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TMI Blog1960 (3) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... lems in the manner set out in the said joint note. This agreement has been called the Indo-Pakistan Agreement and will be referred to hereafter as the Agreement. 2. In the present Reference we are concerned with two items of the Agreement; item 3 in paragraph 2 of the Agreement reads as follows :- (3) Berubari Union No. 12. This will be so divided as to give half the area to Pakistan, the other half adjacent to India being retained by India. The Division of Berubari Union No. 12 will be horizontal, starting from the north-east corner of Debiganj Thana. The division should be made in such a manner that the Cooch-Behar Enclaves between Pachagar Thana of East Pakistan and Berubari Union No. 12 of Jalpaiguri Thana of West Bengal will remain connected as at present with Indian territory and will remain with India. The Cooch-Behar Enclaves lower down between Boda Thana of East Pakistan and Berubari Union No. 12 will be exchanged along with the general exchange of enclaves and will go to Pakistan. 3. Similarly item 10 of the Agreement is as follows :- (10) Exchange of Old Cooch-Behar Enclaves in Pakistan and Pakistan Enclaves in India without claim to compensation f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed the Indian Independence Act, 1947. This Act was to come into force from August 15, 1947, which was the appointed day. As from the appointed day two independent Dominions, it was declared, would be set up in India to be known respectively as India and Pakistan. Section 2 of the Act provided that subject to the provisions of sub-ss. (3) and (4) of s. 2 the territories of India shall be the territories under the sovereignty of His Majesty which immediately before the appointed day were included in British India except the territories which under sub-s. (2) of s. 2 were to be the territories of Pakistan. Section 3, sub-s. (1), provided, inter alia, that as from the appointed day the Province of Bengal as constituted under the Government of India Act, 1935, shall cease to exist and there shall be constituted in lieu thereof two new Provinces to be known respectively as East Bengal and West Bengal. Sub-section (3) of s. 3 provided, inter alia, that the boundaries of the new Provinces aforesaid shall be such as may be determined whether before or after the appointed day by the award of a boundary commission appointed or to be appointed by the Governor-General in that behalf, but until ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Chairman framed seven basic questions on the decision of which the demarcation of a boundary line between East-West Bengal depended. Question No. 6 is relevant for our purpose; it was framed in this way : C. 6. Which State's claim ought to prevail in respect of the districts of Darjeeling and Jalpaiguri in which the muslim population amounted to 2.42% of the whole in the case of Darjeeling and 23.08% of the whole in the case of Jalpaiguri but which constituted an area not in any natural sense contiguous to another non-muslim area of Bengal ? 8. It appears that the members of the commission were unable to arrive at an agreed view on any of the major issues, and so the Chairman had no alternative but to proceed to give his own decision. Accordingly the Chairman gave his decision on the relevant issues in these words :- The demarcation of the boundary line is described in detail in the schedule which forms annexure A to the award and in the map attached thereto, annexure B. The map is annexed for the purposes of illustration, and if there should be any divergence between the boundary as described in annexure A and as delineated on the map in annexure B the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... States in Part A; and it was provided that the territory of the State of West Bengal shall comprise the territory which immediately before the commencement of the Constitution was comprised in the Province of West Bengal. In the light of the award Berubari Union No. 12 was treated as a part of the Province of West Bengal and as such has been treated and governed on that basis. 11. Subsequently, certain boundary disputes arose between India and Pakistan and it was agreed between them at the Inter-Dominion Conference held in New Delhi on December 14, 1948, that a tribunal should be set up without delay and in any case not later than January 31, 1949, for the adjudication and final decision of the said disputes. This tribunal is known as Indo-Pakistan Boundaries Disputes Tribunal, and it was presided over by the Hon'ble Lord Justice Algot Bagge. This tribunal had to consider two categories of disputes in regard to East-West Bengal but on this occasion no issue was raised about the Berubari Union. In fact no reference was made to the District of Jalpaiguri at all in the proceedings before the tribunal. The Bagge Award was made on January 26, 1950. 12. It was two years later ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the administration of areas included within the Governor's Province or a Chief Commissioner's Province by an Acceding State, and it prescribes that the acceding area shall be administered in all respects by a neighbouring Acceding State as if such area formed part of such State, and thereupon the provisions of the Government of India Act shall apply accordingly. 