Case Analysis: Berubari Union (1960) | Is the Preamble a Part of the Constitution? | Amendment to the Constitution under Article 368[3]

The case of Berubari Union was the Presidential Reference Under Article 143(1) of the Constitution of India, C.J. Justice Gajendragadkar delivered the unanimous opinion of the Court on the enforcement of the Indo-Pak agreement relating to the Berubari Union and the exchange of enclaves submitted for consideration by a Bench consisting of eight judges headed by B.P.Sinha. This dispute was settled by the 1958 Nehru-Noon Agreement, by which Pakistan was to be given half of Berubari Union No. 12, and India was to hold the other half adjacent to India.

Furthermore, four Cooch Behar enclaves adjacent to this section would have also gone to Pakistan. There was an issue concerning the Parliament’s power to move the territory of Berubari to Pakistan. The Court held that the Preamble to the Constitution, containing the declaration made by the citizens of India in the exercise of their sovereign will, is undoubtedly a key to opening the minds of constitutional framers who can explain the general purposes for which the various provisions in the Constitution have been made, but nevertheless, the Preamble is not part of the Constitution. The observations in the Berubari case were also observed in Keshavanada Bharti’s Judgement, and clarity was given.

It was held that the Preamble to the Constitution serves as a guide to opening the minds of the framers and shows that the Preamble is not part of our Constitution and that it is not a source of the many powers bestowed on the Government under the provisions of the Constitution for the general reason for which they rendered the several provisions of the Constitution.

Keywords – Berubari Union, 9th constitutional Amendment, Punjab, West Bengal, Pakistan, Partition, Preamble.

Equivalent citations: AIR 1960 SC 845, 1960 3 SCR 250

Facts

The states of Punjab and Bengal were to be partitioned in this situation. The British Government declared its plan on February 20, 1947, to shift power to Indian hands in British India by June 1948. On June 3, 1947, the Government released a resolution as to the process by which the transition of power would take place. The British Parliament passed the 1947 Indian Independence Act on July 18, 1947. On August 15, 1947, which was the specified day, this Act came into effect.

As it was proclaimed on the appointed day of, two separate dominions, it would be formed in India to be known as India and Pakistan, respectively. That was given by section 2 of the Act pursuant to the provisions of b of the provisions of s. 2. The territories of India shall be those territories under the jurisdiction of His Majesty which were included in British India immediately before the specified day, with the exception of those territories which are covered by sub-s. (2) from s. 2 were to be Pakistan’s territories. Sub-s, Section 3. (1) provided, inter alia, that the Province of Bengal, constituted under the Government of India Act of 1935, ceases to exist from the appointed date and that two new Provinces, known respectively as East Bengal and West Bengal, are to be constituted instead.

Sir Cyril Redcliffe appointed a commission as its chairman for the distribution of the state of Bihar. A boundary between India and Pakistan was created, known as the Redcliffe line. After this, on the exact place of the apportionment, there were some tiffs between India and Pakistan. By giving some thanas to India, Sir Radcliffe allocated the Jalpaiguri district between the two nations while remaining thanas to Pakistan. He omitted one, i.e., Berubari Union No. 12, during the process, and was subsequently awarded to India on August 12, 1947. The commission’s absence and incorrect portrayal on the map gave Pakistan the right to claim the region as its own.

The Indian Constitution entered into force on January 26, 1950, during both of these procedures, and Article 1 of our Constitution specifies that India is a Union of States and is referred to in Sections A, B and C of the First Schedule of the Constitution. In Part A of the Indian Constitution, West Bengal was included, and Berubari Union No. 12 was also included as the boundary commission to India awarded it. In 1952, for the first time, the Pakistani Government retained its claim over the Berubari Union.

The areas under the Berubari Union remained within the territory of India until West Bengal was a part of it. The result was the Act 1960 of the Constitution (9th Amendment). The aim of this Amendment is to read as follows: Agreements between the Governments of India and Pakistan of September 10 1958, October 23, 1959, and January 11, 1960, resolved certain boundary disputes between the Governments of India and Pakistan concerning the boundaries of the States of Assam, Punjab and West Bengal and the territories of the Union. The conflict was settled in 1958 by an agreement in which India was awarded half of the Berubari Union while India kept the other half.

Issues and Questions of Law?

Questions of Law

1. Whether the enforcement of the Agreement relating to the Berubari Union and the exchange of enclaves involves some legislative intervention either through the law of the Parliament referred to in Article 3 of the Constitution or through the necessary Amendment of the Constitution referred to in Article 368, or both?
2. Does it require legislative action to implement the Agreement concerning the Berubari Union?
3. If so, is a law enacted by Parliament in accordance with Article 3 of our Constitution sufficient to enforce the Berubari Union Agreement or to require an amendment to the Constitution under Article 368[3] of our Constitution? And should it, if necessary, be considered in addition or as an alternative?

