In Re: The Berubari Union And Exchange Of Enclaves Vs. Reference Under Article 143(1) of the Constitution of India

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Special Reference No. 1 of 1959

Decision Date: 01/04/1959

Coram: Not extracted

In the matter titled In Re the Berubari Union and Exchange of Enclaves versus Reference under Article 143(1) of the Constitution of India, the Supreme Court of India delivered its judgment on 1 April 1959. The petitioner was the Union of India, and the reference was made by the President of India under Article 143(1) concerning the President’s reference to the Court for advice on the implementation of the Indo-Pakistan Agreement of 1958, particularly the division of the Berubari Union and the exchange of Cooch-Behar enclaves, and the constitutional implications of any cession of territory under Articles 1, 3 and 368 of the Constitution.

The Court’s headnote recorded that the Radcliffe Award of 12 August 1947 had placed Berubari Union No. 12 within West Bengal, and that, consequently, the Union of India treated it as part of West Bengal from the commencement of the Constitution on 26 January 1950. Subsequent disputes between India and Pakistan did not involve Berubari before the Boundary Commission established by the bilateral agreement to resolve those disputes, and that Commission issued its award on 26 January 1950. Pakistan first raised the Berubari question in 1952, asserting that the Radcliffe Award had erroneously assigned the area to West Bengal and that it should belong to East Bengal. Earlier, on 28 August 1949, the ruler of the State of Cooch-Behar signed a merger agreement with the Government of India; the Government assumed administration of Cooch-Behar and the territory was merged into West Bengal on 1 January 1950. After the partition, certain portions of the former Cooch-Behar State became enclaves inside Pakistan, while some Pakistani enclaves lay within Indian territory.

To alleviate the tension created by these enclaves, the Prime Ministers of India and Pakistan concluded the Indo-Pakistan Agreement on 10 September 1958. Items 3 and 10 of that agreement provided respectively for a division of the Berubari Union on a fifty-fifty basis between the two countries and for an exchange of Cooch-Behar enclaves situated in Pakistan with Pakistani enclaves situated in India. When doubts later arose regarding the implementation of those items, the President of India referred the matter to the Supreme Court for advisory opinion under Article 143(1). The Court held that Item 3 of the Agreement unambiguously indicated that the parties intended to settle the dispute independently of the Radcliffe Award, on an ad hoc basis, by splitting the territory equally. The Court observed that the Agreement contained no language suggesting an attempt to interpret the Award or to determine the boundary pursuant to it. Accordingly, the question of Berubari must be assessed on the basis that it involves the cession of part of India’s territory to Pakistan, a view that gains even stronger relevance when considered alongside the agreement concerning the exchange of enclaves. The Court concluded that there could be no doubt that the implementation of the Agreement would effect such a cession.

The Court explained that carrying out the Agreement would necessarily modify the boundary of West Bengal and would consequently affect Entry 13 of the First Schedule to the Constitution, because Berubari had, in fact, been regarded as part of West Bengal and had been administered as such from the date of the Award and therefore formed a component of the State before the Constitution commenced; any argument to the contrary was rejected. The Court distinguished the earlier decisions in State of Australia v. State of Victoria (1911) 12 C.L.R. 667 and State of South Australia v. State of Victoria [1914] A.C. 283, holding that those precedents were inapplicable to the present question. It observed that although the pre-amble may be described as a guide to the intentions of the Constitution-makers, it is not part of the Constitution itself and cannot be treated as the source of any substantive power that the Constitution alone may confer on the Government, either expressly or by implication, and the same principle applies to constitutional prohibitions and limitations. Accordingly, it was not correct to say that the pre-amble could in any manner restrict Parliament’s authority to cede portions of the nation’s territory, nor was it correct to claim that Article 1(3)(c) did so. The Court held that, when properly construed, Article 1(3)(c) does not grant a power to acquire foreign territories; rather, it merely recognises the automatic absorption of any territory that India may acquire by virtue of its sovereign right, and consequently it does not, by implication, exclude the power to surrender national territory. Moreover, the power to amend the Constitution under Article 368 provides Parliament with the authority to amend Article 1(3)(c) so as to incorporate the power to cede national territory as well. For that reason, it was erroneous to suggest that the sovereign State of India lacked the two essential attributes of sovereignty—namely, the power to acquire foreign territory and the power to cede its own territory—and that no legislative process could validate the Agreement in question. While acknowledging that the cession of territory, which in law amounts to a transfer of sovereignty, may cause substantial hardship from a human perspective, the Court affirmed that a sovereign State’s right to do so in the exercise of its treaty-making power, subject only to any limitations that the Constitution may expressly or necessarily impose, is never in doubt. Whether the treaty may be implemented by ordinary legislation or by a constitutional amendment, the Court said, depends entirely on the provisions of the Constitution itself. In construing Article 3, the Court assumed that the Constitution contemplated alterations to the territorial limits of the constituent States and did not guarantee their territorial integrity; broadly, Article 3 addresses territorial adjustments among the States of India, not merely their reorganisation on linguistic or other bases. Article 3(c) deals with the reduction of a State’s area, and it is unreasonable to argue that its scope is so wide as to encompass the cession of national territory. The true position, the Court concluded, is that the Constitution does not expressly provide for either the acquisition of foreign territory or for the cession of national territory; such powers are inherent in every sovereign State.

In this matter, the Court observed that the power to cede national territory belonged inherently to every sovereign state. Accordingly, the Court held that the Agreement concerning Berubari Union and the exchange of enclaves could not be effected through legislation falling under Article 3 of the Constitution, because Article 3 dealt only with internal re-organisation of states. The Court therefore concluded that any law implementing the Agreement would have to be enacted pursuant to the provisions of Article 368, which authorised constitutional amendment. The Court reasoned that Parliament, acting under Article 368, could either pass a law that gave effect to the Agreement and thereby covered both Berubari and the enclaves, or Parliament could first amend Article 3 so as to include the cession of Indian territory within its scope and then, under the amended Article 3, enact a statute to implement the Agreement.

Judgment – Advisory jurisdiction: Special Reference No 1 of 1959. The President of India had, under Article 143(1) of the Constitution, referred the question of implementing the Indo-Pakistan Agreement relating to Berubari Union and the exchange of enclaves to the Supreme Court. The Court reproduced the full text of the Reference dated 1 April 1959. The Reference began with the statement that the Boundary Commission, chaired by Sir Cyril Radcliffe and constituted under subsection (3) of section 3 of the Indian Independence Act, 1947, had made an award – hereinafter called “the Radcliffe Award” – a copy of which was annexed as Annexure 1. That award determined the boundaries of the Province of East Bengal and the Province of West Bengal as contemplated in clause (b) of subsection (1) of section 3 of the same Act.

The Reference continued that, because certain boundary disputes arose from the interpretation of the Radcliffe Award, the Dominions of India and Pakistan had, by mutual agreement, established a Tribunal chaired by the Honourable Lord Justice Algot Bagge for the final settlement of those disputes and for demarcating the boundary accordingly. The Tribunal’s decisions, referred to as “the Bagge Awards,” were annexed as Annexure 11.

The Reference then set out, with respect to the District of Jalpaiguri, the description of the boundary line between West Bengal and East Bengal found in paragraph 1 of the Schedule forming Annexure A to the Radcliffe Award. The description read: “A line shall be drawn along the boundary between the Thana of Phansidew a in the District 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 Cooch Behar. 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.”

The parties noted that a further controversy had emerged between the Government of India and the Government of Pakistan concerning the interpretation of the Radcliffe Award with respect to the District of Jalpaiguri. Specifically, the disagreement centered on whether the award assigned the territory identified as Berubari Union No. 12 – the area delineated by the blue parallel lines on the sector map attached as Annexure III – to the Province of West Bengal, as asserted by India, or whether it assigned a substantial portion of that same territory to the Province of East Bengal, as claimed by Pakistan. In addition to this particular dispute, the governments acknowledged that other disagreements had arisen concerning the meaning and execution of certain provisions of the Radcliffe Award as well as of some provisions of the Bagge Awards. Moreover, the parties recognized a problem created by the existence of enclaves on the Indo-Pakistani frontier: certain territories of the former Indian State of Cooch-Behar, now situated as Indian enclaves within Pakistan and shown in red on the sector map annexed as Annexure IV, and certain Pakistani territories existing as enclaves within India, shown in blue on the same map. These enclave situations, together with other border difficulties, had attracted the attention of both governments as sources of tension. Consequently, with the aim of eliminating sources of friction, resolving the border disputes, and establishing peaceful conditions along the frontier, the Prime Minister of India, acting on behalf of the Indian Government, and the Prime Minister of Pakistan, acting on behalf of the Pakistani Government, concluded an agreement. The agreement was recorded in a joint note prepared 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 of which is annexed as Annexure V; the parties thereafter referred to this document as the “Indo-Pakistan Agreement.” The Indo-Pakistan Agreement expressly settled the dispute concerning the territory known as Berubari Union No. 12 in the manner described in Item (3) of paragraph 2 of the agreement, and this portion of the agreement is hereinafter called the “Agreement relating to Berubari Union.” Likewise, the Indo-Pakistan Agreement addressed the enclave problem by providing for an exchange of enclaves in accordance with Item (10) read together with Item (3) of paragraph 2, and this portion is hereinafter termed the “Agreement relating to Exchange of Enclaves.” The parties further observed that a question had arisen as to whether the implementation of the Agreement relating to Berubari Union required the enactment of a suitable law of Parliament under Article 3 of the Constitution, the amendment of the Constitution itself pursuant to Article 368, or both forms of legislative action.

