# Pramatha Nath Mul1herjee v. State of West Bengal Dos Gupta ]. Marth z4

- **Citation:** [1960] 3 S.C.R. 250
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Bench:** B. P. Sinha, s. K. DAS, P. B. Gajendragadkar, A. K. Sarkar, K. SuBBA RAo, l\L HIDAYATULLAH, K. 0. Das Gupta, J. C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pramatha-nath-mul1herjee-v-state-of-west-bengal-dos-gupta-marth-z4-1582
- **Pages:** 47

## Headnote

President's Reference-Inda-Pakistan Agreement, r958-Division of Berubari Union and exchange of Cooch-Behar Enclaves-If
involve cession of territory-Implementation-Amendment of Constitution-Constitution of India, Arts. I, 3, 368.
As a result of the Radcliffe Award dated August 12, 1947,
Berubari Union No. 12 fell within West.Bengal and was treated
as such by the Constitution which came into force on January 26,
1950, and has since been governed on that basis. Certain disputes arose between India and Pakistan subsequent to the Rad-
.cJiffe Award but Berubari was not in issue before the Bagge
Commission set up by agreement between the parties to decide
those disputes.
That commission made its award on January 26,
1950. Pakistan raised the question of Berubari for the first time
in 1952 alleging that under the Radcliffe Award it should form
part of East Bengal and was wrongly included in West Bengal.
On August 28, 1949, the Ruler of the State of Cooch-Behar
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3 S.C.R. SUPREME COURT REPORTS
251
entered into an agreement of merger with the Government of
India and that Government took over the administration of
Cooch-Behar which was ultimately merged with West Bengal on
January I, 1950, so as to form a part of it. It was found that
certain areas which belonged to the State of Cooch-Behar became
enclaves in Pakistan after the partition, and similarly certain
Pakistan enclaves fell in India.
In order to remove the tension and conflict caused thereby
the Prime Ministers of India and Pakistan entered into an agreement, called the Indo-Pakistan Agreement on September IO, 1958,
and items 3 and 10 of that agreement provided for a division of
Berubari Union half and half between India and Pakistan and
for an exchange of Cooch-Behar Enclaves in Pakistan and Pakistan Enclaves in India.
Doubts having subsequently arisen regarding the implementation of the said items, the President of India referred the
matter to the Supreme Court under Art. 143(1) of the Constitution:
Held, that item No. 3 of the Agreement leaves no manner Of
doubt that the parties to it were thereby seeking-to settle the dispute apart from the Award, amicably, and on ad hoc basis by
dividing the territory half and half. There is absolutely no indication in it that they were seeking to interpret the Award and
determine the boundary on that basis. The question relating to
Berubari must, therefore, be considered on the basis that it involves cession of a part of India's territory to Pakistan and this
applies with greater force to the agreement relating to the
exchange of the enclaves.
There can be no doubt that the implementation of the
Agreement would alter the boundary of West Bengal and affect
Entry 13 in the First Schedule to the Constitution, since as a
matter of fact Berubari was treated as a part of West Bengal and
governed as such from the date of the Award and was thus comprised th,erein before the commencement ,of the Constitution.
Any argument to the contrary cannot be accepted.
The State of Australia v. The State of Victoria, (19n) 12
C.L.R. 667 and The State of South Australia v. State of Victoria,
(1914] A.C. 283, distinguished and held inapplicable.
Although it may be correct to describe the preamble as a key
to the mind of the Constitution-makers, it forms no part of the
Constitution and cannot be regarded as the source of any substantive power which the body of the Constitution alone can
confer on the Government, expressly or by implication. This is
· equally true of prohibitions and limitations. It was not, therefore,
correct to say that the preamble could in.any way limit the
power of Parliament to cede parts of the national territory. Nor
was it correct to say that Art. 1(3)(c) did so.
Article 1(3)(c) correctly construed, confers no power to acquire
foreign territories but merely recognises automatic absorption of
such territories as may be acquired by India in its sovereign
right and, consequently, does not exclude by implication, the
power to ced

## Text

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Pramatha Nath
Mul1herjee
v.
State of West
Bengal
Dos Gupta ].
Marth z4.
250
SUPREME COURT REPORTS
[1960]
tute also a minor offence under s. 323 I.P.C. The
Magistrate when he took cognizance under s. 190(l)(b)
Cr. P.O. of the offence under s. 332 I.P.C. cannot but
have taken cognizance alHo ofthe minor offence under
s. 323 I.P.C. Consequently, even after the order of
discharge was made in respect of the offence under
s. 332 I.P.C. the minor offence under s. 323 of which
he had also taken cognizance remained for trial as
there was no itfdication to the contrary. That being
an offence triable under Chapter XX Cr. C.P. the
Magistrate rightly followed the procedure under
Chapter XX.
