Background of the Case
In Re Berubari Union Case is one of the most significant cases in the Constitution of India, as it was the main case, which managed the inquiry that whether the Preamble is a piece of the Constitution of India or not. It has been exceptionally a matter of contentions and conversations in the past that whether Preamble ought to be treated as a piece of the constitution or not. The vexed inquiry whether the Preamble is a piece of the Constitution or not was managed in Beruberi Union Case. The Supreme Court held that the “Preamble isn’t a piece of the Constitution.” It is additionally not the source to restrict the force, which is given expressly in the Constitution. Further, the Preamble isn’t enforceable in a Court of Law. In Re Beruberi was the first case in which the Supreme Court clearly stated that the Preamble is not a part of the Constitution of India.
Facts of the Case
· Because of the Radcliffe Award dated August 12, 1947, Berubari Union No. 12 fell inside West Bengal and was treated as such by the Constitution which came into power on January 26, 1950, and has since been administered on that premise.
· Certain questions emerged among India and Pakistan resulting to the Radcliffe Award however Berubari was not in issue before the Badge Commission set up by understanding between the gatherings to choose those debates. That commission made its honor on January 26, 1950.
· Pakistan brought up the issue of Berubari without precedent for 1952 asserting that under the Radcliffe Award it should frame some portion of East Bengal and was wrongly remembered for West Bengal.
· On August 28, 1949, the Ruler of the State of Cooch-Behar 251 went into an understanding of merger with the Government of India and that Government assumed control over the organization of Cooch-Behar which was at last converged with West Bengal on January 1, 1950, in order to frame a piece of it.
· It was discovered that specific regions which had a place with the State of Cooch Behar became enclaves in Pakistan after the segment, and comparably certain Pakistan enclaves fell in India. So as to evacuate the pressure and struggle caused along these lines the Prime Ministers of India and Pakistan went into an understanding, called the Indo-Pakistan Agreement on September 10, 1958, and Items 3 and 10 of that understanding accommodated a division of Berubari Union creamer among India and Pakistan and for a trade of Cooch-Behar Enclaves in Pakistan and Pakistan Enclaves in India.
Issues before the Supreme Court
The following issues had raised before the Hon’ble Supreme Court:
· The first issue was that, is any administrative activity vital for the usage of the Agreement identifying with Berubari Union?
· The second issue was that, provided that this is true, is a law of Parliament relatable to Article 3 of the Constitution adequate for the reason or is a change of the Constitution as per Article 368 of the Constitution vital, moreover or in the other option?
· The third issue was that, is a law of Parliament relatable to Article 3 of the Constitution adequate for usage of the understanding identifying with Exchange of Enclaves or is a correction of the Constitution as per Article 368 of the Constitution vital for the reason, also or in the other option?
Arguments by the Petitioner
· On behalf of the petitioners, the Learned Attorney-General contended that no legislative action is necessary for the implementation of the Agreement relating to Berubari Union as well as the exchange of enclaves.
· He emphasised that the ascertainment or the settlement of the boundary in the light of the award by which both Governments were bound, is not an alienation or cession of the territory of India.
· Learned Attorney-General has further contended that the exchange of Cooch-Behar Enclaves is a part of the general and broader agreement about the Berubari Union and in fact it is incidental to it.
· He also contended that the basic structure of the Constitution is the same as that of the Government of India Act, 1935, which had for the first time introduced a federal polity in India.
· It was also contended by the Learned Attorney-General contends that the words used in Article 3(c) are wide enough to include the case of the cession of national territory in favour of a foreign country which causes the diminution of the area of the State in question.
Arguments by Respondents
The respondents had contended that even the Parliament has no power to cede any part of the territory of India in favour of a foreign State either by ordinary legislation or even by the amendment of the Constitution.
Decision
Hon’ble Judges/Coram : P.B. Gajendragadkar , B.P. Sinha, C.J., A.K. Sarkar, J.C. Shah, K.C. Das Gupta, K. Subba Rao, M. Hidayatullah and S.K. Das, JJ.
The Supreme Court observed that the Item NO. 3 of the Agreement leaves no way of uncertainty that the gatherings to it were in this way trying to settle the debate separated from the Award, genially, and on impromptu premise by isolating the region creamer. There is positively no sign in it that they were trying to decipher the Award and decide the limit on that premise. The inquiry identifying with Berubari must, in this manner, be considered on the premise that it includes cession of some portion of India’s region to Pakistan and this applies with more prominent power to the understanding identifying with the trading of the enclaves. There can be no uncertainty that the usage of the Agreement would change the limit of West Bengal and influence Entry 13 in the First Schedule to the Constitution, since truly Berubari was treated as a piece of West Bengal and represented as such from the date of the Award and was hence contained in that before the initiation of the Constitution.
The Court held that the Parliament acting under Article 368 can make a law to give impact and actualize the Agreement being referred to covering both Berubari and the Enclaves or pass a law revising Article 3 in order to cover instances of cession of the domain of India and from there on make a law under the corrected Article 3 to execute the Agreement.
The Court observed that the genuine position is that the Constitution doesn’t explicitly give either to procurement of outside domain or for cession of national region; powers are innate for that benefit in each sovereign State. Therefore, the Agreement can’t be executed by a law relatable to Article3 and enactment relatable to Article 368 would be inescapable.
The Court further held that despite the fact that it might be right to depict the preface as a key to the psyche of the Constitution-creators, it shapes no piece of the Constitution and can’t be viewed as the wellspring of any meaningful force which the body of the Constitution alone can give on the Government, explicitly or by suggestion. This is similarly valid for disallowances and restrictions. It was not, accordingly, right to state that the introduction could in any capacity limit the intensity of Parliament to surrender portions of the national region.
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