It was observed that a question existed as to whether the implementation of the Agreement concerning the Berubari Union required the enactment of a law of Parliament that related to article 3 of the Constitution, or whether it required a constitutional amendment made under the procedure laid down in article 368, or perhaps both of those measures. In addition, a doubt had arisen concerning the Agreement relating to the Exchange of Enclaves: it was uncertain whether a parliamentary law dealing with article 3 alone would be enough to give effect to that agreement, or whether a constitutional amendment under article 368 was also necessary, either in addition to or in place of such a law. Moreover, there was a real possibility that any action taken to implement either the Berubari Union Agreement or the Exchange of Enclaves Agreement could be challenged on constitutional grounds in the courts, leading to avoidable and prolonged litigation. Considering all of the foregoing, it appeared to the President that the legal questions set out below were of considerable importance and deserved the advisory opinion of the Supreme Court of India.

Consequently, acting under the authority conferred by clause (1) of article 143 of the Constitution, the President of India, Rajendra Prasad, sent the following questions to the Supreme Court for its consideration and report: (1) whether any legislative action is necessary for the implementation of the Agreement relating to the Berubari Union; (2) if legislative action is required, whether a law of Parliament that deals with article 3 of the Constitution is sufficient, or whether an amendment of the Constitution under article 368 is also required, either additionally or alternatively; and (3) whether a law of Parliament relating to article 3 is sufficient to implement the Agreement relating to the Exchange of Enclaves, or whether a constitutional amendment under article 368 is necessary, either in addition or as an alternative. The annexures to the request were omitted from the record. The reference was dated 8, 9 and 10 December 1959, and was signed by the Attorney-General of India, the Solicitor General, the Additional Solicitor General, and other counsel appearing for the Union of India. The President also noted that the Constitution does not guarantee the integrity of State territories, and that Parliament retains supreme authority even on matters affecting territorial questions. Part 1 of the Constitution was described as a self-contained code dealing with the Union’s territory, with all residuary powers vested in Parliament, a situation distinct from the constitutional arrangements of the United States, Australia and Canada. Finally, it was observed that the Prime Ministers’ agreement concerning Berubari Union No. 12 did not involve any cession of territory but merely clarified the boundary between East Bengal and West Bengal that had been left ambiguous by the Radcliffe Award, and that such clarification could therefore be effected by executive action rather than by a transfer of territorial sovereignty.

In its observation, the Court held that this portion of the Prime Ministers’ agreement could be carried out through executive action because it involved only a settlement of boundaries and did not represent an alienation or cession of land. The Court referred to authorities such as State of South Australia v. State of Victoria, 12 C.L.R. 667; Penn v. Baltimore, 1 Ves. Sen. 444; Grandall on Treaties, 1 Edn., pp. 115 and 161; and The Lessee of Lattimer et al. v. Poteet, 10 L. Ed. 328 to support the principle that merely fixing a boundary does not amount to a transfer of territory.

The Court noted that the territories comprising Berubari Union No. 12 had been administered by the State of West Bengal in a manner that was unconstitutional, because they did not fall within item 3 of the First Schedule to the Constitution. Although West Bengal treated Berubari Union as if it were part of its own territory, legally the area was not included in the State’s territory and therefore was not administered “as if it formed part of West Bengal” within the meaning of item 3 of the First Schedule. The Court further observed that the portion of Berubari Union transferred to East Bengal under the Prime Ministers’ agreement did not require any amendment to the First Schedule. This point was supported by the citation A.I.R. 1959 Cal. 506 at 517 and 518.

The judgment explained that the executive power of the Union is co-extensive with the powers of Parliament, subject to the limitation that the executive may not act contrary to the Constitution or to any law enacted by Parliament, as described in [1955] 2 S.C.R. 225 at 234-237. The Court held that the authority to make treaties resides within the sovereign power of the Union and is shared by both the executive and Parliament. Actions taken by the executive in relation to treaties and agreements form part of governmental functions. Accordingly, the executive may, by entering into a treaty or agreement, settle a boundary dispute that does not involve the acquisition or cession of territory.

The Court stated that if the agreement concerning Berubari were found to be more than a mere settlement or delineation of a boundary, then legislation by Parliament under Article 3 of the Constitution would be sufficient to give effect to the agreement, whereas legislation under Article 368 would be incompetent. The Court emphasized that Part 1 of the Constitution constitutes a self-contained code dealing with the territories of the Union. Article 1 defines the territory of India as the territory of the States, and the description of the territories of the States therefore describes the territory of India. Article 2 provides for the addition to the Union’s territories by admitting new States or new areas. Article 3(a), in its final clause, envisages the union of any territory with any part of a State, expressly including foreign territory that may be acquired. Article 3(b) contemplates an increase in the area of a State, which may occur by acquiring foreign territory and adding it to the State’s area. Article 3(c) envisions a diminution of a State’s area, which may result from cession to a foreign power. The Court observed that there is no restriction on the words “increase” or “decrease” in clauses (b) and (c) of Article 3, and that these clauses are broad enough to cover both acquisition of foreign territory and cession of a State’s territory. The Court cited Babulal Parate’s case, [1960] 1 S.C.R. 605, to support this interpretation.

S.C.R. 605 recorded that no doctrinaire approach or preconceived notion should be imported into the interpretation of Articles 2 and 3 of the Constitution, which is an organic instrument. The Court observed that legislation under Article 368 of the Constitution was neither necessary nor proper for the matters before it. It further noted that invoking Article 368 would place the States at a disadvantage because, unlike under Article 3, a bill would not be required to be referred to the concerned State for its view. The Court held that the exchange of the Cooch-Behar enclaves did not involve a cession of territory and that executive action alone was sufficient to give effect to the agreement. It clarified that an exchange of territory for administrative considerations as part of a larger settlement does not amount to cession, citing Oppenhiem (8th Edn., p. 451, Art. 169, p. 548, Art. 216, p. 547) and Halsbury (Vol. 7, Art. 604). The Court added that even if a transaction involved cession of territory, legislation under Article 3 would be adequate to implement the agreement. It affirmed that the Union possessed the right to cede territory when the occasion arose, a right that vests in every sovereign State and may be implied even if not expressly conferred by its Constitution, referring to Willoughby (Vol. 1, p. 572). Counsel for the State of West Bengal appeared for that State. The Court examined the Indian Independence Act, which provisionally assigned the whole of the district of Jalpaiguri to West Bengal. It reasoned that if the Radcliffe Award had fixed the boundary line, no dispute or need for the agreement would exist. However, if the Award had failed to fix the line and left it undetermined, then under the Indian Independence Act the entire Berubari area would have gone to West Bengal. The Act contemplated settlement of the boundary by an Award, not by an agreement of the Prime Ministers. Consequently, if the Award did not settle the boundary, the whole of Jalpaiguri remained part of India. The Court found that the Prime Ministers’ agreement actually divided Berubari equally without attempting to clarify the Award, and it was erroneous to describe the agreement merely as a delineation of the boundary. Rather, the agreement involved the cession of Indian territory to Pakistan. The Constitution, the Court held, confers power only to acquire foreign territory and not to cede Indian territory to foreign powers. Therefore, it would first be necessary to act under Article 368 to empower Parliament to make a law for cession of territory, after which legislation under Article 3 could be employed. The Court interpreted the words “any territory” in Article 3(a) as not sufficiently wide to include foreign territory; they apply only to territory already acquired and incorporated into the Union under Article 1. Parliament’s power, the Court explained, extends only to laws concerning territory over which it has jurisdiction. Article 3 deals solely with the internal re-arrangement of State territories and does not address acquisition of foreign territory or the cession of Indian territory to foreign powers. Counsel for Krishna Kumar appeared for the petitioner.

Counsel for the President of the Bharatiya Jana Sangh of Kerala, the Secretary of the Jana Sangh of Mandi, Shri Tata Srirama Murthy of the Akhila Bharatiya Jan. Sangh of Visakhapatam, the Chairman of the Bharatiya Jansangh of Mangalore, the Secretary of the Bharatiya Jansangh of Sitapur, Shri N. Thamban Nambiar of the Bharatiya Jansangh of Thaliparambu, and the President of the Bharatiya Jansangh of Pattambi (Cochin) together submitted that the Prime Ministers’ agreement could not be put into effect. They argued that Indian territory could not be ceded under any circumstance and that Berubari formed an integral part of the Union of India, having remained under the possession of West Bengal since the 1947 partition. According to them, the true character of the Prime Ministers’ agreement was not the demarcation of a boundary pursuant to the Radcliffe Award but a pure cession of territory to Pakistan. The counsel cited the decision in The State of South Australia v. State of Victoria, 12 C.L.R. 667, stating that it was inapplicable because that case did not involve the transfer of territory to a foreign power, and they also noted that Penn v. Baltimore, Ves. Sen. 444, concerned no territorial cession. They maintained that the Constitution contained implied prohibitions against dismembering the nation and that its preamble barred any partition, preserving the integrity of India’s territory. Referring to Article 4, section 3, paragraph 2, of the United States Constitution, they observed that it expressly authorized cession of territory, a power that does not automatically arise from sovereignty; thus, the express mention of acquisition powers in Articles 1 and 2 of the Indian Constitution excluded any power to cede. They invoked the maxim “expressio unius exclusio alterius,” citing Brooms Legal Maxims (10th ed., p. 452), Craies (5th ed., p. 240), 1951 U.S. 914, and Willoughby (Vol. 1, p. 518) to support their view that Parliament was not sovereign to alter or diminish the nation’s territory. The counsel further referenced several Supreme Court decisions—[1951] S.C.R. 744, 968; 8 E.R. 1034; A.I.R. 1956 S.C. 246; and [1950] S.C.R. 1098—asserting that the preamble revealed the Constitution’s intent to prevent any fragmenting of India. They argued that transferring parts of Berubari to Pakistan would affect the fundamental rights of thousands of persons, including franchise and citizenship rights, which could not be withdrawn by executive action. Counsel C.B. Agarwala and A.G. Ratnaparkhi, representing the Secretary of the Jalpaiguri Revolutionary Socialist Party, the Secretary of the All India Forward Bloc of Calcutta, and Shri Nirmal Bose of Jalpaiguri, echoed this position, contending that the agreement could not be implemented by executive decree because the matter concerned the property of the States, not the Union’s own property, and that even legislation under Article 3 would be inadequate. They emphasized that citizenship rights could be removed only by legislation under Article 11, and consequently, the implementation of the agreement inevitably implicated the fundamental rights guaranteed by Part III of the Constitution, rendering the cession impermissible.