15. After these two sections were thus added several steps were taken by the Government of India for the merger of Indian States with the Union of India. With that object the States Merger (Governors' Provinces) Order, 1949, was passed on July 27, 1949. The effect of this order was that the States which had merged with the Provinces were to be administered in all respects as if they formed part of the absorbing Provinces. This order was amended from time to time. On August 28, 1949, an agreement of merger was entered into between the Government of India and the Ruler of the State of Cooch-Behar and in pursuance of this agreement the Government of India took over the administration of Cooch-Behar on September 12, 1949; Cooch-Behar thus became a part of the territory of India and was accordingly included in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l conditions along the said areas. It is with this object that the exchange of enclaves was agreed upon by them and the said adjustment is described in item 10 of paragraph 3 of the Agreement. That in brief is the historical and constitutional background of the exchange of enclaves. 17. On behalf of the Union of India the learned Attorney-General has contended that no legislative action is necessary for the implementation of the Agreement relating to Berubari Union as well as the exchange of enclaves. In regard to the Berubari Union he argues that what the Agreement has purported to do is to ascertain or to delineate the exact boundary about which a dispute existed between the two countries by reason of different interpretations put by them on the relevant description contained in the award; the said Agreement is merely the recognition or ascertainment of the boundary which had already been fixed and in no sense is it a substitution of a new boundary or the alteration of the boundary implying any alteration of the territorial limits of India. He emphasises that the ascertainment or the settlement of the boundary in the light of the award by which both Governments were bound, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body. This power is conferred on Parliament by reference to Entry 14. Besides there are three other articles in the same part which are relevant. Article 245(1) empowers Parliament to make laws for the whole or any part of the territory of India; Article 245(2) provides that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation; Article 246 prescribes the subject-matter of laws which Parliament can make; and Art. 248 provides for the residuary powers of legislation in Parliament. Article 248 lays down that Parliament has power to make any law with respect to any matter not enumerated in the Concurrent List or State List. There is thus no doubt about the legislative competence of Parliament to legislate about any treaty, agreement or convention with any other country and to give effect to such agreement or convention. 21. It is, however, urged that in regard to the making of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as added, that the executive function comprised both the determination of the policy as well as carrying it into execution. Thus evidently includes the initiation of legislation, maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State . It is on this observation that the learned Attorney-General has founded his argument. 22. Let us then first consider what the Agreement in fact has done. Has it really purported to determine the boundaries in the light of the award, or has it sought to settle the dispute amicably on an ad hoc basis by dividing the disputed territory half and half ? Reading the relevant portion of the Agreement it is difficult to escape the conclusion that the parties to it came to the conclusion that the most expedient and reasonable way to resolve the dispute would be to divide the area in question half and half. There is no trace in the Agreement of any attempt to interpret the award or to determine what the award really meant. The Agreement begins with the statement of the decision that the area in dispute will be so divided as to giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. It is also pointed out that the line as drawn in the map, annexure B, in the Schedule to the award would, if followed independently of the description given in Schedule A in the annexure to the said award, mean that almost the whole of the Berubari Union would have fallen in the territory of East Bengal and that was the claim made by the Government of Pakistan, and it is that claim which was settled in the light of the award. 24. In this connection it is relevant to remember the direction specifically given by the Chairman in his award that the map is annexed for the purpose of illustration and that in case of any divergence between the map, annexure B, and the boundary as described in annexure A, the description in annexure A has to prevail, and so no claim could reasonably or validly be made for the inclusion of almost the whole of Berubari Union in East Bengal on the strength of the line drawn in the map. Besides, the lacuna to which the learned Attorney-General refers could have been cured by taking into account the general method adopted by the award in fixing the boundaries. Paragraph 3 in annexure A shows that the line which was fixed by the award generally proceeded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. Indeed the learned Attorney-General's argument that no legislation is necessary to give effect to the Agreement in respect of this exchange was based on the assumption that this exchange is a part of a larger and broader settlement and so it partakes of its character. Since we have held that the Agreement in respect of Berubari Union No. 12 itself involves the cession of the territory of India a fortiori the Agreement in respect of exchange of Cooch-Behar Enclaves does involve the cession of Indian territory. That is why the question about this exchange must also be considered on the footing that a part of the territory of India has been ceded to Pakistan; besides it is clear that unlike questions 1 and 2 the third question which has reference to this exchange postulates the necessity of legislation. 