BERUBARI CASE PDF
There is no dispute that since the date of award Berubari Union No. , that a tribunal should be set up without delay and in any case not later than January. In Re: Berubari Union case was decided on 14th March It was decided by a seven-judge bench of the Honourable Supreme Court. ; posts about Berubari case which created a history of Indian Judiciary. This is 1st case where SC.
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The story of Berubari Union – General Knowledge Today
In accordance with the directives issued by the Prima Ministers of India and Pakistan, on September 10,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 Prima Ministers; and bwrubari 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 Prima 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. In the present Reference we are concerned with beruhari items of the Agreement; item 3 in paragraph 2 of the Agreement reads as follows: This will be so divided as to give half the area to Pakistan, the other breubari adjacent to India being retained by India.
The Division of Berubari Union No. 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.
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 June 3,the said Government issued a statement as to the method by which the transfer of power would be effected. This Act was to come into force from August 15,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 bsrubari Pakistan.
Section 2 of the Act provided that subject to the brrubari of sub-ss. Sub-section 3 of s. It is situated in the police station Jalpaiguri in the District of Jalpaiguri, 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,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. Sir Cyril Radcliffe was subsequently appointed as Chairman.
So far as Bengal was concerned the material terms of reference provided that the boundary commission should demarcate the boundaries of the two parts of Bengal on the basis of ascertaining the contiguous areas of muslims and non-muslims; in doing so it had also to take into account other factors. The commission then held its enquiry and made an award on August 12,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.
Which State’s berubzri ought to prevail in respect of the districts of Darjeeling and Jalpaiguri in which the muslim population berbuari to 2.
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 issues in these words: 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 caae in annexure A is material. It provided that “a line shall be drawn along the boundary between the Thana of Phansidewa in ebrubari District of Darjeeling berubair 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 berubar Thanas of Tetulia and Rajganj, the Thanas of Pachagar and Rajganj and the Thanas of Pachagar and Jalpaiguri, and shall then continue along with northern corner of Thana of Debiganj to the boundary of the State of Cooch-Behar.
The district of Darjeeling and so much of caae 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 Caes which lies to the east or south shall belong to East Bengal. There is no dispute that since the date of award Berubari Union No.
[Case Brief] In Re: Berubari Union Case,
Meanwhile the Constituent Assembly which began cqse deliberations on December 9,reassembled as the Sovereign Constituent Assembly for India after midnight of August 14,and it began its historic beurbari of drafting the Constitution for India.
A drafting committee was appointed by the Constituent Assembly beruhari the draft prepared by it was presented to the Assembly on Berubqri 4, After due deliberations the draft passed through three readings and as finalised it was ebrubari by the President of the Assembly and declared as passed on November 26, On that date it became the Constitution of India; but, as provided by Art.
Article 1 of the Constitution provides, inter alia, that India, that is Bharat, shall be a Union of States and that the States and the territories thereof shall be the States and their territories specified in Parts A, B and C of the First Schedule. West Bengal was shown as one of the States in Part A; and it was provided that the territory of the State of West Bengal shall comprise the territory which immediately before the commencement of the Constitution was comprised in the Province of West Bengal.
In the light of the award Berubari Union No. Subsequently, certain boundary disputes arose between India and Pakistan and it was agreed between them at the Inter-Dominion Conference held in New Delhi on December 14,that a tribunal should be set up without delay and in any case not later than January 31,for the adjudication and final decision of the said disputes.
This tribunal had to consider two categories of disputes in regard to East-West Bengal but on this occasion no issue was raised about the Berubari Union. In fact no reference was made to the District of Jalpaiguri at all in the proceedings before the tribunal. The Bagge Award was made on January 26, It was two years later that the question of Berubari Union was raised by the Government of Pakistan for the first time in During the whole of this period the Berubari Union continued to be in the possession of the Indian Union and was governed as a part of West Bengal.