The appeal is accordingly dismissed.
Appeal dismissed.
IN RE: THE BERUBARI UNION AND
EXCHANGE OF ENOLA VES
REFERENCE UNDER ARTICLE 143(1) OF
THE CONSTITUTION OF INDIA
(B. P. SINHA, 0. J., s. K. DAS, P. B. GAJENDRAGADKAR, A. K. SARKAR, K. SuBBA RAo,
'l\L HIDAYATULLAH, K. 0. DAS
GUPTA and J. C. SHAH, JJ.)
President's Reference-Inda-Pakistan Agreement, r958-Division of Berubari Union and exchange of Cooch-Behar Enclaves-If
involve cession of territory-Implementation-Amendment of Constitution-Constitution of India, Arts. I, 3, 368.
As a result of the Radcliffe Award dated August 12, 1947,
Berubari Union No. 12 fell within West.Bengal and was treated
as such by the Constitution which came into force on January 26,
1950, and has since been governed on that basis. Certain disputes arose between India and Pakistan subsequent to the Rad-
.cJiffe Award but Berubari was not in issue before the Bagge
Commission set up by agreement between the parties to decide
those disputes.
That commission made its award on January 26,
1950. Pakistan raised the question of Berubari for the first time
in 1952 alleging that under the Radcliffe Award it should form
part of East Bengal and was wrongly included in West Bengal.
On August 28, 1949, the Ruler of the State of Cooch-Behar
-
-
-
>
-
'1
3 S.C.R. SUPREME COURT REPORTS
251
entered into an agreement of merger with the Government of
India and that Government took over the administration of
Cooch-Behar which was ultimately merged with West Bengal on
January I, 1950, so as to form a part of it. It was found that
certain areas which belonged to the State of Cooch-Behar became
enclaves in Pakistan after the partition, and similarly certain
Pakistan enclaves fell in India.
In order to remove the tension and conflict caused thereby
the Prime Ministers of India and Pakistan entered into an agreement, called the Indo-Pakistan Agreement on September IO, 1958,
and items 3 and 10 of that agreement provided for a division of
Berubari Union half and half between India and Pakistan and
for an exchange of Cooch-Behar Enclaves in Pakistan and Pakistan Enclaves in India.
Doubts having subsequently arisen regarding the implementation of the said items, the President of India referred the
matter to the Supreme Court under Art. 143(1) of the Constitution:
Held, that item No. 3 of the Agreement leaves no manner Of
doubt that the parties to it were thereby seeking-to settle the dispute apart from the Award, amicably, and on ad hoc basis by
dividing the territory half and half. There is absolutely no indication in it that they were seeking to interpret the Award and
determine the boundary on that basis. The question relating to
Berubari must, therefore, be considered on the basis that it involves cession of a part of India's territory to Pakistan and this
applies with greater force to the agreement relating to the
exchange of the enclaves.
There can be no doubt that the implementation of the
Agreement would alter the boundary of West Bengal and affect
Entry 13 in the First Schedule to the Constitution, since as a
matter of fact Berubari was treated as a part of West Bengal and
governed as such from the date of the Award and was thus comprised th,erein before the commencement ,of the Constitution.
Any argument to the contrary cannot be accepted.
The State of Australia v. The State of Victoria, (19n) 12
C.L.R. 667 and The State of South Australia v. State of Victoria,
(1914] A.C. 283, distinguished and held inapplicable.
Although it may be correct to describe the preamble as a key
to the mind of the Constitution-makers, it forms no part of the
Constitution and cannot be regarded as the source of any substantive power which the body of the Constitution alone can
confer on the Government, expressly or by implication. This is
· equally true of prohibitions and limitations. It was not, therefore,
correct to say that the preamble could in.any way limit the
power of Parliament to cede parts of the national territory. Nor
was it correct to say that Art. 1(3)(c) did so.
Article 1(3)(c) correctly construed, confers no power to acquire
foreign territories but merely recognises automatic absorption of
such territories as may be acquired by India in its sovereign
right and, consequently, does not exclude by implication, the
power to cede national territory. Moreover, the power to amend
•
In re:
Bernbari Union
&- Exchange of
Enclaves
...
•
252
SUPREME COURT. REPORTS
[1960]
1960
the Constitution under Art. 368 gives the Parliament the power
to amend Art. 1(3)(c) so as to include the power to cede national
In re.
territory as well. It was, therefore, incorrect to suggest that
Berubari Union the sovereign State of India lacked the t\VO essential attributes
& Exchange of of sovereignty, namely, the power to acquire foreign territory
E1iclaves
and the power- to cede national territory, and that no process of
legislation could validate the Agreement in question.
