In Re: The Berubari Union And Exchange Of... vs Unknown

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 14 March, 1960

Coram: B.P. Sinha, A.K. Sarkar, J.C. Shah, K.C. Das Gupta, K. Subba Rao, M. Hidayatullah, P.B. Gajendragadkar, S.K. Das

In this matter styled In Re: The Berubari Union And Exchange Of … versus Unknown, the Supreme Court of India delivered its judgment on 14 March 1960. The decision was rendered by a bench composed of Justices B P Sinha, A K Sarkar, J C Shah, K C Das Gupta, K Subba Rao, M Hidayatullah, P B Gajendragadkar and S K Das, and the judgment was authored by Justice Gajendragadkar. The Court explained that, following directives issued by the Prime Ministers of India and Pakistan, the Commonwealth Secretary of the Ministry of External Affairs of the Government of India and the Foreign Secretary of the Ministry of Foreign Affairs and Commonwealth of the Government of Pakistan met on 10 September 1958. During that meeting they identified ten disputed items between the two countries, recorded their mutual agreement on those items in a joint note, and subsequently submitted the note to their respective Prime Ministers. Acting on behalf of their governments, the Prime Ministers then entered into an agreement aimed at removing sources of tension, resolving border disputes and problems related to the India‑Pakistan border areas, and establishing peaceful conditions along those areas. This agreement was thereafter referred to as the Indo‑Pakistan Agreement, and it formed the subject of the present reference before the Court.

The Court noted that the reference concerned two specific provisions of the Indo‑Pakistan Agreement. The first provision, identified as item 3 in paragraph 2 of the Agreement, provided that “Berubari Union No 12 shall be divided, giving half of the area to Pakistan and the other half, which is adjacent to India, to be retained by India. The division shall be horizontal, commencing from the north‑east corner of Debiganj Thana. The division must be made so that the Cooch‑Behar enclaves situated between Pachagar Thana of East Pakistan and Berubari Union No 12 of Jalpaiguri Thana of West Bengal remain connected as at present with Indian territory and continue to belong to India. The lower Cooch‑Behar enclaves located between Boda Thana of East Pakistan and Berubari Union No 12 shall be exchanged together with the general exchange of enclaves and shall pass to Pakistan.” The second provision, item 10 of the Agreement, stipulated that “the exchange of old Cooch‑Behar enclaves in Pakistan and Pakistan enclaves in India shall take place without any claim for compensation for the extra area that passes to Pakistan.” The Court observed that, after the Agreement was signed, doubts arose concerning whether the implementation of the Berubari Union provision required any legislative action. Specifically, it was uncertain whether a suitable law of Parliament, pursuant to Article 3 of the Constitution, would be sufficient, or whether an amendment of the Constitution under Article 368 would be necessary, or whether both steps might be required. A comparable doubt was raised regarding the implementation of the enclave‑exchange provision. The Court further recognized that the constitutional validity of any action taken to give effect to either the Berubari Union provision or the enclave‑exchange provision was likely to be challenged in courts, leading the President to refer the matter to the Supreme Court for authoritative guidance.

The agreements concerning the Berubari Union and the exchange of enclaves had become the subject of litigation in several courts, resulting in avoidable and prolonged disputes. Because the legal questions that arose from those agreements were considered both significant and complex, the President concluded that it was suitable to obtain the considered opinion of the Supreme Court of India. Exercising the authority granted to him by clause (1) of Article 143 of the Constitution, the President therefore referred three specific questions to the Court for determination and report. The first question asked whether any legislative action was required to give effect to the agreement relating to the Berubari Union. The second question sought to know, if legislative action were indeed necessary, whether a statute enacted by Parliament that fell within the ambit of Article 3 of the Constitution would be adequate, or whether a constitutional amendment made under Article 368 would also be required, either as an addition or as an alternative. The third question concerned the agreement on the exchange of enclaves and inquired whether a parliamentary law falling under Article 3 would suffice for its implementation, or whether, similarly, an amendment of the Constitution under Article 368 would be needed, either additionally or alternatively.

Before addressing the three referred questions, the Court found it necessary to briefly outline the historical, political and constitutional context of the agreements. On 20 February 1947 the Government of the United Kingdom announced its intention to transfer authority over British India to Indian hands by June 1948. A subsequent statement issued on 3 June 1947 explained the method by which the transfer of power would be effected. The British Parliament then passed the Indian Independence Act on 18 July 1947, an Act that was scheduled to come into force on 15 August 1947, designated as the appointed day. From that appointed day, two independent Dominions—India and Pakistan—were to be established within the territory of India. Section 2 of the Act stipulated, subject to the provisions of sub‑sections (3) and (4) of that section, that the territories of India would consist of those areas which, immediately before the appointed day, were under the sovereignty of His Majesty and were part of British India, except for those territories that under sub‑section (2) of section 2 were to become part of Pakistan. Section 3, sub‑section (1), provided that, as of the appointed day, the Province of Bengal as constituted under the Government of India Act 1935 would cease to exist and that two new provinces—East Bengal and West Bengal—would be created in its place. Sub‑section (3) of section 3 further stated that the boundaries of these new provinces would be determined, either before or after the appointed day, by the award of a boundary commission appointed by the Governor‑General, and that until such boundaries were fixed, the relevant provisions would continue to apply.

The judgment explained that, pending the determination of the boundary, the Bengal District listed in the First Schedule of the Independence Act was to be regarded as forming part of the new Province of East Bengal, while all other territories that were part of Bengal at the time the Act was passed were to be treated as comprising the new Province of West Bengal. Section 3, subsection 4, defined the term “award” to mean, with respect to a boundary commission, the decision rendered by the Chairman of that commission and contained in the Chairman’s report submitted to the Governor‑General at the conclusion of the commission’s proceedings. The Court then observed that the Province of West Bengal is presently known as the State of West Bengal and remains a constituent part of India, whereas the Province of East Bengal became a part of Pakistan and is today identified as East Pakistan.

The Court turned to the specific subject of the petition, namely Berubari Union No. 12, which covers an area of 8.75 square miles and is inhabited by roughly ten to twelve thousand residents. This Union is located within the Jalpaiguri police station of Jalpaiguri District, which at the relevant period formed part of the Rajshahi Division. The Court noted that Berubari Union No. 12 does not appear in the First Schedule of the Independence Act; consequently, if the Schedule were applied strictly, the Union would fall within the territory of West Bengal. However, the Court emphasized that the First Schedule of the Independence Act never actually came into force. The Court then recounted the events of June 30, 1947, when 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 High Court judges and a Chairman who was to be appointed subsequently. Sir Cyril Radcliffe was later appointed as the Chairman of that commission. The terms of reference given to the commission required it to demarcate the boundaries of the two parts of Bengal by identifying contiguous areas inhabited by Muslims and non‑Muslims, while also considering other relevant factors. After conducting its inquiry, the commission issued its decision, known as the Radcliffe Award, on 12 August 1947, three days before the appointed day specified in the Independence Act. The Court observed that the Chairman’s report posed seven fundamental questions that guided the drawing of the boundary line between East and West Bengal. Question 6, which is pertinent to the present dispute, was framed as follows: “C. 6. 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 percent of the whole in the case of Darjeeling and 23.08 percent of the whole in the case of Jalpaiguri but which constituted an area not in any natural…”.