In this case, the Court observed that the rights guaranteed by Part III of the Constitution would be implicated because the portion of Berubari slated to be transferred to Pakistan would lose those rights. The Court noted that citizens of India could not be stripped of their fundamental rights by legislation enacted under Article 3. It further held that the proposed agreement could not be put into effect even through legislation under Article 368, because the preamble imposes limitations on the power to amend. Accordingly, the Court said that such an agreement could be carried out only with the people's consent through a referendum. Counsel, with the permission of the court, then explained the scope of Article 3. The counsel observed that Article 3 governs the formation of new states and the alteration of areas, boundaries, or names of existing states, as indicated in its marginal note. The Court was reminded that Article 3 reproduces in the present Constitution the provisions that Section 290 contained in the Government of India Act, 1935, and that both deal with internal re-organisation rather than with foreign territory. In response, counsel for the other side argued that the description of the boundary line in the Radcliffe Award was ambiguous. The counsel further contended that the clause in the agreement describing a horizontal division merely meant a line running east to west, dividing the territory equally. The Court then addressed the relevance of the preamble, stating that the preamble cannot override the clear language of the constitutional articles. It cited authorities indicating that the preamble is not a part of the Constitution and that the language of Article 368 is unequivocal, allowing no limitation based on the preamble. The Court affirmed that citizenship rights and fundamental rights do not affect the power conferred by Article 368. It further observed that only legislation under Articles 2 or 3(a) can bring foreign territory within India, and there is no justification for restricting the language or scope of Article 3. Turning to the sub-clauses of Article 3, the Court remarked that clause (a) expressly deals with foreign territory, and there is no basis for treating clauses (b) and (c) as unrelated to foreign territory. It pointed out that every other provision in Part I envisions both Indian and foreign territory, and therefore there is no reason to limit clauses (b) through (e) to a single kind of territory. The Court warned that construing the provisions in a way that hinders boundary adjustments would be contrary to the essence of sovereignty, which includes the power to cede and acquire territory. It further noted that no constitution contains a specific provision on the cession of territory; in the United States, such power is exercised through the treaty-making authority, not through a specific constitutional article. Finally, the Court observed that Parliament is empowered under Article 11 to remove citizenship rights.

In this matter the Court observed that a statute enacted under Articles 3 and 4 would address supplemental and incidental matters and could also incorporate provisions under Article 11 for the removal of citizenship rights. The Court noted that the cession of territory inevitably affects the nationality and the rights of the persons residing in the territory that is ceded, as discussed in Anson’s Law and Custom of the Constitution, fourth edition, volume 2, part 11, page 141. It was further emphasized that fundamental rights cannot continue to exist where there is a transfer of allegiance that results from the cession of territory, a principle reflected in the 1960 decision of the Court of Appeal. The opinion of the Court was delivered by Justice Gajendragadkar. The Court then recounted that, pursuant to the directives issued by the Prime Ministers of India and Pakistan on 10 September 1958, the Commonwealth Secretary of the Ministry of External Affairs, Government of India, and the Foreign Secretary of the Ministry of Foreign Affairs and Commonwealth, Government of Pakistan, met to discuss ten disputed items between the two countries. The two officials signed a joint note recording their agreement on those disputes and submitted the note to their respective Prime Ministers. With the aim of removing sources of tension, resolving border disputes, and establishing peaceful conditions along the Indo-Pakistan border areas, the Prime Ministers, acting on behalf of their governments, entered into an agreement that settled some of the disputes as set out in the joint note. This agreement has been identified as the Indo-Pakistan Agreement and will be referred to simply as the Agreement. The reference before the Court concerns two specific items of the Agreement. Item 3 in paragraph 2 of the Agreement provides that the Berubari Union No. 12 shall be divided so that one half of the area will be allotted to Pakistan and the other half, which is adjacent to India, will be retained by India. The division is to be carried out horizontally, beginning from the north-east corner of Debiganj Thana, and must be effected in a manner that keeps the Cooch-Behar enclaves situated between Pachagar Thana of East Pakistan and Berubari Union No. 12 of Jalpaiguri Thana of West Bengal connected with Indian territory, thereby remaining with India. The lower-lying Cooch-Behar enclaves located between Boda Thana of East Pakistan and Berubari Union No. 12 are to be exchanged together with the general exchange of enclaves and will pass to Pakistan. Item 10 of the Agreement states that the exchange of the old Cooch-Behar enclaves situated in Pakistan and the Pakistan enclaves situated in India shall occur without any claim for compensation for the extra area that will go to Pakistan. The Court observed that a subsequent doubt has arisen as to whether the implementation of the Agreement concerning Berubari Union requires legislative action either by means of a suitable law of Parliament that falls within the scope of Article 3 of the Constitution, or by a suitable amendment of the Constitution in accordance with the provisions of Article 368, or perhaps both. A similar doubt has also been raised regarding the implementation of the Agreement concerning the exchange of enclaves.

It appeared that any action taken to give effect to the agreement concerning the Berubari Union as well as the agreement concerning the exchange of enclaves might be challenged on constitutional grounds in the courts, leading to avoidable and lengthy litigation. Because of that possibility, the President considered that the legal questions that had arisen were of such a nature and of such importance that obtaining an opinion from the Supreme Court of India was advisable. Accordingly, exercising the authority conferred on him by clause (1) of article 143 of the Constitution, the President referred three specific questions to the Court for its consideration and report. The first question asked whether any legislative action was required to implement the agreement relating to the Berubari Union. The second question inquired, if legislative action were necessary, whether a law of Parliament made under article 3 of the Constitution would be sufficient, or whether an amendment of the Constitution pursuant to article 368 would also be required, either in addition to or as an alternative to such a law. The third question sought to determine whether a law of Parliament under article 3 would suffice to implement the agreement concerning the exchange of enclaves, or whether a constitutional amendment under article 368 would be needed, either together with or instead of a parliamentary law.

Before addressing the referred questions, it was necessary to set out briefly the historical, political and constitutional background of the agreement. On 20 February 1947, the British Government announced its intention to transfer power in British India to Indian hands by June 1948. Subsequently, on 3 June 1947, the Government issued a statement describing the method by which the transfer of power would be effected. On 18 July 1947, the British Parliament passed the Indian Independence Act, 1947. This Act was scheduled to come into force on 15 August 1947, the appointed day, and it declared that two independent Dominions would be established in India, to be known as India and Pakistan. Section 2 of the Act provided, subject to the provisions of sub-sections (3) and (4) of section 2, that the territories of India would comprise the territories under the sovereignty of His Majesty that were immediately before the appointed day included in British India, except for those territories that, under sub-section (2) of section 2, were to become the territories of Pakistan. Section 3, sub-section (1), further provided, inter alia, that as from the appointed day the Province of Bengal as constituted under the Government of India Act, 1935, would cease to exist and would be replaced by two new provinces to be known as East Bengal and West Bengal. Sub-section (3) of section 3 provided, inter alia, that the boundaries of the new provinces would be as determined, whether before or after the appointed day, by the award of a boundary commission appointed by the Governor-General, but until such boundaries were determined, the Bengal district specified in the First Schedule of the Act would be treated as part of the new Province of East Bengal, and the remainder of the territories comprising Bengal at the time of the Act’s passage would be treated as part of the new Province of West Bengal. Sub-section (4) defined the term “award” as the decision of the chairman of the boundary commission contained in his report to the Governor-General at the conclusion of the commission’s proceedings. The Province of West Bengal later became the State of West Bengal within India, while the Province of East Bengal later became part of Pakistan and was known as East Pakistan. The Berubari Union No. 12, which is the subject of the present reference, has an area of 8.75 sq km.

Section 3, sub-section (4) defined the term “award” as the decision of the chairman of a boundary commission that was contained in his report to the Governor-General at the end of the commission’s proceedings. Under the same section, until a boundary was formally determined, the Bengal district listed in the First Schedule of the Independence Act was to be treated as part of the new Province of East Bengal, while the remaining territories that existed in the Province of Bengal at the time the Act was passed were to be treated as part of the new Province of West Bengal. The Province of West Bengal later became the State of West Bengal and remained within India, whereas the Province of East Bengal became part of Pakistan and was thereafter known as East Pakistan. The specific territory at issue, Berubari Union No. 12, covered an area of 8.75 square miles and was home to roughly ten to twelve thousand inhabitants. It lay within the police station of Jalpaiguri in the District of Jalpaiguri, which at the relevant time formed part of the Rajshahi Division. Although Berubari Union was not mentioned in the First Schedule of the Independence Act, if the Schedule were applied strictly the Union would have been placed in West Bengal. The Court, however, noted that the First Schedule never actually came into operation. On 30 June 1947 the Governor-General announced that the Provinces of Bengal and Punjab would be partitioned. In response, a boundary commission for Bengal was constituted, comprising four judges of High Courts and a chairman to be appointed later. Sir Cyril Radcliffe was subsequently appointed as the chairman. The commission’s terms of reference required it to demarcate the boundary between the two parts of Bengal by identifying contiguous Muslim and non-Muslim areas and by giving due regard to other relevant factors.