Although such cession of territory, which amounts in la\v to
a transfer of sovereignty must cause great hardship from the
human point of view, the right of a sovereign State to do so in
the exercise of its treaty-making power and subject to such Jimitations as the Constitution may, expressly or by necessary implication, impose, can never be in doubt and the question as to·
whether the treaty can be implemented by ordinary legislation
or by constitutional amendment must depend on the provisions
of the Constitution itself.
It may be assumed in construing Art. 3 that the Constitution contemplated changes of the territorial limits of the
constituent States and there was no guarantee of their territorial
integrity. Broadly speaking, that Article deals with the territorial adjustment inter sc of the Constituent States of India, and
not merely their reorganisation on linguistic or other basis.
Article 3(c) deals with the diminution of the area of a State and
it is unreasonable to suggest that it is wide enough to cover
cession of national territory. The t.rue position is that the Constitution does not expressly provide either for acquisition of foreign
territory or for cession of national territory; powers are inherent
in that behalf in every sovereign State.
Consequently, the Agreement cannot be implemented by a
law relatable to Art. 3 and legislation relatable to Art. 368 would
be inevitable.
It follows, therefore, that the Parliament acting under Art.
368 can make a law to give effect and implement the Agreement
in question covering both Berubari and the Enclaves or pass a
law amending Art. 3 'so as to cover cases of cession of the territory
of India and thereafter make a law under the amended Art. 3 to
implement the Agreement.
ADVISORY JURISDICTION : Special Reference ~o. 1
of 1959.
•
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.
The circumstances which led to this Reference by
the President and the questions referred appear from
the full text of the Reference dated April 1, 1959,
which is reproduced below :-
WHEREAS the Boundary Commission appointed
under the Chairmanship of Sir Cyril Radcliffe in
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3 s.c.R. SUPREME COURT REPORTS
253
accordance with sub:section (3) of section 3 of the
Itidian Independence Act, 1947, made an Award,
hereinafter referred to as "the Radcliffe Award", a
copy whereof is annexed hereto as Annexure I, determining the boundaries of the Province of East Bengal
and the Province of West Bengal constituted by
clause (b) of sub-section (1) of section 3 of the said
Act;
AND WHEREAS certain boundary disputes having
arisen out of the interpretation of the Radcliffe Award,
the Dominion of India and "the Dominion of Pakistan
set up, by agreement, a Tribunal under the Chairmanship of the Hon'ble Lord Justice Algot Bagge for the
adjudication and final settlement of the. said boundary disputes and for demarcating the boundary
accordingly ;
AND WHEREAS the said Tribunal gave decisions on
the ·said boundary disputes, such decisions being
hereinafter referred to as "the Bagge Awards'', a copy
. whereof is annexed hereto as Annexure II ;
AND WHEREAS, with respect to the District of Jalpaiguri, the demarcation of the boundary line between
the Province of West Bengal and the Province of
East Bengal i8 described in paragraph 1 of the Schedule
forming · Annexure A to the Radcliffe Award as
follows:-
"A line shall be drawn along the boundary between the Thana of Phansidew a in theDistrict of
'Darjeeling and the Thana Tetulia in the District of
Jalpaiguri from the point where that boundary
meets the Province of Bihar and then along the
boundary between the Thanas of Tetulia and Rajganj; the Thanas of Pachagar and Rajganj, and the
Thanas of Pachagar and Jalpaiguri, and shall then
continue along the northern corner of the Thana
Debiganj to the boundary of the State of CoochBehar. The District of Darjeeling and so much of
the District of Jalpaiguri as lies north of this line
shall belong to West Bengal, but the Thana of
Patgram and any other portion of Jalpaiguri ·District which lies to the east or south shall belong to
East Bengal" ;
~3 ,
In re:
Berubari Union
&- Exchange of
Enclav<S
In 1'e:
Berubari Union
& Exchange of
Enclaves
254
SUPREME COURT REPORTS
[1960)
AND WHEREAS a further dispute arose between the
Government of India and the Government. of Pakistan
whether, having regard to the above description of
the boundary line with respect to the District of
Jalpaiguri, the Radcliffe Award assigned the territory
in the said District known as Bernbari Union No. 12
(being the territory covered by blue parallel lines in
the sector map, a copy whereof is annexed hereto as
Annexure III) to the Province of West Bengal, as
contended by the Government of India or it assigned
a major portion of the said territory to the Province
of East Bengal, as contended by the Government of
Pakistan;
AND WHEREAS certain other disputes also arose
between the Government of India and the Government of Pakistan regarding the interpretation and
implementation of certain other parts of the Radcliffe
Award and of some parts of the Bagge Awards;
AND WHEREAS the problem arising from the existence of enclaves in Pakistan of certain territories of
India which formed part of the territories of the
former Indian State of Cooch-Behar (shown in red in
the sector map, a copy whereof is annexed hereto as
Annexnre IV) and of enclaves in India of certain
territories of Pakistan (shown in blue in the said sector
map) was, along with other border problems, er.gaging the attention of the Government of India and the
Government of Pakistan;
AND WHEREAS, with a view to removing causes of
tension and resolving border disputes and problems
relating to Indo.Pakistan border areas and establishing peaceful conditions along those areas, the Prime
Minister of India, for and on behalf of the Government of India, and the Prime· Minister of Pakistan,
for and on behalf of the Government of Pakistan,
entered into an agreement settling some of the said
disputes and problems in the manner set out in the
note jointly recorded by the Commonwealth Secretary,
Ministry of External Affairs, Government of India,
and the Foreign Secretary, Ministry of Foreign
Affairs and Commonwealth Relations, Government of
Pakistan, a copy whereof is annexed hereto as
Annexure V, the agreement as embodied in the said
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3 S.C.R.
