The Berubari Union Case isn’t merely a case where the facts are stated, cases are cited, and a ruling is given. To properly understand the Berubari Union case, it is necessary to retrace our steps through time and also examine a specific part of the constitution.
Article 1 of the Indian Constitution
(1) India, that is Bharat, shall be a Union of States.
(2) The States and the territories thereof shall be as specified in the First Schedule.
(3) The territory of India shall comprise —
- The territories of the States;
- The Union territories specified in the First Schedule, and
- Such other territories may be acquired.
We need to understand Article 1 in a little brief.
(1) India, which is Bharat, shall be the Union of States. It is not written that “maybe” Union of state. The phrase “Bharat shall be a union of states” implies “Bharat is an unconditional Union.” No state may declare one day that it is tired of the Union of Bharat and is ceding away from her.
(2) India, also often known as Bharat, shall be a union of states, with the states outlined in the First Schedule.
(3) The territory of India shall consist of the territories of the states, the Union territories mentioned in the First Schedule, and any other territories that India may acquire in the course of her development. That implies that if India were to conquer the city of Lahore at some point in the future, either militarily or politically, Lahore would become a part of the Indian Union.
Article 3 of the Indian Constitution
Parliament may by law—
- from a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory into a part of any State;
- increase the area of any State;
- diminishes the area of any State;
- alter the boundaries of any State;
- alter the name of any State.
Article 143 of the Indian Constitution
Power of President to consult the Supreme Court –
1. If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.
2. The President may, notwithstanding anything in the proviso for Article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.
- Any time a legal or factual issue has arisen or is expected to develop, the President has the authority to consult the Supreme Court.
- Obtaining the Supreme Court’s opinion on a particular issue of law or fact is deemed necessary because of its uniqueness or public significance.
- Upon receiving such a referral, the Supreme Court may hold any hearing it deems necessary before reporting to the President on its findings.
So, if a state declares that it wishes to withdraw from India, the government has the authority to deploy the army to deal with the state’s millennial mindset. Now the issue is whether Bharat has the authority to request the withdrawal or removal of any state from the Union. What powers does Bharat have in terms of transferring or exchanging states between various countries? These were the key issues in the Berubari Union Case.
Article 368 of the Indian Constitution
The process for amending the Constitution is outlined in Article 368
1. The presentation of a bill for the purpose in either House of Parliament (Lok Sabha or Rajya Sabha) and not in the state legislatures is the sole way to begin the process of amending the constitution.
2. A minister or a lone member may present the bill, and the president is not required to provide approval before it can be introduced.
3. It is necessary for the law to be approved by a special majority in each House, which is a majority of the entire membership of the House and a majority of two-thirds of the members of the House present and voting (i.e., more than 50 percent).
4. The law must be passed by each House separately.
5. There is no provision for a combined session of the two Houses to deliberate and adopt a bill if there is a dispute between them.
6. It is also necessary for the law to be approved by the legislatures of half of the states, with a simple majority, i.e., by the members of the House who are in attendance and vote on it.
7. The law is submitted to the president for assent once it has been properly approved by both members of Parliament and confirmed by the state legislatures if required.
8. The bill becomes law after it has received the President’s approval.
History of Berubari Union Case
Cyril John Radcliffe was tasked with demarcating borderlines during India’s separation from Pakistan. Demarcation will be handled by someone who has no knowledge of Indian geography and has never been there. This was done to eliminate any potential for bias in the demarcation process. Radcliffe divided Thanas between India and Pakistan, and Thana’s borders would serve as the final dividing line between the two countries. And it was known as the Radcliffe Line. However, several disagreements developed as a result of the Radcliffe Award’s inaccurate presentation of the maps. The Berubari Dispute was one of those conflicts. In the Jalpaiguri district of West Bengal, there existed a place called Thana ‘Berubari’. The area was given to India by Radcliffe, although it was not stated in the written language of the Radcliffe award.
This provided Pakistan with a chance to assert its claim to Berubari, emphasizing the fact that Berubari is located on the Pakistani map. Indian-Pakistani differences persisted until the signing of the Nehru-Noon accord in 1958. At the time, Pakistan’s PM was Feroz Shah Noon. Contrary to the desires of the West Bengal government, the agreement split and allocated the territory of the Berubari Union equally between India and Pakistan. Following the signing of the ‘Nehru – Noon accord’ in 1958, the Central Government decided to transfer control of the ‘Berubari Union-12’ to Pakistan. Dr. Rajendra Prasad, the then President of India, was dissatisfied with the arrangement and chose to seek the Supreme Court’s view. So, the case was titled In Re: The Berubari Union”.
Dr. Rajendra Prasad took the following matters before the Supreme Court using the authority granted by Article 143 of the Constitution. (issues)
- Is it necessary to take legislative action in order to carry out an agreement dealing with the Berubari union?
- Are laws passed by parliament under Art 3 of the Indian Constitution 1950 adequate to meet this need, or is a constitutional change according to Article 368 of the Indian Constitution also or alternatively required?
