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Berburi Union And Exchange Of Enclaves V. Union Of India

In the case of Re Berburi case, the state of Punjab and Bengal were to be  partitioned. Berburi union, 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  jalaiguri district. According to the Indian independence Act, 1947, the boundaries  of India and Pakistan were to be assessed by Radcliffe committee. But the ˜award'  determined by the Radcliffe committee was not accepted by India and Pakistan  consequently.

There arose boundary disputes between two nations. To resolve  these boundary disputes the then Indian prime minister Shri jawaharlal Nehru  and Prime minister of Pakistan Mr. Feroge khan Noon signed an agreement in  1958. The Pakistani government contended its claim over the berburi union for  the first Tim in 1952. During all these processes way underway, the Indian  constitution came into force on 26th of January 1950, and Article-1 of our  constitution provided India shall be a union of states and shall be mentioned in  part A,B, or C of the first schedule of the constitution.

7 Judge Bench: Hon'ble Justice (B.Sinha, AS Shah, K Dasgupta, KS Rao, M Hidayatullah, S Das, P Gajendragadkar) - Supreme Court Of India - Judgement Date :- 14 March 1960

Issues:
  1. 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?
     
  2. Is a law of parliament relatable to Article-3 of the constitution sufficient for  implement 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?
  3. In any legislative action necessary for the implement of the agreement relating to Berburi union?

Arguments:
It was argued that even parliament has no power to code any 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, the agreement is void and cannot be made  effective by any legislative process.

The very first sentence in preamble which declares that:
we the people of the India, having solemnly resolved to constitute India into a sovereign democratic republic.

Irrevocably postulates that india geographically and terriorially must  always continue to be democratic and Republicans. The other ground on which  this contention is raised is founded an Article-1(3)(c) of the constitution which  contemplates that:
The territory of India shall comprise such other territories as  may be acquired:.
And thus it is argued that whereas the constitution has  expressly given to the country the power to acquire other territories it has made  no provision for ceding any part of its territory.

Judgement:
Regarding Article-368, it was held that the power to amend our constitution  must inevitably include the power to amend Article_1. And that logically would  include the power

Article-1: Name and territory of the union
  1. India, that is Bharat, shall be a union states
  2. The states and the territories thereof shall be as specified in the first schedule.
  3. The territories of India shall comprise:
    1. the territories of the states
    2. the union territories specified in the first schedule
    3. such other territories as may be acquired.

Legislative action is necessary for the execution of all amendment.

For the exchange of Enclaves too, the same procedure as to followed.

Conclusion
The supreme court in the Berburi union case concluded that:
  • the preamble is not part of the constitution
  • the parliament has the power to amend or constitution (Including Article-1)
  • A cession of a part of the territory of India would lead to the diminution of the  territory of India. Such an amendment can be made under Article-368 of our constitution.

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