SUPREME COURT REPORTS
255
note being hereinafter referred to as "the In\:fo-Pakistan Agreement" ;
·
AND WHEREAS the ludo-Pakistan Agreement settles
the aforesaid dispute relating to the territory known
as Berubari Union No. 12 in the manner specified in
item (3) in paragraph 2 thereof, the agreement relating to such settlement being hereinafter referred to
as "the Agreement relating to Berubari U11ion" ;
AND WHEREAS the ludo-Pakistan Agreement settles
the aforesaid problem arising from the existence of
Indian enclaves in Pakistan and Pakistan enclaves in
India by exchange of enclaves in the manner set out
in Item (10) read .with Item (3) in paragraph 2 thereof,
the agreement relating to such exchange of enclaves
being hereinafter referred to as "the Agreement relating to Exchange of Enclaves";
AND WHEREAS 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 WHEREAS a doubt has arisen whether· a suitable
law of Parliament relatable to article 3 of the Constitution is sufficient to implement the Agreement relating
to Exchange of Enclaves or whether, in addition or
in the alternative, a suitable amendment of the
Constitution in accordance with the provisions of
article 368 of the Constitution is necessary for the
purpose;
AND WHERE.AS there is likelihood of the Constitutional validity of any action taken for the implementation of the Agreement relating to Berubari Union and
the Agreement relating to Exchange of Enclaves
being questioned in courts of law, involving avoidable
and protracted litigation ;
AND WHEREAS, in view of what has been hereinbefore stated, it appears to me that the questions of
law hereinafter set out have arisen and 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 ; .
In re:
Berubari Union
& Exchange of
Enclaves
In re:
Berubari Union
& Exchange of
Enclaves
256
SUPREME COURT REPORTS
[1960]
Now, THEREFORE, in exercise of the powers conferred
upon me by clause (1) of article 143 of the Constitution, I, Rajendra Prasad, President of India, hereby
refer the following questions to the Supreme Court of
India for consideration and report thereon, namely:-
"(l) 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 01· is an amendment of the Constitution in accordance with article 368 of the
Constitution necessary, in a,ddition 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 fa an amendinent of the
Constitution in accordance with article 368
of the Constitution necessary for the purpose,
in addition or in the alternative ?"
[A nnexures omitted]
1959. December 8, 9, 10 and 11. M. 0. Setalvad,
Attorney-General of India, 0. K. Daphtary, SolicitorGeneral of India, H. N. Sanyal, Additional SolicitorGeneral of India, G. N. Joshi, R.H. Dhebar and T. M.
Sen, for the Union o"f India. It is important to note
that the integrity of the territory of the States is not
guaranteed by the Constitution of India and Parliament is made Supreme even with respect to the questions relating to the territory. Part I of the Constitution is a self-contained code wit.h respect to the territory of the Union. The residuary powers are vested
in Parliament. The provisions in the Constitution of
the United States, Australia and Canada are entirely
different.
The Prime Ministers' agreement with regard to
Berubari Union No. 12 does not involve any cession
of territory, but it merely ascertains the boundary between East Bengal and West Bengal, which had been
left vague by the Radcliffe Award. As such, this part
of the agreement can be impl~mented by executive
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)
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3 S.C.R. SUPREME COURT REPORTS
257
action: Where there is merely settlement of bounda"
ries, it is not a case of alienation of cession of land.