The commission conducted its inquiry and issued its award on 12 August 1947, an award that later became known as the Radcliffe Award. Notably, this award was made three days before the appointed day prescribed in the Independence Act. The chairman’s report recorded that he had framed seven fundamental questions on which the final demarcation between East and West Bengal depended. Question No. 6, which was particularly pertinent to the present dispute, asked: “Which State’s claim ought to prevail in respect of the districts of Darjeeling and Jalpaiguri 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?” The commission members were unable to reach a consensus on the major issues, leaving the chairman with no alternative but to decide the matters himself. In his decision, the chairman directed that the boundary description set out in annexure A to the award would prevail over any discrepancy with the map shown in annexure B, and that the line would be drawn as described in paragraph 1 of annexure A, which runs along the boundary between the Thana of Phansidewa in the District of Darjeeling and the Thana of Tetulia in the District of Jalpaiguri.

In the commission’s questionnaire, the sixth question asked which state’s claim should prevail over the districts of Darjeeling and Jalpaiguri, noting that Muslims constituted 2.42 percent of the total population in Darjeeling and 23.08 percent in Jalpaiguri, but that the area did not form a naturally contiguous non-muslim region of Bengal. The record shows that the members of the boundary commission were unable to reach a unanimous conclusion on any of the principal issues. Consequently, the Chairman found that he had no alternative but to render his own decision on the matters that remained unresolved.

The Chairman’s decision began by stating that the demarcation of the boundary line was set out in detail in the schedule attached as Annexure A to the award and was illustrated by the map attached as Annexure B. He emphasized that the map served only for illustrative purposes and that, in the event of any inconsistency between the description in Annexure A and the depiction on the map in Annexure B, the written description in Annexure A would govern. Paragraph 1 of Annexure A was highlighted as material; it stipulated that a line should be drawn along the boundary between the Thana of Phansidewa in the District of Darjeeling and the Thana of Tetulia in the District of Jalpaiguri, from the point where that boundary meets the Province of Bihar, 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 thereafter along the northern corner of the Thana of Debiganj to the boundary of the State of Cooch-Behar in the district of Darjeeling. The provision further declared that the portion of the district of Jalpaiguri lying north of this line would belong to West Bengal, whereas the Thana of Patgram and any other part of Jalpaiguri District situated to the east or south of the line would belong to East Bengal.

Because the award took effect three days before the date appointed under the Independence Act, the territorial extent of the Province of West Bengal was never settled under Schedule 1 of that Act; instead, it was determined by the award itself. There is no dispute that, from the date of the award onward, Berubari Union No. 12 has in fact formed part of the State of West Bengal and has been administered as such. Meanwhile, the Constituent Assembly, which had begun its deliberations on 9 December 1946, reconvened as the Sovereign Constituent Assembly for India after midnight on 14 August 1947 and embarked on the historic task of drafting the Constitution of India. A drafting committee was appointed by the Assembly, and the draft prepared by that committee was presented to the Assembly on 4 November 1948. After thorough discussion, the draft passed through three readings, was signed by the President of the Assembly, and was declared passed on 26 November 1949. On that date it became the Constitution of India; however, as provided by Article 394, only the articles expressly specified came into force on that day, while the remaining provisions entered into force on 26 January 1950, the date referred to in the Constitution as the commencement of the Constitution.

Article 1 of the Constitution declared that India, also called Bharat, would be a Union of States and that the States and their territories were those listed in Parts A, B and C of the First Schedule. West Bengal appeared as a State in Part A, and the Constitution specified that the territory existing immediately before its commencement was the Province of West Bengal. In view of the earlier award, Berubari Union No 12 was regarded as part of that province and was administered accordingly. After independence, a series of boundary disputes arose between India and Pakistan. At the Inter-Dominion Conference held in New Delhi on 14 December 1948, the two governments agreed to constitute a tribunal without delay and, in any event, not later than 31 January 1949 to decide the disputes finally. This body became known as the Indo-Pakistan Boundaries Disputes Tribunal and was chaired by the Hon’ble Lord Justice Allot Badge. The tribunal was tasked with considering two categories of disputes concerning East and West Bengal, but it received no reference to Berubari Union, nor any mention of the District of Jalpaiguri, during its proceedings. The tribunal delivered the Bagge Award on 26 January 1950. Two years later, in 1952, the Government of Pakistan raised the question of Berubari Union for the first time, claiming that the award should have placed the Union within East Bengal and that it had been incorrectly treated as part of West Bengal. Throughout the intervening period, Berubari Union remained under the possession of the Indian Union and continued to be governed as a component of West Bengal. Correspondence on the matter occurred intermittently between the Prime Ministers of India and Pakistan, and the disagreement persisted until 1958. Consequently, on 10 September 1958, the two Prime Ministers reached the present agreement, which forms the factual backdrop of the current dispute concerning Berubari Union No 12. In addition, the background of the proposed exchange of Cooch-Behar enclaves may be noted. Section 290 of the Government of India Act, 1935, authorized His Majesty, by Order-in-Council, to increase or diminish the area of any Province or to alter a provincial boundary, provided the prescribed procedure was followed. It is accepted that the Government of India derived the necessary authority to exercise such powers from the Extra-Provincial Jurisdiction Act of 1947. Subsequently, on 12 January 1949, the Government of India Act, 1935, was amended to include sections 290A and 290B.

In this part the Court set out the provisions that had been inserted into the Government of India Act, 1935. Section 290-A provides that where the Dominion Government at that time exercised full and exclusive authority, jurisdiction and powers over the governance of any Indian State or any group of such States, the Governor-General may by order direct either that the State or the group of States shall be administered in all respects as if it were a Chief Commissioner’s Province, or that it shall be administered in all respects as if it formed part of a Governor’s or a Chief Commissioner’s Province specified in that order. Section 290-B(1) then states that the Governor-General may by order direct the administration of any area that is included within a Governor’s Province or a Chief Commissioner’s Province by an acceding State. It further prescribes that the acceding area shall be administered in all respects by a neighbouring acceding State as if that area were part of the neighbouring State, and that the provisions of the Government of India Act shall then apply accordingly. Having added these two sections, the Government of India took a series of steps to effect the merger of the Indian States with the Union of India. To that end the States Merger (Governors’ Provinces) Order, 1949, was issued on 27 July 1949. The effect of that order was to treat every State that had merged with a Province as if it formed part of the absorbing Province for all purposes of administration. That order was subsequently amended from time to time. On 28 August 1949 an agreement of merger was concluded between the Government of India and the ruler of the State of Cooch-Behar. Pursuant to that agreement the Government of India assumed administration of Cooch-Behar on 12 September 1949. Consequently Cooch-Behar became a part of the territory of India and was listed as Serial No. 4 among the Part C States in the First Schedule to the Constitution. Subsequently, on 31 December 1949 the States Merger (West Bengal) Order, 1949, was promulgated. That order observed that although the Dominion Government retained full and exclusive authority, jurisdiction and power over the governance of Cooch-Behar, it was expedient to issue an order under section 290-A directing that Cooch-Behar be administered in all respects as if it formed part of the Province of West Bengal. Accordingly, on 1 January 1950 the former State of Cooch-Behar was merged with West Bengal and thereafter was governed as if it were a part of West Bengal. As a result of that merger Cooch-Behar was removed from the list of Part C States in the First Schedule and was incorporated into West Bengal within the same Schedule.

The Court observed that the territorial description of West Bengal in the First Schedule had been amended to include a clause stating that certain territories were to be administered as if they formed part of the Province. Consequently, after the merger of Cooch-Behar, the territories of West Bengal comprised both the areas that were originally part of the Province of West Bengal at the commencement of the Constitution and those territories that were being administered as if they were part of the Province. The Court noted that, subsequently, the territory of Chandernagore was also added to West Bengal, although it held that referring to this later addition was not necessary for the present discussion.

The Court then explained that some areas which had formed part of the former Indian State of Cooch-Behar, and which after the merger became part of India and then part of West Bengal, turned into enclaves within Pakistan after the Partition. Likewise, there existed enclaves of Pakistan situated inside India. The existence of these enclaves, together with other border disputes, had been a matter of concern for the Governments of India and Pakistan for a long time. The Court said that the enclaves created a constant source of tension and conflict between the two countries. In order to remove the causes of tension, the Prime Ministers of India and Pakistan decided to resolve the enclave problem and to establish peaceful conditions along the disputed areas. The exchange of enclaves was therefore agreed to in the Agreement, specifically in item 10 of paragraph 3, which described the adjustment.

Regarding the implementation of the Agreement, the Court recorded that the Attorney-General, appearing on behalf of the Union of India, contended that no legislative action was required to give effect to the Agreement concerning the Berubari Union and the exchange of enclaves. He argued that, with respect to the Berubari Union, the Agreement merely sought to ascertain or delineate the exact boundary about which a dispute existed between the two countries because of differing interpretations of the description contained in the award. The Attorney-General maintained that the Agreement was simply a recognition of the boundary that had already been fixed and did not constitute a substitution of a new boundary or any alteration that would change India’s territorial limits. He emphasized that the settlement of the boundary in light of the award, which bound both Governments, was not an alienation or cession of Indian territory. Even if, as a result of ascertaining the true boundary, possession of some land had to be yielded to Pakistan, such yielding did not amount to a cession of territory; it was merely a method of settling the boundary. The Court noted that the award had already settled the boundary, but a dispute arose concerning the precise location of that boundary, which was resolved according to the directions of the award and the accompanying maps. The Court concluded that when a boundary dispute between two States is resolved in accordance with a binding award, the agreement embodying that settlement must be treated as an ascertainment of the actual boundary, not as a cession or alienation of territory by one State in favour of the other. Accordingly, the Attorney-General’s position was that there was no real alteration of the boundary nor any diminution of Indian territory, and therefore no need to amend the description of West Bengal’s territories in the First Schedule.