The commission that was created to determine the boundary line could not reach a consensus on any of the principal questions that it was asked to resolve. Because the members were dead‑locked, the Chairman found that he had no alternative but to render his own determination on the matters that required a decision. In his ruling the Chairman stated that the boundary line was set out in full detail in the schedule that forms Annexure A to the award, and that a map attached as Annexure B was provided only for illustrative purposes. He further clarified that if any inconsistency should arise between the written description in Annexure A and the depiction on the map in Annexure B, the description contained in Annexure A would control. Paragraph 1 of Annexure A is particularly important because it specifies that a line shall be drawn along the boundary between the Thana of Phansidewa in Darjeeling District and the Thana of Tetulia in Jalpaiguri District, beginning at the point where this boundary meets the Province of Bihar. From that point the line proceeds along the boundary separating the Thanas of Tetulia and Rajganj, then along the boundary separating the Thanas of Pachagar and Rajganj, and subsequently along the boundary separating the Thanas of Pachagar and Jalpaiguri, finally continuing past the northern corner of the Thana of Debiganj to reach the boundary of the State of Cooch‑Behar. The provision further declares that the district of Darjeeling and the portion of Jalpaiguri District that lies north of the described line shall 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 shall belong to East Bengal. Because the award was brought into operation three days before the date fixed under the Independence Act, the territorial extent of the Province of West Bengal was never fixed by Schedule I of that Act but was instead established by the award itself. There is no dispute that, from the date of the award onward, Berubari Union No. 12 has been part of the State of West Bengal and has been administered as a component of that State.

During the same period the Constituent Assembly, which had first met on 9 December 1946, reconvened after midnight on 14 August 1947 as the Sovereign Constituent Assembly for India and undertook the historic task of drafting a new Constitution. The Assembly appointed a Drafting Committee, and the draft prepared by that Committee was presented to the Assembly on 4 November 1948. Following thorough debate, the draft was examined in three separate readings, and after the final reading it was signed by the President of the Assembly and formally declared passed on 26 November 1949. On that day the document became the Constitution of India; however, pursuant to Article 394, only certain provisions came into force on the same day, while the remainder of the Constitution only became operative on 26 January 1950, a date that the Constitution itself designates as its commencement. Article 1 of the Constitution, inter alia, declares that India, also referred to as Bharat, shall be a Union of States, thereby establishing the foundational structure of the nation.

Article 1 of the Constitution declared that India would be a Union of States and that the States and their territories would be those enumerated in Parts A, B and C of the First Schedule. West Bengal appeared as a State in Part A, and the Constitution expressly provided that the territory of the State of West Bengal would consist of the land that, immediately before the Constitution’s commencement, formed the Province of West Bengal. Consequently, in accordance with the award, Berubari Union No. 12 was treated as part of the Province of West Bengal and was administered on that basis. Subsequently, 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 establish a tribunal without delay and, in any event, no later than 31 January 1949 to adjudicate those disputes. This body, known as the Indo‑Pakistan Boundaries Disputes Tribunal, was chaired by the Honourable Lord Justice Algot Bagge. The tribunal was required to consider two categories of disputes concerning East and West Bengal; however, none of the submissions concerned the Berubari Union, and no reference to the District of Jalpaiguri appeared in the proceedings. The tribunal rendered its decision, known as 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, asserting that, under the award, the Union should have been placed in East Bengal and had been mistakenly administered as part of West Bengal. Throughout the intervening period, the Union remained under the possession and governance of the Indian Union as part of West Bengal. Correspondence between the Prime Ministers of India and Pakistan on this matter continued intermittently, and the dispute persisted until 1958. 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. At the same time, it is appropriate to note briefly the historical events that led to the proposed exchange of Cooch‑Behar enclaves between the two countries. Section 290 of the Government of India Act 1935 authorised His Majesty, by Order‑in‑Council, to increase or decrease the area of any Province or to alter provincial boundaries, provided that the prescribed procedure was followed. It is universally accepted that the Government of India was empowered by the Extra‑Provincial Jurisdiction Act 1947 to exercise the necessary powers for such adjustments. Accordingly, on 12 January 1949, the Government of India Act 1935 was amended by the insertion of sections 290A and 290B.

Section 290‑A of the amended Government of India Act, 1935, is worded as follows: “290‑A. Administration of certain Acceding States as a Chief Commissioner’s Province or as part of a Governor’s or Chief Commissioner’s Province: (1) Where full and exclusive authority, jurisdiction and powers for and in relation to governance of any Indian State or any group of such States are for the time being exercisable by the Dominion Government, the Governor‑General may by order direct – (a) that the State or the group of States shall be administered in all respects as if the State or the group of States were a Chief Commissioner’s Province; or (b) that the State or the group of States shall be administered in all respects as if the State or the group of States formed part of a Governor’s or a Chief Commissioner’s Province specified in the Order.” Section 290‑B(1) further provides that the Governor‑General may by order direct the administration of areas that are included within a Governor’s Province or a Chief Commissioner’s Province by an acceding State, and it stipulates that the acceding area shall be administered in all respects by a neighbouring acceding State as if such area formed part of that State, so that the provisions of the Government of India Act would then apply accordingly.

After the insertion of these two provisions, the Government of India took a series of steps aimed at merging various Indian princely states into the Union of India. To give effect to that objective, the States Merger (Governors’ Provinces) Order, 1949, was issued on 27 July 1949. The operative effect of that order was that any state which had merged with an existing province was to be administered in every respect as if it were a part of the absorbing province. The order was subsequently amended on several occasions. On 28 August 1949, the Government of India concluded a merger agreement with the Ruler of the State of Cooch‑Behar. Pursuant to that agreement, the Government assumed administration of Cooch‑Behar on 12 September 1949, thereby making Cooch‑Behar a part of Indian territory and listing it as Serial No. 4 among the Part C States in the First Schedule of the Constitution.