The State of South Australia v. State of Victoria, 12
C.L.R. 667 ; Penn v. Baltimore, 1 Ves. Sen. 444; Grandall on Treaties, I Edn., pp. 115 and 161 ; The Lessee
of Lattimer et al v. Poteet, 10 L. Ed. 328 .. The territories ofBerubari Union No. 12 were being governed by
West Bengal unconstitutionally and did not fall within
item 3 of the First Schedule to the Constitution.
Berubari Union was administered by West Bengal as
its own territory, though legally it was not part of its
territory and it was not administered " as if it formed
part of West ·Bengal " within the meaning of item 3 of
Sch. I. The giving of a part of the Berubari Union to
East Bengal under the Prime Ministers' agreement did
not involve any amendment to the First Schedule to
the Constitution. A.LR. 1959 Cal. 506 at 517 and
518.
The executive power of the Union is co-extensive
with the powers of Parliament with this limitation that
the executive cannot act against the provisions of the
Constitution or of any law made by Parliament. [1955]
2 S.C.R. 225 at 234-237. The power of making treaties is within the sovereign power and resides both in
the executive and in Parliament. What the executive
can do in respect of treaties and agreements is part of
the Governmental function. The executive can by
entering into a treaty or agreement settle a boundary
dispute which does not involve acquisition or cession
of territory.
If the agreement relating to Berubari does not
amount to a
mere settlement or delineation of
boundary, then legislation, by Parliament relatable to
Art. 3 of the Constitution would be sufficient but
legislation under Art. 368 would be incompetent.
Part I of the Constitution is a self-contained code
dealing with the territories of the Union. Article 1
defines the territory of India as the territory of the
States; the description of the territories of the States
describes the territory of India. Article 2 contemplates addition to the territories of the Union by the
admission of new States or new areas.
Article 3(a)
contemplates in its last part uniting any territory to
In re:
Berubari Union
& Exchange of
Enclaves
In re:
Beruba1i Union
6- Exchange of
Enclaves
258
SUPREME COURT REPORTS
[1960]
a part of any State and any territory includes foreign
territory that may be acquired. Article 3(b) contemplates increase in the area of auy State which may be
by acquiring foreign territory and adding it to that
of the State. Article 3(c) contemplates the diminishing of the area of any State which may be by cession
to a foreign power. There is no restriction or limitation placed on the words" increase " or "decrease "
in clause (b) and(c) of Art. 3 and they are comprehensive enough to inclnde increase or decrease by acquisition of foreign territory or cession of a State territory.
See Babulal Parate's case, [1960] 1 S.C.R. 605.
No
doctrinaire approach or preconceived notions should
be imported in the interpretation of Arts. 2 and 3 of
an organic instrument like the Constitution. Legislation
under Art. 368 of the Constitution is neither necessary
nor proper. Legislation under Art. 368 would put the
States to a disadvantage as under that Article it
would not be necessary, as it would be under·Art. 3, to
refer the bill to that State for expressing its views
thereon.
The exchange of the Cooch-Behar enclaves does not
involve cession of territory and executive action alone
is sufficient to implement the agreement. An exchange
of territory for administrative considerations as a part
of a larger settlement does not amount to cession.
Oppenhiem, 8th Edn., p. 451, Art. 169, p. 548, Art. 216,
p. 547; Halsbury, Vol. 7, Art. 604. Even if the transaction involves cession of territory, legislation under
Art. 3 of the Constitution will be sufficient to implement the agreement.
The Union has the right to cede territory if and
when the occasion arises.
S,uch a right vests in every
Sovereign State and can be implied even when not
specifically conferred by its Constitution. Willoughby,
Vol. I, p. 572.
S. M. Bose, Advocate-General, West Bengal, B. Sen,
K. 0. Mukherjee and P. K. Bose, for the State of West
Bengal. Under the Indian Independence Act the
whole of the district of J alpaiguri was provisionally
·given to West Bengal. If the Radcliffe Award fixed
the boundary line, then there can be no dispute and
no necessity for the agreement. But, if the Award
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3 S.C.R. SUPREME COURT REPOH,TS
'259
·did dot fix. the line and left . it undetermined, then
r960
under the Indian Independence Act, the whole of
In re:
Bernbari went to West Bengal. The Act contemplates Berubari Union
settlement of the boundary by an Award and not by
& Exchange of
agreement of the Prime Ministers. If the Award did
Enclaves
not settle the boundary, then the whole of Jalpaiguri
belonged to India. The Prime Ministers' agreement
in fact divides Berubari half and half without making
any attempt to clarify the Award. It was wrong to -
say that the agreement amounts merely to delineation of the boundary.· rt· involves cession of
Indian territory to Pakistan. The Constitution gives
power only to acquire foreign territory and not to
cede Indian territory to foreign powers. , First, it
would be necessary to take action under ·Art. 368
empowering Parliament to make law for cession of
territory and then legislation under Art. 3 can be
resorted to. In Art. 3(a) the words "any territory'~
are not wide enough to include foreign territory; they
apply what has already been acquired and has become.
part of the Union under Art. 1. Parliament has power
only to pass law in respect of territory over which it
has jurisdiction. Article 3 merely deals with the
internal arrangement of the territories of the States
and does not deal with acquisition of foreign territory
or cession of the Indian territory to foreign powers.
