The Berubari Union and ...

vs Unknown

Fact of the case

In this case, the States of Punjab and Bengal were to be partitioned at the time of partition of India and Pakistan.
A commission was appointed and Sir Cyril Redcliffe was appointed as the chairman of that commission. A
boundary was fixed between India and Pakistan is referred to as the Redcliffe line. Sir Radcliffe apportioned the
district of Jalpaiguri between the 2 countries by giving some thanas to India while remaining thanas to Pakistan.
During the method, he omitted one than, i.e.; Berubari Union No. 12. It is located within the District of Jalpaiguri
in West Bengal and was later awarded to India on the 12th of August, 1947. The omission made by the
commission and erroneous depiction on the map gave Pakistan the freedom to say the territory as its own.

Issue

• Whether there is a need for legislative action to carry out an agreement relating to the Berubari union?
• Whether the case where there is such a need for action, does a law of parliament concerning Article 3 of
the Constitution of India, 1950 sufficient, or is an amendment of the constitution following article 368 of
constitution necessary, besides, or in the alternative?
• Whether the with Article 3 of the Constitution of India parliament empowered to implement the agreement
relating to Berubari’s Union or is there a need for amendment under Article 368 of the Constitution for
such action? 1

Legal Provisions

Article 1of the constitution of India, 1950

Article 1(3)(c) of the constitution of India,1950
Article 3 of the constitution of India,1950
Article 3(c) of the constitution of India,1950
Article 368 of the constitution of India,1950

1B. Gajendragadkar P. "In Re: The Berubari Union And... vs Unknown on 14 March, 1960." Indian Kanoon, indiankanoon.org, 9
March 2016, https://indiankanoon.org/doc/1120103/ Accessed 8 may 2021.
Connection of the legal provision with fact of the case

Article 1 stated the name and territory of the union.

Article 1(3) says that the territory of India shall comprise.
Article 3 states the formation of new States and alteration of areas, boundaries, or names of existing States.2
Article 3(c) states that parliament may by law ‘diminish the area of any state’. Even the widest interpretation of
this Article would be insufficient to accept the argument that any territory of India may be transferred to a foreign
State.
Article 368 includes the Parliament’s power to amend the Constitution and consists of the same procedure. With
the help of this Article, the Parliament may make a law with which the Agreement can be enforced for the transfer
of the part of Berubari Union No. 12 to Pakistan.

Judgment

After hearing both the parties and considering the facts of the case the Supreme court of India stated that the
parliament has to first amend article 3 of the constitution under article 368 of the constitution. The court further
stated even though the preamble forms as a key to the mind of the makers of the constitution, and strictly talks
about India being a sovereign state yet it cannot restrain the legislative functions, not it can be used for deciding
ambiguous part of the constitution.

Reasoning

The detailed examination of article 3 was done by the Supreme Court on a reference made by the President in
1960. The Court believed that Article 3 was incompetent in itself for the implementation of the Agreement in
question. It also said it is competent and necessary for a law to be made under Article 368 for the implementation.
This dispute was resolved by Nehru-Noon Agreement of 1958.

2 The Constitution of India 1950

Critical Analysis

The court was right in coming up with the conclusion that the legislative body needs to amend article 3 through
article 368. The Supreme Court must have considered that Article 3 is one of the initial parts of our Constitution.
The preamble is the basic part of the constitution. it plays a very big role to understand the provisions of the
constitution. Therefore, the significance and necessity of a Preamble are never-ending. In this case half of
Berubari Union No. 12 was to be given to Pakistan and the other half adjacent to India was to be retained by India.