Following that incorporation, the States Merger (West Bengal) Order, 1949, was promulgated on 31 December 1949. This order observed that while the Dominion Government continued to exercise full and exclusive authority, jurisdiction and power over the governance of the State of Cooch‑Behar, it was expedient to invoke the power conferred by Section 290‑A to direct that the State be administered in all respects as if it formed part of the Province of West Bengal. Consequently, on 1 January 1950, the former State of Cooch‑Behar was formally merged with West Bengal and thereafter governed as if it were an integral portion of that province. As a result of this merger, Cooch‑Behar was removed from the list of Part C States in the First Schedule of the Constitution and was instead integrated into the entry for West Bengal. This administrative change meant that the territorial description of West Bengal in the First Schedule was amended to include the clause that referred to territories that were being administered as if they formed part of the province. In effect, after the merger, the territory of West Bengal comprised both the area that had been part of the Province of West Bengal immediately before the commencement of the Constitution and the area that was now being administered as if it were part of that province.

In this case, the Court observed that the First Schedule of the Constitution was amended to modify the territorial description of West Bengal. The amendment added a clause that referred to territories that were being administered as if they formed part of the Province of West Bengal. In practical terms, after the merger of Cooch‑Behar, the territory of West Bengal comprised two sets of areas: those that, immediately before the Constitution came into force, were already part of the Province of West Bengal, and those that were being administered as though they were part of that Province. The Court noted that a later addition expanded the territory of West Bengal by incorporating Chandernagore, although it was not necessary to discuss that addition at this point in the judgment.

The Court further explained that certain areas which had originally belonged to the former Indian State of Cooch‑Behar and later became part of India and, consequently, part of West Bengal, turned into enclaves inside Pakistan after the partition of 1947. At the same time, there existed enclaves of Pakistan within the territory of India. The existence of these reciprocal enclaves, together with other unresolved border questions, had been a matter of prolonged discussion between the Governments of India and Pakistan. The Court stated that these enclaves created a continual source of tension and conflict between the two nations. In order to remove this source of friction, the Prime Ministers of India and Pakistan agreed to resolve the enclave problem and to establish peaceful conditions along the affected border areas. The Court recorded that the exchange of enclaves was formalised in the Agreement between the two governments, specifically in item 10 of paragraph 3 of that Agreement. This background, the Court said, constituted the historical and constitutional context for the enclave exchange.

Turning to the submissions of the Union of India, the Court recounted that the learned Attorney‑General contended that no legislative action was required to give effect to the Agreement concerning the Berubari Union as well as the enclave exchange. Regarding the Berubari Union, the Attorney‑General argued that the Agreement’s purpose was only to ascertain or delineate the precise boundary that had been disputed by the two countries because of differing interpretations of the description contained in the award. He maintained that the Agreement merely recognised the boundary that had already been fixed and did not create a new boundary or alter the existing boundary in a manner that would change India’s territorial limits. The Attorney‑General emphasized that the settlement of the boundary, based on the award to which both governments were bound, did not constitute an alienation or cession of Indian territory. He further submitted that even if the clarification of the true boundary resulted in India yielding possession of certain land, such a result would represent only a method of settling the boundary, not a cession of territory.

The Attorney‑General contended that even if, as a result of the settlement, certain lands had to be yielded to Pakistan, such yielding did not amount to a cession of Indian territory; rather, it represented merely a means of settling the boundary dispute. He explained that the award had already fixed the boundary, but a disagreement subsequently arose between the two governments regarding the precise location of that boundary. Consequently, the dispute was resolved by applying the directions contained in the award together with the maps annexed to it. The Attorney‑General argued that where a boundary dispute between two sovereign states is resolved in accordance with a binding award, the resulting agreement should be regarded only as an ascertainment of the true boundary and not as a transfer or alienation of territory by one state in favour of the other. According to this line of reasoning, there was no genuine alteration of the boundary nor any real diminution of Indian territory, and therefore no necessity existed to amend the description of West Bengal’s territories in the First Schedule to the Constitution. He further suggested, in a rather tentative manner, that the exchange of the Cooch‑Behar enclaves formed part of the broader agreement concerning the Berubari Union and was, in fact, incidental to it. Viewed in that context, he maintained, the enclave exchange could not be characterised as a cession of any Indian territory. On the basis of this assumption, the Attorney‑General maintained that the settlement and recognition of the true boundary could be effected solely through executive action, and that the agreement reached between the Prime Ministers of the two countries could be implemented without any legislative intervention. To support this position, he relied upon certain provisions of the Constitution, which he summarized briefly. He referred to Entry 14 in List I of the Seventh Schedule, which states: “Entering into treaties and agreements with foreign countries and implementing treaties, agreements and conventions with foreign countries.” He also quoted Article 253 in Part XI, which deals with relations between the Union and the States, noting that it provides: “Notwithstanding anything in the foregoing provisions of the said Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” He observed that this legislative power was conferred on Parliament by reference to Entry 14. In addition, he pointed to three further articles in the same part that were relevant: Article 245(1), which empowers Parliament to make laws for the whole or any part of the territory of India; Article 245(2), which declares that no law made by Parliament shall be deemed invalid because it has extra‑territorial operation; Article 246, which prescribes the subject‑matter of laws that Parliament may enact; and Article 248, which provides for Parliament’s residuary powers.

Article 248 provides that Parliament may enact any law on any matter that is not listed in either the Concurrent List or the State List. Consequently, there is no doubt that Parliament possesses the legislative competence to enact legislation concerning any treaty, agreement or convention with another country and to give effect to such international instrument. Nevertheless, it was urged that, with respect to the making of treaties and their implementation, the executive powers of the Central Government are co‑extensive and co‑incidental with the powers of Parliament itself. This argument was founded upon the provisions of several constitutional articles. Article 53(1) stipulates that the executive power of the Union is vested in the President and may be exercised by the President directly or through officers subordinate to him in accordance with the Constitution. Strong reliance was placed on Article 73, which defines the scope of the Union’s executive power. Article 73(1) declares that, subject to the Constitution, the Union’s executive power extends (a) to matters for which Parliament has the authority to 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, provided that the executive power mentioned in sub‑clause (a) shall not, except as expressly provided in the Constitution or in any law made by Parliament, extend in 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, and Article 74(2) provides that no court may inquire into whether, and what, advice was given by the Ministers to the President. According to the learned Attorney‑General, the powers conferred on the Union executive under Article 73(1)(a) relate to the powers exercisable by reference to Entry 14 of List I in the Seventh Schedule, whereas the powers under Article 73(1)(b) are analogous to the powers granted to Parliament by Article 253 of the Constitution. The Attorney‑General further contended that this position was affirmed by the Court’s decision in Rai Sahib Ram Jawaya Kapur & Ors. v. The State of Punjab. In that case, addressing the limits within which the executive government may operate under the Constitution, Chief Justice Mukherjea, delivering a unanimous opinion, 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 comprised both the determination of the policy as well as carrying it into execution. Thus evidently includes the initiation of”

