Decided on:14th March 1960
Statues Referred –
- The Constitution of India
Cases Referred-
- Keshvanand bharati v/s state of Kerala
Facts-
1)At the time of partition of India and Pakistan, the task of demarcation of boundaries was assigned to Sir Radcliffe. (It was definite that task of separation shall be allocated to a person who doesn’t know about layout of India and never visited it. This was to safeguard no prejudice while separation).
2) He distributed Thana’s between India and Pakistan and the boundaries of such Thana’s would going to be the ultimate boundary between India and Pakistan.
3) There was this Thana ‘Berubari’ in Jalpaigudi district of West Bengal. Radcliffe gave it to India but inappropriately it was not stated in the on paper text of the honor. This gave chance to Pakistan to claim on Berubari, quoting a motive that Berubari falls in the map of Pakistan. Argumentsustained till Nehru-Noon contract was signed in 1958 between India and Pakistan. (Feroz shah Noon was the then PM of Pakistan).
4) In the contract, the region of Berubari Union was separated and distributed equally between India and Pakistan. (Against the needs of West Bengal govt).After disapproval, Union govt decided to refer matter to the apex court that isSupreme Court. (That’s why case is named In Re Berubari Union)
Issue-
(1) Whether the preamble was a part of the constitution or not.
Contention
- The government of India said that the contract is really a dispute about the acknowledgement of the boundary which is already fixed and not about making new boundary or cession (breaking) of nation’s territory.
- Mr. Chatterjee gave a competing statement that “parliament has no participation in making any legislation under article 3 or amending the constitution under article 368 for the agreement”
- So the government of India wants to make the contract void by not concerning any legislation into that.
- The arguments are made under the facts that
- Preamble clearly states that India is a self-governingnation of people and the territory of India is outside the spread of parliament and can’t be affected by any legislation proceedings.
- The article 1(3) c states that parliament participation can be seen in acquirement of territories but not in cession of nation’s territory.
Judgment-
1)Supreme Court said article 3 (c) give parliament anauthority to reduce state territory but doesn’t give authority to concede. Mere exercising power under article 3 is not adequate, Parliament has to bring an amendment to the Constitution using power and procedure stated in article 368.
2) 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 obligatory So 9th Constitutional Amendment Act 1960 was passed to give effect to the contract.it gives a creative interpretation by stating that “preamble isn’t a part of constitution”. More over the article 368 gives the power to parliament to amend the constitution which circuitously gives a scope for cession of territory for favor of foreign state.
3) Also the cession of a territory will include the sovereignty of owner state towards the other state which may need some legislation for that. Thus,Supreme Court made judgments that preamble of constitution is not a part of it.
4) The cession of any territory can be made only by an amendment under article 368. After the 9th amendment act 1960 the argument is cleared.
Conclusion
We conclude at this point is that by itself, the Legislature or parliament of India is not capable enough to concede a region. Though, to make such acontractoperative, Parliament would need to pass an amendment of the Constitution.