In Pakistan alleged that under the award Berubari Union should really have formed part of East Bengal and it had been wrongly treated as a part of West Bengal. Apparently correspondence took place between the Prime Ministers of India and Pakistan on this subject from time to time and the dispute remained alive until It was under these circumstances that the present Agreement was reached between the two Prime Ministers on September 10, That is the background of the present dispute in regard to Berubari Union No.
At this stage we may also refer briefly to the background of events which ultimately led to the proposed exchange of Cooch-Behar Enclaves between India and Pakistan. Section of the Government of India Act,had provided that His Majesty may by Order-in-Council increase or diminish the area of any Province or alter the boundary of any Province provided the procedure prescribed was observed.
It is common ground that the Government of India was authorised by the Extra-Provincial Jurisdiction Act of to exercise necessary powers in that behalf. Subsequently on January 12,the Government of India Act,was amended and s.
Section A reads thus: Section B 1 provides that the Governor-General may by order direct for the administration of areas included within the Governor’s Province or a Chief Commissioner’s Province by an Acceding State, and it prescribes that the acceding area shall be administered in all respects by a neighbouring Acceding State as if such area formed part of such State, and thereupon the provisions of the Government berbari India Act shall apply accordingly.
After these two sections were thus added several steps were taken by the Government of India for the merger of Indian States with the Union of India. The effect of this order was that the States which had merged with the Provinces were to be administered in all respects as if they formed part of the absorbing Provinces. This order beribari amended from time to time.
On August 28,an agreement of merger was entered into between the Government of India and the Ruler of the State of Cooch-Behar and in pursuance of this agreement the Government of India took over the administration of Cooch-Behar on September 12, ; Cooch-Behar thus became a part of the territory of India and was accordingly included in the list of Part C States as Serial No.
It provided that whereas full and exclusive authority, jurisdiction and power for and in relation to the governance of bberubari Indian State of Cooch-Behar were exercisable by the Dominion Government, it was expedient to provide by the order made under s.
In consequence, on January 1,the erstwhile State of Cooch-Behar was merged with West Bengal and began to be governed as if it was part of West Bengal. As a result of this merger Cooch-Behar was taken out of the list of Part C States in the First Schedule to the Constitution and added to West Bengal in the same Schedule, and the territorial description of West Bengal as prescribed in the First Schedule was amended by the addition of the clause which referred to the territories ebrubari were being administered as if they formed part of that Province.
In other words, after the merger of Cooch-Behar the territories of West Bengal included those which immediately before the commencement of the Constitution were comprised in the Province of West Bengal as well as those which were being administered as if they formed part of that Province. Subsequently a further addition has been made to the territories of West Bengal by the inclusion of Chandernagore but it is not necessary to refer to the said addition at this stage.
It appears that certain areas which formed part of the territories of the former Indian State of Cooch-Behar and which had subsequently become a part of the territories of India and then of West Bengal became after the partition enclaves in Pakistan. Similarly certain Pakistan enclaves were found in India. The problem arising from the existence of these enclaves in Pakistan and in India along with other border problems was being considered by the Governments of India and of Pakistan for a long time.
The existence of these enclaves of India in Pakistan and brubari Pakistan in India worked as a constant source of tension and conflict between the two countries. With a view to removing these causes of tension and conflict the two Prime Ministers decided to solve the problem of the said enclaves and establish peaceful conditions along the said areas. It is with this object that the exchange of enclaves was agreed upon by them and the said adjustment is described in item 10 of paragraph 3 of the Agreement.
That in brief is the historical and berubadi background of the exchange of enclaves. On begubari of the Union of India the learned Attorney-General has contended that no legislative action is necessary for the implementation of the Agreement relating to Berubari Union as well as casd exchange of enclaves. In regard to the Berubari Union he argues that what the Agreement has purported to do is to ascertain or to delineate the exact boundary about which a dispute existed between the two countries by beribari of different interpretations put by them on the relevant description contained in the award; the said Agreement is merely the recognition or ascertainment of ccase boundary which had already been fixed and in no sense is it a substitution of a new boundary or the alteration of the boundary implying any alteration of the territorial limits of India.