The Court observed that the functions of the executive, as described earlier, included legislation, maintenance of order, promotion of social and economic welfare, 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 then turned to examine what the Agreement actually accomplished. It asked whether the Agreement had attempted to determine the boundary by reference to the award, or whether it had simply sought an amicable, ad‑hoc settlement by dividing the disputed territory equally between the two parties. After reading the relevant portion of the Agreement, the Court found that the parties had concluded that the most expedient and reasonable way to resolve the dispute was to split the area in question into two equal halves. The Court noted that the Agreement contained no indication of any effort to interpret the award or to ascertain its true meaning. Rather, the Agreement opened with a declaration that the disputed area would be divided so that one half would be given to Pakistan and the other half, which lay adjacent to India, would be retained by India. In other words, the Agreement stated that although the whole of Berubari Union No. 12 lay within India, India was prepared to cede half of it to Pakistan in a spirit of give‑and‑take, with the aim of preserving friendly relations and removing sources of tension. Having reached that decision, the Agreement set out the manner of implementation. It provided that the division would be made horizontally, beginning from the north‑east corner of Debiganj Thana. It further required that the division be arranged so that the Cooch‑Behar enclaves situated between Pachagar Thana of East Pakistan and Berubari Union No. 12 of Jalpaiguri Thana of West Bengal would remain with India. This provision again reflected the intention to divide the area equally. The Agreement also contained a clause concerning the lower Cooch‑Behar enclaves between Boda Thana of East Pakistan and Berubari Union No. 12, specifying that these enclaves would be exchanged as part of a general enclave exchange and would pass to Pakistan. In the Court’s opinion, each clause of the Agreement clearly and unambiguously demonstrated that, independent of the award, the parties had agreed to a half‑and‑half division and had detailed the method of carrying out that division through four substantive provisions. Consequently, the Court found it difficult to accept the Attorney‑General’s contention that this portion of the Agreement amounted merely to the ascertainment and delineation of boundaries in light of the award. The Attorney‑General further suggested that an examination of the description in Annexure A to the Schedule of the award, particularly concerning the police station …

It was observed that the description of the boundaries contained a clear omission because it failed to mention the line separating police station Boda from police station Jalpaiguri. The argument presented was that this omission resulted in the description identifying only two specific points: one situated on the western edge of the Berubari Union at the extremity of the boundary between the Thanas of Pachagar and Jalpaiguri, and the other located on the eastern edge at the northern corner of the Thana of Debiganj where it meets the State of Cooch‑Behar, without providing any guidance on how the line between these two points should be drawn. It was further pointed out that the line shown on the map annexed as Annexure B to the Schedule of the award, if applied independently of the textual description in Annexure A, would place almost the entire Berubari Union within the territory of East Bengal. That position corresponded to the claim advanced by the Government of Pakistan and was the claim that the award sought to settle. In this respect, the Court recalled the specific instruction given by the Chairman in his award that the map was attached solely for illustrative purposes and that, should any inconsistency arise between the map in Annexure B and the boundary description in Annexure A, the textual description in Annexure A must govern. Consequently, no reasonable or valid claim could be sustained for the inclusion of almost the whole of the Berubari Union in East Bengal on the basis of the map’s line. Moreover, the alleged gap identified by the learned Attorney‑General could be remedied by considering the general method employed by the award in fixing the boundaries. Paragraph 3 of Annexure A demonstrates that the award’s line generally followed the boundaries between the Thanas, and this overall scheme would have assisted in resolving the dispute if the award were intended to do so. Paragraph 1 of Annexure A further directed that the line “continue” along the northern corner of Thana Debiganj to the boundary of the State of Cooch‑Behar, suggesting that the line was meant to proceed by reference to the existing Thana boundaries. Because of these considerations, the disputed territory remained under Indian administration for several years after the award was pronounced, and no dispute was raised until 1952. The Court noted these facts to emphasize that the agreement in question was not concluded after taking these facts into account, nor was it based on any interpretation of the award’s effect. In fact, the second clause of the agreement, which provides that the division of Berubari Union No. 12 shall be horizontal, reflects this independent approach.

The Court observed that the clause beginning at the north‑east corner of Debiganj Thana was expressed in an unsatisfactory manner. It noted that the term “horizontal” was not precise, but that the substance of the provision, together with the other directions in the Agreement, stemmed from the initial conclusion that India should transfer one‑half of the area to Pakistan. After a careful examination of every clause, the Court was convinced that the Agreement did not claim to be the product of any interpretation of the award or its provisions. Rather, the Agreement had been formulated independently of the award, based on considerations that the parties deemed prudent and appropriate at the time. Consequently, the Court could not accept the Attorney‑General’s contention that the Agreement merely identified and fixed boundaries in accordance with the award. Instead, it held that the instrument effected the cession of a portion of Indian territory to Pakistan, and that the matter before it must therefore be treated as a question of cession or alienation of part of India’s territory.

The Court further held that the same principle applied with even greater force to the exchange of the Cooch‑Behar enclaves. It rejected the Attorney‑General’s argument that no legislation was required for that exchange because it formed part of a larger settlement, noting that the earlier finding that the Berubari Union agreement involved the cession of Indian land meant that the Cooch‑Behar enclave exchange likewise entailed the cession of Indian territory. Accordingly, the Court said that the exchange had to be examined on the basis that a part of India was being transferred to Pakistan, and that, unlike the first two questions, the third question concerning this exchange necessarily required legislation. The Court also addressed the Attorney‑General’s claim that implementing the Berubari Union agreement would not demand any amendment to the First Schedule of the Constitution because Berubari Union had never been legally described as part of West Bengal. The Court found this argument unconvincing. It pointed out that since the award’s announcement, Berubari Union had remained under Indian control and had been administered as part of West Bengal. Given this factual background, the Court concluded that the territory fell within the areas that, immediately before the Constitution’s commencement, comprised the Province of West Bengal, and therefore any implementation of the Agreement would alter West Bengal’s boundaries and affect Entry 13 of the First Schedule.

