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IN RE: THE BERUBARI UNION AND EXCHANGE OF ENCLAVES

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IN RE: THE BERUBARI UNION ANDEXCHANGE OF ENCLAVES

    Vs.

REFERENCE UNDER ARTICLE 143(1) OFTHE CONSTITUTION OF INDIA

DATE OF JUDGMENT:
14 March 1960

BENCH:
B Sinha, A S Shah, K Dasgupta, K S Rao, M Hidayatullah, P Gajendragadkar, S Das


ACT:
President's Reference-Indo-Pakistan Agreement, 1958-Division
of  Berubari Union and exchange of  Cooch-Behar  Enclaves-If
involve  cession  of  territory-Implementation-Amendment  of
Constitution-Constitution of India, Arts.  1, 3, 368.


GAJENDRAGADKAR, J.-In accordance with the directives  issued
by  the Prime Ministers of India and Pakistan, on  September
10,  1958, the Commonwealth Secretary, Ministry of  External
Affairs,  Government  of India and  the  Foreign  Secretary,
Ministry of Foreign Affairs and Commonwealth, Government  of
Pakistan,  discussed  10 items of dispute  between  the  two
countries and signed a joint note recording their  agreement
in  respect of the said disputes and submitted it  to  their
respective  Prime  Ministers; and with a  view  to  removing
causes of tension and resolving border disputes and problems
relating  to  Indo-Pakistan Border  Areas  and  establishing
peaceful conditions along those areas, the Prime  Ministers,
acting  on behalf of their respective  Governments,  entered
into  an  agreement settling some of the said  disputes  and
problems in the manner set out in the said joint note.  This
agreement has been called the Indo-Pakistan
263
Agreement   and  will  be  referred  to  hereafter  as   the
Agreement.
In the present Reference we are concerned with two items  of
the Agreement; item 3 in paragraph 2 of the Agreement  reads
as follows:-
(3) Berubari Union No. 12.
This  will  be  so  divided as to give  half  the  area  to(
Pakistan, the other half adjacent to India being retained by
India.   The  Division  of Berubari Union  No.  12  will  be
horizontal,  starting from the northeast corner of  Debiganj
Thana.   The division should be made in such a  manner  that
the  Cooch-Behar  Enclaves between Pachagar  Thana  of  East
Pakistan  and Berubari Union No. 12 of Jalpaiguri  Thana  of
West Bengal will remain connected as at present with  Indian
territory  and  will  remain with  India.   The  Cooch-Behar
Enclaves lower down between Boda Thana of East Pakistan  and
Berubari  Union  No.  12 will be exchanged  along  with  the
general exchange of enclaves and will go to Pakistan."
Similarly  item  10 of the Agreement is  as  follows:"  (10)
Exchange  of  Old  Cooch-Behar  Enclaves  in  Pakistan   and
Pakistan Enclaves in India without claim to compensation for
extra area going to Pakistan, is agreed to."
It appears that subsequently a doubt has arisen whether  the
implementation  of the Agreement relating to Berubari  Union
requires any legislative action either by way of a  suitable
law of Parliament relatable to Art. 3 of the Constitution or
by  way  of  a suitable amendment  of  the  Constitution  in
accordance   with  the  provisions  of  Art.  368   of   the
Constitution  or both; and that a similar doubt  has  arisen
about  the implementation of the Agreement relating  to  the
exchange of Enclaves; and it further appears that there is a
likelihood  of  the constitutional validity  of  any  action
taken  for the implementation of the Agreement  relating  to
Berubari  Union  as well as the Agreement  relating  to  the
exchange  of  Enclaves  being questioned in  courts  of  law
involving  avoidable and protracted litigation; that is  why
the  President  thought  that questions of  law  which  have
arisen are of such nature and of such importance that it  is
expedient that the
264
opinion  of  the Supreme Court of India should  be  obtained
thereon;  and so, in exercise of the powers  conferred  upon
him  by  cl.  (1) of Art. 143 of the  Constitution,  he  has
referred  the  following three questions to this  Court  for
consideration and report thereon:-
(1)Is   any   legislative   action   necessary   for   the
implementation of the Agreement relating to Berubari   Union?
(2)If so, is a law of Parliament relatable to article 3 of
the  Constitution  sufficient  for  the  purpose  or  is  an
amendment of the Constitution in accordance with article 368
of  the  Constitution  necessary,  in  addition  or  in  the
alternative ?
(3)Is  a law of Parliament relatable to article 3  of  the
Constitution sufficient for implementation of the  agreement
relating  to Exchange of Enclaves or is an amendment of  the
Constitution   in  accordance  with  article  368   of   the
Constitution  necessary for the purpose, in addition  or  in
the alternative ?
Before  dealing  with the questions thus  referred  to  this
Court  it  is necessary to set out briefly  the  historical,
political  and constitutional background of  the  Agreement.
On  February 20, 1947, the British Government announced  its
intention to transfer power in British India to Indian hands
by  June 1948 On June 3, 1947, the said Government issued  a
statement  as to the method by which the transfer  of  power
would be effected.  On July 18,1947, the British  Parliament
passed  the Indian Independence Act, 1947.  This Act was  to
come  into  force  from  August  15,  1947,  which  was  the
appointed  day.  As from the appointed day  two  independent
Dominions,  it was declared, would be set up in India to  be
known respectively as India and Pakistan.  Section 2 of  the
Act  provided that subject to the provisions of sub-ss.  (3)
and  (4)  of  s. 2 the territories of  India  shall  be  the
territories  under  the  sovereignty of  His  Majesty  which
immediately  before  the  appointed  day  were  included  in
British India except the territories which under sub-s.  (2)
of s. 2 were to be the territories of Pakistan.  Section  3,
sub-s. (1), provided, inter alia, that as from the appointed
day  the  Province  of  Bengal  as  constituted  under   the
Government of India Act, 1935, shall cease to exist
265
and  there  shall  be constituted in lieu  thereof  two  new
Provinces  to be known respectively as East Bengal and  West
Bengal.  Sub-section (3) of s. 3 provided, inter alia,  that
the boundaries of the new Provinces aforesaid shall be  such
as  may be determined whether before or after the  appointed
day by the award of a boundary commission appointed or to be
appointed by the Governor-General in that behalf, but  until
boundaries  are  so  determined,  (a)  the  Bengal  District
specified     in    the    First    Schedule     of this
Act......................   shall   be   treated   as    the
territories which are to be comprised as the new Province of
East Bengal; (b) the remainder of the territories  comprised
at  the date of the passing of this Act in the  Province  of
Bengal shall 'be treated as the territories which are to  be
comprised  in the new Province of West Bengal.   Section  3,
sub-s.  (4), provided that the expression "award" means,  in
relation  to  a  boundary commission, the  decision  of  the
Chairman  of the commission contained in his report  to  the
Governor-General  at  the  conclusion  of  the  commission's
proceedings.   The Province of West Bengal is now  known  as
the State of West Bengal and is a part of India, whereas the
Province of East Bengal has become a part of Pakistan and is
now known as East Pakistan.
Berubari  Union No. 12, with which we are concerned, has  an
area  of  8.75 sq. miles and a population of ten  to  twelve
thousand  residents.  It is situated in the  police  station
Jalpaiguri  in the District of Jalpaiguri, which was at  the
relevant  time  a  part  of  Rajashahi  Division.   It  has,
however,  not  been specified in the First Schedule  of  the
Independence Act, and if the matter had to be considered  in
the  light of the said Schedule, it would be a part of  West
Bengal.   But,  as we shall presently point out,  the  First
Schedule  to the Independence Act did not really  come  into
operation at all.
On June 30, 1947, the Governor-General made an  announcement
that  it  had been decided that the Province of  Bengal  and
Punjab  shall  be  partitioned.   Accordingly,  a   boundary
commission was appointed, inter alia, for Bengal  consisting
of four judges of High Courts and a Chairman to be appointed
later.
266
Sir Cyril Radcliffe was subsequently appointed as  Chairman.
