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Indian Case Summary

In Re: The Berubari Union And … vs Unknown on 14 March, 1960 – Case Summary

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In the case of “In Re: The Berubari Union And … vs Unknown on 14 March, 1960”, the Supreme Court of India was called upon to address a dispute between India and Pakistan regarding the Berubari Union No. 12 and the exchange of enclaves. This case was presided over by a bench consisting of B Sinha, A S Shah, K Dasgupta, K S Rao, M Hidayatullah, P Gajendragadkar, and S Das.

Facts of the Case

The dispute arose from an agreement reached between the Prime Ministers of India and Pakistan on September 10, 1958, known as the Indo-Pakistan Agreement. The agreement was intended to resolve border disputes and tensions, particularly those relating to the Berubari Union No. 12 and the exchange of enclaves. The Berubari Union No. 12, an area of 8.75 square miles with a population of ten to twelve thousand residents, was to be divided, with half the area given to Pakistan and the other half retained by India. The division was to be horizontal, starting from the north-east corner of Debiganj Thana. The agreement also included the exchange of Old Cooch-Behar Enclaves in Pakistan and Pakistan Enclaves in India without claim to compensation for extra area going to Pakistan.

Issues Raised

The implementation of the agreement raised doubts about whether it required 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. The President of India, foreseeing potential legal challenges to the constitutional validity of any action taken for the implementation of the agreement, referred three questions to the Supreme Court for consideration:

  1. 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 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?

Court’s Observations

The court, in its judgment, examined the historical, political, and constitutional background of the agreement. It noted that the Berubari Union No. 12 had been part of the State of West Bengal and had been governed as such since the Radcliffe Award of 1947, which had determined the boundaries of India and Pakistan. The court also noted that the exchange of enclaves was intended to resolve tensions and conflicts arising from the existence of Indian enclaves in Pakistan and Pakistani enclaves in India.

The Attorney-General, representing the Union of India, argued that the agreement was merely a recognition or ascertainment of the boundary that had already been fixed and did not constitute an alteration of the territorial limits of India. Therefore, he contended, the agreement could be implemented by executive action alone, without any legislative action.

The court’s judgment on these issues and the implications of its decision form a significant part of the history of India’s border disputes and the constitutional mechanisms for their resolution.