The Court observed that the territories which formed West Bengal at the time the Constitution came into force were comprised in the Province of West Bengal. Consequently, the Court held that the implementation of the Agreement would necessarily alter the geographical limits of West Bengal and would consequently affect the substance of Entry 13 in the First Schedule to the Constitution. Before concluding its discussion on this point, the Court turned to the decision of the Australian High Court in The State of South Australia v. The State of Victoria ((1911) 12 C.L.R. 667), a decision on which the learned Attorney‑General had relied. In that Australian case the boundary between the State of South Australia and the State of New South Wales had been created by Act 4 & 5 Will. IV, c. 95, and the Letters Patent issued under that Act had defined the boundary as the 141st meridian of East Longitude. 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 located on the ground and marked as the 141st meridian. Later, in 1869, it was discovered that the line so marked lay about two miles to the west of the true meridian. Nevertheless, the line marked in 1847 had been proclaimed by the respective Governors to be the boundary and had thereafter operated as the de facto boundary. When a dispute arose concerning the true location of the boundary, Chief Justice Griffith referred to the 1847 fixation and observed that “the real transaction is the ascertainment of a fact by persons competent to ascertain it, and a finding of fact so made, and accepted by both, is in the nature of an award or judgment in rem binding upon them and all persons claiming under them” (p. 701). The dispute was subsequently taken to the Privy Council, which held that “on the true construction of the Letters Patent it was contemplated that the boundary line of the 141st meridian of East Longitude should be ascertained and represented on the surface of the earth so as to form a boundary line dividing the two colonies, and that it therefore implicitly gave to the executive of the two colonies power to do such acts as were necessary for permanently fixing such boundaries” ((1914) A.C. 283, 309). The Privy Council further observed that “the material facts showed that the two Governments made with all care a sincere effort to represent as closely as was possible the theoretical boundary assigned by the Letters Patent by a practical line of demarcation on the earth’s surface. There is no trace of any intention to depart from the boundary assigned, but only to reproduce it, and as in its nature it was to have the solemn status of a boundary of jurisdiction their Lordships have no doubt that it was intended by the two executives to be fixed finally as the statutable boundary and that in point of law it” was thus fixed.

The Court observed that the expression “was so fixed” demonstrated that the settlement of the boundary in the earlier case had been carried out entirely by reference to, and in the light of, the relevant parliamentary statute. The settlement was not regarded as an alienation of territory. In 1847 the parties authorized to deal with the boundary located and marked on the ground what they considered to be the 141st meridian. Although it later emerged in 1869 that the line they had fixed lay about two miles west of the true meridian, the action was nevertheless undertaken under the authority of the statute. Consequently, the earlier case did not involve contracting parties independently establishing a line to resolve a dispute between two States; rather, the parties sought to determine the line in conformity with the statutory provisions. The Court contrasted this with the present matter, noting that the Agreement under consideration was fundamentally different because it did not claim to be based on the award and had been formed independently of it. Accordingly, the Court concluded that the Attorney‑General could not rely on the precedent of The State of South Australia v. The State of Victoria ((1911) 12 C.L.R. 667) to support his interpretation of the Agreement.

Having determined that the Agreement amounted to a cession or alienation of a portion of Indian territory rather than a mere determination of a boundary in accordance with the award, the Court found it unnecessary to address the Attorney‑General’s alternative contention that the Union executive possessed the competence to enter into such an Agreement without legislative enactment. The Attorney‑General had conceded that his argument rested on the assumption that the Agreement was, in substance, only the ascertainment 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, nor to revisit the observations of Mukherjea, C.J., in Rai Sahib Ram Jawaya Kapur, to assess whether they supported the executive‑power argument. The Court then turned to the rival contention raised by Mr. Chatterjee, who argued that Parliament lacked the authority to cede any part of Indian territory to a foreign State, whether by ordinary legislation or by constitutional amendment. On that basis, Mr. Chatterjee submitted that the only possible opinion on the Reference was that the Agreement was void and could not be rendered effective by any legislative process.

The counsel for the petitioner argued that Parliament possessed absolutely no authority to transfer any portion of Indian territory to a foreign state, whether by ordinary legislation or by amending the Constitution. He based this extreme position on two separate grounds. First, he maintained that the preamble to the Constitution expressly declared that, just as the democratic republican form of government was guaranteed, the entire territory of India lay beyond the reach of Parliament and could not be altered by either ordinary statutes or constitutional modifications. He pointed out that the framers of the Constitution were acutely aware of the tragic partition of the country into two parts, and therefore, when they drafted the Constitution, they deliberately chose to preserve the whole of India as an inviolable and sacred entity. He further observed that the opening sentence of the preamble, which states, “We, the people of India, having solemnly resolved to constitute India into a sovereign democratic Republic,” irrevocably postulated that India must always remain democratic and republican in its geographical and territorial dimensions. The second ground of his contention relied on Article 1(3)(c) of the Constitution, which provides that “the territory of India shall comprise such other territories as may be acquired.” He argued that while the Constitution expressly granted the power to acquire additional territories, it made no provision for ceding any part of the existing territory, and therefore the rule of construction expressed by the maxim expressio unius est exclusio alterius should be applied to exclude the power of cession. The Court held that these contentions lacked any substantive basis.

The Court observed that the declaration made by the people of India in the preamble, undertaken in the exercise of their sovereign will, could be described, in the words of Story, as “a key to open the mind of the makers” and might indicate the general purposes behind the various constitutional provisions. Nevertheless, the Court emphasized that the preamble was not itself a part of the Constitution, and, quoting Willoughby’s observation on the American preamble, it had never been regarded as the source of any substantive power conferred upon the Government of the United States or any of its departments. Accordingly, only those powers expressly granted in the body of the Constitution, or those that could be logically implied from such grants, were valid. The Court further noted that the same principle applied to prohibitions and limitations; it was not easy to accept the assumption that the first part of the preamble imposed a severe restriction on one of the most important attributes of sovereignty. The Court reminded that it is universally recognised that sovereignty includes the power to cede portions of national territory when necessary. While it might be arguable that ambiguous or doubly‑meaningful constitutional terms could be interpreted with reference to the objectives expressed in the preamble, the Court concluded that the counsel’s contention that the preamble imported a limitation on the exercise of a necessary and essential attribute of sovereignty was untenable.

The judgment explained that the argument that the inclusion of a power to acquire territory must automatically exclude the power to cede or alienate territory was incorrect on two grounds. First, Article 1(3)(c) of the Constitution was not intended to grant India a specific authority to acquire foreign lands, as the petitioner suggested. International law recognises that sovereignty includes both the right to acquire foreign territory and the right to cede national territory to another state. Article 1(3)(c) merely provides a formal mechanism for the absorption and integration of any foreign territory that India may obtain by virtue of its inherent sovereign right. The provision was placed in the Constitution not because of any expansionist political doctrine, but primarily to facilitate the integration of territories that, at the time the Constitution came into force, remained under the control of foreign powers. Nevertheless, the article is drafted in broad terms so that it covers any foreign territory that might be acquired in the future, declaring that such territory would instantly become part of India upon acquisition. Consequently, a literal reading of Article 1(3)(c) does not create a distinct power to acquire territory. The second response to the contention was found in Article 368, which outlines the procedure for amending the Constitution and expressly empowers Parliament to make such amendments. The power to amend necessarily encompasses the power to amend Article 1, which logically includes the authority to cede Indian territory to a foreign state. Therefore, it would be unreasonable to claim that India lacks the sovereign power to cede territory, an essential attribute of sovereignty. On this basis, the Court rejected the petitioner’s submission that no legislative process could validate the agreement in question.