So  far  as  Bengal  was concerned  the  material  terms  of
reference  provided  that  the  boundary  commission  should
demarcate  the boundaries of the two parts of Bengal on  the
basis  of ascertaining the contiguous areas of  muslims  and
non-muslims;  in doing so it had also to take  into  account
other  factors.   The commission then held its  enquiry  and
made  an  award on August 12, 1947, which is  known  as  the
Radcliffe Award (hereinafter called the award).  It would be
noticed  that  this  award was made three  days  before  the
appointed day under the Independence Act.  The report  shows
that  the  Chairman  framed seven  basic  questions  on  the
decision of which the demarcation of a boundary line between
East-West  Bengal depended.  Question No. 6 is relevant  for
our purpose; it was framed in this way:
"  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 of the whole in the  case
of  Darjeeling  and  23.08  of the  whole  in  the  case  of
Jalpaiguri but which constituted an area not in any  natural
sense  contiguous to another non-muslim area of Bengal?"  It
appears  that the members of the commission were  unable  to
arrive at an agreed view on any of the major issues, and  so
the  Chairman had no alternative but to proceed to give  his
own'  decision.  Accordingly the Chairman gave his  decision
on the relevant issues in these words:-
"  The  demarcation  of the boundary line  is  described  in
detail  in the schedule which forms annexure A to the  award
and  in  the map attached thereto, annexure B.  The  map  is
annexed  for  the  purposes of illustration,  and  if  there
should  be any divergence between the boundary as  described
in annexure A and as delineated on the map in annexure B the
description in annexure A is to prevail."
Paragraph 1 in annexure A is material.  It provided that " a
line shall be drawn along the boundary between the Than&' of
Phansidewa  in  the  District of Darjeeling  and  the  Thana
Tetulia in the District of
267
Jalpaiguri  from  the point where that  boundary  meets  the
Province  of Bihar and then along the boundary  between  the
Thanas  of Tetulia and Rajganj, the Thanas of  Pachagar  and
Rajganj and the Thanas of Pachagar and Jalpaiguri, and shall
then  continue  along  with  northern  corner  of  Thana  of
Debiganj  to  the boundary of the State of  Cooch-Behar  the
district  of  Darjeeling  and so much  of  the  district  of
Jalpaiguri  as lies north of this line shall belong to  West
Bengal,  but the Thana of Patgram and any other  portion  of
Jalpaiguri  District which lies to the east or  south  shall
belong to East Bengal." Since the award came into  operation
three  days before the day appointed under the  Independence
Act  the territorial extent of the Province of  West  Bengal
never  came  to be determined under Schedule 1 to  the  said
Independence Act but was determined by the award.  There  is
no  dispute that since the date of the award Berubari  Union
No.  12 has in fact formed part of the State of West  Bengal
and has been governed as such.
Meanwhile   the   Constituent  Assembly  which   began   its
deliberations  on  December  9,  1946,  reassembled  as  the
Sovereign  Constituent Assembly for India after midnight  of
August 14, 1947, and it began its historic task of  drafting
the  Constitution  for  India.   A  drafting  committee  was
appointed by the Constituent Assembly and the draft prepared
by  it  was presented to the Assembly on November  4,  1948.
After  due  deliberations  the draft  passed  through  three
readings and as finalised it was signed by the President  of
the  Assembly and declared as passed on November  26,  1949.
On  that date it became the Constitution of India;  but,  as
provided  by  Art. 394, only specified  articles  came  into
force as from than date and the remaining provisions as from
January   26,1950,   which  day  is  referred  to   in   the
Constitution  as  the  commencement  of  the   Constitution.
Article  1  of the Constitution provides, inter  alia,  that
India,  that is Bharat, shall be a Union of States and  that
the  States and the territories thereof shall be the  States
and  their territories specified in Parts A, B and C of  the
First Schedule.  West Bengal was shown as one of the  States
in Part A ; and it was provided that the
268
the  territory which immediately before the commencement  of
the  Constitution  was  comprised in the  Province  of  West
Bengal.  In the light of the award Berubari Union No. 12 was
treated as a part of the Province of West Bengal and as such
has been treated and governed on that basis.
Subsequently, certain boundary disputes arose between  India
and  Pakistan and it was agreed between them at  the  Inter-
Dominion Conference held in New Delhi on December 14,  1948,
that  a  tribunal should beset up without delay and  in  any
case  not later than January 31, 1949, for the  adjudication
and  final decision of the said disputes.  This tribunal  is
known as Indo-Pakistan Boundaries Disputes Tribunal, and  it
was  presided over by the Hon'ble Lord Justice Allot  Badge.
This tribunal had to consider two categories of disputes  in
regard to East-West Bengal but on this occasion no issue was
raised  about the Berubari Union.  In fact no reference  was
made to the District of Jalpaiguri at all in the proceedings
before  the tribunal.  The Bagge Award was made  on  January
26, 1950.
It  was two years later that the question of Berubari  Union
was raised by the Government of Pakistan for the first  time
in 1952.  During the whole of this period the Berubari Union
continued  to be in the possession of the Indian  Union  and
was  governed  as a part of West Bengal.  In  1952  Pakistan
alleged  that under the award Berubari Union  should  really
have  formed  part of East Bengal and it  had  been  wrongly
treated as a part of West Bengal.  Apparently correspondence
took place between the Prime Ministers of India and Pakistan
on  this subject from time to time and the dispute  remained
alive until 1958.  It was under these circumstances that the
present   Agreement  was  reached  between  the  two   Prime
Ministers on September 10, 1958.  That is the background  of
the present dispute in regard to Berubari Union No. 12.
At this stage we may also refer briefly to the background of
events  which  ultimately led to the  proposed  exchange  of
Cooch-Behar  Enclaves between India and  Pakistan.   Section
290 of the Government of India
260
Act,  1935, had provided that His Majesty may  by  Order-in-
Council  increase  or diminish the area of any  Province  or
alter  the boundary of any Province provided  the  procedure
prescribed  was  observed.   It is common  ground  that  the
Government  of India was authorised by the  Extra-Provincial
Jurisdiction  Act  of 1947 to exercise necessary  powers  in
that   behalf.   Subsequently  on  January  12,  1949,   the
Government  of India Act, 1935, was amended and s. 290A  and
s. 290B were added to it.  Section 290-A reads thus :-
"  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) provides that the Governor-General. may  by
order direct for the administration of areas included within
the  Governor's Province or a Chief Commissioner's  Province
by  an Acceding State, and it prescribes that  the  acceding
area shall be administered in all respects by a  neighboring
Acceding  State as if such area formed part of  such  State,
and thereupon the provisions of the Government of, India Act
shall apply accordingly.
After these two sections were thus added several steps  were
taken  by the Government of India for the merger  of  Indian
States with the Union of India.
35
270
With  that object the States Merger  (Governors'  Provinces)
Order,  1949,  was passed on July 27, 1949.  The  effect  of
this  order  was that the States which had merged  with  the
Provinces were to be administered in all respects as if they
formed  part  of the absorbing Provinces.   This  order  was
amended from time to time.  On August 28, 1949, an agreement
of  merger was entered into between the Government of  India
and  the Ruler of the State of Cooch-Behar and in  pursuance
of  this  agreement the Government of India  took  over  the
administration of Cooch-Behar on September 12, 1949 ; Cooch-
Behar  thus became apart of the territory of India  and  was
accordingly included in the list of Part C States as  Serial
No.   4   in  the  First  Schedule  to   the   Constitution.