The submission was that even if some land had to be surrendered to Pakistan, such surrender did not constitute a cession of Indian territory but merely a method of settling the boundary dispute. It was explained that the award had already fixed the boundary, yet a disagreement arose between the two Governments regarding the precise location of that line. The dispute was said to have been resolved by applying the directions contained in the award together with the accompanying maps. Accordingly, when a boundary disagreement between two States is settled by reference to a binding award, the resulting agreement is treated only as the ascertainment of the actual boundary and not as a transfer of territory from one State to the other.

The argument further maintained that there was no genuine alteration of the boundary and no real reduction of Indian territory, and therefore no amendment to the description of West Bengal in the First Schedule of the Constitution was required. The learned Attorney-General also suggested, albeit faintly, that the exchange of the Cooch-Behar enclaves formed part of the broader Berubari Union agreement and was merely incidental to it. Consequently, even that exchange could not be described as a cession of any territory. On this basis, the Attorney-General contended that the settlement and recognition of the true boundary could be effected solely by executive action, allowing the agreement reached between the two Prime Ministers to be implemented without any legislative measure.

To support this position, the Attorney-General relied on several constitutional provisions. Entry 14 in List 1 of the Seventh Schedule was cited, which reads: “Entering into treaties and agreements with foreign countries and implementing treaties, agreements and conventions with foreign countries.” Article 253, located in Part XI dealing with Union-State relations, was also referred to; it provides that notwithstanding any other provision, Parliament may make any law for the whole or any part of the territory of India for the purpose of implementing any treaty, agreement or convention with another country or any decision taken at an international conference, association or other body. This legislative power is said to flow from Entry 14. In addition, three other articles in the same part were mentioned: Article 245(1), which empowers Parliament to enact laws for the whole or any part of India; Article 245(2), which states that a law made by Parliament shall not be invalidated on the ground that it has extra-territorial operation; Article 246, which delineates the subject-matter jurisdiction of Parliament; and Article 248, which confers residuary legislative powers on Parliament.

Article 248 confirms that Parliament possesses the authority to enact legislation on any subject that does not appear in the Concurrent List or the State List. Consequently, there can be no doubt that Parliament is constitutionally competent to pass laws relating to any treaty, agreement or convention entered into with a foreign nation and to give effect to the obligations arising from such instruments. Nevertheless, it has been contended that, with respect to the negotiation of treaties and the implementation of their provisions, the executive powers of the Union Government are co-extensive and co-incidental with the legislative powers of Parliament. This contention is premised upon several constitutional provisions. Article 53(1) states that the executive power of the Union is vested in the President and may be exercised by him directly or through subordinate officers in accordance with the Constitution. Article 73, which is heavily relied upon, delineates the scope of the Union’s executive power. Clause 73(1) provides that, subject to the Constitution, the executive power of the Union shall extend (a) to matters on which Parliament may legislate, and (b) to the exercise of such rights, authority and jurisdiction that the Government of India may exercise by virtue of any treaty or agreement, on the condition that the executive authority referred to in sub-clause (a) shall not, unless expressly provided by the Constitution or by a law of Parliament, extend within any State to matters over which the State Legislature also has law-making power. Article 74 establishes a Council of Ministers headed by the Prime Minister to aid and advise the President in the performance of his functions, while Article 74(2) declares that courts may not inquire into whether any advice was given by the Ministers to the President, nor into the substance of such advice.

The learned Attorney-General argued that the executive powers conferred on the Union under Article 73(1)(a) correspond to the powers derived from Entry 14, List I of the Seventh Schedule, whereas the powers under Article 73(1)(b) are analogous to the legislative authority granted to Parliament by Article 253. He further submitted that this interpretation is supported by the Supreme Court’s decision in Rai Sahib Ram Jawaya Kapur & Ors. v. State of Punjab. In addressing the constitutional limits of executive action, Chief Justice Mukherjea, speaking for a unanimously agreeing bench, observed that “the said limits can be ascertained without much difficulty by reference to the form of executive which our Constitution has set up,” and added that “the executive function comprises both the determination of policy and its execution.” This observation underscores that the executive’s role includes not only the formulation of foreign policy and treaty obligations but also the practical implementation of those policies, a function that is nevertheless subject to the constitutional framework governing the relationship between the executive and Parliament.

In this case, the Court observed that the executive functions of the State include the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, and, in fact, the carrying on or supervision of the general administration of the State. On the basis of that observation, the learned Attorney-General founded his argument. The Court first examined what the Agreement actually effected. It asked whether the Agreement had genuinely sought to determine the boundaries in accordance with the award, or whether it had instead attempted an amicable settlement on an ad hoc basis by dividing the disputed territory equally between the two parties. By reading the relevant portion of the Agreement, the Court found it difficult to escape the conclusion that the parties to the Agreement had decided that the most expedient and reasonable way to resolve the dispute was to divide the area in question half and half. The Agreement contains no provision indicating any attempt to interpret the award or to ascertain its true meaning. It commences with a statement that the disputed area would be divided so that one half would be allotted to Pakistan, while the other half, which was physically adjacent to India, would remain with India. In other words, the Agreement declares that although the whole of Berubari Union No. 12 lay within Indian territory, India was prepared to transfer half of it to Pakistan in a spirit of give-and-take, aiming to preserve friendly relations and to eliminate sources of tension. After reaching this decision, the Agreement set out the method for implementing it. It provides that the division of the area shall be horizontal, commencing from the north-east corner of Debiganj Thana. It further stipulates that the division must be effected in such a manner that the Cooch-Behar enclaves situated between Pachagar Thana of East Pakistan and Berubari Union No. 12 of Jalpaiguri Thana of West Bengal shall remain with India. This clause again serves to carry out the decision to divide the area equally. Yet another clause deals with the lower-lying Cooch-Behar enclaves located between Boda Thana of East Pakistan and Berubari Union No. 12, providing that those enclaves shall be exchanged as part of the general exchange of enclaves and shall pass to Pakistan. In the Court’s opinion, each of these clauses of the Agreement plainly and unambiguously demonstrates that, apart from and independent of the award, the parties had agreed to split the area equally, and that the method of effecting that split was specifically laid down through four material provisions. If this interpretation is accepted, it becomes difficult to sustain the contention that this portion of the Agreement merely amounts to an ascertainment and delineation of the boundaries in light of the award. The learned Attorney-General, however, suggested that an examination of the description contained in Annexure A of the Schedule to the award might shed further light on the matter.

In this case the Court observed that the description contained in annexure A to the award regarding the police-station boundaries exhibited a lacuna because it omitted any reference to the boundary separating police-station Boda from police-station Jalpaiguri. The argument advanced was that the description identified only two points – one located on the western edge of the Berubari Union at the extremity of the boundary between the Thanas of Pachagar and Jalpaiguri, and the other situated on its eastern side at the northern corner of Thana Debiganj where that boundary meets the State of Cooch-Behar – without providing any guidance as to how a line should join those two points. It was further pointed out that the line drawn on the map annexed as annexure B to the award, if applied independently of the textual description in annexure A, would place virtually the entire Berubari Union within the territory of East Bengal, a position that had been asserted by the Government of Pakistan and which was purportedly settled by the award. The Court noted that the Chairman of the award expressly directed that the map was annexed merely for illustrative purposes and that, in the event of any inconsistency between the map in annexure B and the boundary description in annexure A, the description in annexure A must take precedence. Consequently, no reasonable or valid claim could be founded on the map line to incorporate almost the whole of the Berubari Union in East Bengal. Moreover, the Court held that the lacuna highlighted by the learned Attorney-General could have been rectified by referring to the general method employed by the award in delineating the boundaries. Paragraph 3 of annexure A demonstrates that the line fixed by the award generally followed the boundaries between the Thanas, and this overall outline would have aided in resolving the dispute if the award was intended to do so. Paragraph 1 of annexure A further directs that the line shall “continue” along the northern corner of Thana Debiganj to the boundary of the State of Cooch-Behar, a directive which, in context, suggests continuation by reference to the respective police-station boundaries. Because of these considerations the contested territory remained under Indian possession for several years after the award and no dispute was raised until 1952. The Court cited these facts to underscore that the agreement was not concluded after taking these facts into account, nor was it based on any conclusions derived from interpreting the award and its effects. In fact the second clause of the Agreement, which directs …

The Court observed that the provision stating that the division of Berubari Union No 12 would be “horizontal” starting from the north-east corner of Debiganj Thana was not phrased very happily. The term “horizontal” appeared somewhat inappropriate, yet, apart from this wording, the method of horizontal division and the other directions contained in the Agreement derived from the initial conclusion that India should surrender half of the area to Pakistan. After a careful review of every clause in the Agreement, the Court was satisfied that the document did not claim to be the product of any interpretation of the award or its terms; rather, it was formed independently of the award and on the basis of considerations that the parties deemed wise and expedient. Consequently, the Court could not accept the argument advanced by the learned Attorney-General that the Agreement merely ascertained and determined boundaries in accordance with the award. The Agreement, in the Court’s view, was a treaty by which a portion of Indian territory was to be transferred to Pakistan, and the question referred to the Court therefore concerned the cession or alienation of part of India’s territory. The Court noted that the observations applicable to the Agreement concerning Berubari Union No 12 were even more forcefully applicable to the exchange of the Cooch-Behar enclaves. The learned Attorney-General’s contention that no legislation was required to give effect to the exchange relied on the assumption that the exchange formed part of a broader settlement and shared its character; however, because the Court had already held that the Berubari Union No 12 Agreement involved the cession of Indian territory, it followed that the Cooch-Behar exchange likewise involved cession. Hence, the question of this exchange must also be assessed on the basis that a segment of Indian territory had been ceded to Pakistan, and unlike the first two questions, the third question relating to this exchange necessarily required legislation.