Issues

1. What is the need for legislative action to implement an agreement relating to the Berubari Union?
2. Whether the law of Parliament relating to Article 3 of the Constitution of India, 1950, is sufficient in the event of such a need for action, or is it necessary, in addition to, or in the alternative, to amend the Constitution pursuant to Article 368 of the Constitution?
3. Is the Preamble a Part of the Constitution?

Arguments

The Government of the Union argued that the Agreement was simply a recognition of a previously agreed boundary and was not a replacement for a new boundary or an alternation of the boundary. The settlement chosen does not entail alienation or cession of the territories of India. The Union Government had therefore argued that the enforcement of the Agreement concerning the Berubari Union, along with the exchange of enclaves, does not entail legislative action.
Whereas Respondents claimed that, either through any legislation or even by amending our Constitution, the Parliament had no power to cede any portion of India in favour of a foreign state. They argued that the only opinion that the Supreme Court could give on the Agreement was that it was invalid and that a constitutional mechanism could not make it effective.

Judgement

In its decision, the Supreme Court held that the Parliament is not competent to enforce the purpose of the Agreement by a law applicable to Article 3 of the Constitution, since Article 3 does not refer to the territories of the Union, and there is no doubt that Article 3 covers the territories of the Union. Therefore, if any part of the territory of the Union were to be entrusted with the law relating to Article 3, it would not be competent to make such a decision.

It was held that the Preamble is not part of our Constitution and, in compliance with Article 368, Parliament has the right to amend the Constitution, including Article 1. Thus, the right to cede national territory for the advantage of a foreign state will be included. It further claimed that both the right to obtain and cede part of the national territory are important characteristics of sovereignty. That part of the territory of the Union should be moved in accordance with Article 368 of our Constitution and not in accordance with Article 3. Ultimately, regarding Article 1(3(c), the Court claimed that it did not grant the authority to India to acquire territories. It only provides for the incorporation and accommodation of foreign territories that it may acquire.

The Supreme Court also held that Article 3(c) of the Constitution grants Parliament the power to reduce but not cede the territory of the state. In view of this, it was concluded that it is necessary to implement the agreement laws relating to Article 368, which states that an amendment can be initiated only by the introduction of the Bill in either of the houses and if the Special Majority it is to be passed to the President for his assent. Furthermore, the Court ruled that while the Preamble forms a key to the minds of the constitutional makers and strictly speaks of India as a sovereign, it cannot limit the law from its duties, nor can it be used to determine the ambiguous portion of our Constitution.

It is not the source of the many powers bestowed by the Constitutional provisions on the Parliament. Such powers embrace those specifically bestowed by the Constitution and as may be inferred by those conferred; what is true of the powers is equally true of the prohibitions and limitations; the Preamble of our Constitution did not state the assumptions that one of the essential qualities of sovereignty is very severely restricted in the first part of the Preamble.

Analysis

In order to respond to the President’s query, the Supreme Court interpreted the articles in question. The Court believed Article 3 was incompetent for the purposes of implementing the Agreement at issue. It also stated that it was competent and necessary for a law to be drawn up for implementation pursuant to Article 368. Furthermore, if there were an amendment to be made first in Article 3, and this would follow the application of the amended Article for the implementation of the Agreement, Parliament’s law would be necessary both in relation to Article 3 and 368.

It must have been considered by the Supreme Court that Article 3 is one of the initial parts of our Constitution. The Amendment also meant that we were changing what we wanted from the Constitution makers and would make our Constitution seem weak in front of other nations. Instead of such a broad interpretation, the Supreme Court just had to say that the legislation referred to in Article 368 would be sufficient to perfect it.

The Court was correct in concluding that Article 3 through Article 368 must be amended by the legislative body because it is inconsistent in the pretext of law to act in accordance with the treaty, and the treaty alone cannot lead to the cession of the territory itself, the Preamble cannot restrict or limit the powers conferred by the Constitution as it is not part of it, A basis for resolving the question arising from the two ambiguous articles of the Constitution cannot be used. The basic structure theory proposed in the Keshavanada Bharti Case forms as a key for the minds of the makers, and therefore it should form as part of the Constitution. It is a matter of regret, yet the eminent judges constituting the bench responding to the presidential reference in the Berubari Case ignored a matter of record, that constitutional history.

In the Kesavanada Bharti Case, the basic structure theory proposed forms as a key to the minds of the makers, and therefore it should be part of the Constitution. It is a matter of regret, but a matter of record, this constitutional history, was ignored by the eminent judges constituting the bench responding to the presidential reference in the Berubari case. In the above case, the judges who were prominent and accountable regarding the presidential reference failed to notice the past, i.e. the constitutional events. It is sufficiently evident by many statements made by the constituent assembly that the Preamble is part of the Constitution. Therefore, we can say that in its decision, the Supreme Court was inaccurate that the Preamble is not part of the Constitution and overlooked certain past events.

Conclusion

In the Berubari Union case, the Supreme Court concluded that:

• The Preamble does not form part of our Constitution.
• Parliament has the right to amend (including Article 1) our Constitution.
• Cession of a portion of India’s territory would lead to a decrease in India’s territory. Under Article 368 of our Constitution, such an amendment may be made.

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