Thereafter,  on December 31, 1949, the States  Merger  (West
Bengal)  Order, 1949, was passed.  It provided that  whereas
full and exclusive authority, jurisdiction and power for and
in relation to the governance of the Indian State of  Cooch-
Behar  were exercisable by the Dominion Government,  it  was
expedient to provide by the order made under s. 290A for the
administration  of the said State in all respects as  if  it
formed part of the Province of West Bengal.  In consequence,
on  January 1, 1950, the erstwhile State of Cooch-Behar  was
merged  with West Bengal and began to be governed as  if  it
was part of West Bengal.  As a result of this merger  Cooch-
Behar  was  taken out of the list of Part C  States  in  the
First Schedule to the Constitution and added to West  Bengal
in  the  same Schedule, and the territorial  description  of
West Bengal as prescribed in the First Schedule was  amended
by  the  addition  of  the  clause  which  referred  to  the
territories which were being administered as if they  formed
part of that Province.  In other words, after the merger  of
Cooch-Behar  the Territories of West Bengal  included  those
which   immediately   before   the   commencement   of   the
Constitution  were comprised in the Province of West  Bengal
as  well as those which were being administered as  if  they
formed  part  of  that  Province.   Subsequently  a  further
addition has been made to the territories of West Bengal  by
the  inclusion of Chandernagore but it is not  necessary  to
refer to the said addition at this stage,
271
It  appears  that  certain areas which formed  part  of  the
territories  of the former Indian State of  Cooch-Behar  and
which  had subsequently become a part of the territories  of
India  and  then of West Bengal became after  the  partition
enclaves  in Pakistan.  Similarly certain Pakistan  enclaves
were found in India.  The problem arising from the existence
of these enclaves in Pakistan and in India along with  other
border  problems was being considered by the Governments  of
India  and  of Pakistan for a long time.  The  existence  of
these enclaves of India in Pakistan and of Pakistan in India
worked as a constant source of tension and conflict  between
the two countries.  With a view to removing these causes  of
tension  and  conflict the two Prime  Ministers  decided  to
solve  the  problem  of  the  said  enclaves  and  establish
peaceful  conditions along the said areas.  It is with  this
object that the exchange of enclaves was agreed upon by them
and the said adjustment is described in item 10 of paragraph
3  of  the Agreement.  That in brief is the  historical  and
constitutional background of the exchange of enclaves.
On behalf of the Union of India the learned Attorney-General
has  contended that no legislative action is  necessary  for
the  implementation  of the Agreement relating  to  Berubari
Union as well as the exchange of enclaves.  In regard to the
Berubari  Union  he  argues  that  what  the  Agreement  has
purported  to do is to ascertain or to delineate  the  exact
boundary  about  which  a dispute existed  between  the  two
countries by reason of different interpretations put by them
on the relevant description contained in the award; the said
Agreement is merely the recognition or ascertainment of  the
boundary which had already been fixed and in no sense is  it
a  substitution of a new boundary or the alteration  of  the
boundary  implying any alteration of the territorial  limits
of  India.   He  emphasises 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, and according to him, if,
as a result of the ascertainment of the true boundary in the
light of the award, possession of some land has had to be
272
yielded  to  Pakistan  it  does not  amount  to  cession  of
territory;  it  is merely a mode of settling  the  boundary.
The  award  had  already settled the boundary  but  since  a
dispute arose between the two Governments in respect of  the
location  of the said boundary the dispute was  resolved  in
the  light of the directions given by the award and  in  the
light  of the maps attached to it.  Where a dispute about  a
boundary  thus arises between two States and it is  resolved
in the light of an award binding on them the agreement which
embodies the settlement of such a dispute must be treated as
no more than the ascertainment of the real boundary  between
them  and it cannot be treated as cession or  alienation  of
territory by one in favour of the other.  According to  this
argument  there was neither real alteration of the  boundary
nor  real  diminution of territory, and there  would  be  no
occasion to make any alteration or change in the description
of  the territories of West Bengal in the First Schedule  to
the Constitution.
It is also faintly suggested by the learned Attorney-General
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.  Therefore, viewed  in  the
said  context, even this exchange cannot be said to  involve
cession of any territory.
On this assumption the learned Attorney-General has  further
contended  that the settlement and recognition of  the  true
boundary  can be effected by executive action alone, and  so
the  Agreement which has been reached between the two  Prime
Ministers can be implemented without any legislative action.
In support of this argument the learned Attorney-General has
relied  upon certain provisions of the Constitution  and  we
may at this stage briefly refer to them.
Entry  14 in List 1 of the Seventh Schedule reads thus  :  "
Entering into treaties and agreements with foreign countries
and  implementing  of treaties, agreements  and  conventions
with  foreign  countries ". Article 253 occurs  in  Part  XI
which  deals  with  relations between  the  Union  and  the,
States,.  It provides
273
that " 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 ".  This
power  is conferred on Parliament by reference to Entry  14.
Besides  there  are three other articles in  the  same  part
which  are relevant.  Article 245(1) empowers Parliament  to
make  laws  for the whole or any part of  the  territory  of
India;.   Article  245(2)  provides  that  no  law  made  by
Parliament shall be deemed to be invalid on the ground  that
it  would  have  extra-territorial  operation;  Article  246
prescribes  the subject-matter of laws which Parliament  can
make;  and  Art. 248 provides for the  residuary  powers  of
legislation  in  Parliament.   Article 248  lays  down  that
Parliament  has  power to make any law with respect  to  any
matter not enumerated in the Concurrent List or State  List.
There  is thus no doubt about the legislative competence  of
Parliament  to  legislate  about any  treaty,  agreement  or
convention with any other country and to give effect to such
agreement or convention.
It  is,  however,  urged that in regard  to  the  making  of
treaties  and implementing them the executive powers of  the
Central  Government are co-extensive and co-incidental  with
the powers of Parliament itself.  This argument is sought to
be  based  on the provisions of certain  Articles  to  which
reference  may  be made.  Article 53(1)  provides  that  the
executive  power  of  the  Union  shall  be  vested  in  the
President  and shall be exercised by him either directly  or
through  officers subordinate to him in accordance with  the
Constitution.  Article 73 on which strong reliance is placed
prescribes  the extent of the executive power of the  Union.
Article 73(1) says " that subject to the provisions of  this
Constitution  the executive power of the Union shall  extend
(a)  to  the matters with respect to  which  Parliament  has
power to make laws; and (b) to the exercise of such  rights,
authority  and  jurisdiction  as  are  exercisable  by   the
Government  of  India by virtue of any treaty  or  agreement
provided that
274
the  executive power referred to in sub-cl. (a)  shall  not,
save  as expressly provided in this Constitution or  in  any
law made by Parliament, extend in any State to matters  with
respect  to which the Legislature of the State has also  the
power  to  make laws "; and Article 74 provides  that  there
shall  be a Council of Ministers with the Prime Minister  at
the head to aid and advise the President in the exercise  of
his functions; and Article 74(2) lays down that the question
whether  any,  and if so what, advice was  tendered  by  the
Ministers to the President shall not be inquired into in any
court.  According to the learned Attorney-General the powers
conferred  on the Union executive under Art.  73(1)(a)  have
reference  to the powers exercisable by reference  to  Entry
14,  List  1, in the Seventh Schedule,  whereas  the  powers
conferred  by  Art.  73(1)(b) are analogous  to  the  powers
conferred on the Parliament by Art. 253 of the Constitution.
Indeed  the  learned Attorney-General  contended  that  this
position  is  concluded by a decision of  this  Courtin  Rai
Sahib  Ram Jawaya Kapur & Ors. v. The State of  Punjab  (1).
Dealing with the question about the limits within which  the
executive   Government   can  function  under   the   Indian
Constitution  Chief  Justice Mukherjea,  who  delivered  the
unanimous  decision  of the Court, has 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 has added, " that the executive  function
comprised  both the determination of the policy as  well  as
carrying  it  into execution.  This evidently  includes  the
initiation of legislation, maintenance of order, the  promo-
tion  of  social  and economic  welfare,  the  direction  of
foreign  policy, in fact the carrying on or  supervision  of
the  general  administration of the State ". It is  on  this
observation  that the learned Attorney-General  has  founded
his argument.
Let  us then first consider what the Agreement in  fact  has
done.'  Has it really purported to determine the  boundaries
in  the light of the award, or has it sought to  settle  the
dispute amicably on an ad hoe basis by dividing the disputed
territory  half and half ?  Reading the relevant portion  of
the Agreement it is
(1)  [1955) 2 S.C.R. 225.
