Summary of In Re: Berubari Union Case

This article is written by Aditi Shah and Geetika Khandelwal, 2nd-year students of Institute of Law Nirma University.


Brief facts of the Case

The borders of India and Pakistan were to be evaluated by the 'award' of a boundary commission appointed by the Governor-General, according to the Indian Independence Act, 1947. The term 'award' applies to the committee chairman's decision comprising the final report sent to the Governor-General. Consequently, under Sir Cyril Radcliffe's chairmanship, the Governor-General appointed a commission.


But the ‘award’ determined by the Radcliffe committee was not accepted by India and Pakistan. Consequently, border conflicts have arisen between the two countries. In 1958, Indian Prime Minister Shri Jawaharlal Nehru and Pakistani Prime Minister Mr Feroze Khan Noon signed an agreement to settle these border disputes.


The dimensions of the Berubari was 8.75 square miles. It had a population of nearly 12000 people. It is located in the District of Jalpaiguri in West Bengal.


As laid down by the agreement, ‘Berubari Union No. 12’ was to be divided horizontally, in such a way that half the area would be given to Pakistan and the other half would be retained by India.


Jurisdiction

The Supreme Court got the jurisdiction over this matter through Article 143(1) of the Indian Constitution, wherein the President may seek the Supreme Court’s opinion on a matter of public importance. For this dispute, The President made a reference in 1960, which paved the way for the Supreme Court to have its jurisdiction.


Question of Law

Whether the enforcement of the Agreement relating to the Berubari Union and the exchange of enclaves involves some legislative intervention either through the law of the Parliament referred to in Article 3 of the Constitution or through the necessary amendment of the Constitution referred to in Article 368, or both?


The President, therefore, felt that the problems presented were of such a nature and significance that the opinion of the Supreme Court should be sought. He then referred the following questions to the Supreme Court by exercising the power provided for in Article 143 of the Constitution–


  • a) Does the implementation of the agreement regarding the Berubari Union require legislative action?

  • b) If so, will a law enacted by Parliament under Article 3 of our Constitution be sufficient for the execution of the agreement regarding the Berubari Union or an amendment to the Constitution under Article 368[3] of our Constitution required? And if necessary should it be considered in addition or as an alternative?

  • c) If so, will a law enacted by Parliament under Article 3 of our Constitution be sufficient for the execution of the agreement regarding Exchange of Enclaves or an amendment to the Constitution under Article 368 of our Constitution required? And if necessary should it be considered in addition or as an alternative?


Reliance on relevance

1. Relevant statutes-

a) Constitution of India, 1950

b) Foreign Jurisdiction Act, 1947 [repealed]

c) Government of India Act, 1935 [repealed]


2. Decided cases-

  • a) The State of Australia v. The State of Victoria, (1911) 12 CLR 667

  • b) The State of South Australia v. State of Victoria, (1914) AC 283

Legal issues for determination

  • What should be the mode to execute the agreement, is there a need for legislative amendment?

  • Is preamble a part of the Indian Constitution?