N. 0. Chatterjee with Janardan Sharma for Krishna
Kumar Chatterjee and Ramaprasanna Roy and with
U. M. Trivedi, D.R. Prem, Veda Vyasa, R.' Thiagarajan and Ganapat Rai, for (1) the President, Bharatiya
Jana Sangh, Kerala, (2) Secretary, Jana Sangh, Mandi,
(3tShri Tata Srirama Murthy, Akhila Bharatiya Jan-
.Sangh, Visakhapatam, (4) Chairman, Bharatiya Jansangh, Mangalore, (5) Secretary, Bharatiya Jansangh,
Sitapur, (6) Shri N. Thamban Nambiar, Bharatiya
Jansangh, Thaliparambu and (7) President, Bharatiya
J ansangh, Pattambi (Cochin). The Prime Ministers'
agreement cannot be implemented at all.
Indian
territory cannot be ceded at all. Berubari is an inte-.
gral part of the Union of India and it was and has all
along been under the possession of ·West Bengal since
the partition of the country in 1947.
The true nature
of the ~rime Ministers ' agreement is that it is not the
In re:
Berubari Union
& Exchange of
Enclaves
SUPREME COURT REPORTS
[1960]
ascertainment of a boundary in accordance with -the·
Radcliffe Award, but it is a pure ca.se of cession of
territory to Pakistan. The case reported in The State
of South Australia v. State of Victoria, 12 C.L.R. 667,
has no bearing, as in that case there was no qne3tion
of giving of any territory to a foreign power. Similarly,
Penn v. Baltimore, 1 Ves. Sen. 444, was not concerned
with the cession of any territory. There are certain
implied prohibitions in our Constitution and it is not
a completely amendable Constitution. The preamble
to the Constitution does not permit the dismemberment of India and preserves the integrity of the territory of India. Article 4, s. 3, para. 2, of the United
States Constitution gives a specific power to cede
territory. It does not flow necessarily from the concept of sovereignty that the Government must have
power to cede its territory. 33 L. Ed. 642; 1933 U. S.
258. The express mention of the power of acquisition
.in Arts. 1 and 2 excludes the power to cede. The
.maxim "expressio uniu.~ exclusio alterius" is applicable to statutes also.
Brooms Legal Maxims, 10th
Edn., p. 452; Craies, 5th Edn., p. 240; 1951 U. S. 914;
Willoughby, Vol. 1, p. 518. The Indian Parliament
is not sovereign and it is prohibited from changing or
dismembering or whittling down the territory of
India. [1951] S.C.R. 744, 968. The preamble is the
key to open the minds of the makers. 8 E.R. 1034;
A.I.R. 1956 S.C. 246; [1950] S.C.R. 1098. In the
transfer of the areas of Berubari to Pakistan, the
fundamental rights of thousands of persons are involved. The rights of franchise and citizenship cannot be
taken away by executive action.
0. B. Agai-wala and A. G. Ratnaparkhi, for the
Secretary, Jalpaiguri Revolutionary Socialist Party,
the Secretary, All India Forward Bloc, Calcutta and
Shri Nirmal Bose of Jalpaiguri. The agreement cannot be implemented by executive action. The Government is not dealing with its own property but with
the property of the States.
Even legislation under
Art. 3 would not be sufficient. The right of citizenship cannot be taken away except by legislation under
Art. 11. In the implementation of the agreement the
fundamental rights guaranteed by Part III of the
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3 S.C.R. SUPREME COURT REPORTS
261
Constitution are involved and the citizens of that part
of Beru bari which has to be given to Pakistan will be
deprived of all such rights. Citizens of India cannot
be deprived of their fandamental rights by legislation
under Art. 3.
The agreement cannot be implemented
even by legislation under Art. 368 as there are limita- '
tions on the power to amend imposed by the preamble.
Such an agreement can only be ill)plemented with the
consent of the people by referendum.
D. R. Prem (with the permission of the court).
Article 3 deals with the formation of new States and
alterations of areas, boundaries or names of existing
States as indicated in the marginal note: Article 3
makes the same provisions in the present C<;mstitution
ass. 290 did in the Government of India Act, 1935.