275
difficult  to escape the conclusion that the parties  to  it
came   to  the  conclusion  that  the  most  expedient   and
reasonable way to resolve the dispute would be to divide the
area  in question half and half.  There is no trace  in  the
Agreement  of  any  attempt to interpret  the  award  or  to
determine what the award really meant.  The Agreement begins
with the statement of the decision that the area in  dispute
will be so divided as to give half the area to Pakistan, the
other  half adjacent to India being retained by  India.   In
other  words, the Agreement says that, though the  whole  of
the  area of Berubari Union No. 12 was within  India,  India
was  prepared to give half of it to Pakistan in a spirit  of
give and take in order to ensure friendly relations  between
the  parties  and  remove causes of  tension  between  them.
Having come to this decision the Agreement describes how the
decision  has  to  be carried out.   It  provides  that  the
division  of the area will be horizontal starting  from  the
northeast  corner of Debiganj Thana.  It also provides  that
the division should' be made in such manner that the  Cooch-
Behar  Enclaves between Pachagar Thana of East Pakistan  and
Berubari  Union  No. 12 of Jalpaiguri Thana of  West  Bengal
will  remain  with  India.  This again is  a  provision  for
carrying  out  the decision of dividing the  area  half  and
half.  Yet, another provision is made as to the division  of
Cooch-Behar  Enclaves lower down between Boda Thana of  East
Pakistan  and Berubari Union No. 12 and it is provided  that
they  shall be exchanged along with the general exchange  of
enclaves and will go to Pakistan.  In our opinion, every one
of  the clauses in this Agreement clearly and  unambiguously
shows that, apart from, and independently of, the award,  it
was  agreed to divide the area half and half and the  method
of  effecting  this division was specifically  indicated  by
making four material provisions in that behalf.  If that  be
so, it is difficult to accept the argument that this part of
the  Agreement  amounts to no more  than  ascertainment  and
delineation of the boundaries in the light of the award.
It  is  no doubt suggested by the  learned  Attorney-General
that an examination of the description in
276
annexure  A  in  the Schedule to the award  in  relation  to
police station boundaries revealed a lacuna in it,  inasmuch
as there was DO mention in it of the boundary between police
station Boda and police station Jalpaiguri; and the argument
is  that  the result of this description was  that  the  two
points  were specified, one on the western boundary  of  the
Berubari  Union (the extremity of the boundary  between  the
Thanas  of  Pachagar and Jalpaiguri) and the other  on  its-
eastern boundary (the northern corner, of the Thana of Debi.
ganj  where  it meets Cooch-Behar State) without  giving  an
indication as to how these boundaries were to be  connected.
It  is also pointed out that the line as drawn in  the  map,
annexure B , in the Schedule to the award would, if followed
independently of the description given in Schedule A in  the
annexure  to the said award, mean that almost the  whole  of
the  Berubari  Union would have fallen in the  territory  of
East Bengal and that was the claim made by the Government of
'Pakistan,  and  it is that claim which was settled  in  the
light of the award.
In this connection it is relevant to remember the  direction
specifically given by the Chairman in his award that the map
is annexed for the purpose of illustration and that in  case
of  any  divergence  between the map, annexure  B,  and  the
boundary  as  described in annexure A,  the  description  in
annexure A has to prevail, and so no claim could  reasonably
or validly be made for the inclusion of almost the whole  of
Berubari  Union in East Bengal on the strength of  the  line
drawn in the map.  Besides, the lacuna to which the  learned
Attorney-General refers could have been cured by taking into
account  the general method adopted by the award  in  fixing
the boundaries.  Para. graph 3 in annexure A shows that  the
line  which was fixd by the award generally proceeded  along
the boundaries between the Thanas, and this general  outline
of the award would have assisted the decision of the dispute
if  it was intended to resolve the dispute in the  light  of
the  award.   The  line which was directed to  be  drawn  in
paragraph  1  of  annexure A has " to  continue"  along  the
northern  corner of Thana Debi ganj to the boundary  of  the
State of Cooch-Behar, and
277
this  in the context may suggest that it had to continue  by
reference to the boundaries of the respective Thanas.  It is
principally   because  of  these  considerations  that   the
territory  in  question was in the possession of  India  for
some  years after the date of the award and no  dispute  was
raised until 1952.
We  have referred to these facts in order to emphasize  that
the  agreement  does not appear to have been  reached  after
taking  into  account these facts and is not  based  on  any
conclusions based on the interpretation of the award and its
effect.   In fact the second clause of the  Agreement  which
directs  that the division of Berubari Union No. 12 will  be
horizontal  starting from the north-east corner of  Debiganj
Thana  is  not very happily worded.  The use of the  word  "
horizontal  "  appears to be  slightly  inappropriate;  but,
apart from it, the direction as to this horizontal method of
division  as well as the other directions contained  in  the
Agreement flow from the conclusion with which the  Agreement
begins that it had been decided that India should give  half
the area to Pakistan.  We have carefully considered all  the
clauses  in the Agreement and we are satisfied that it  does
not purport to be, and has not been, reached as a result  of
any  interpretation of the award and its terms; it has  been
reached  independently  of  the award and  for  reasons  and
considerations which appeared to the parties to be wise  and
expedient.   Therefore,  we cannot accede  to  the  argument
urged  by the learned Attorney-General that it does no  more
than ascertain and determine the boundaries in the light  of
the  award.   It  is an Agreement by which  a  part  of  the
territory  of  India  has been coded  to  Pakistan  and  the
question  referred to us in respect of this Agreement  must,
therefore,  be  considered  on the basis  that  it  involves
cession or alienation of a part of India's territory.
What  is  true about the Agreement in  respect  of  Berubari
Union  No.  12  is still more emphatically  true  about  the
exchange  of  Cooch-Behar  Enclaves.   Indeed  the   learned
Attorney-General's argument that no legislation is necessary
to give effect to the Agreement in respect of this  exchange
was based on the assump
36
278
tion  that this exchange is a part of a larger  and  broader
settlement  and so it partakes of its character.   Since  we
have  held that the Agreement in respect of  Berubari  Union
No. 12 itself involves the cession of the territory of India
a  fortiori the Agreement in respect of exchange  of  Cooch-
Behar Enclaves does involve the cession of Indian territory.
That  is why the question about this exchange must  also  be
considered  on the footing that a part of the  territory  of
India  has been ceded to Pakistan; besides it is clear  that
unlike  questions  1  and 2 the  third  question  which  has
reference  to  this  exchange postulates  the  necessity  of
legislation.
In  this connection we may also deal with  another  argument
urged  by the learned Attorney-General.  He  contended  that
the  implementation of the Agreement in respect of  Berubari
Union would not necessitate any change in the First Schedule
to  the  Constitution because, according  to  him,  Berubari
Union   was  never  legal1y  included  in  the   territorial
description  of West Bengal contained in the said  Schedule.
We  are not impressed by this argument either.  As  we  have
already  indicated, since the award was  announced  Berubari
Union  has  remained  in possession of India  and  has  been
always  treated  as a part of West Bengal  and  governed  as
such.   In view of this factual position there should be  no
difficulty  in holding that it falls within the  territories
which   immediately   before   the   commencement   of   the
Constitution were comprised in the Province 'of West Bengal.
Therefore,  as  a  result  of  the  implementation  of  this
Agreement the boundaries of West Bengal would be altered and
the  content  of  Entry  13 in the  First  Schedule  to  the
Constitution would be affected.
Before  we  part with this topic we ought to  refer  to  the
decision of the Australian High Court in The State of  South
Australia v. The State of Victoria (1) on which reliance has
been  placed by the learned Attorney-General.  In  that-case
the  boundary between the State of South Australia  and  the
State  of New South Wales was by Act 4 & 5 Will.  IV, c.  95
and  the Letters Patent issued under that Act defined to  be
the 141st meridian
(1)  (1911) 12 C.L.R. 667.
