Berubari Union Case of 1960

We know that India and Pakistan boundary was fixed by Sir Radcliffe and the line was called Radcliffe Line. However, some disputes arose because of the erroneous depiction of the maps by the Radcliffe Award. One of such disputes was Berubari Dispute. This dispute rose due to an omission in the written text. Radcliffe had divided the district of Jalpaigudi between India and Pakistan by awarding some thanas to one country and others to the other country. The boundary line was determined on the basis of the boundaries of the thanas. In describing this boundary, Radcliffe omitted to mention one Thana. Berubari Union No. 12 lies within Jalpaigudi thana which was awarded to India. However, the omission of the Thana Boda and the erroneous depiction on the map enabled Pakistan to claim that a part of Berubari belonged to it. This dispute was resolved by Nehru-Noon Agreement of 1958, whereby 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. In addition, four Cooch Behar enclaves contiguous of this part would also have gone to Pakistan. Now the question arose, regarding the power of the parliament to transfer the territory of Berubari to Pakistan. The detailed examination of article 3 was done by the Supreme Court on a reference made by the President in 1960. The Supreme Court held that the parliament of India is not competent to make a law under article 3 for the implementation of the Nehru-Noon Agreement. The conflict in judiciary and legislature was obvious. This was followed by an amendment of the Constitution by Parliament using the power of Article 368. The result was the Constitution (9th Amendment ) Act 1960. The object of this amendment reads: Agreements between the Governments of India and Pakistan dated 10th September 1958, 23rd October 1959, and 11th January 1960, settled certain boundary disputes between the Governments of India and Pakistan relating to the borders of the States of Assam, Punjab and West Bengal, and the Union territory of Tripura. According to these agreements, certain territories are to be transferred to Pakistan after demarcation. In the light of the Advisory Opinion of the Supreme Court in Special Reference No. 1 of 1959, it is proposed to amend the First Schedule to the Constitution under a law relatable to article 368 thereof to give effect to the transfer of these territories.

 What we conclude here is that by itself, the Parliament of India is not competent enough to cede a territory. However, to make such an agreement effective, Parliament would need to enact an amendment of the Constitution.
source: gktoday

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