The BERUBARI CASE reflects on the preamble and distribution of powers of Parliament in amendments. The Government of West Bengal rejected it when the Nehru-Noon Treaty between India and Pakistan was concluded to separate the territories of the Berubari Union. Following this Union, the matter was referred to SC where it was held that Parliament's right to decrease the territories of a State (Article 3) should not involve transfer of the Indian territory to a foreign nation. Thus, only by amending the Constitution of Article 368, could Indian territories be ceded to a foreign power. The 9th Constitutional Amendment Act (1960) was then introduced.
We are aware that Sir Cyril Radcliffe established the boundary between India and Pakistan, so the frontier was renamed Radcliffe. Nevertheless, a considerable degree of controversy occurred as Radcliffe misrepresented the charts. Berubari 's dispute was one of these. This problem emerged because the written document was omitted. By assigning some to one nation as well as some to the other side, Radcliffe divided Jalpaigudi between India and Pakistan. Based on the boundaries of thanas, the boundary line was assessed. Radcliffe neglected to consider one Thana when he mentioned this boundary. In Jalpaigudi lies the Berubari union No 12, rather than the one given to India. Yet Pakistan was able to argue that a part of Berubari belonged to it because of the absence of Thana Boda and the incorrect representation on the globe. The dispute was settled by the 1958 Nehru-Noon Agreement, which gave half of Berubari Union No. 12 to Pakistan, and held India the other half, adjacent to India.
Some procedural problems have also arisen during the execution of the agreement:
That this arrangement shall be extended for some involvement in legislative proceedings in compliance with Article 3 or amending the Constitution in accordance with Article 368.
Article 3: It involves the creation of new states-either by integrating 2 states, dividing states, portions of States, or joining the state territory to another state.
The president of India under the power obtained from article 143 referred this issue to supreme court. This matter has been referred to the Supreme Court by the President of India under the authority obtained from Article 143. Whether the agreement requires any legal proceedings? Where relevant, is Article 3 sufficient to amend the Constitution for the reason or Article 368 or both?
Arguments in Supreme Court:
The Indian Government claimed that the negotiation simply is a disagreement about the acknowledgement of the already established boundaries and not about the creation of a new boundary or the cession (broken) of the territories of nations.
Mr Chatterjee made a counter argument to the effect that, since the government of India intends to annul the deal by removing laws in it, "Parliament does not have the intervention in rendering any act pursuant to article 3 or amending the Constitution pursuant to article 368."
The claims are based upon the assumption that the preamble makes it evident that India is a democratic People's Republic and that its territory is beyond the control of parliament.
The participation of parliament in the conquest of territories but not in the cession of nation property is specified in Article 1(3)(c).
SC interpretation:
SC provides a unique interpretation that "preamble is not a part of the constitutional." In addition to Article 368, the Parliament is authorized to amend the Constitution which provides indirect scope for territorial cessation in favour of foreign states.
The transition of a land often requires the authority of the owner state to the other State and might need laws for this.
The SC therefore answers to the three questions:
Article 3 of the law is necessary for the procedure to proceed through Article 368, through amending, as follows for the exchange of enclaves, the same Constitution that is qualified. The Supreme Court also rendered judgements that preamble is not a part of the Constitution. An amendment under Article 368 would only cede that area. The issue is resolved after the 9th amending act of 1960.
In these negotiations, upon demarcation, those areas shall be passed to Pakistan. In view of the Supreme Court's advisory opinion in Special Reference 1 of 1959, it is recommended that the first amendment to the Constitution be modified in conjunction with a provision referring to Section 368 of that amendment in order to put the transition of these territories into effect.
It is assumed that the Indian Parliament, by itself, is not adequately qualified to give up its land. Nevertheless, the Parliament will have to enact an amendment to the Constitution to guarantee that the agreement is successful.
So, 9th Constitutional Amendment Act 1960 was enacted to give effect to the agreement.
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