27. In this connection we may also deal with another argument urged by the learned Attorney-General. He contended that the implementation of the Agreement in respect of Berubari Union would not necessitate any change in the First Schedule to the Constitution because, according to him, Berubari Union was never legally included in the territorial description of West Bengal con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the two colonies, and that it therefore implicitly gave to the executive of the two colonies power to do such acts as were necessary for permanently fixing such boundaries ((1914) A.C. 283, 309). The Privy Council also observed that the material facts showed that the two Governments made with all care a sincere effort to represent as closely as was possible the theoretical boundary assigned by the Letters Patent by a practical line of demarcation on the earth's surface. There is no trace of any intention to depart from the boundary assigned, but only to reproduce it, and as in its nature it was to have the solemn status of a boundary of jurisdiction their Lordships have no doubt that it was intended by the two executives to be fixed finally as the statutable boundary and that in point of law it was so fixed . It would thus be clear that the settlement of the boundaries which was held not to amount to an alienation in that case had been made wholly by reference to, and in the light of, the provision of the parliamentary statute to which reference has already been made. What was done in 1847 by the parties who had authority to deal with the matter was to locate and mark a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be made effective even by any legislative process. This extreme contention is based on two grounds. It is suggested that the preamble to the Constitution clearly postulates that like the democratic republican form of government the entire territory of India is beyond the reach of Parliament and cannot be affected either by ordinary legislation or even by constitutional amendment. The makers of the Constitution were painfully conscious of the tragic partition of the country into two parts, and so when they framed the Constitution they were determined to keep the entire territory of India as inviolable and sacred. The very first sentence in the preamble which declares that We, the people of India, having solemnly resolved to constitute India into a sovereign democratic Republic , says Mr. Chatterjee, irrevocably postulates that India geographically and territorially must always continue to be democratic and republican. The other ground on which this contention is raised is founded on Art. 1(3)(c) of the Constitution which contemplates that the territory of India shall comprise such other territories as may be acquired , and it is argued that whereas the Constitution has expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate. What Art. 1(3)(c) purports to do is to make a formal provision for absorption and integration of any foreign territories which may be acquired by India by virtue of its inherent right to do so. It may be that this provision has found a place in the Constitution not in pursuance of any expansionist political philosophy but mainly for providing for the integration and absorption of Indian territories which, at the date of the Constitution, continued to be under the dominion of foreign States; but that is not the whole scope of Art. 1(3)(c). It refers broadly to all foreign territories which may be acquired by India and provides that as soon as they are acquired they would form part of the territory of India. Thus, on a true construction of Art. 1(3)(c) it is erroneous to assume that it confers specific powers to acquire foreign territories. The other answer to the contention is provided by Art. 368 of the Constitution. That article provides for the procedure for the amendment of the Constitution and expressly confers power on Parliament in that behalf. The power to amend Constitution must inevitably include the power to amend Art. 1, and that logically would include the power t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when made can be implemented would be governed by the provisions in the Constitution of the country. Stated broadly the treaty-making power would have to be exercised in the manner contemplated by the Constitution and subject to the limitations imposed by it. Whether the treaty made can be implemented by ordinary legislation or by constitutional amendment will naturally depend on the provisions of the Constitution itself. We must, therefore, now turn to that aspect of the problem and consider the position under our Constitution. 35. In dealing with this aspect we are proceeding on the assumption that some legislation is necessary to implement the Agreement in question. It is urged on behalf of the Union of India that if any legislative action is held to be necessary for the implementation of the Agreement a law of Parliament relatable to Art. 3 of the Constitution would be sufficient for the purpose; and if that be so, there would be no occasion to take any action under Art. 368 of the Constitution. The decision of this question will inevitably depend upon the construction of Art. 3 itself. The learned Attorney-General has asked us to bear in mind the special features of the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he States and the territories thereof shall be as specified in the First Schedule. (3) The territory of India shall comprise - (a) the territories of the States; (b) the Union territories specified in the First Schedule; and (c) such other territories as may be acquired. 