The judgment then turned to the nature of a sovereign state’s treaty‑making power, which must be examined before addressing the specific questions presented for opinion. It reiterated that a fundamental aspect of sovereignty is the ability of a state both to acquire foreign territory and, when necessary, to cede a portion of its own territory to another state, exercising this power through treaty-making. When a state cedes territory, it transfers sovereignty over that land to the receiving state. Historical precedent provides numerous examples of such transfers of sovereignty. The Court observed that cession of national territory, in legal terms, represents the transfer of sovereignty from the owner‑state to another state, and that this act is unquestionably permissible under international law, even though it may cause hardship for the affected inhabitants.

The Court observed that the eminent scholar Oppenheim had noted the inevitable hardship that accompanies any cession of territory, because the residents of the transferred area invariably lose their former citizenship and become subjects of a new sovereign regardless of their personal wishes. Oppenheim further suggested that this difficulty might be lessened if a treaty provided an option for the inhabitants to emigrate within a specified period, thereby avoiding the impression that they were forced against their will to accept a new sovereign.

Nevertheless, the Court affirmed that, despite the human hardship involved, there was no legal doubt that a sovereign state possessed the authority to cede a portion of its territory to another state. The Court added that such power was not absolute; it was constrained by any limitations that the Constitution of the state imposed either expressly or by necessary implication. Consequently, the manner in which a sovereign could negotiate treaties concerning the cession of national territory, and the method for implementing those treaties, were governed by the constitutional provisions of that country. In general terms, the treaty‑making power had to be exercised in accordance with the constitutional scheme and within the bounds set by it. Whether the execution of a treaty required ordinary legislation or a constitutional amendment depended on the specific provisions of the Constitution. The Court therefore indicated that the next step was to examine the constitutional position on this matter.

Proceeding on the premise that some form of legislation would be required to give effect to the Agreement under consideration, the Court noted that the Union of India contended that, if legislative action were indeed necessary, a statute enacted by Parliament under Article 3 of the Constitution would suffice, and that no amendment under Article 368 would be required. The Court recognised that the resolution of this issue hinged on the interpretation of Article 3 itself. The Attorney‑General was invited to keep in mind the special features of the Constitution’s basic structure while construing Article 3. He advanced the argument that the basic structure of the Constitution was essentially the same as that embodied in the Government of India Act, 1935, which first introduced a federal system in India. Unlike other federations, the Court noted, the federation created by that Act was not the result of a pact or union among separate, independent states that voluntarily surrendered part of their sovereignty. Instead, the constituent units of the federation had been deliberately created, and, unlike the units of other federations, they lacked any prior organic foundation. This historical observation helped explain why the Indian Constitution, in contrast with other federal constitutions, did not place a strong emphasis on the preservation of the territorial integrity of the constituent states. The Court further observed that the framers of the Constitution were fully aware of the special circumstances under which the States—originally Provinces—were formed and their boundaries delineated, and that they intentionally incorporated the provisions of Article 3 to accommodate the possibility of territorial re‑distribution following the integration of the Indian States.

In the Constitution, the constituent units of the federation were created deliberately, unlike the units of other federations which often have historic origins. Because these units had no organic roots in the past, the Indian Constitution does not contain an express emphasis on preserving the territorial integrity of the constituent States. The framers of the Constitution knew the special conditions under which the former Provinces were turned into States and how their boundaries were drawn. Accordingly, they intentionally incorporated the provisions of Article 3 to allow for possible redistribution of territory after the integration of the Indian States. This intention is reflected in the historical fact that the States Reorganisation Act of 1956 (Act XXXVII of 1956) replaced the original twenty‑seven States and one Area listed in Part D of the First Schedule with fourteen States and six Union territories. The transformation that resulted from that Act illustrates the distinctive feature of the Indian constitutional scheme, namely that the Constitution anticipated alterations in the territorial limits of its constituent units and did not guarantee their territorial immutability. Therefore, when construing Article 3, it is appropriate to consider that the Constitution itself contemplated changes to state boundaries and expressly omitted any guarantee of territorial integrity. Part I of the Constitution deals with the Union and its territories, forming a self‑contained code on that subject. Just as Part II addresses citizenship, Part I addresses the territory of India. Article 1 sets out the name and territory of India, stating that India, also called Bharat, shall be a Union of States; that the States and their territories shall be as specified in the First Schedule; and that the territory of India shall comprise the territories of the States, the Union territories listed in the First Schedule, and any other territories that may be acquired. The present form of Article 1 is the result of the Constitution (Seventh Amendment) Act, 1956. Prior to that amendment, Article 1 referred to the territories of the States as those specified in Parts A, B and C together with the territories specified in Part D of the Schedule and any territories that might be acquired. At that time, Article 243 in Part IX dealt separately with the administration of the territories listed in Part D and other newly acquired territories that were not part of the First Schedule. The 1956 amendments introduced important changes: the distinction between Parts A, B, C and Part D was abolished, and the language was replaced by a distinction between the territories of the States and the Union territories specified in the First Schedule. Consequently, Article 243 in Part IX was deleted. Under the present wording, the territory of India consists of the territories of the States, the Union territories, and any other territories that may be acquired.

In this case, the Court observed that the previous distinction between the territories of the States and the Union territories that are listed in the First Schedule was eliminated. As a result, the provision found in Article 243 of Part IX was removed. Accordingly, the present form of Article 1 states that the territory of India consists of the territories of the States, the Union territories, and any other territories that may be acquired. The Court reiterated that Article 1(3)(c) does not grant India a power to acquire territory; rather, it merely provides for, and acknowledges, the automatic absorption of any territory that India acquires by virtue of its inherent sovereign right to obtain foreign land. Thus, Article 1 characterises India as a Union of States and sets out the components of its territory. The Court then turned to Article 2, which enables Parliament, by law, to admit into the Union or to establish new States on such terms and conditions as it deems appropriate. This provision indicates that a foreign territory, once acquired and thereby becoming part of India under Article 1(3)(c), may be admitted into the Union by legislation under Article 2. The Court further noted that such territories may also be dealt with under Article 3(a) or Article 3(b). The expression “by law” in Articles 2 and 3 is significant because the acquisition of foreign territory by India, exercised as its inherent sovereign right, automatically makes the territory a part of India. After that factual incorporation, Parliament may, through legislation, assimilate the territory either under Article 2 or under Article 3(a) or 3(b). To illustrate the procedure that Parliament may follow when enacting a law to absorb a newly acquired territory, the Court referred to the Chandernagore Merger Act of 1954 (Act XXXVI of 1954). This Act was passed on 29 September 1954 and came into force on 2 October 1954. Chandernagore had been a French possession. In June 1946, the French Government, in agreement with the Government of India, declared that the inhabitants of the French establishments in India would have the right to determine their future status. Pursuant to that declaration, a referendum was held in Chandernagore in 1949, and the citizens voted in favour of merging the territory with India. Consequently, on 2 May 1950, the President of the French Republic effected a de facto transfer of administration of Chandernagore to India, and from that date the Government of India assumed control and jurisdiction over Chandernagore under section 4 of the Foreign Jurisdiction Act, 1947 (Act 47 of 1947). The Government of India issued the relevant notification under that section, which brought certain Indian laws into force in Chandernagore and simultaneously caused the corresponding French laws to cease to apply as of 2 May 1950.

