cannot be said to involve cession of any territory.
18. It is, however, urged that in regard to the making of treaties and implementing them
the executive powers of the Central Government are co-extensive and co-incidental with the
powers of Parliament itself. This argument is sought to be based on the provisions of certain
articles to which reference may be made. Article 53(1) provides that the executive power of
the Union shall be vested in the President and shall be exercised by him either directly or
through officers subordinate to him in accordance with the Constitution. Article 73 on which
strong reliance is placed prescribes the extent of the executive power of the Union. Article
73(1) says “that subject to the provisions of this Constitution the executive power of the
Union shall extend (a) to the matters with respect to which Parliament has power to make
laws; and (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the
Government of India by virtue of any treaty or agreement provided that the executive power
referred to in sub-clause (a) shall not save as expressly provided in this Constitution or in any
law made by Parliament, extend in any State to matters with respect to which the legislature
of the State has also the power to make laws”; and Article 74 provides that there shall be a
Council of Ministers with the prime Minister at the head to aid and advise the President in the
exercise of his functions; and Article 74(2) lays down that the question whether any, and if so
what, advice was tendered by the Ministers to the President shall not be inquired into in any
court. According to the learned Attorney-General the powers conferred on the Union
executive under Article 73(l)(a) have reference to the powers exercisable by reference to
Entry 14, List I, in the Seventh Schedule, whereas the powers conferred by Article 73(l)(b)
are analogous to the powers conferred on the Parliament by Article 253 of the Constitution.
Indeed the learned Attorney-General contended that this position is concluded by a decision
of this Court in Ram Jawaya Kapur v. State of Punjab (1955) II SCR 225. Dealing with the
question about the limits within which the executive Government can function under the
Indian Constitution Chief Justice Mukherjea, who delivered the unanimous decision of the
Court, has observed that “the said limits can be ascertained without much difficulty by
41
reference to the form of executive which our Constitution has set up”, and has added, “that
the executive function comprised both the determination of the policy as well as carrying it
into execution. This evidently includes the initiation of legislation, maintenance of order, the
promotion of social and economic welfare, the direction of foreign policy, in fact the carrying
on or supervision of the general administration of the State”. It is on this observation that the
learned Attorney-General has founded his argument.
23. What is true about the Agreement in respect of Berubari Union 12 is still more
emphatically true about the exchange of Cooch-Behar Enclaves. Indeed the learned AttorneyGeneral’s argument that no legislation is necessary to give effect to the Agreement in respect
of this exchange was based on the assumption that this exchange is a part of a larger and
broader settlement and so it partakes of its character. Union Since we have held that the
agreement in respect of Berubari Union 12 itself involves the cession of Enclaves the territory
of India a fortiori the Agreement in respect of exchange of Cooch-Behar Enclaves does
involve the cession of Indian territory. That is why the question about this exchange must also
be considered on the footing that a part of the territory of India has been ceded to Pakistan;
besides it is clear that unlike Questions 1 and 2 the third question which has reference to this
exchange postulates the necessity of legislation.
24. In this connection we may also deal with another argument urged by the learned
Attorney-General. He contended that the implementation of the Agreement in respect of
Berubari Union would not necessitate any change in the First Schedule to the Constitution
because, according to him, Berubari Union was never legally included in the territorial
description of West Bengal contained in the said Schedule. We are not impressed by this
argument either. As we have already indicated, since the award was announced Berubari
Union has remained in possession of India and has been always treated as a part of West
Bengal and governed as such. In view of this factual position there should be no difficulty in
holding that it falls within the territories which immediately before the commencement of the
Constitution were comprised in the Province of West Bengal. Therefore, as a result of the
implementation of this Agreement the boundaries of West Bengal would be altered and the
content of Entry 13 in the First Schedule to the Constitution would be affected.