279
of  East  Longitude.   In  1847, by  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  and marked on the ground as  being  the  141st
meridian,  but it was discovered in 1869 that the said  line
was  in  fact  about  two miles  to  the  westward  of  that
meridian.   The  line  marked in  1847  had,  however,  been
proclaimed  by the respective Governors as the boundary  and
was  the de facto boundary thenceforward.  In  dealing  with
the dispute which bad arisen in respect of the true boundary
between  the  two  States Griffith, C.J.,  referred  to  the
fixation of the boundary in 1847 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 said dispute  was  subsequently
taken  to  the Privy Council and it was held  by  the  Privy
Council 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  perma-
nently fixing such boundaries " (1).  The Privy Council also
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  so
fixed  ". It would thus be clear that the settlement of  the
boundaries which was held not to amount to an alienation  in
that case had been
(1)[1914] A.C. 283. 309.
280
made  wholly  by  reference to, and in  the  light  of,  the
provision  of the parliamentary statute to  which  reference
has already been made.  What was done in 1847 by the parties
who had authority to deal with the matter was to locate 'and
mark  a line on the ground which was held to be  the   141st
meridian  though it is true that in 1869 it  was  discovered
that  the line so fixed was about two miles to the  westward
of  the  meridian.  This was not a  case  where  contracting
parties  independently  determined the line with a  view  to
settle the dispute between the two respective States.   What
they purported to do was to determine the line in accordance
with  the provisions of the parliamentary statute.   In  the
present  case, as we have already pointed out, the  position
of  the  Agreement  is essentially different;  it  does  not
purport to be based on the award and has been reached  apart
from, and independently of, it.  Therefore, we do not  think
that the learned Attorney-General can derive any  assistance
from  the  decision  in  the case  of  The  State  of  South
Australia  v.  The State of Victoria (1) in support  of  his
construction of the Agreement.
In  view  of our conclusion that the  agreement  amounts  to
cession  or alienation of a part of Indian territory and  is
not a mere ascertainment or determination of the boundary in
the  light  of, and by reference to, the award,  it  is  not
necessary  to  consider the other contention raised  by  the
learned  Attorney-General that it was within the  competence
of the Union executive to enter into such an Agreement,  and
that  the Agreement can be implemented without any  legisla-
tion.  It has been fairly conceded by him that this argument
proceeds  on  the  assumption  that  the  Agreement  is   in
substance  and  fact no more than the ascertainment  or  the
determination of the disputed boundary already fixed by  the
award.   We need not, therefore, consider the merits of  the
argument  about  the character and extent of  the  executive
functions  and  powers  nor need we  examine  the,  question
whether the observations made by Mukherjea, C.J. in the case
of  Rai Sahib Ram Jawaya Kapur (2) in fact lend  support  to
the  said  argument, and if they do,  whether  the  question
should not be reconsidered.
(1) [1911] 12 C.L.R. 667.
(2) [1955] 2 S.C.R. 225.
281
At this stage it is necessary to consider the merits of  the
rival  contention  raised by Mr. Chatterjee  before  us.  He
urges that even 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; and so, according to him, the only opinion  we
can give on the Reference is that the Agreement is void  and
cannot  be made effective even by any  legislative  process.
This  extreme  contention is based on two  grounds.   It  is
suggested  that  the preamble to  the  Constitution  clearly
postulates  that  like  the democratic  republican  form  of
government the entire territory of India is beyond the reach
of  Parliament  and cannot be affected  either  by  ordinary
legislation or even by constitutional amendment.  The makers
of  the Constitution were painfully conscious of the  tragic
partition  of the country into two parts, and so  when  they
framed  the  Constitution they were determined to  keep  the
entire  territory  of India as inviolable and  sacred.   The
very  first sentence in the preamble which declares  that  "
We,  the  people  of  India,  having  solemnly  resolved  to
constitute  India  into a sovereign democratic  Republic  ",
says  Mr.  Chatterjee,  irrevocably  postulates  that  India
geographically and territorially must always continue to  be
democratic  and republican.  The other ground on which  this
contention  is  raised  is founded on Art.  1(3)(c)  of  the
Constitution  which  contemplates that "  the  territory  of
India  shall  comprise  such other  territories  as  may  be
acquired  ", and it is argued that whereas the  Constitution
has  expressly  given to the country the  power  to  acquire
otter  territories it has made no provision for  ceding  any
part  of  its  territory; and in such a  case  the  rule  of
construction,  viz., expressio unius est  exclusio  alterius
must apply.  In our opinion, there is no substance in  these
contentions.
There is no doubt that the declaration made by the people of
India in exercise of their sovereign will in the preamble to
the  Constitution is, in the words of Story, "a key to  open
the mind of the makers" which may show the general  purposes
for   which  they  made  the  several  provisions   in   the
Constitution; but
282
nevertheless the preamble is not a part of the Constitution,
and,  as Willoughby has observed about the preamble  to  the
American  Constitution, " it has never been regarded as  the
source of any substantive power conferred on the  Government
of  the United States, or on any of its  departments.   Such
powers  embrace only those expressly granted in the body  of
the  Constitution and such as may be implied from  those  so
granted ".
What  is  true about the powers is equally  true  about  the
prohibitions  and limitations.  Besides, it is not  easy  to
accept  the assumption that the first part of  the  preamble
postulates  a  very serious limitation on one  of  the  very
important  attributes  of sovereignty itself.   As  we  will
point  out later, it is universally recognised that  one  of
the attributes of sovereignty is the power to cede parts  of
national  territory  if necessary.  At the  highest  it  may
perhaps  be  arguable that if the terms used in any  of  the
articles in the Constitution are ambiguous or are capable of
two  meanings, in interpreting them some assistance  may  be
sought   in  the  objectives  enshrined  in  the   preamble.
Therefore,  Mr. Chatterjee is not right in  contending  that
the preamble imports any limitation on the exercise of  what
is generally regarded as a necessary and essential attribute
of sovereignty.
Then,  as  regards the argument that the  inclusion  of  the
power to acquire must necessarily exclude the power to  cede
or alienate, there are two obvious answers.  Article 1(3)(c)
does  not  confer  power or authority on  India  to  acquire
territories  as  Mr. Chatterjee assumes.  There  can  be  no
doubt  that  under international law two  of  the  essential
attributes  of sovereignty are the power to acquire  foreign
territory as well as the power to cede national territory in
favour of a foreign State.  What Art. 1(3)(c) purports to do
is to make a formal provision for absorption and integration
of any foreign territories which may be acquired by India by
virtue  of its inherent right to do so.  It maybe that  this
provision  has  found  a place in the  Constitution  not  in
pursuance  of  any  expansionist  political  philosophy  but
mainly for providing for the integration and absorption of
283
Indian  territories which, at the date of the  Constitution,
continued  to be under the dominion of foreign  States;  but
that  is  not the whole scope of Art.  1(3)(c).   It  refers
broadly to all foreign territories which may be acquired  by
India  and provides that as soon as they are  acquired  they
would form part of the territory of India.  Thus, on a  true
construction of Art. 1(3)(c) it is erroneous to assume  that
it  confers specific powers to acquire foreign  territories.
The  other answer to the contention is provided by Art.  368
of   the  Constitution.   That  article  provides  for   the
procedure   for  the  amendment  of  the  Constitution   and
expressly  confers  power on Parliament in that  behalf  The
power  to  amend Constitution must  inevitably  include  the
power to amend Art. 1, and that logically would include  the
power  to  cede national territory in favour  of  a  foreign
State;  and  if  that is so, it  would  be  unreasonable  to
contend  that  there is no power in the sovereign  State  of
India  to  cede  its territory and that the  power  to  cede
national  territory  which  is  an  essential  attribute  of
sovereignty  is  lacking  in the case of  India.   We  must,
therefore,  reject  Mr.  Chatterjee's  contention  that   no
legislative process can validate the Agreement in question.