Both deal with internal arrangement and not with
foreign territory.
M. 0. Setalvad, in reply. The description of the
boundary line in the Radcliffe Award is not ·clear and
the provision in the agreement that the division would
be horizontal only means that the division is to be by
means of a line running east to west dividing the
territory half and half. The preamble cannot control
the unambiguous language of the Articles of the Constitution. Willoughby, Vol. I, p. 62.
Constitution of
the United States of America, 1952 Edn, p. 59.
The
preamble is not a part of the Constitution. The
language of Art. 368 is perfectly clear and no limitations can be placed upon it on account of the preamble.
The rights of citizenship and the fundamental rights
do not affect the power unde,r Art. 368. It is only by
legislation under Arts. 2 or 3(a) that foreign territory
can be acquired and can become part of India. There
is no reason or warrant to restrict the language or the
scope of Art. 3. Clause (a) of Art. 3 clearly deals
with foreign territory and there is no warrant for
considering clauses (b) and (c) in any other way as not
relating to foreign territory. Every other provision
in Pa.rt l of the Constitution envisages two kinds of
territory_:__Indian and foreign-and there is no reason
to envisage only one kind of territory in els. (b), (c), (d)
a.nd (e) of Art. 3.
The Court should not construe the
34
In re:
Berubari Union,
&. Exchange of
Enclaves
In re:
Berubat'i Union
&.. Exchange of
Enclaves
262
SUPREME COURT REPORTS
[1960]
provisions in such a manner as would make adjustments of boundary difficult. It is of the essence of sovereignty to cede and to acquire territory. Willoughby,
Vol. I, pp. 575 and 576, Willis; pp. 254 to 255. There
is no specific provision regarding cession of territory
in any Constitution. The power to cede territory in
the United States is included in its treat.y making
power and is not conferred by Article 4, section 3, part
2 of the United States Constitution as stated by Shri
N. C. Chatterji. Willoughby, Vol. I, p. 90.
Parliament
has been empowered under Art. 11 to take away the
rights of citizenship.
A law under Arts. 3 and 4 will
deal with "supplemental and incidental" provisions
and may contain provisions under Art. 11 for taking
away the rights of citizenship also.
Cession of territory necessarily affects the nationality and rights of
the inhabitants of the ceded territory. Anson's Law
and Custom of the Constitution, 4th Edn. Vol. 2, Part
II, p. 141. Fundamental rights cannot exist when
there is transfer of allegiance consequent upon cession
of territory.
cur. adv. vult.
1960. March 14.
The Opinion of the Court was
pronounced by
Gaj,ndrngadkar ].
GAJENDRAGADKAR, J.-In accordance with the
directives issued by the Prime Ministers of India and
Pakistan, on September 10, 1958, the Commonwealth
Secretary, Ministry of External Affairs, Government
of India and the Foreign Secretary, Ministry of
Foreign Affairs and Commonwealth, Government of
Pakistan, discussed 10 items of dispute between the
two countries and signed a joint note recording their
agreement in respect of the said disputes and submitted it to their respective Prinie Ministers; and with a
view to removing causes of tension and resolving
border disputes and problems relating to Indo-Pakistan Border Areas and establishing peaceful conditions
along those areas, the Prime Ministers, acting on
behalf of their respective Governments, entered into
an agreement settling some of the said disputes and
problems in the manner set out in the said joint note.
This agreement has been called the ludo-Pakistan
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3 S.C.R. SUPREME COURT REPORTS
263
Agreement and will be referred to hereafter as the
Agreement.
In the present Reference we are concerned with two
items of the Agreement; item 3 in paragraph 2 of the
Agreement reads as follows :-
" (3) Berubari Union No. 12.
.
In re:
Berubari Union
& Exchange of
Enclaves
This will be so divided as to give half the area to Gajendragadkar J,
Pakistan, the other half adjacent to India being
retained by India. The Division of Berubari Union
No. 12 will be horizontal, starting from the northeast 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 No. 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
No. 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:-
" (lO) Exchange of Old Qooch-Behar Enclaves in
Pakistan and Pakistan Enclaves in India without
claim to compensation for extra area going to Pakistan, is agreed to."
·
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 Art. 3 of the Constitution or by way of a suitable
amendment of the Constitution in accordance with
the provisions of Art. 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
1'960
In 'le:
Berubari Union
& Exchange of
Enclaves
Gojendragadkar ] .
