The matter of the Berubari Union case was a Presidential Reference under article 143(1) of the Indian Constitution. It was based upon an Indo-Pak agreement (i.e. an agreement between both India and Pakistan) circling the Berubari union and its exchange of enclaves, which was brought before the Supreme Court of India by a bench of eight judges that was led by Chief Justice BP Sinha. However, the judgment of this landmark case was pronounced by Justice Gajendragadkar.
There are two landmark judgements that raised queries concerning the matter that should Preamble be considered as a part of the Constitution or not. The two landmark judgments that raised this question were:
- Berubari case 1960
- BP Sinha
- AS Shah
- K Dasgupta
- KS Rao
- M Hidayatullah
- P Gajendragadkar
- S Das
- A commission was established with a motive of apportionment of the State of Bihar, which was headed by Sir Cyril Radcliffe acting as its chairperson.
- Later on, a borderline was stabilised between both the countries, i.e. India and Pakistan. This division gave rise to some quarrels between both the nations regarding same location of the apportionment.
- Later, the district of Jalpaiguri was apportioned between India and Pakistan by Sir Cyril John Radcliffe, in which some thanas (police stations) were given to Pakistan while some remained with India.
- During this, he left out one such place which was known as Berubari Union No. 12, which was later granted to India in the year 1947 on 14th of August. This exclusion or space that was formed by the commission led Pakistan to claim for the territory as its own.
- During all these processes was underway, the Indian Constitution came into force on 26th of January 1950, and Article 1 of our constitution provided India shall be a Union of States and shall be mentioned in Part A, B, and C of the First Schedule of the constitution. West Bengal was included in Part A of the Indian Constitution and Berubari Union No. 12 was also included in it, as it was awarded by the Boundary Commission to India.
- The Government of Pakistan claimed their right over the Berubari Union first time in year 1952. However, the dispute came to a resolution in year 1958 through an agreement which distributed the Berubari Union into two parts, out of which one part was taken from India while; the other part was awarded to India.
- Whether there is a need for legislative action to carry out an agreement relating to the Berubari union?
- Whether the case where there is such a need for action, does a law of parliament concerning Article 3 of the Constitution of India, 1950 sufficient, or is an amendment of the constitution following Article 368 of constitution necessary?
- Whether by Article 3 of the Constitution of India parliament is empowered to implement the agreement relating to Berubari Union or is there a need for amendment under Article 368 of the Constitution for such action?
RATIO DECIDENDI & DECISION:
- After listening to all the arguments made by both the parties and looking at all the facts, the Supreme Court of India held that Article 3 needs to be amended first by the parliament under Article 368 of the Constitution, if it decides to first pass a law for making amendments in Article 3 as stated above.
- In such a case, the parliament would first require passing a law in concern to the Article 368 of the Constitution, only after which it could formulate laws for the amendment in Article 3.
- The court pronounced that though the Preamble is an integral part of the constitution which acted as key to the drafting committee of the constitution and talks about the country being sovereign, it cannot deprive the legislation from performing its functions, and neither can be utilised for declaring any part of the constitution as equivocal. This is because the preamble does not act as an origin conferring powers to the parliament under provisions given laid down in the Constitution of India.
- Therefore, the preamble of the constitution does not show or support any sort of assumptions regarding the first part of the preamble declaring serious boundaries on an essential and crucial factor of sovereignty.
The following case was named Berubari Union, as the Union Government referred it to the Supreme Court of India after it allowed criticism.
The Supreme Court of India held in the matter and clarified that Article 3(c) gives the parliament the power to diminish State Territory but not to cede it. Merely practicing and exercising this power under Article 3 is not enough. Parliament needs to bring an amendment to the Constitution using both Power & Procedure as mentioned in Article 358. It should be considered that Article 3 can be practiced by an ordinary majority in the Parliament, but under Article 368, a special majority is requisite.
Thus, the 9th Constitutional Amendment Act, 1960, was enacted to provide the basis for the agreement. Now it is easy to understand the reason for the 100th Constitutional Amendment Act, which allows exchanging enclaves between India and Bangladesh, was enacted in the year 2015.
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