In addressing another argument presented by the learned Attorney-General, the Court considered the claim that implementing the Agreement concerning Berubari Union would not require any amendment to the First Schedule of the Constitution because, according to that argument, Berubari Union had never been legally included in the territorial description of West Bengal contained in the Schedule. The Court was not persuaded by this contention. Since the award was announced, Berubari Union had remained under Indian possession and had consistently been treated as part of West Bengal, governed accordingly. Given this factual situation, there was no difficulty in concluding that the Union fell within the territories that, immediately before the commencement of the Constitution, were comprised in the Province of West Bengal. Accordingly, the implementation of the Agreement would alter the boundaries of West Bengal and affect the content of Entry 13 in the First Schedule of the Constitution. The Court therefore rejected the Attorney-General’s position and affirmed that legislative action was necessary to give effect to the cession of the territory.

It was held that the territory in question fell within the areas that, immediately before the Constitution came into force, were part of the Province of West Bengal. Consequently, when the present Agreement was carried out, the frontiers of West Bengal would be changed and the wording of Entry 13 in the First Schedule of the Constitution would be altered. Before concluding the discussion on this point, reference was made to the decision of the Australian High Court in The State of South Australia v. The State of Victoria (1), a case that the learned Attorney-General had cited. In that case the boundary between the State of South Australia and the State of New South Wales had been fixed by Act 4 & 5 Will. IV, c. 95 and by the Letters Patent issued under that Act, which prescribed the 141st meridian of East Longitude as the dividing line (1) (1911) 12 C.L.R. 667. In the year 1847, acting under the authority of the Governors of New South Wales and South Australia and with the knowledge and approval of the Secretary of State, a line was surveyed and marked on the ground as the 141st meridian. Later, in 1869, it was discovered that this line lay about two miles west of the true meridian. Nonetheless, the line marked in 1847 had been proclaimed by the respective Governors to be the boundary and had thereafter functioned as the de facto boundary. When a dispute arose concerning the exact position of the boundary, Chief Justice Griffith observed that the essential act was the determination of a fact by persons competent to do so, and that a fact so found and accepted by both parties was equivalent to an award or judgment in rem, binding on them and on all persons claiming under them (p. 701). The matter was subsequently taken to the Privy Council, which held that a proper construction of the Letters Patent revealed that the intention was to ascertain and represent on the earth’s surface the line of the 141st meridian so that it would constitute a dividing boundary between the two colonies, and that the executive authorities of the two colonies were implicitly empowered to take whatever steps were necessary to fix such boundaries permanently (1). The Privy Council further noted that the material facts demonstrated that both governments, with great care, endeavoured to reproduce as closely as possible the theoretical boundary set out in the Letters Patent by creating a practical demarcation on the ground. There was no indication of any intention to depart from the assigned line; rather, the intention was to replicate it, and, given its status as a jurisdictional boundary, the Lords were confident that the two executives intended it to become the final statutory boundary.

It was held that the boundary, once fixed, became a statutory boundary and that, in law, it was consequently settled. The earlier determination of the boundaries, which had been found not to constitute an alienation, was made entirely by reference to, and in the context of, the relevant parliamentary statute that had already been mentioned. In 1847, the parties possessing the authority to act on the matter marked a line on the ground that they regarded as the 141st meridian. However, in 1869 it was discovered that the line so marked lay approximately two miles west of the actual meridian. This situation did not involve contracting parties independently deciding the line to settle a dispute between the two states; rather, they intended to determine the line pursuant to the provisions of the parliamentary statute.

In the case presently before the Court, the position of the Agreement was observed to be fundamentally different. The Agreement does not claim to be based on the award, and it was reached separately and independently of that award. Consequently, the Court concluded that the learned Attorney-General could not rely on the decision in State of South Australia v. State of Victoria for interpreting the Agreement. Since the Court determined that the Agreement amounted to a cession or alienation of a portion of Indian territory and was not merely an ascertainment or determination of a boundary referring to the award, it was unnecessary to consider the Attorney-General’s other contention that the Union executive possessed competence to enter into such an Agreement and that the Agreement could be implemented without any legislation. The Attorney-General had conceded that this argument rested on the assumption that the Agreement was, in substance, merely the ascertainment or determination of the disputed boundary already fixed by the award. Therefore, the Court did not need to examine the merits of the argument concerning the scope of executive functions and powers, nor to revisit whether the observations of Mukherjea, C.J. in Rai Sahib Ram Jawaya Kapur would support that argument.

At this stage, the Court turned to the rival contention raised by counsel for the petitioner. He argued that Parliament lacked any power to cede any part of the territory of India to a foreign State, either through ordinary legislation or by amending the Constitution. Accordingly, he maintained that the Agreement was void and could not be given effect even by any legislative process. This extreme position was founded on two grounds. The first ground was that the preamble to the Constitution purportedly postulated, in line with the democratic republican form of government, that the entire territory of India lay beyond the reach of Parliament and could not be altered by either ordinary legislation or constitutional amendment. The second ground relied upon Article 1(3)(c) of the Constitution.

The Court observed that the only conclusion it could draw on the reference was that the Agreement was void and could not be given effect even by any legislative enactment. This extreme view was advanced on two principal grounds. First, counsel argued that the pre-amble to the Constitution expressly declares that, in a democratic republican system, the whole territory of India lay beyond the power of Parliament and therefore could not be altered by ordinary legislation or by constitutional amendment. He further contended that the framers, fully aware of the tragic partition of the country, deliberately framed the Constitution to keep the entire Indian territory inviolable and sacred. He quoted the opening words of the pre-amble—“We, the people of India, having solemnly resolved to constitute India into a sovereign democratic Republic”—as an irreversible statement that the nation must forever remain democratic and republican in its geographic and territorial character. The second ground relied on Article 1(3)(c), which provides that “the territory of India shall comprise such other territories as may be acquired.” Counsel maintained that, while the Constitution expressly authorised the acquisition of foreign territories, it made no provision for the cession of any part of India’s territory; consequently, the rule of construction expressio unius est exclusio alterius should apply to exclude the power to cede.

The Court found no merit in either of these arguments. It acknowledged that the declaration made by the people in the pre-amble reflects the sovereign will of the nation and, as Story noted, serves “as a key to open the mind of the makers,” indicating the general purpose behind the constitutional provisions. However, the Court emphasized that the pre-amble does not form a substantive part of the Constitution, and, citing Willoughby’s observation on the American pre-amble, it has never been considered the source of any substantive power granted to the Government or its departments. Only powers expressly conferred in the body of the Constitution, or those reasonably implied from such grants, are operative, and the same principle applies to limitations. The Court rejected the notion that the opening clause of the pre-amble imposes a severe restriction on a fundamental attribute of sovereignty. It reiterated the universally accepted principle that sovereignty includes the power to cede portions of national territory when necessary. Finally, while acknowledging that ambiguous constitutional language may sometimes require reference to the objectives embodied in the pre-amble, the Court concluded that the pre-amble does not impose a prohibitive limitation on the sovereign power to alienate territory.

In this case the Court observed that the preamble does not impose any limitation on the exercise of a power that is generally recognised as a necessary and essential attribute of sovereignty. Accordingly, the submission advanced by Mr Chatterjee, that the preamble imports a restriction on the sovereign power to cede territory, was rejected. The Court then turned to the contention that the inclusion of a power to acquire territory must automatically exclude a power to cede or alienate territory. The Court gave two clear responses. First, it held that Article 1(3)(c) does not grant India a specific power or authority to acquire foreign territories, contrary to Mr Chatterjee’s assumption. The Court noted that under international law a sovereign state possesses two fundamental attributes: the power to acquire foreign territory and the power to cede part of its own territory to another state. What Article 1(3)(c) seeks to do, the Court explained, is to provide a formal mechanism for the absorption and integration of any foreign territory that may be acquired by India by virtue of its inherent right to do so. The provision may have been placed in the Constitution not because of any expansionist agenda but primarily to facilitate the integration of Indian territories that, at the Constitution’s commencement, were still under foreign domination. Nevertheless, the provision is not confined to that historical circumstance; it broadly covers any foreign territory that India might acquire, stipulating that such territory would instantly become part of the Indian Union. Hence, it would be a misinterpretation to treat Article 1(3)(c) as conferring a distinct power to acquire foreign lands.

The Court’s second answer was derived from Article 368, which outlines the procedure for amending the Constitution and expressly empowers Parliament to make such amendments. Since the power to amend the Constitution includes the power to amend Article 1, it logically follows that Parliament may also amend the provision concerning the cession of national territory in favour of a foreign State. Consequently, it would be unreasonable to claim that the sovereign State of India lacks any power to cede its territory, nor that the power to cede, an essential element of sovereignty, is absent. The Court therefore rejected Mr Chatterjee’s argument that no legislative process could validate the agreement in question. Turning next to the nature of a sovereign State’s treaty-making power, the Court reaffirmed that an essential attribute of sovereignty is the ability to acquire foreign territory and, when necessary, to cede part of its own territory to another State, exercising this power through treaties. The Court explained that the cession of territory, under law, amounts to the transfer of sovereignty over that territory by the owner-State to the receiving State.