The Government of India issued a notification under section 4 of the Foreign Jurisdiction Act, 1947, which made certain Indian statutes applicable to Chandernagore and simultaneously caused the corresponding French statutes to cease operation as of 2 May 1950. Subsequently, a treaty of cession was signed in Paris, and on 9 June 1952 the treaty was ratified, thereby transferring Chandernagore de jure to the Government of India. The de jure transfer ended Chandernagore’s status as a French territory and removed the applicability of the Foreign Jurisdiction Act. From that date, Article 243(1) of the Constitution applied to Chandernagore, and exercising the authority conferred by Article 243(2), the President issued a regulation for the administration of the territory that became effective on 30 June 1952. To ascertain the will of the local population, the Government appointed a commission of enquiry; the commission reported that the people of Chandernagore were almost unanimously in favour of merging with West Bengal. Acting on this report, Parliament enacted the Chandernagore Merger Act, which was passed under the power granted by Article 3 of the Constitution. Consequently, Chandernagore was merged with the State of West Bengal on 2 October 1954, and the boundaries of West Bengal were altered under Article 3(d). Section 4 of the First Schedule to the Constitution was also amended to reflect the change. The brief history of Chandernagore’s acquisition, absorption, and merger therefore illustrates the operation of Article 1(3)(c) together with Articles 3(b) and 3(d) of the Constitution.

Having considered the matter, the Court turned to Article 3, which deals with the formation of new States and the alteration of existing States, but first examined Article 4. Article 4(1) provides that any law referred to in Article 2 or Article 3 shall contain the necessary provisions to amend the First Schedule and the Fourth Schedule, as well as any supplemental, incidental, and consequential provisions Parliament deems appropriate, including matters of representation in Parliament and State legislatures. Article 4(2) further states that such a law shall not be deemed an amendment of the Constitution for the purposes of Article 368. The effect of Article 4 is therefore to exclude laws related to Articles 2 or 3 from being treated as constitutional amendments under Article 368. Consequently, if legislation relating to the Agreement is within the competence granted by Article 3, it would be unnecessary to invoke the amendment procedure of Article 368.

In discussing the constitutional effect of legislation relating to the Agreement, the Court observed that where such legislation was not within the competence granted by Article 3, the amendment procedure prescribed by Article 368 would inevitably become applicable. Consequently, the central issue to be resolved was whether Parliament possessed the authority to enact a law concerning the Agreement under the grant of power contained in Article 3. The Court then turned to the text of Article 3 itself, which provided that Parliament could, by law: (a) form a new State by separating territory from any existing State, by uniting two or more States or parts of States, or by attaching any territory to a part of any 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. The provision further required that no Bill for any of these purposes could be introduced in either House of Parliament unless it was first recommended by the President, and, where the Bill affected the area, boundaries, or name of a State, the President had to refer the Bill to the Legislature of that State for its views within a period specified in the reference or any further period that the President might allow, after which the specified period would be deemed to have expired. The Court noted that, at first glance, Article 3 seemed to address only the problems arising from the re‑organisation of the constituent States of India on linguistic or other internal criteria, but its scope was not confined to that narrow context. Broadly, Article 3 dealt with the internal adjustment among the territories of the constituent States. Specifically, clause (a) enabled Parliament to create a new State either by separating territory from an existing State, by uniting two or more States or their parts, or by attaching any territory to a part of an existing State. The Court held that foreign territory, once acquired and brought within the territory of India under Article 1(3)(c), fell within the final phrase of clause (a) and could thereby be incorporated into a newly formed State pursuant to that clause. Hence, clause (a) addressed the formation of new States and set out the possible modes of such formation. Clause (b) authorized Parliament to pass a law increasing the area of any State; such increase could be incidental to a re‑organisation in which territory added to one State might have been removed from another, or it could result from the addition of a portion of the territory mentioned in Article 1(3)(c). Clause (d) was identified as dealing with the alteration of the boundaries of any State, completing the Court’s exposition of the relevant provisions of Article 3.

The Court observed that any alteration of a state's boundaries would be the consequence of the adjustments specified in Articles 3(a), 3(b) or 3(c). It further noted that Article 3(e), which deals with the alteration of a state's name, presents no difficulty and has no material bearing on the questions presently before it. The Court added that Article 3(c) had not yet been considered, and that its construction would provide the answers to the issues under reference; however, before interpreting Article 3(c) the Court wished to refer to an aspect relating to the article as a whole.

In paragraph 45 the Court pointed out that Article 3, in its terms, does not refer to the Union territories. Consequently, whether or not the Union territories are included in the last clause of Article 3(a), they are unquestionably outside the scope of Articles 3(b), 3(c), 3(d) and 3(e). In other words, any increase or decrease in the area of a Union territory, or any alteration of its boundaries or name, cannot be effected by a law that falls within Article 3. The Court said that this position would be of considerable assistance in interpreting Article 3(c).

Paragraph 46 explained that Article 3(c) deals with the problem of the diminution of a state's area. Such diminution may occur when a portion of a state's territory is taken out and added to another state, and in that sense Articles 3(b) and 3(c) may in some cases be said to be correlated. The Court then asked whether Article 3(c) also covers a situation where a portion of a state's area is taken out, is not added to any other Indian state, and is instead handed over to a foreign state. The Attorney‑General contended that the words of Article 3(c) were wide enough to include the cession of national territory to a foreign country, which would cause a diminution of the state's area. The Court was not impressed by this argument. It found it unreasonable to suggest that the Constitution’s framers intended to provide for the cession of national territory under Article 3(c). The Court observed that, if the power to acquire foreign territory—a essential attribute of sovereignty—is not expressly conferred by the Constitution, there is no reason to presume that the power to cede part of the national territory, another essential attribute of sovereignty, is provided for. Both attributes of sovereignty lie outside the Constitution and can be exercised by India as a sovereign state. Accordingly, even assuming the widest possible interpretation of Article 3(c), the Court held that it would be difficult to accept the argument that the provision covers the cession of a portion of national territory to a foreign state. The diminution of a state's area envisioned by Article 3(c) presupposes that the area removed from the state must continue to remain part of the territory of India.

