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SUPREME COURT OF INDIA
14th March, 1960
B.P. SINHA, C.J.I., S.K. DAS, P.B. GAJENDRAGADKAR, A.K. SARKAR, K. SUBBA RAO, M. HIDAYATULLAH, K.C. DAS GUPTA AND J.C. SHAH, JJ.
Special Ref. No. 1 of 1959.
Advocates appeared
Mr. M. C. Setalvad, Attorney-General for India, Mr. M. K. Daphtary, Solicitor-General of India and Mr. H. N. Sanyal, Additional Solicitor-General of India (M/s. G. N. Joshi, R. H. Dhebar and T. M. Sen, Advocates, with them), for the Union of India; Mr. S. M. Bose, Advocate-General for the State of West Bengal and Mr. B. Sen, Senior Advocate (M/s. K. C. Mukherjee, P. K. Bose, Advocates, with them), for the State of West Bengal; Mr. N. C. Chatterjee, Senior Advocate (Mr. Janardan Sharma, Advocate, with him), for Shri Krishna Kumar Chatterjee and Shri Ramaprasanna Roy: M/s. N. C. Chatterjee, U. M. Trivedi, D. R. Prem and Veda Vyasa, Senior Advocates, (M/s. R. Thiagarajan and Ganpat Rai, Advocates with them), for (1) the President, Bhartiya Jana Sangh, Kerala, (2) Secretary, Jana Sangh, Mandi, (3) Shri Tata Srirama Murthy, Akhil Bharatiya Jansangh, Visakhapatam, (4) Chairman, Bharatiya Jansangh, Mangalore, (5) Secretary, Bharatiya Jansangh, Sitapur, (6) Shri N. Thamban Nambiar, Bhartiya Jansangh, Thaliparambu and (7) President, Bhartiya Jansangh, Pattambi (Cochin) : Mr. C,. B. Aggarwala, Senior Advocate, (Mr. A. G. Ratnaparkhi, Advocate, with him), for the Secretary, Jalpaiguri Revolutionary Socialites Party, the Secretary, All India Forward Bloc, Calcutta and Shri Nirmal Bose of Jalpaiguri.
The Agreement amounts to cession or alienation of a part of Indian territory, not mere ascertainment of boundary. The court found the Agreement independently decided to divide the area half and half, unrelated to any interpretation of the award. (Para 19 , 22 , 23 )
No. Article 3 deals with internal adjustment of territories between States and does not cover cession of national territory to a foreign State. The power to cede territory cannot be read into Art. 3(c) by implication. (Para 37 , 38 , 39 , 41 , 42 , 44 )
Yes. Since the Agreement involves cession of territory, implementation requires amendment of Art. 1 and the First Schedule, which can only be done under Art. 368. Parliament may alternatively amend Art. 3 first under Art. 368 and then legislate under the amended Art. 3. (Para 45 , 46 )
No. Art. 3(c) refers to diminution of area where the diminished territory continues to be part of India. Cession to a foreign State is an essential attribute of sovereignty not covered by Art. 3, and cession of Union territories also requires Art. 368. (Para 41 , 42 )
The proviso to Art. 3 applies only where a Bill under Art. 3 affects State boundaries. If Art. 3 is inapplicable and Art. 368 is used, this incidental consequence cannot be avoided, though Art. 368 provides its own safeguards requiring substantial parliamentary concurrence. (Para 47 , 48 )
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 Prime 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 Indo-Pakistan Agreement and will be referred to hereafter as the agreement.
2. 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.
This will be so divided as to give half the area to Pakistan, the other half adjacent to India being retained by India. The Division of Berubari Union No. 12 will be horizontal, starting from the north-east corner or 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:
"10. Exchange of Old Cooch-Behar Enclaves in Pakistan and Pakistan Enclaves in India without claim to compensation for extra area going to Pakistan, is agreed to."
3. 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 arise are of such nature and of such importance that it is expedient that the opinion of the SC 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 the following three questions to this Court for consideration and report there on :
(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 Art. 3 of the Constitution sufficient for the purpose or is an amendment of the Constitution in accordance with Art. 3 68 of the Constitution necessary, in addition or in the alternative?
(3) Is a law of Parliament relatable to Art. 3 of the Constitution sufficient for implementation of the agreement relating to the exchange of Enclaves or is an amendment of the Constitution in accordance with Art. 368 of the Constitution necessary for the purpose, in addition or in the alternative?
4. Before dealing with the questions thus referred to this Court it is necessary to set out briefly the historical, political
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