264
SUPREME COURT REPORTS
(1960]
opm10n of the Supreme Court of India should be
obtained thereon; and so, in exercise of the powers
conferred upon him by cl. (1) of Art. 143 of the Constitution, he has referred tl)e following three questions to
this Court for consideration and report thereon :-
( l) Is any legislative action necessary for the
implementation of the Agreement relating to Berubari Union?
(2) If so, is a Jaw 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 ?
Before dealing with the questions thus referred to
this Court it is necessary to set out briefly the historical, political and constitutional background of the
Agreement.
On February 20, 194 7, the British
Government announced its intention to transfer power
in British India tb Indian hands by June 1948. On
June 3, 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 P:1rliament 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-ss. (3) and (4) of s. 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-s. (2) of s. 2
were to be the territories of Pakistan. Section 3,
sub-s. (1), provided, inter alia, that as from the appointed day the Province of Bengal as constituted under
the Government of India Act, 1935, shall cea2e to exist
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3 S.C.R. SUPREME COURT REPQ~TS
265
and there shall be constituted in lieu thereof two new
z96o ·
Provinces to be known respectively as East Bengal
In re.:
and west Bengal. Sub-section (3) of s. 3 provided, B<rubari Union
inter alia, that the boundaries of the new Provinces & Exchange of
aforesaid shall be such as may be determined whether
Enclaves
before or after the appointed day by the award of a
boundary commission appointed or to be appointed by Gajenri,ragadkar ]"
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 remaii;ider 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
com prised in the new Province of West Bengal.
Section 3, sub-s. (4), provided that the expression
"award" means, in relation to a boundary commission,
the decision of the Chairman of the commission con~
tained 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 becomwa part of Pakistan and is now known as East Pakistan.
Berubari Union No. 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 J alpaiguri in the District of J alpaiguri, 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,
as we shall presently point out, the First Schedule to
the Independence Act did not really come into operation at all.
On June 30, 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.
266
SUPREME COURT REPORTS
(1960)
· '960
Sir Cyril Radcliffe was subsequently appointed as
Chairman. So far as Bengal was concerned the mateIn re:
B"ubari Union rial terms of reference provided that the boundary
&- Exchange of commission should demarcate the boundaries of the
Enclaves
two parts of Bengal on the basis of ascertaining the
. --
contiguous areas of muslims and non-muslims; in
Ga1endragadkar f. doing so it had also to take into account other factors.
The commission then held its enquiry and made an
award on August 12, 1947, which is known as the
Radcliffe Award (hereinafter called the award). It
would be noticed that this award was made three days
before the appointed day under the Independence Act.
The report shows that the Chairman framed seven
basic questions on the decision of which the demarcation of a boundary line between East-West Bengal
depended. Question No. 6 is relevant for out purpose;
it was framed in this way :
" C. 6.
Which State's claim ought to prevail in
respect of the districts of Darjeeling and J alpaiguri
in which the muslim population amounted to 2·42%
of the whole in the case of Darjeeling and 23·08%
of the whole in the case of Jalpaiguri but which
constituted an area not in any natural sense contiguous to another non-muslim area of Bengal?"
It appears that the members of the commission were
unable to arrive at an agreed view on any of the
major issues, and so the Chairman had no alternative
but to proceed to give his own decision.
Accordingly
the Chairman gave his decision on the relevant isslles
in these words :-
" The demarcation of the boundary line is described in detail in the schedule which forms
annexure A to the award and in the map attached
t,hereto, annexure B.
The map is annexed for the
purposes of illustration, and if there should be any
divergence between the boundary as described in
annexure A and as delineated on the map in
annexure B the description in annexure A is to
prevail."
Paragraph 1 in annexure A is material. It provided
that "a line shall be drawn along the boundary between the Thana; of Phansidewa in the District of
Darjeeling and the Thana Tetulia in the District of
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3 S.C.R. SUPREME COURT REPORTS
267
•· -
Jalpaiguri from the point where that boundary meets
I960
the Province of Bihar and then along the boundary
In,.:
between the Thanas of Tetulia and Rajganj, the Betubari. union
Thanas of Pachagar and Rajganj and the Thanas of a;. Exchange of
Pachagar and Jal paiguri, and shall then continue
Enclaves
along with northern corner of Thana of Debiganj to
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1
the boundary of the State of Cooch-Behar. The Gajendragadkar .
district of Darjeeling and so much of the district of
Jalpaiguri as lies north of this line shall belong to
West Bengal, but th~ 'fhana of Patgram and any
other portion of Jalpaiguri District which lies to the
east or south shall belong to East Bengal." Since the
award came into operation three days before the day
appointed under the Independence Act the territorial
extent of the Province of West Bengal never came to
be determined under Schedule I to the said Independence Act but was determined by the award. There
is no dispute that since the date of the award Berubari Union No.