He emphasises that the ascertainment or the settlement of the boundary in the light of the beruabri by which both Governments were bound, is not an alienation or cession of the territory of India, and according to him, if, as a result of the ascertainment of the true boundary in the light of the award, possession of some land has had to be yielded to Pakistan it does not amount to cession of territory; it is merely a caes of settling the boundary.
The award had already settled the boundary; but since a dispute arose between the two Governments in respect of the location of the said boundary the dispute was resolved in the light of the directions given by the award and in berubrai light of the maps attached to it.
Where a dispute about a boundary thus arises between two States and it is resolved in the light of an award binding on them the agreement which embodies the settlement of such a dispute must be treated as no more than the ascertainment of the real boundary between them and it cannot be treated as cession or alienation of territory by one in favour of beruhari other.
According to this argument there was neither real alteration of the boundary nor real diminution of territory, and there would be no occasion to make any alteration or change in the description of the territories of West Bengal in the First Schedule to the Constitution.
It is also faintly suggested by the learned Attorney-General that the exchange of Cooch-Behar Enclaves is a part of the general and broader agreement about the Berubari Union and in fact it is incidental to it.
Therefore, viewed in the said context, even this exchange cannot be said to involve cession of any territory. On this assumption the learned Attorney-General has further contended that the settlement and recognition of the true boundary can be effected by executive action alone, and so the Agreement which has been reached between the two Prime Ministers can be implemented without any legislative action.
In support of this argument the learned Attorney-General has relied upon certain provisions of the Constitution and we may at this stage briefly refer to them. Entry 14 in List I of the Seventh Schedule reads thus: It provides that “notwithstanding anything in the foregoing provisions of the said Chapter Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.
Besides there are three other articles in the same part which are relevant.
The story of Berubari Union
Article 1 empowers Parliament to make laws for the whole or any part of the territory of India; Article 2 provides that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation; Article prescribes the subject-matter of laws which Parliament can make; and Art. Article lays down that Parliament has power to make any law with respect to any matter not enumerated in the Concurrent List or State List.
There is thus no doubt about the legislative competence of Parliament to legislate about any treaty, agreement or convention with any other country and to give effect to such agreement or convention. It is, however, urged that in regard to the making of treaties and implementing them the executive powers of the Central Government are co-extensive and co-incidental with bdrubari powers of Parliament itself.
This argument is sought to be based on the provisions of certain Articles to which reference may be made. Article 53 1 berjbari that the executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 73 on which strong reliance is placed prescribes the extent of the executive power of the Union. Article 73 1 says “that subject to the provisions of this Constitution the executive power of the Union shall extend a to the matters with respect to which Parliament has power to make laws; and b to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement provided that the executive power referred to in sub-clause a shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in berubarl State to matters with respect to which the Legislature of the State has also the power to make laws”; and Article 74 provides that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions; and Article 74 2 lays down that the question whether any, and if so what, advice was tendered by the Ministers to the President shall not be inquired into in any court.
According to the learned Attorney-General the powers conferred on the Union executive under Art. The State of Punjab. Dealing with the question about the limits within which the executive Government can function under the Indian Constitution Chief Justice Mukherjea, who delivered the unanimous decision of the Court, has observed that “the said limits can be ascertained without much difficulty by reference to the form of executive which our Constitution has set berubar, and has added, “that the executive function comprised both the determination of the policy as well as carrying it into execution.
Thus evidently includes the initiation of legislation, maintenance of order, the promotion of social csae economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State”.
It is on this observation that the learned Attorney-General has founded his argument.
Let us then first consider what the Agreement in fact has done. Has it really purported to determine the boundaries in the light of the award, or has it sought to settle the dispute amicably on an ad hoc basis by dividing the disputed territory half and half? Reading the relevant portion of the Agreement it is difficult to escape the conclusion that the parties to it came to the conclusion that the most expedient and reasonable way to resolve the dispute would be to divide the area in question half and half.
There is no trace in the Agreement of any attempt to interpret the award or to determine what the award really meant.