Some events in history are such that directly affect the present or become an example. The Berubari case is something like this;
In this article, we will discuss the Berubari case in a simple and easy way, and understand its other aspects as well. This is a very interesting incident and the cause and result of this interesting incident is also very interesting, so read it till the end;
Note – If you are reading the Berubari case directly, then you must first understand the part 1 of the constitution (Indian Union and its territory) because it is related to that.
| Part 1 of the Constitution relating to the Berubari case
We have understood under Article 1 that this article is about the description of India. That is, we know what is India?, What is the meaning of Indian Union? And so on. Another important point in this was that the territory of the Indian Union is the same as that of Schedule 1. Overall there is no problem with this article.
Under Article 2 , we understood that with the help of this article, India can also include the territory which is not included in the Indian Union. The point to be understood here is that it is written in this article that India can acquire territory outside its union territory, but it is not written anywhere that India can give its territory to any other country.
First – Parliament can form a new state by separating some part of the state, or by merging two or more states or by merging some part of it.
Second – Parliament can increase the area of a state.
Third – Parliament can reduce the area of a state.
Fourth – Parliament can change the boundaries of a state.
Fifth – Parliament can change the name of a state.
Overall, it is completely about India and here also it is not written whether India can give its territory to any other country or not. But its third provision definitely says that Parliament can reduce any area of the state. But does this reduction mean that by giving one’s territory to another country and reducing one’s territory? Let’s understand it further.
And under Article 4 we understood that all the amendments made under Article 2 and Article 3 shall not be deemed to be an amendment under Article 368. That is, changes can be done under Articles 2 and 3 by ordinary procedure of Parliament and by simple majority.
After understanding the four paragraphs here, you will notice one thing that there is only the third provision of Article 3 which is a bit confusing. Remember this point because it has been talked about a lot.
Berubari case developments
Due to the formation of two separate countries of India and Pakistan, the problem of boundary determination came. To solve this problem, Lord Mountbatten entrusted this task to Sir Radcliffe. It is said that Sir Radcliffe had no understanding of India at all; whatever came to mind, he drew a line on the map. At many places, he fixed the boundary on the basis of the police station.
Well whatever happened, Mr Radcliffe pulled the line and left but left a dispute. You would know that at that time Bangladesh was also a part of Pakistan which was known as East Pakistan.
The case was that in the southern part of Jalpaiguri district of West Bengal, India, there was a place named Berubari. It was adjacent to East Pakistan. Radcliffe gave this place to India but he forgot to give it in writing.
Taking advantage of this, Pakistan raised the issue of Berubari Union for the first time in 1952. Since Berubari was a Muslim majority area, Pakistan said that this area is mine but by mistake India is ruling on it. This dispute continued till the Nehru-Noon Pact was signed. This is September 1958.
In fact, the then Prime Minister of Pakistan Feroz Khan Noon and Indian Prime Minister Jawaharlal Nehru made an agreement. Under this agreement, it was said to divide the Berubari region into two parts and give half to Pakistan and half to India.
The government of West Bengal was not at all happy with this and the people there were also expressing their displeasure because they had chosen Jawaharlal Nehru as the Prime Minister and now he was separating him from the country. There was a lot of criticism of the government regarding this matter. The question in everyone’s mind was that how can India give its share of territory to another country?
Interestingly, at the time of implementing this agreement, the government also wondered whether it would be implemented under the third provision of Article 3 or under Article 368.
At that time the President of the country was Dr. Rajendra Prasad , since he had also been the President of the Constituent Assembly and the Constitution was made in front of him. Perhaps he realized that something was missing, that is why he handed over the matter to the Supreme Court. Actually , the President has the right to consult the Supreme Court under Article 143 , so he used this right.
Under this, consultation was sought mainly on two things – (1) Is any legislative action necessary for the implementation of the agreement related to the Berubari union? (2) If it is necessary to do so, will it be appropriate to do so under Article 3 or by amending the Constitution with the help of Article 368.
There was also some legal entanglement here because according to entry number 14 of the Union List of the 7th Schedule, India can make treaties or agreements with any other country and can also implement that agreement in the country. And it is supported by Article 253 according to which it can also make laws for carrying out treaties and agreements with foreign countries.
On the other hand, talking about some other provisions, according to Article 245 (1), Parliament has the power to make laws for the whole or any part of the territory of India. Article 248 states that Parliament has the power to make laws on subjects not included in the Concurrent List, the State List and the Central List.
In this way, India has no hindrance in implementing that agreement. But again a legal problem arose and that was the Preamble.
Actually a word is written in the preamble Democratic Republic . Obviously, in a democracy, the government gets its power from the people. But can the power given by it be used to be handed over to another country only to the people who have formed the government?
Secondly, there is another word in the preamble that is sovereignty; Which means India is a country standing on its own and no other country can ask it to do something that damages the unity and integrity of India. This also means that if no one can say anything to India in its internal matter, then by using this sovereignty, India cannot give its territory to someone else?
So the overall question was whether the Preamble gives the government the power to implement that agreement.
Supreme Court’s consultation on Berubari case
The Supreme Court said that the Preamble is not a part of the Constitution and does not confer any power on the government.
Secondly, the Supreme Court said that on the basis of Article 3 , the share of India cannot be assigned to anyone else, because it gives the power to re-determine the border within the country itself, to give its land to another country. No.
Thirdly, the Supreme Court said that if you have to implement that agreement, then do it by amending the Constitution under Article 368.
This is what Pandit Jawaharlal Nehru did. He made the 9th amendment to the constitution in 1960 and according to the agreement, Schedule 1 was changed. In this way this agreement was completed.
Overall, this is the Berubari case. Here the Supreme Court said that the Preamble is not a part of the Constitution, it was later corrected by the Court.
Another case related to this is the 2015, in which the Government of India transferred some part of India to Bangladesh by the 100th Constitutional Amendment Act and India acquired some part of Bangladesh. This happened under an agreement between India and Bangladesh in which India transferred 111 overseas enclaves to Bangladesh while Bangladesh transferred 51 enclaves to India. So to do this the Government of India had to amend the Constitution under Article 368.
Hope you understand the berubari case. For now HIndi quiz is available on this topic, if you wish, do it…..
# Quiz Berubari Case
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