The Court noted that the cession of territory from one sovereign State to another is undeniably possible, and history provides numerous instances of such transfers of sovereignty. It quoted Oppenheim’s observation that “hardship is involved in the fact that in all cases of cession the inhabitants of the territory who remain lose their old citizenship and are handed over to a new sovereign whether they like it or not” (1) and further mentioned Oppenheim’s suggestion that “it may be possible to mitigate this hardship by stipulating an option to emigrate within a certain period in favour of the inhabitants of ceded territory as means of averting the charge that the inhabitants are handed over to a new sovereign against their will” (p. 553). The Court acknowledged that, from a humanitarian viewpoint, cession inevitably produces great hardship for the affected population, yet it affirmed that a sovereign State retains the right to transfer part of its territory to a foreign State. This power, however, is subject to any limitations expressly or implicitly imposed by the Constitution of the State. Consequently, the manner in which a sovereign State may conclude treaties involving the cession of national territory, and the manner in which such treaties may be implemented, must be governed by the constitutional provisions. Broadly stated, the treaty-making power must be exercised in accordance with the Constitution and within the limits it sets, and the question of whether implementation requires ordinary legislation or a constitutional amendment depends upon the specific constitutional provisions applicable to the treaty.

Proceeding on the assumption that some legislation is necessary to give effect to the Agreement in question, the Court turned to the constitutional aspect of the problem. It observed that the Union of India contended that, if legislative action were required, a law enacted by Parliament under Article 3 of the Constitution would be sufficient, thereby obviating any need to invoke Article 368. The Court explained that the answer to this issue inevitably rests on the interpretation of Article 3 itself. The learned Attorney-General was invited to keep in mind the special features of the basic structure of the Constitution while construing the relevant provisions of Article 3. He submitted that the basic structure of the Constitution mirrors that of the Government of India Act, 1935, which first introduced a federal polity in India. Unlike other federations, that Act created a federation as a result of a pact among separate and independent communities of States that surrendered part of their sovereignty. The Attorney-General therefore urged that the Constitution’s basic structure, derived from that Act, should inform the Court’s analysis of Article 3 in the present context.

The Court observed that a federation is the result of a pact or union between separate and independent communities of states that come together for certain common purposes and, in doing so, surrender a portion of their sovereignty. It noted that the constituent units of the Indian federation were deliberately created and, unlike the units of many other federations, they possessed no organic roots in history. Consequently, the Indian Constitution, when compared with other federal constitutions, does not emphasize the preservation of the territorial integrity of the constituent states. The framers of the Constitution were conscious of the special conditions under which the states—originally called provinces—were formed and of the reasons for the way their boundaries were drawn. For this reason, they intentionally incorporated the provisions of Article 3 with a view to accommodate the possible redistribution of those territories after the integration of the Indian states.

The Court further pointed out that it is well-known that, as a result of the States Reorganisation Act of 1956 (Act XXXVII of 1956), the original arrangement of twenty-seven states and one area mentioned in Part D of the First Schedule was replaced by only fourteen states and six other areas that now constitute the Union territories listed in the First Schedule. The changes brought about by that Act clearly illustrate the operation of the distinctive and striking feature of the Indian Constitution, namely that the Constitution was designed to permit alteration of the territorial limits of the constituent units without guaranteeing their territorial integrity. The Court therefore held that, in construing Article 3, reference must be made to the fact that the Constitution itself contemplated such changes and did not impose a guarantee of territorial wholeness on the states.

The Court explained that Part I of the Constitution deals with the Union and its territories and, in effect, provides a self-contained code on that subject. Just as Part XI deals with citizenship, Part I deals with the territory of India. Article 1 governs the name and territory of India and reads as follows: (1) “India, that is Bharat, shall be a Union of States.” (2) “The States and the territories thereof shall be as specified in the First Schedule.” (3) “The territory of India shall comprise—(a) the territories of the States; (b) the Union territories specified in the First Schedule; and (c) such other territories as may be acquired.” The Court noted that the present form of Article 1 is the result of the Constitution (Seventh Amendment) Act, 1956. Before that amendment, Article 1 referred to the territory of India as comprising the territories of the States specified in Parts A, B and C, together with the territories specified in Part D of the Schedule and any other territories that might be acquired. At that time a separate provision, Article 243 in Part IX, dealt with the administration of the territories listed in Part D and other newly acquired territories that were not included in the First Schedule. The Court observed that the amendments of 1956 eliminated that distinction, abolished Article 243, and thereby established the present formulation whereby the territory of India consists of the territories of the States, the Union territories, and any other territories that may be acquired.

The Court explained that the amendment of Article 1 removed the old classification of territories into Parts A, B and C and the territories listed in Part D. The amendment replaced that system with a new distinction that separates the territories of the States from the Union territories that are enumerated in the First Schedule. Because of this restructuring, the provision that had been contained in Article 243 of Part IX was deleted. Consequently, under the present wording of Article 1 the territory of India is defined as comprising the territories of the States, the Union territories, and any other territories that may be acquired. The Court noted that Article 1(3)(c) does not give Parliament a power to acquire new territory; rather, it merely recognizes that any territory that India acquires by virtue of its inherent sovereign right automatically becomes part of India’s territory. In this sense Article 1 portrays India as a Union of States and sets out the categories of territories that belong to the Union. Article 2 then provides that, by law, Parliament may admit a newly acquired territory into the Union or may establish a new State on such terms and conditions as Parliament deems appropriate. Accordingly, a foreign territory that, after acquisition, falls within the scope of Article 1(3)(c) can be brought into the Union through legislation under Article 2. The same territory may also be constituted as a new State, again subject to the terms and conditions chosen by Parliament. The Court further observed that the same possibilities exist under Article 3(a) or Article 3(b). The wording “by law” in Articles 2 and 3 is therefore significant. While the sovereign power to acquire foreign land makes the territory automatically part of India, the subsequent legal process can integrate that territory either under Article 2 or under Article 3(a) or 3(b). To illustrate how Parliament may legislate for the absorption of a newly acquired area, the Court referred to the Chandernagore Merger Act, 1954 (Act XXXVI of 1954), which was passed on 29 September 1954 and came into force on 2 October 1954.

Chandernagore had been a French possession, and in June 1946 the French Government, in agreement with the Government of India, declared that the inhabitants of the French settlements in India would be allowed to express their wishes regarding their future political status. Pursuant to that declaration, a referendum was conducted in Chandernagore in 1949, and the electorate voted in favour of merging the territory with India. As a result of the referendum, on 2 May 1950 the President of the French Republic carried out a de facto transfer of administration of Chandernagore to India, and from that date the Government of India assumed control over the territory. The Court mentioned this episode to demonstrate how a foreign enclave, after being acquired through a treaty or other sovereign act, can be brought within the Indian Union by means of legislation that operates under the constitutional provisions discussed above.

The Government of India assumed control and jurisdiction over Chandernagore by invoking section 4 of the Foreign Jurisdiction Act, 1947 (Act 47 of 1947). A relevant notification was issued under that provision, which made certain Indian statutes applicable to Chandernagore. The same notification stipulated that the French statutes then in force would cease to operate from 2 May 1950. Subsequently, a treaty of cession was signed in Paris, and on 9 June 1952, after ratification of that treaty, Chandernagore was formally transferred to the Government of India. Consequently, Chandernagore ceased to be a French possession and became part of Indian territory; the Foreign Jurisdiction Act therefore no longer applied to it. From the date of transfer, article 243(1) of the Constitution applied to Chandernagore, and under the authority granted by article 243(2) the President issued a regulation for the administration of the territory, which came into force on 30 June 1952. The Government then sought to confirm the wishes of the local populace by constituting a commission of enquiry. The commission’s report indicated an overwhelming preference among the people of Chandernagore for merger with the State of West Bengal. Acting on that report, the Government introduced the Chandernagore Merger Act in Parliament. After passage of the Act, Chandernagore merged with West Bengal effective 2 October 1954. The legislation was enacted under article 3 of the Constitution, resulting in the alteration of West Bengal’s boundaries pursuant to article 3(d) and the amendment of the First Schedule by section 4.

The brief recitation of Chandernagore’s acquisition and subsequent merger serves to illustrate the operation of article 1(3)(c) as well as articles 3(b) and 3(d) of the Constitution. This brings the discussion to article 3, which governs the creation of new States and the alteration of the area, boundaries or names of existing States. Before interpreting article 3, however, it is helpful to refer to article 4. Article 4 states: “(1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary. (2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368.” The effect of article 4 is that statutes enacted under article 2 or article 3 are not considered constitutional amendments within the meaning of article 368.

The Court observed that if Parliament has the competence to legislate under Article 3 with respect to the Agreement, then it would be unnecessary to invoke the amendment procedure of Article 368. Conversely, the Court noted that if the subject matter of the Agreement falls outside the competence granted by Article 3, the amendment power of Article 368 would inevitably become applicable. Accordingly, the central issue was whether Parliament could enact legislation dealing with the Agreement within the scope of Article 3. The Court then turned to the text of Article 3, which provides that Parliament may, by law, (a) form a new State by separating territory from any State, by uniting two or more States or parts of States, or by attaching any territory to any part of a State; (b) increase the area of any State; (c) diminish the area of any State; (d) alter the boundaries of any State; and (e) alter the name of any State, on the condition that no Bill for any of these purposes may be introduced in either House of Parliament except on the President’s recommendation and, where the proposal affects the area, boundaries or name of any State, the Bill must be referred by the President to the Legislature of that State for its views within a period specified in the reference or any further period permitted by the President, after which the period so specified or allowed must have expired. The Court explained that, at first glance, Article 3 appears to address reorganisations of the Indian States on linguistic or other internal grounds, but its reach is broader and also encompasses internal adjustments of the territories of the constituent States. Specifically, clause (a) enables Parliament to create a new State either by separating territory from an existing State, by uniting two or more States or parts thereof, or by annexing any territory to a part of a State. The Court pointed out that foreign territory which, upon acquisition, becomes part of the Indian territory under Article 1(3)(c) falls within the last part of clause (a) and may therefore be incorporated into a new State formed under that provision. Consequently, clause (a) deals with the formation of new States and sets out the various modes by which such formation may occur. Clause (b) authorises Parliament to pass a law that increases the area of any State; such an increase may be incidental to a reorganisation of States, whereby the area added to one State is taken from another, or it may result from adding to a State any part of the territory mentioned in Article 1(3)(c). Clause (d) concerns the alteration of State boundaries and is understood to be the consequence of adjustments specified in clauses (a), (b) or (c). Finally, clause (e) deals with the alteration of a State’s name and, while noted, does not materially affect the questions before the Court.