The Court observed that even if a portion of India’s land were taken away, that land would still legally belong to the territory of India; it might increase the area of another State or be dealt with in some other way authorized by Article 3 or by any other relevant constitutional provision, but it would never cease to be part of India’s territory. The Court said that it would be an excessive stretch of the wording of Article 3(c) to claim that, by implication, the article permits the cession of any part of the national territory. Consequently, the Court expressed no hesitation in holding 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 interpreting Article 3(c). It noted that Article 3 does not refer to Union territories, and therefore Article 3(c) could not apply to them. If a part of a Union territory were to be ceded to a foreign State, no law falling under Article 3 would be competent to effect such a cession; instead, legislation relating to Article 368 would be required. This reasoning, the Court said, reinforced its preferred construction of Article 3(c) even with respect to the cession of any State’s area to a foreign State. The Court found it unreasonable, illogical and anomalous to allow the cession of Union territory to be effected by an Article 3 law while requiring Article 368 for the cession of State territory. Accordingly, the Court could not accept the Attorney‑General’s argument that Parliament could implement an agreement involving the cession of Indian territory to a foreign State by passing a law under Article 3. The Court held that this conclusion followed a fair and reasonable reading of Article 3 and could not be undermined by the Attorney‑General’s description of the special features of the federal Constitution. In addressing the Attorney‑General’s reference to Act XLVII of 1951, the Court explained that the Act altered the boundaries of the State of Assam because a strip of land within Assam had been ceded to the Government of Bhutan. Section 2 of the Act declared that, from the commencement of the Act, Assam would no longer include the specified strip, and that the State’s boundaries would be deemed altered accordingly. Section 3 provided for the consequential amendment of the first paragraph in Part A of the First Schedule of the Constitution relating to Assam’s territory. The argument presented was that Parliament, when dealing with this cession, had purportedly used Article 3 to pass the Act.

When Parliament considered the cession of a strip of land that had been part of the State of Assam in favour of the Government of Bhutan, it attempted to pass the relevant legislation by invoking Article 3 of the Constitution. The strip that was transferred comprised roughly thirty‑two square miles situated in the Dewangiri Hill Block at the extreme northern edge of Kamrup District. This area was predominantly forested and was inhabited only sparsely by Bhotia communities. The Attorney‑General did not rely on this single statute to illustrate a general legislative practice; instead, he presented it merely as an example where Parliament had given effect to a territorial cession involving Assam by enacting a law under Article 3. The Court found that this isolated instance could not aid in interpreting the scope and effect of the provisions of Article 3.

The Court therefore concluded that Parliament did not possess the competence to enact a law under Article 3 for the purpose of implementing the Agreement. The Attorney‑General conceded that accepting this conclusion meant that any legislation required to give effect to the Agreement would have to be passed under Article 368. Article 368 states: “An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two‑thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in – (a) article 54, article 55, article 73, article 162 or article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one‑half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.”

The Court reiterated its earlier determination that the Agreement amounted to a cession of a portion of India’s territory in favour of Pakistan; consequently, its implementation would necessarily involve altering the text of Article 1 and the relevant portion of the First Schedule to the Constitution, because such implementation would inevitably lead to a reduction of the Union’s territory.

In this case, the Court observed that the cession of a portion of the territory of India would necessarily result in a reduction of the Union’s area, and consequently would require an amendment of Article 1 of the Constitution as well as the relevant part of the First Schedule. Such an amendment could be effected under Article 368, a position that was not disputed and had not been challenged before the Court. Accordingly, the Court held that Parliament could, by exercising the power conferred by Article 368, enact a law to give effect to and implement the Agreement that provides for the cession of a part of Berubari Union No 12 together with certain Cooch‑Behar enclaves that are to be transferred to Pakistan. The Court further noted that Parliament retained the option of amending Article 3 of the Constitution, if it so chose, to expressly cover cases of cession of Indian territory to a foreign State. Should Parliament pass such an amendment to Article 3, it would then be competent to enact a law under the amended provision to implement the Agreement. Conversely, if Parliament opted to pass the necessary legislation directly under Article 368, that legislation alone would be sufficient to bring the Agreement into effect.

The Court then indicated that it was appropriate to address an additional point before forming its opinion on the questions referred. It recalled that the proviso to Article 3 requires the President, when a Bill affects the area, boundaries, or name of any State, to refer the Bill to the Legislature of that State for its views within a prescribed period. The learned Attorney‑General submitted that if the Court were to hold that Parliament must act under Article 368 rather than Article 3, the Legislature of West Bengal would be deprived of an opportunity to express its view on the cession of the territory in question. The Court acknowledged that this consequence would indeed arise, but explained that if, on a fair and reasonable construction, Article 3 is held inapplicable, the incidental effect cannot be avoided. The Court further explained that a law passed under Article 368 must satisfy the procedural requirements set out in that article: the Bill must be passed in each House by a majority of the total membership of the House and by at least two‑thirds of the members present and voting. This dual requirement ensures that a substantial portion of the House, normally the major parties, must concur, thereby providing a safeguard in matters of this nature. Finally, the Court observed that an amendment of Article 1 resulting from the cession of Indian territory to a foreign State does not trigger the safeguard prescribed by the proviso to Article 368, because neither Article 1 nor Article 3 is listed among the entrenched provisions of the Constitution in that proviso. Determining whether those articles should be included in the list is a matter for Parliament to consider and decide.

The Court observed that the proviso attached to Article 368 does not contain Article 1 nor Article 3 in the enumeration of entrenched provisions of the Constitution. Because those two articles are absent from the list, they are not subject to the special safeguard that the proviso provides. The Court further clarified that it is not within its function to investigate or to pass judgment on whether it would be appropriate to place Article 1 and Article 3 within that protective list. Determining whether to enlarge the range of entrenched provisions is a question of legislative policy and, therefore, a matter that must be examined and decided by Parliament itself, and not by the judiciary.

Accordingly, the Court proceeded to answer the three questions that had been referred for its consideration. To the first question, the Court gave a clear affirmative answer, stating simply “Yes.” Regarding the second question, the Court articulated three distinct points. First, it held that any statute enacted by Parliament that seeks to rely on Article 3 of the Constitution would be constitutionally incompetent and therefore invalid. Second, it held that a statute which is grounded in Article 368 of the Constitution is constitutionally competent and, in the circumstances, is also necessary for the purpose sought. Third, the Court explained that a statute invoking both Article 368 and Article 3 would become necessary only if Parliament first chooses to pass a law that amends Article 3, as previously indicated. In that situation, Parliament would first have to enact a law under Article 368 to effect the amendment of Article 3, and subsequently would need to pass another law that operates on the basis of the newly amended Article 3 in order to give effect to the agreement in question. For the third question, the Court reiterated that the response is identical to the answers given in sub‑parts (a), (b) and (c) of the second question. Finally, the Court noted that the reference had been answered in the manner described.