1960 (3) TMI 55 - SC - Indian Laws

Summary

Issues Involved:
1. Legislative action required for implementing the Agreement relating to Berubari Union.
2. Sufficiency of a law of Parliament under Article 3 of the Constitution or necessity of an amendment under Article 368.
3. Legislative requirements for implementing the Agreement relating to the exchange of Enclaves.

Detailed Analysis:

Issue 1: Legislative Action for Implementation of the Agreement Relating to Berubari Union
The Supreme Court examined whether legislative action is necessary to implement the Agreement concerning Berubari Union. The Agreement, signed by the Prime Ministers of India and Pakistan, involved dividing Berubari Union No. 12 between the two countries. The Court concluded that the Agreement amounts to cession or alienation of a part of India's territory and is not merely an ascertainment or determination of boundaries in light of the Radcliffe Award. Since the Agreement involves cession of territory, legislative action is indeed necessary for its implementation.

Issue 2: Sufficiency of a Law of Parliament Under Article 3 or Necessity of an Amendment Under Article 368
The Court analyzed whether a law of Parliament under Article 3 of the Constitution is sufficient for implementing the Agreement or if an amendment under Article 368 is necessary. The Court held that Article 3, which deals with the formation, alteration, and reorganization of States within India, does not cover the cession of Indian territory to a foreign State. The diminution of the area of a State under Article 3(c) must continue to be part of the territory of India. Therefore, a law under Article 3 would be incompetent for implementing the Agreement. Instead, a law under Article 368, which provides for the amendment of the Constitution, is necessary to give effect to the cession of territory.

Issue 3: Legislative Requirements for Implementing the Agreement Relating to Exchange of Enclaves
The Court addressed whether the implementation of the Agreement relating to the exchange of Cooch-Behar Enclaves requires legislative action and, if so, whether a law under Article 3 is sufficient or an amendment under Article 368 is necessary. The Court held that the Agreement involving the exchange of enclaves also amounts to cession of Indian territory. Therefore, similar to the Berubari Union issue, a law under Article 3 would be insufficient. The implementation of the Agreement relating to the exchange of enclaves requires a constitutional amendment under Article 368.

Conclusion:
1. Legislative Action Necessary: Yes, legislative action is necessary for the implementation of the Agreement relating to Berubari Union.
2. Sufficiency of Law Under Article 3: A law of Parliament under Article 3 is insufficient. An amendment under Article 368 is necessary.
3. Implementation of Exchange of Enclaves: The same legislative requirements apply as for the Berubari Union. A constitutional amendment under Article 368 is necessary.

Summary:
The Supreme Court held that the implementation of the Agreement concerning the division of Berubari Union and the exchange of Cooch-Behar Enclaves involves the cession of Indian territory to Pakistan. Such cession cannot be effected by a law under Article 3 of the Constitution, which deals with the internal reorganization of States within India. Instead, it requires a constitutional amendment under Article 368. This ensures that the Agreement can be implemented legally and constitutionally.