Re: Berubari Union Case, 1960|| Landmark Judgements

Re: Berubari Union Case, 1960

At the time of partition of India and Pakistan, the task of demarcation of boundaries was assigned to Sir Radcliffe(it was decided that task of demarcation shall be assigned to a person who doesn’t know about the geography of India and never visited it. This was to ensure no bias while demarcation). He distributed Thanas between India and Pakistan and the boundaries of such Thanas would going to be the ultimate boundary between India and Pakistan.

There was this Thana ‘Berubari’ in Jalpaiguri district of West Bengal. Radcliffe awarded it to India but unfortunately it was not mentioned in the written text of the award.

This gave opportunity to Pakistan to claim on Berubari, citing a reason that Berubari falls in the map of Pakistan.

Dispute continued till Nehru-Noon agreement was signed in 1958 between India and Pakistan. (Feroz shah Noon was the then PM of Pakistan).

In the agreement, the territory of Berubari Union was divided and distributed equally between India and Pakistan. (Against the wishes of West Bengal govt).

The President referred to the Supreme Court that whether Parliament possesses the power to transfer the territory to Pakistan or not.(That’s why case is named In Re Berubari Union )

Supreme Court said article 3 (c) give parliament a power to diminish state territory but doesn’t give power to cede. Mere exercising power under article 3 is not sufficient, Parliament has to bring an amendment to the Constitution using power and procedure mentioned in article 368. (It should be noted that amendment using article 3 can be done by an ordinary majority in the parliament, but under Article 368, special majority is required).

In the Berubari Union Case, the Supreme Court held that the preamble is not a part of the Constitution rather it was considered as the guiding principle for the provisions of the Constitution.

Note- Supreme Court in 1969 ruled that, settlement of boundary dispute between India and any other country doesn’t require constitutional amendment, it can be done by an executive action (govt action), if it doesn’t involve cession of a territory.