- To what extent is India’s parliament, under Article 3 of the constitution, authorized to execute the Berubari’s Union agreement, or does such action need amendments under Article 368 of the constitution?
Supreme Court’s Judgment
1. According to the Attorney General, the agreement was simply a method of resolving the border issue and does not imply the sale or cession of Indian land. After examining the Agreement, the Court determined that it was entered into independently of the Award issued by the Indo-Pakistan Border Disputes Tribunal and therefore, the Agreement cannot be regarded as simply determining and delineating boundaries as a result of the Award.
2. To answer the President’s questions, the Supreme Court read the relevant Articles. Article 3 was deemed insufficient by the Court for the purposes of implementing the Agreement at issue.
3. The Supreme Court of India ruled that the parliament must first amend Article 3 of the Constitution under Article 368 of the Indian Constitution before any further proceedings can be initiated.
4. It was held that Article 3 does not apply to union territories, therefore if a union territory were to be ceded to a foreign nation, Article 3 would be ineffective, and an amendment under Article 368 would be needed.
5. The Supreme Court ruled that the Preamble is not a component of the Constitution. Although the preamble is just “a key to unlock the mind of the framers,” it may be able to provide insight into the broad reasons for why the various sections of the Constitution were created; nevertheless, since it is not a part of the Constitution, it has never been recognized as the source of any substantive authority.
- In 1973, the Supreme Court ruled in Kesavananda Bharati V/S State of Kerela that the Preamble may be modified under Article 368, just like any other section of the Constitution, but that the Preamble’s fundamental characteristics could not be changed.
- But years later, on December 18, 1976, during India’s Emergency, the Indra Gandhi administration introduced the 42nd amendment to the constitution.
- The terms “socialist” and “secular” were added, and between the phrases “sovereign” and “democratic” and the phrase “unity of the nation” was replaced with “unity and integrity of the Nation”
Philosophy of the Constitution
1. A lot of people believe that a constitution is nothing more than a set of rules and that laws are one thing; principles and morals are quite another. Due to this, many believe the Constitution can only be interpreted legally, rather than politically.
2. While it’s true that not all laws have moral implications, many of them are intertwined with our most strongly held beliefs. Legislation, for example, could make it illegal to discriminate against someone based on their language or religion. It’s legislation that’s tied to the idea of equality. We have such legislation because we respect equality. As a result, laws and moral principles are interlinked.
3. It is important to remember that the constitution is an expression of the founding fathers’ ethical principles. The constitution must be approached from the standpoint of political philosophy.
4. For one thing, a political philosophy of the constitution is required to discover and assess the moral substance of the document’s claims, but it may also be used to mediate disputes over the many interpretations of the numerous fundamental values that exist in our political system as a whole. Numerous of the country’s principles are openly questioned in a variety of political settings, including legislatures, party forums, the press, and educational institutions.
5. It is very normal for these principles to be misconstrued or overtly twisted to serve the needs of one political party over another. If there’s any disconnect between the constitutional objective and how it’s being implemented, it has to be addressed.
6. The same idea may be understood in various ways by different institutions at different points in time. To understand the differences between the various interpretations, we must compare them. To resolve ambiguity, it is necessary to rely on the constitution’s statement of the ideal, which has significant power. We have a constitution that can arbitrate disputes.
Because Article 3 is one of our Constitution’s earliest provisions, the Supreme Court must have taken it into account while ruling. It meant that we were changing what the framers of the Constitution had intended for us, and it would make our constitution seem flimsy to other nations’ leaders. As an alternative to such a broad reading, the Supreme Court could have simply said that Article 368 legislation would be sufficient to carry out the agreements made.
There are times when the legislature asks for an opinion on whether or not some of its acts are constitutional or lawful. If the Supreme Court interprets the rules correctly, it will not lower the bar set by our ancestors in the Indian Constitution and won’t damage the country’s reputation for having the world’s longest constitution.
For all these reasons, the Indian Constitution is neither an ideal nor error-free piece of writing Given the historical context in which the Constitution was drafted, it seems to reason that there would be many contentious issues and many places that need thorough redrafting. Many aspects of the Constitution were shaped by historical circumstances. In spite of this, we have to acknowledge that the Constitution has numerous flaws and shortcomings.
Constitution of India. (n.d.). Constitution of India. https://www.constitutionofindia.net/constitution_of_india/the_union_and_its_territory/articles/Article%201.
Constitution Of India. (n.d.). Constitution of India. https://www.constitutionofindia.net/constitution_of_india/the_union_and_its_territory/articles/Article%203.
Constitution Of India. (n.d.). Constitution of India. https://www.constitutionofindia.net/constitution_of_india/the_union/articles/Article%20143.
Constitution Of India. (n.d.). Constitution of India. https://www.constitutionofindia.net/constitution_of_india/amendment_of_the_constitution/articles/Article%20368.
This article has been written by Ashutosh, 2nd Year BBA LLB student at Bennett University.
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