What  then  is the nature of the treaty-making  power  of  a
sovereign  State  ? That is the next problem which  we  must
consider  before  addressing  ourselves  to  the   questions
referred to us for our opinion.  As we have already  pointed
out  it  is  an essential attribute of  sovereignty  that  a
sovereign  state can acquire foreign territory and  can,  in
case of necessity, cede a part of its territory in favour of
a  foreign  State, and this can be done in exercise  of  its
treaty-making  power.  Cession of national territory in  law
amounts  to  the  transfer  of  sovereignty  over  the  said
territory  by  the owner-State in favour of  another  State.
There can be no doubt that such cession is possible and  in-
deed  history presents several examples of such transfer  of
sovereignty.  It is true as Oppenheimer has observed that  "
hardship  is  involved  in the fact that  in  all  cases  of
cession  the  inhabitants of the territory who  remain  lose
their  old  citizenship  and  are  handed  over  to  so  new
sovereign whether they like it or
284
not" (1); and he has pointed out that "it may be possible to
mitigate this hardship by stipulating an option to  emigrate
within  a  certain period in favour of  the  inhabitants  of
ceded  territory  as means of averting the charge  that  the
inhabitants are handed over to a new sovereign against their
will  " (p. 553).  But though from the human point  of  view
great   hardship  is  inevitably  involved  in  cession   of
territory by one country to the other there can be no  doubt
that a sovereign state can exercise its right to cede a part
of its territory to a foreign state.  This power, it may  be
added,  is  of course subject to the limitations  which  the
Constitution  of  the  state  may  either  expressly  or  by
necessary implication impose in that behalf; in other words,
the  question as to how treaties can be made by a  sovereign
State  in regard to a cession of national territory and  how
treaties  when made can be implemented would be governed  by
the  provisions in the Constitution of the country.   Stated
broadly  the treaty-making power would have to be  exercised
in  the manner contemplated by the Constitution and  subject
to  the limitations imposed by it.  Whether the treaty  made
can   be   implemented  by  ordinary   legislation   or   by
constitutional  amendment  will  naturally  depend  on   the
provisions  of the Constitution itself We  must,  therefore,
now  turn  to that aspect of the problem  and  consider  the
position under our Constitution.
In  dealing  with  this  aspect we  are  proceeding  on  the
assumption  that some legislation is necessary to  implement
the  Agreement  in question.  It is urged on behalf  of  the
Union of India that if any legislative action is held to  be
necessary  for the implementation of the Agreement a law  of
Parliament relatable to Art. 3 of the Constitution would  be
sufficient  for the purpose; and if that be so, there  would
be  no  occasion to take any action under Art.  368  of  the
Constitution.  The decision of this question will inevitably
depend  upon the construction of Art. 3 itself  The  learned
Attorney-General  has asked us to bear in mind  the  special
features of the basic structure of the Consti-
(1)  Oppenheim's  ,International  Law by  Lauterpacht,  Vol.
1,P. 551. (8th Ed.)
285
tution  in construing the relevant provisions of Art. 3.  He
contends 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.
Unlike  other  federations, the Federation embodied  in  the
said  Act  was  Dot the result of a pact  or  union  between
separate  and  independent communities of  States  who  came
together for certain common purposes and surrendered a  part
of   their  sovereignty.   The  constituent  units  of   the
federation  were deliberately created and it is  significant
that  they, unlike the units 'of other federations,  had  no
organic   roots   in  the  past.   Hence,  in   the   Indian
Constitution, by contrast with other Federal  Constitutions,
the   emphasis  on  the  preservation  of  the   territorial
integrity  of the constituent States is absent.  The  makers
of  the Constitution were aware of the  peculiar  conditions
under   which,  and  the  reasons  for  which,  the   States
(originally Provinces) were formed and their boundaries were
defined, and so they deliberately adopted the provisions  in
Art.  3  with  a  view  to  meet  the  possibility  of   the
redistribution of the said territories after the integration
of  the Indian States.  In fact it is well-known that  as  a
result of the States Reorganization Act, 1956 (Act XXXVII of
1956),  in the place of the original 27 States and one  Area
which were mentioned in Part D in the First Schedule to  the
Constitution, there are DOW only 14 States and 6 other Areas
which constitute the Union territory mentioned in the  First
Schedule.   The  changes thus made  clearly  illustrate  the
working  of the peculiar and striking feature of the  Indian
Constitution.   There may be some force in this  contention.
It  may, therefore, be assumed that in construing Art. 3  we
should  take  into account the fact  that  the  Constitution
contemplated  changes  of  the  territorial  limits  of  the
constituent  States and there was no guarantee  about  their
territorial integrity.
Part  1  of the Constitution deals with the  Union  and  its
territories,  and in a sense its provisions set out a  self-
contained  code in respect of the said topic.  Just as  Part
11 deals with the topic of citizenship, Part 1 deals
37
286
with the territory of India.  Art. 1 deals with the name and
territory Of India.  It reads thus :-
1.(1) India, that is Bharat, shall be a Union of States.
(2)The  States  and the territories thereof  shall  be  as
specified in the First Schedule.
(3) The territory of India shall comprise-
(a)  the territories of the States;
(b)  the Union territories specified in the First  Schedule;
and
(c)  such other territories as may be acquired.
Art. 1 as it now stands is the result of amendments made  by
the Constitution (Seventh Amendment) Act, 1956.  Before  its
amendment,  Art.  1 referred to the territory of  India  a,;
comprising the territories of the States specified in  Parts
A, B and C as well as the territories specified in Part D of
the  Schedule  and  such  of the  territories  as  might  be
acquired.   Then a separate provision had been made by  Art.
243  in  Part IX for the administration of  the  territories
specified  in  Part D and other territories  such  as  newly
acquired  territories which were not comprised in the  First
Schedule.   The  Constitution Amendments of 1956  made  some
important  changes in Art. 1. The distinction between  Parts
A, B and C and territories specified in Part D was abolished
and   in  its  place  came  the  distinction   between   the
territories of States and the Union territories specified in
the First Schedule.  In consequence Art. 243 in Part IX  was
deleted.   That  is  how  under  the  present  Article   the
territory  of  India  consists of  the  territories  of  the
States, the Union territories and such other territories  as
may  be acquired.  We have already referred to Art.  1(3)(c)
and  we  have observed that it does not  purport  to  confer
power  on India to acquire territories; it  merely  provides
for and recognises automatic absorption or assimilation into
the territory of India of territories which may be  acquired
by  India  by virtue of its inherent right  as  a  sovereign
State  to acquire foreign territory.  Thus Art.    describes
India as a Union of States and specifies its territories.
Article 2 provides that Parliament may by law admit into the
Union or establish, new States on such
287
terms  and conditions as it thinks fit.  This Article  shows
that  foreign  territories  which  after  acquisition  would
become  a part of the territory of India under Art.  1(3)(c)
can  by  law be admitted into the Union under Art.  2.  Such
territories  may  be  admitted  into the  Union  or  may  be
constituted into new States on such terms and conditions  as
Parliament  may think( fit; and as we shall presently  point
out  such  territories can also be dealt with by  law  under
Art. 3(a) or (b).  The expression " by law " used in Arts. 2
and 3 in this connection is significant.  The acquisition of
foreign territory by India in exercise of its inherent right
as a sovereign State automatically makes the said  territory
a  part of the territory of India.  After such territory  is
thus acquired and factually made a part of the territory  of
India the process of law may assimilate it either under Art.
2 or under Art. 3 (a) or (b).