25. Before we part with this topic we ought to refer to the decision of the Australian High
Court in State of South Australia v. State of Victoria, 12 CLR 667 on which reliance has
been placed by the learned Attorney-General. In that case the boundary between the State of
South Australia and the State of New South Wales was by Act 4 and 5 Will. IV, c. 95 and the
Letters Patent issued under that Act defined to be the 141st meridian of East Longitude. In
1847, by the authority of the Governors of New South Wales ad South Australia and with the
knowledge and approval of the Secretary of State a line was located and marked on the
ground as being the 141st meridian, but it was discovered in 1869 that the said line was in fact
about two miles to the westward of that meridian. The line marked in 1847 had, however,
been proclaimed by the respective Governors as the boundary and was the de facto boundary
thenceforward. In dealing with the dispute which had arisen in respect of the true boundary
between the two States Griffith, C.J., referred to the fixation of the boundary in 1847 and
observed that “the real transaction is the ascertainment of a fact by persons competent to
ascertain it, and a finding of fact so made, and accepted by both, is in the nature of an award
42
or judgment in rem binding upon them and all persons claiming under them”. The said
dispute was subsequently taken to the Privy Council and it was held by the Privy Council that
“on the true construction of the Letters Patent it was contemplated that the boundary line of
the 141st meridian of East Longitude should be ascertained and represented on the surface of
the earth so as to form a boundary line dividing the two colonies, and that it therefore
implicitly gave to the executive of the two colonies power to do such acts as were necessary
for permanently fixing such boundaries” (LR) 1914 AC 283 at p. 309. The Privy Council also
observed that “the material facts showed that the two Governments made with all care a
sincere effort to represent as closely as was possible the theoretical boundary assigned by the
Letters Patent by a practical line of demarcation on the earth’s surface. There is no trace of
any intention to depart from the boundary assigned, but only to reproduce it, and as in its
nature it was to have the solemn status of a boundary of jurisdiction Their Lordships have no
doubt that it was intended by the two executives to be fixed finally as the statutable boundary
and that in point of law it was so fixed”. It would thus be clear that the settlement of the
boundaries which was held not to amount to an alienation in that case had been made wholly
by reference to, and in the light of, the provision of the parliamentary statute to which
reference already been made. What was done in 1847 by the parties who had authority to deal
with the matter was to locate and mark a line on the ground which was held to be the 141st
meridian though it is true that in 1869 it was discovered that the line so fixed was about two
miles to the westward of the meridian. This was not a case where contracting parties
independently determined the line with a view to settle the dispute between the two respective
States. What they purported to do was to determine the line in accordance with the provisions
of the parliamentary statute. In the present case, as we have already pointed out, the position
of the agreement is essentially different; it does not purport to be based on the award and has
been reached apart from, and independently of, it. Therefore, we do not think that the learned
Attorney-General can derive any assistance from the decision in the case of State of South
Australia v. State of Victoria in support of his construction of the Agreement.
26. In view of our conclusion that the agreement amounts to cession or alienation of a
part of Indian territory and is not a mere ascertainment or determination of the boundary in
the light of, and by reference to, the award, it is not necessary to consider the other contention
raised by the learned Attorney-General that it was within the competence of the Union
executive to enter into such an Agreement, and that the Agreement can be implemented
without any legislation. It has been fairly conceded by him that this argument proceeds on the
assumption that the Agreement is in substance and fact no more than the ascertainment or the
determination of the disputed boundary already fixed by the award. We need not, therefore,
consider the merits of the argument about the character and extent of the executive functions
and powers nor need we examine the question whether the observations made by Mukherjee,
C.J., in the case of Ram Jawaya Kapur in fact lend support to the said argument, and if they
do, whether the question should not be reconsidered.
27. At this stage it is necessary to consider the merits of the rival contention raised by Mr
Chatterjee before us. He urges that even Parliament has no power to cede any part of the
territory of India in favour of a foreign State either by ordinary legislation or even by the
amendment of the Constitution; and so, according to him, the only opinion we can give on the
43
Reference is that the Agreement is void and cannot be made effective even by any legislative
process. This extreme contention is based on two grounds. It is suggested that the preamble to
the Constitution clearly postulates that like the democratic republican form of government the
entire territory of India is beyond the reach of Parliament and cannot be affected either by
ordinary legislation or even by constitutional amendment. The makers of the Constitution
were painfully conscious of the tragic partition of the country into two parts, and so when
they framed the Constitution they were determined to keep the entire territory of India as
inviolable and sacred. The very first sentence in the preamble which declares that “We, the
people of India, having solemnly resolved to constitute India into a sovereign democratic
republic”, says Mr Chatterjee, irrevocably postulates that India geographically and
territorially must always continue to be democratic and republican. The other ground on
which this contention is raised is founded on Article 1(3)(c) of the Constitution which
contemplates that “the territory of India shall comprise such other territories as may be
acquired”, and it is argued that whereas the Constitution has expressly given to the country
the power to acquire other territories it has made no provision for ceding any part of its
territory; and in such a case the rule of construction viz. expressio unius est exclusio alterius
must apply. In our opinion, there is no substance in these contentions.
