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Berubari Union Case- Article 3 of Indian Constitution

Berubari Union Case- Article 3 of Indian Constitution

The Berubari Union Case is a very famous case. It is a very important Case law for the purpose of Competitive exams. Today I would like to introduce you and some brief details about the Berubari Union Case. Actually, the question is What is Berubari? So Berubari is the village and after the partition of India and Pakistan to take over the possession of this village the fighting started between these two countries. But in Berubari population of Hindu is more than the Muslim. To solve the problem Prine Minister of India and Pakistan made an agreement, the name of that agreement is, “Nehru Noon Agreement”. Residents of Berubari’s Village was not ready to stay in Pakistan and became a citizen of Pakistan. But Pakistan continuously demanded for Berubari village. So there were various clashes between India and Pakistan. Finally, President had to become in between these clashes and President used their Power to solve this problem, i.e.Article 143. Let us see with some Important points to see that what and how did happen at that time.

India Pakistan Partition, 1947

•Berubari, a small group of villages in the Jalpaiguri district of today’s West Bengal falls under the two Thanas of Jalpaiguri and Boda. Sir Cyril Radcliff, who was the Chairman of the Borders Commission, was vested with the responsibility of delineating the border between East and West Bengal.

•Radcliff Award merged Berubari region in Indian Union

•Thana Boda was omitted from the award.

Pakistan started claiming it in 1948

•Lord Bagge Tribunal was set up to address certain kinds of boundary disputes.

•The Bagge Tribunal report, submitted in 1950 was never objected to by Pakistan.

•In fact, until 1952, Pakistan never raised the question of Berubari and it was generally concluded that Berubari was an integral part of the Indian Union.

•Bidhan Chandra Roy, (CM) got the State Assembly to pass a resolution against the illegal demand of Pakistan.

•More than 12,000 villagers had cut their fingers and wrote to then President of India Rajendra Prasad

•Amra rakto Debo, pran Debo, Berubari debona. (We will rather give blood than give Berubari).

Nehru Noon Agreement 1958

•Both of them decided to exchange the territories

•The Berubari Union 12 to be divided horizontally

•Enclave for Enclave to be done, to avoid any territorial loss.

This Presidential Reference under Art 143 ( 1 ) of the Indian Constitution was made on April 1, 1959.

(1)Is any legislative action necessary for the implementation of the Agreement relating to the 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?

Article 143.Power of President to consult 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 to 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.

Article 3.Formation of new States and alteration of areas, boundaries, or names of existing States: Parliament may by law

(a)Form 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 to a part of any State ;

(b)Increase the area of ​​any State;

(c)Diminish the area of ​​any State;

(d)Alter the boundaries of any State;

(e)Alter the name of any State;

Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries, or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired Explanation I In this article, in Clauses ( a ) to ( e ), State includes a Union territories.

Argument by Government

  • No cession of Land
  • Mere settling of boundaries dispute by exchanging the land
  • Hence, no legislative intervention is required

Arguments against exchange

  • According to the preamble has no power to alter the territory of the country
  • Article 1(3)(c) only talks about acquiring the territories and not ceding any territory

Courts Judgment in the Berubari Union Case

  1. The preamble is not part of the Constitution
  2. Article 1(3)(c) only talks about acquiring the territories and not ceding any territory
  3. Article 368 gives the power to amend the constitution, hence Article 1 can be amended by parliament.
  4. But, the amendment has to be brought vide article 368, only then the land can be ceded to East Pakistan

Judgment’s Impact

THE CONSTITUTION (NINTH AMENDMENT) ACT, 1960

THE CONSTITUTION NiNTH AMENOVENT ACT, 1950 Amendment Act, 1960

STATEMENT OF OBJECTS AND REASONS

Agreements between the Governments of India and Pakistan dated 10th September 1958, 23rd October 1959, and 11th January. 1960, settled certain boundary disputes between the Governments of India and Pakistan relating to the borders of the Stutes of Assam, Punjab, and West Benga, and the Union territory of Tripura.

According to these agreements, certain territories are to be transferred to Pakistan after demarcation in the light of the advisory opinion of the Supreme Court in Special reference no. 1 of 1959, it is proposed to amend the First Schedule to the Constitution under a law relatable to article 368 thereof to give effect to the transfer of these territories.

But at last, after the first world war of 1971, East Pakistan became Bangladesh and there was a pact between India and Bangladesh. And Radcliffe ( The Radcliffe Line was the boundary demarcation line between the Indian and Pakistani portions of the Punjab and Bengal provinces of British India.) awarded Berubari to India, and therefore Berubari remained the par/territory of India, but still, it shows in the map of Pakistan.

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