As an illustration of the procedure which can be adopted  by
Parliament  in  making a law for  absorbing  newly  acquired
territory we may refer to the Chandernagore Merger Act, 1954
(Act XXXVI of 1954), which was passed on September 29, 1954,
and came into force as from October 2,1954.   Chandernagore,
which was a French possession, was declared a free city, and
in  June 1946 the French Government, in agreement  with  the
Government  of India, stated that it intended to  leave  the
people  of  the French establishments in India  a  right  to
pronounce  on  their  future fate  and  future  status.   In
pursuance  of  this  declaration a referendum  was  held  in
Chandernagore  in 1949, and in this referendum the  citizens
of  Chandernagore  voted  in favour of  the  merger  of  the
territory  with  India.  Consequently, on May 2,  1950,  the
President  of  the  French  Republic  effected  a  de  facto
transfer  of the administration of Chandernagore  to  India,
and  as  from  that date the  Government  of  India  assumed
control  and jurisdiction over Chandernagore under s.  4  of
the Foreign Jurisdiction Act, 1947 (Act 47 of 1947).   Rele-
vant  notification  was issued by the  Government  of  India
under  the said section as a result of which certain  Indian
laws were made applicable to it.  The said notification also
provided that the corresponding
288
French  laws  would cease to apply with effect from  May  2,
1950.  This was followed by the treaty of cession which  was
signed  at  Paris  and  in  due  course  on  June  9,  1952,
Chandernagore was transferred de to the Government of  India
on  the  ratification of the said treaty.   The  result  was
Chandernagore  ceased to be a French territory and became  a
part of the territory of India; and the Foreign Jurisdiction
Act  was no longer applicable to it.  Article  243(1)  which
was then in operation applied to Chandernagore as from  June
9, 1952, and in exercise of the powers conferred under  Art.
243(2)  the  President promulgated a regulation for  the  ad
ministration  of  Chandernagore which came into  force  from
June 30, 1952.  The Government of India then ascertained the
wishes  of  the citizens of Chandernagore  by  appointing  a
commission  of  enquiry, and on receiving  the  commission's
report   that  the  people  of  Chandernagore  were   almost
unanimously  in  favour  of merging with  West  Bengal,  the
Government introduced in Parliament the Chandernagore Merger
Act  in question.  After this Act was  passed  Chandernagore
merged with the State of West Bengal as from October 2,1954.
This  Act  was  passed by Parliament under  Art.  3  of  the
Constitution.   As  a result of this Act the  boundaries  of
West  Bengal  were altered under Art. 3(d) and by s.  4  the
First  Schedule to the Constitution was modified.   We  have
their briefly referred to the history of the acquisition and
absorption of Chandernagore and its merger with West  Bengal
because  it significantly illustrates the operation of  Art.
1(3)(c) as well as Art. 3(b) and (d) of the Constitution.
That  take-,  us  to Art. 3 which deals with  the  topic  of
formation of new States and alteration of areas,  boundaries
or names of existing States; but before we construe Art,.  3
it  would be convenient to refer to Art. 4. Article 4  reads
thus
4.(1) Any law referred to in article 2 or article 3 shall
contain  such  provisions  for the amendment  of  the  First
Schedule and the Fourth Schedule as may be necessary to give
effect  to  the provisions of the law and may  also  contain
such  supplemental, incidental and consequential  provisions
(including provisions as to representation in Parliament and
289
in  the Legislature or Legislatures of the State  of  States
affected by such law) as Parliament may deem necessary.
(2)No  such  law  as aforesaid shall be deemed  to  be  an
amendment  of this Constitution for the purposes of  article
368.
The effect of Art. 4 is that the laws relatable to Art. 2 or
Art.  3 are not to be treated as  constitutional  amendments
for the purpose of Art. 368, which means that if legislation
is  competent under Art. 3 in respect of the  Agreement,  it
would be unnecessary to invoke Art. 368.  On the other hand,
it  is equally clear that if legislation in respect  of  the
relevant topic is Dot competent under Art. 3, Art. 368 would
inevitably  apply.  The crux of the problem, therefore,  is:
Can  Parliament legislate in regard to the  Agreement  under
Art. 3 ?
Let  us  now  read Art. 3. It reads  as  follows:"
Art. 3. Parliament may by law-
(a)form  a new State by separation of territory  from  any
State or by uniting two or more States or parts of States or
by uniting any territory. to a part of any State;
(b)  increase the area of any State;
(e)  diminish the area of any State;
(d)  alter the boundaries of any State;
(e)  alter the name of any State;
Provided that no Bill for the purpose shall be introduced in
either  House of Parliament except on the recommendation  of
the  President and unless, where the proposal  contained  in
the Bill affects the area, boundaries or name of any of  the
States  the Bill has been referred by the President  to  the
Legislature  of that State for expressing its views  thereon
within  such period as may be specified in the reference  or
within  such further period as the President may  allow  and
the period so specified or allowed has expired."
Prima  facie  Art. 3 may appear to deal  with  the  problems
which  would arise on the reorganisation of the  constituent
States  of India on linguistic or any other basis; but  that
is not the entire scope of  Art. 3. Broadly stated it  deals
with the internal adjustment inter so of the territories  of
the constituent States of
290
India.  Article 3(a) enables Parliament to form a new  State
and  this  can  be done either by  the  separation  ,if  the
territory  from any State, or by uniting two or more  States
or parts of States, or by uniting any territory to a part of
any  State.   There can be no doubt that  foreign  territory
which  after acquisition becomes a part of the territory  of
India under Art.. 1(3)(c) is included in the last clause  of
Art.   3(a)   and  that  such  territory  may'   after   its
acquisition,  be  absorbed  in the new State  which  may  be
formed  under  Art.  3(a).  Thus Art. 3(a)  deals  with  the
problem  of the formation of a new State and  indicates  the
modes by which a new State can be formed.-
Article  3(b) provides that a law may be passed to  increase
the  area of any State.  This increase may be incidental  to
the reorganisation of States in which case what is added  to
one  State under Art. 3(b) may have been taken out from  the
are&  of  another State.  The increase in the  area  of  any
State  contemplated by Art.-3(b) may also be the  result  of
adding to any State any part' if the territory specified  in
Art. 1(3)(c).  Article 3(d) refers to the alteration of  the
boundaries  of any State and such alteration would.  be  the
consequence  of  any of the adjustments  specified  in  Art.
3(a),  (b)  or  (c).   Article  3(e)  which  refers  to  the
alteration of the name of any State presents no  difficulty,
and  in fact has no material bearing on the  questions  with
which  we are concerned.  We have yet to consider Art.  3(c)
the  construction of which will provide  he answers  to  the
questions under reference; but before we interpret Art. 3(c)
we  would like to refer to one aspect relating to  the  said
Article considered as a whole.
It is significant that Art. 3 in terms does not refer to the
Union  territories and so, whether or not they are  included
in the last clause of Art. 3(a) there is no doubt that  they
are outside the purview of Art. 3(b), (c), (d) and (e).   In
other  words, if an increase or diminution in the  areas  of
the  Union territories is contemplated or the alteration  of
their boundaries or names is Proposed, it cannot be effected
by  law  relatable  to Art. 3. This  position  would  be  of
considerable assistance in interpreting Art. 3(c).
291
Article 3(c) deals with the problem of the diminution of the
area of any State.  Such diminution may occur where the part
of  the  area of a State is taken out and added  to  another
State,  and  in that sense Arts. 3(b) and 3(c) may  in  some
cases be said to be co-related but does Art. 3(c) refer to a
case  where  a part of the area of a State is taken  out  of
that State and is not added to any other State but is banded
over  to  a   foreign  State  The  learned  Attorney-General
contends that the words used in Art. 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.  We are not impressed  by
this  argument.   Prima  facie it  appears  unreasonable  to
suggest  that  the'  makers of the  Constitution  wanted  to
provide  for  the cession of national territory  under  Art.
3(c).  If the power to acquire foreign territory which is an
essential   attribute  of  sovereignty  is   not   expressly
conferred  by  the Constitution there is no reason  why  the
power to cede a part of the national territory which is also
an  essential  attribute  of sovereignty  should  have  been
'provided for by the Constitution.  Both of these  essential
attributes  of sovereignty are outside the Constitution  and
can be exercised by India as a sovereign State.   Therefore,
even  if  Art. 3(c) receives the  widest  interpretation  it
would  be difficult to accept the argument that it covers  a
case of cession of a part of national territory in favour of
a foreign State.  The diminution of the area of any State to
which it refers postulates that the area diminished from the
State  in question should and must continue to be a part  of
the  territory  of India; it may increase the  area  of  any
other  State  or  may  be dealt with  in  any  other  manner
authorised  either by Art. 3 or other relevant provisions of
the Constitution, but it would not cease to be a part of the
territory of India It would be unduly straining the language
of  Art.  3(c) to hold that by implication it  provides  for
cases   of  cession  of  a  part  of   national   territory.