In discussing the amendment of state boundaries, the Court observed that any change in the limits of a State would arise from one of the adjustments enumerated in Article 3(a), (b) or (c). The provision concerning alteration of a State’s name, found in Article 3(e), presented no difficulty and, in truth, bore no material relevance to the issues presently before the Court. The Court noted that it had not yet examined Article 3(c); the interpretation of that clause would ultimately furnish the answers required. Before turning to Article 3(c), however, the Court wished to consider an aspect of the article taken as a whole. It stressed that Article 3, in its terms, made no reference to Union territories. Consequently, whether or not Union territories were mentioned in the final part of Article 3(a), there was no doubt that they lay outside the reach of Articles 3(b), (c), (d) and (e). In other words, any proposal to increase or decrease the area of a Union territory, or to alter its boundaries or its name, could not be accomplished by a law made under Article 3. This observation, the Court held, would prove of considerable assistance in construing Article 3(c). Article 3(c) dealt specifically with the diminution of the area of any State. Such a reduction could occur where a portion of a State’s territory was removed and added to another State; in that sense Articles 3(b) and 3(c) could sometimes be said to be correlated. The Court then asked whether Article 3(c) also covered a situation in which a part of a State’s area was removed but not added to any other State, being instead transferred to a foreign State. The learned Attorney-General contended that the language of Article 3(c) was sufficiently broad to encompass the cession of national territory to a foreign country, thereby causing a diminution of the State’s area. The Court was not persuaded by this argument. It found it prima facie unreasonable to suppose that the framers of the Constitution intended to provide for the cession of national territory under Article 3(c). Since the power to acquire foreign territory—an essential attribute of sovereignty—is not expressly conferred by the Constitution, there was no reason to assume that the power to cede a portion of national territory—also an essential attribute of sovereignty—had been provided. Both of these sovereign attributes lie outside the Constitution and may be exercised by India as a sovereign State. Accordingly, even if Article 3(c) were given its widest possible construction, the Court concluded that it could not be said to cover a case of ceding part of the national territory to a foreign State. Moreover, the diminution of a State’s area referred to in Article 3(c) presupposed that the area taken away must continue to remain part of the territory of India.

In the judgment, the Court explained that any portion of land that is transferred away from a State must nevertheless remain a part of the territory of India; such a transfer may enlarge another State or may be dealt with by means authorized under Article 3 or other relevant constitutional provisions, but it cannot cease to be Indian territory. The Court held that it would strain the language of Article 3(c) to interpret it as implicitly providing for the cession of a part of the nation’s territory. Consequently, the Court expressed no hesitation in concluding that the power to cede national territory could not be read into Article 3(c) by implication. The Court then turned to another important consideration in construing Article 3(c). It observed that Article 3 does not, in its terms, refer to Union territories, and there was no doubt that Article 3(c) does not encompass Union territories. Therefore, if a portion of a Union territory were to be ceded to a foreign State, no law relating to Article 3 would be competent to effect such a cession. In that circumstance, the cession of part of a Union territory would inevitably have to be implemented by legislation pursuant to Article 368. In the Court’s view, this requirement strongly supports the construction it was inclined to adopt for Article 3(c), even with respect to the cession of the area of any State in favour of a foreign State. The Court found it unreasonable, illogical and anomalous to suggest that, while the cession of part of a Union territory must be carried out by legislation under Article 368, the cession of part of a State’s territory could be effected by legislation under Article 3. Accordingly, the Court could not accept the argument advanced by the learned Attorney-General that an agreement involving the cession of a portion of India’s territory to a foreign State could be implemented by Parliament by passing a law under Article 3 of the Constitution.

The Court added that this conclusion followed from a fair and reasonable construction of Article 3 and that its validity could not be impaired by the special features of the federal Constitution, as described by the learned Attorney-General. In support of the Attorney-General’s contention, the Court noted the provisions of Act XLVII of 1951, which altered the boundaries of the State of Assam consequent upon the cession of a strip of territory to the Government of Bhutan. Section 2 of that Act provided that, from the commencement of the Act, the territories of the State of Assam would cease to include the strip of territory specified in the Schedule, which was to be ceded to the Government of Bhutan, and that the boundaries of Assam would be deemed to have been altered accordingly. Section 3 of the same Act provided for the consequential amendment of the first paragraph in Part A of the First Schedule to the Constitution relating to the territory of Assam.

In this case, the Court observed that when Parliament addressed the cession of a strip of land that formed part of the State of Assam in favour of the Government of Bhutan, it had attempted to enact the necessary legislation under Article 3 of the Constitution. The Court noted that the strip of land involved measured approximately thirty-two square miles and lay in the Dewangiri Hill Block, which formed a portion of Dewangiri on the extreme northern boundary of Kamrup District. The area was predominately forested and was only thinly populated by Bhotia people. The learned Attorney-General did not rely on this solitary statute to demonstrate a general legislative practice. He merely cited it as an example where Parliament had given effect to the cession of a portion of Assam’s territory to Bhutan by passing a law that invoked Article 3. The Court expressed the view that this single instance could not aid in interpreting the scope and operation of Article 3. Consequently, the Court concluded that Parliament was not competent to enact a law under Article 3 for the purpose of giving effect to the Agreement under consideration. The Attorney-General conceded that this conclusion necessarily implied that any law required to implement the Agreement would have to be enacted under Article 368. The Court then reproduced the text of Article 368, which provides that a constitutional amendment could be initiated only by the introduction of a Bill in either House of Parliament, that the Bill must be passed in each House by a majority of the total membership and by at least two-thirds of the members present and voting, and that after presidential assent the Constitution would stand amended in accordance with the Bill. The provision further stipulated that if the amendment sought to alter certain specified articles, chapters, schedules, the representation of States in Parliament, or the provisions of Article 368 itself, the amendment would also require ratification by resolutions of at least half of the State Legislatures before presentation to the President. The Court reiterated that it had already held that the Agreement constituted a cession of a part of India’s territory in favour of Pakistan, and that implementing the Agreement would necessarily entail alteration of Article 1 and the relevant portion of the First Schedule of the Constitution.

The Court observed that the implementation of the Agreement would inevitably reduce the territory of the Union of India, and that such a reduction would require an amendment of the First Schedule of the Constitution. The amendment could be effected pursuant to Article 368, a position that was undisputed and had not been challenged before the Court. Accordingly, the Court held that Parliament, acting under Article 368, could enact a law to give effect to the Agreement, which involved the cession of a portion of Berubari Union No. 12 and the transfer of certain Cooch-Behar enclaves to Pakistan. Parliament retained the discretion, however, to first amend Article 3 of the Constitution so as to expressly cover cases of territorial cession to a foreign State. If such an amendment of Article 3 were made, Parliament would then be competent to pass a law under the amended provision to implement the Agreement. Conversely, the Court noted that a law passed directly under Article 368 would by itself suffice to give effect to the Agreement, without the need for a prior amendment of Article 3. Before addressing the specific questions referred, the Court pointed out the procedural requirement in the proviso to Article 3, which mandates that any Bill affecting the area, boundaries, or name of a State must be referred by the President to that State’s Legislature for its opinion within a prescribed time-frame.

The learned Attorney General argued that insisting on the use of Article 368, to the exclusion of Article 3, would deprive the West Bengal Legislature of the opportunity to express its view on the proposed cession. The Court conceded that this observation was correct, but held that if a fair and reasonable construction rendered Article 3 inapplicable, the consequent loss of the State’s opportunity could not be avoided. The Court further explained that a law enacted under Article 368 must satisfy the constitutional requirements of that article: the Bill must be passed in each House by a majority of the total membership and by not less than two-thirds of the members present and voting. This dual majority ensures the concurrence of a substantial portion of the House, typically the major parties, and thus provides a safeguard in matters of this nature. The Court also noted incidentally that an amendment of Article 1 resulting from the cession of Indian territory to a foreign State does not fall within the safeguards prescribed by the proviso to Article 368.

In this case the Court observed that Article 368 of the Constitution was not applicable because neither Article 1 nor Article 3 is placed among the entrenched provisions listed in the proviso to Article 368. The Court further explained that it was not within its jurisdiction to examine or decide whether those two Articles ought to be incorporated into the proviso; that determination was reserved for Parliament, which alone could consider and resolve the matter. Consequently, the Court proceeded to answer the three specific questions that had been referred for its consideration.

The Court answered the first question affirmatively, indicating that the proposition contained in that question was correct. Regarding the second question, the Court provided a three-part response. First, it held that any law of Parliament that related to Article 3 of the Constitution would be incompetent. Second, it stated that a law of Parliament that related to Article 368 of the Constitution was both competent and necessary. Third, it explained that a law of Parliament that related to both Article 368 and Article 3 would become necessary only if Parliament first chose to enact a law amending Article 3 as previously indicated; in such a circumstance Parliament would first have to pass legislation under Article 368 and subsequently follow it with legislation that corresponded to the amended Article 3 in order to implement the agreement.

For the third question the Court gave the same answer as it had given to the three parts of the second question, namely the answers set out in sub-paragraphs (a), (b) and (c) to Question 2. The reference was thus answered in accordance with those conclusions.