31. What then is the nature of the treaty-making power of a sovereign State? That is the
next problem which we must consider before addressing ourselves to the questions referred to
us for our opinion. As we have already pointed out it is an essential attribute of sovereignty
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. There can be no doubt that such
cession is possible and indeed history presents several examples of such transfer of
sovereignty. It is true as Oppenheim has observed that “hardship is involved in the fact that in
all cases of cession the inhabitants of the territory who remain lose their old citizenship and
are handed over to a new sovereign whether they like it or not”; and he has pointed out that “it
may be possible to mitigate this hardship by stipulating an option to emigrate within a certain
period in favour of the inhabitants of ceded territory as means of averting the charge that the
inhabitants are handed over to a new sovereign against their will”. But though from the
human point of view great hardship is inevitably involved in cession of territory by one
country to the other there can be no doubt that a sovereign State can exercise its right to cede
a part of its territory to a foreign State. This power, it may be added, is of course subject to the
limitations which the Constitution of the State may either expressly or by necessary
implication impose in that behalf; in other words, the question as to how treaties can be made
by a sovereign State in regard to a cession of national territory and how treaties when made
can be implemented would be governed by the provisions in the Constitution of the country.
Stated broadly 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. We must, therefore, now turn to
that aspect of the problem and consider the position under our Constitution.
44
43. In this connection the learned Attorney-General has drawn our attention to the
provisions of Act 47 of 1951 by which the boundaries of the State of Assam were altered
consequent on the cession of a strip of territory comprised in that State to the Government of
Bhutan. Section 2 of this Act provides that on and from the commencement of the Act the
territories of the State of Assam shall cease to comprise the strip of territory specified in the
Schedule which shall be ceded to the Government of Bhutan, and the boundaries of the State
of Assam shall be deemed to have been altered accordingly. Section 3 provides for the
consequential amendment of the first paragraph in Part A of the First Schedule to the
Constitution relating to the territory of Assam. The argument is that when Parliament was
dealing with the cession of a strip of territory which was a part of the State of Assam in
favour of the Government of Bhutan it has purported to pass this Act under Article 3 of the
Constitution. It appears that the strip of territory which was thus ceded consisted of about 32
sq. miles of the territory in the Dewangiri Hill Block being a part of Dewangiri on the
extreme northern boundary of Kamrup District. This strip of territory was largely covered by
forests and only sparsely inhabited by Bhotias. The learned Attorney-General has not relied
on this single statute as showing legislative practice. He has only cited this as an instance
where Parliament has given effect to the cession of a part of the territory of Assam in favour
of the Government of Bhutan by enacting a law relating to Article 3 of the Constitution. We
do not think that this instance can be of any assistance in construing the scope and effect of
the provisions of Article 3.
46. We have already held that the Agreement amounts to a cession of a part of the
territory of India in favour of Pakistan; and so its implementation would naturally involve the
alteration of the content of and the consequent amendment of Article 1 and of the relevant
part of the First Schedule to the Constitution, because such implementation would necessarily
lead to the diminution of the territory of the Union of India. Such an amendment can be made
under Article 368. This position is not in dispute and has not been challenged before us; so it
follows that acting under Article 368 Parliament may make a law to give effect to, and
implement, the agreement in question covering the cession of a part of Berubari Union 12 as
well as some of the Cooch-Behar Enclaves which by exchange are given to Pakistan.
Parliament may, however, if it so chooses, pass a law amending Article 3 of the Constitution
so as to cover cases of cession of the territory of India in favour of a foreign State. If such a
law is passed then Parliament may be competent to make a law under the amended Article 3
to implement the agreement in question. On the other hand, if the necessary law is passed
under Article 368 itself that alone would be sufficient to implement the agreement.
47. It would not be out of place to mention one more point before we formulate our
opinion on the questions referred to us. We have already noticed that under the proviso to
Article 3 of the Constitution it is prescribed that where the proposal contained in the Bill
affects the area, boundaries or name of any of the States, the Bill has to be referred by the
President to the legislature of that State for its views thereon within such period as is therein
prescribed. It has been urged before us by the learned Attorney-General that if it is held that
Parliament must act under Article 368 and not under Article 3 to implement the Agreement, it
would in effect deprive the legislature of West Bengal of an opportunity to express its views
on the cession of the territory in question. That no doubt is true; but, if on its fair and
45
reasonable construction Article 3 is inapplicable this incidental consequence cannot be
avoided. On the other hand, it is clear that if the law in regard to the implementation of the
Agreement is to be passed under Article 368 it has to satisfy the requirements prescribed by
the said article; the Bill has to be passed in each House by a majority of the total membership
of the House and by a majority of not less than two-thirds of the House present and voting;
that is to say, it should obtain the concurrence of a substantial section of the House which
may normally mean the consent of the major parties of the House, and that is a safeguard
provided by the Article in matters of this kind.
48. In this connection it may incidentally be pointed out that the amendment of Article 1
of the Constitution consequent upon the cession of any part of the territory of India in favour
of a foreign State does not attract the safeguard prescribed by the proviso to Article 368
because neither Article 1 nor Article 3 is included in the list of entrenched provisions of the
Constitution enumerated in the proviso. It is not for us to enquire or consider whether it would
not be appropriate to include the said two articles under the proviso. That is a matter for the
Parliament to consider and decide.