Therefore,  we feel no hesitation in holding that the  power
to  cede national territory cannot be read in Art.  3(c)  by
implication.
292
There  is  another consideration which  is  of  considerable
importance  in  construing Art. 3(c).  As  we  have  already
indicated  Art.  3  does not in terms  refer  to  the  Union
territories,  and there can be no doubt that Art. 3(c)  does
not  cover them; and so, if a part of the Union  territories
has to be ceded to a foreign State no law relatable to  Art.
3  would be competent in respect of such cession If that  be
the true position cession of a part of the Union territories
would  inevitably  have  to be  implemented  by  legislation
relatable  to Art 368 ; and that, in our  opinion,  strongly
supports the construction which we are inclined to place  on
Art.  3(c)  even in respect of cession of the  area  of  any
State   in  favour  of  a  foreign  State.,  It   would   be
unreasonable,  illogical  and  anomalous  to  suggest  that,
whereas  the cession of a part of the Union territories  has
to  be  implemented by legislation relatable  to  Art.  368,
cession   of  a  part  of  the  State  territories  can   be
implemented   by  legislation  under  Art.  3.  We   cannot,
therefore,  accept  the argument of  the  learned  Attorney-
General that an agreement which involves a cession of a part
of  the territory of India in favour of a foreign State  can
be implemented by Parliament by passing a law under Art 3 of
the Constitution.  We think that this conclusion follows  on
a  fair  and  reasonable  construction of  Art.  3  and  its
validity  cannot be impaired by what the  learned  Attorney-
General has described as the special features of the federal
Constitution of India.
In  this connection the learned Attorney -General has  drawn
our  attention  to the provisions of Act XLVII  of  1951  by
which  the  boundaries of the State of  Assam  were  altered
consequent on the cession of a strip of territory  comprised
in  that  State to the Government of Bhutan.  Section  2  of
this  Act provides that on and from the commencement of  the
Act  the  territories of the State of Assam shall  cease  to
comprise  the strip of territory specified in  the  Schedule
which  shall be ceded to the Government of Bhutan,  and  the
boundaries  of  the State of Assam shall be deemed  to  have
been  altered  accordingly.   Section  3  provides  for  the
consequential amendment of the first paragraph in Part A  of
the  First  Schedule  to the Constitution  relating  to  the
territory of Assam.  The argument is
293
that when Parliament was dealing with the cession of a strip
of  territory  which  was a part of the State  of  Assam  in
favour of the Government of Bhutan it has purported to  pass
this Act under Art. 3 of the Constitution.  It Appears  that
the  strip  of territory which was thus ceded  consisted  of
about,  32 sq. miles of the territory in the Dewangiri  Hill
Block  being  a part of Dewangiri on  the  extreme  northern
boundary  of Kamrup District.  This strip of  territory  was
largely  covered by forests and only sparsely  inhabited  by
Bhotias.   The  learned Attorney-General has not  relied  on
this single statute as showing legislative practice.  He has
only  cited  this as an instance where  the  Parliament  has
given  effect to the cession of a part of the  territory  of
Assam  in favour of the Government of Bhutan by  enacting  a
law relating to Art. 3 of the Constitution.  We do not think
that  this instance can be of any assistance  in  construing
the scope and effect of the provisions of Art. 3.
Therefore  our conclusion is that it would not be  competent
to  Parliament  to  make a law relatable to Art.  3  of  the
Constitution for the purpose of implementing the  Agreement.
It  is  conceded by the learned Attorney-General  that  this
conclusion  must inevitably mean that the law  necessary  to
implement the, Agreement has to be passed under Art. 368.
Art. 368 reads thus:-
"  Art.  368.   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
38
294
(b)Chapter IV of Part V, Chapter V of Part VI, or  Chapter
1 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."
We have already held that the Agreement amounts to a cession
of  a part of the territory of India in favour of  Pakistan;
and  so  its  implementation  would  naturally  involve  the
alteration of the content of and the consequent amendment of
Art.   1 and of the relevant part of the First  Schedule  to
the   Constitution,   because  such   implementation   would
necessarily  lead to the diminution of the territory of  the
Union  of India.  Such an amendment can be made  under  Art.
368.   This  position  is not in dispute and  has  not  been
challenged  before us; so it follows that acting under  Art.
368  Parliament  may  make  a law to  give  effect  to,  and
implement, the Agreement in question covering the cession of
a  part  of  Berubari Union No. 12 as well as  some  of  the
Cooch-Behar  Enclaves    which  by  exchange  are  given   to
Pakistan.  Parliament may however, if it so chooses, pass  a
law amending Art. 3 of the Constitution so as to cover cases
of cession of the territory of India in favour of a  foreign
State.   If  such  a law is passed then  Parliament  may  be
competent  to  make  a  law under  the  amended  Art.  3  to
implement the Agreement in question.  On the other hand,  if
the necessary law is passed under Art. 368 itself that alone
would be sufficient to implement the Agreement.
It  would  not  be out of place to mention  one  more  point
before we formulate our opinion on the questions referred to
us.  We have already noticed that under the proviso to  Art.
3  of  the  Constitution it is  prescribed  that  where  the
proposal contained in the Bill affects the area,  boundaries
or name of any of the States, the Bill has to be referred by
the President to
295
the  Legislature of that State for its views thereon  within
such  period  as is therein prescribed.  It has  been  urged
before us by the learned Attorney General that if it is held
that Parliament must act under Art. 368 and not under Art. 3
to  implement the Agreement, it would in effect deprive  the
Legislature of West Bengal of an opportunity to express  its
views on the cession of the territory in question.  That  no
doubt   is  true;  but,  if  on  its  fair  and   reasonable
construction   Art.  3  is  inapplicable   this   incidental
consequence  cannot  be avoided.  On the other hand,  it  is
clear that if the law in regard to the implementation of the
Agreement  is to be passed under Art. 368 it has to  satisfy
the  requirements prescribed by the said Article;  the  Bill
has  to be passed in each House by a majority of  the  total
membership  of the House and by a majority of not less  than
two-thirds of the House present and voting; that is to  say,
it should obtain the concurrence of a substantial section of
the  House which may normally mean the consent of the  major
parties  of the House, and that is a safeguard  provided  by
the Article in matters of this kind.
In  this connection it may incidentally be pointed out  that
the amendment of Art.  1 of the Constitution consequent upon
the cession of any part of the territory of India in  favour
of a foreign State does not attract the safeguard prescribed
by the proviso to Art. 368 because neither Art. 1 nor Art. 3
is  included  in the list of entrenched  provisions  of  the
Constitution enumerated in the proviso.  It is not for us to
enquire  or consider whether it would not be appropriate  to
include the said two Articles under the proviso.  That is  a
matter for the Parliament to consider and decide.
We would accordingly answer the three questions referred  to
us as follows:-
Q. 1. Yes.
Q.2.  (a) A law of Parliament relatable to Art. 3 of  the
Constitution would be incompetent;
(b)A  law  of  Parliament relatable to  Art.  368  of  the
Constitution is competent and necessary;
(c)A law of Parliament relatable to both Art. 368 and Art.
3  would  be necessary only if Parliament chooses  first  to
pass a law amending Art. 3
296
as indicated above; in that case Parliament may have to pass
a  law on those lines under Art. 368 and then follow  it  up
with a law relatable to the amended Art. 3 to implement  the
agreement.
Q.   3.  Same as answers (a), (b) and (c) to Question 2.
Reference answered accordingly.



 

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