37. Art. 1 as it now stands is the result of amendments made by the Constitution (Seventh Amendment) Act, 1956. Before its amendment, Art. 1 referred to the territory of India as comprising the territories of the States specified in Parts A, B and C as well as the territories specified in Part D of the Schedule and such of the territories as might be acquired. Then a separate provision had been made by Art. 243 in Part IX for the administration of the territories specified in Part D and other territories such as newly acquired territories which were not comprised in the First Schedule. The Constitution Amendments of 1956 made some important changes in Art. 1. The distinction between Parts A, B and C and territories specified in Part D was abolished and in its place came the distinction between the territories of States and the Union territories specified in the First Schedule. In consequenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vour of the merger of the territory with India. Consequently, on May 2, 1950, the President of the French Republic effected a de facto transfer of the administration of Chandernagore to India, and as from that date the Government of India assumed control and jurisdiction over Chandernagore under s. 4 of the Foreign Jurisdiction Act, 1947 (Act 47 of 1947). Relevant notification was issued by the Government of India under the said section as a result of which certain Indian laws were made applicable to it. The said notification also provided that the corresponding French laws would cease to apply with effect from May 2, 1950. This was followed by the treaty of cession which was signed at Paris and in due course on June 9, 1952, Chandernagore was transferred de jure to the Government of India on the ratification of the said treaty. The result was Chandernagore ceased to be a French territory and became a part of the territory of India; and the foreign Jurisdiction Act was no longer applicable to it. Article 243(1) which was then in operation applied to Chandernagore as from June 9, 1952, and in exercise of the powers conferred under Art. 243(2) the President promulgated a regulation f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow read Art. 3. It reads as follows :- Art. 3. Parliament may by law - (a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State; (b) increase the area of any State; (c) diminish the area of any State; (d) alter the boundaries of any State; (e) alter the name of any State; Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States ... the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired. 43. Prima facie Art. 3 may appear to deal with the problems which would arise on the reorganisation of the constituent States of India on linguistic or any other basis; but that is not the entire scope of Art. 3. Broadly stated it deals with the internal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the part of the area of a State is taken out and added to another State, and in that sense Arts. 3(b) and 3(c) may in some cases be said to be co-related; but does Art. 3(c) refer to a case where a part of the area of a State is taken out of that State and is not added to any other State but is handed over to a foreign State ? The learned Attorney-General contends that the words used in Art. 3(c) are wide enough to include the case of the cession of national territory in favour of a foreign country which causes the diminution of the area of the State in question. We are not impressed by this argument. Prima facie it appears unreasonable to suggest that the makers of the Constitution wanted to provide for the cession of national territory under Art. 3(c). If the power to acquire foreign territory which is an essential attribute of sovereignty is not expressly conferred by the Constitution there is no reason why the power to cede a part of the national territory which is also an essential attribute of sovereignty should have been provided for by the Constitution. Both of these essential attributes of sovereignty are outside the Constitution and can be exercised by India as a sover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution of India. 48. In this connection the learned Attorney-General has drawn our attention to the provisions of Act XLVII of 1951 by which the boundaries of the State of Assam were altered consequent on the cession of a strip of territory comprised in that State to the Government of Bhutan. Section 2 of this Act provides that on and from the commencement of the Act the territories of the State of Assam shall cease to comprise the strip of territory specified in the Schedule which shall be ceded to the Government of Bhutan, and the boundaries of the State of Assam shall be deemed to have been altered accordingly. Section 3 provides for the consequential amendment of the first paragraph in Part A of the First Schedule to the Constitution relating to the territory of Assam. The argument is that when Parliament was dealing with the cession of a strip of territory which was a part of the State of Assam in favour of the Government of Bhutan it has purported to pass this Act under Art. 3 of the Constitution. It appears that the strip of territory which was thus ceded consisted of about 32 sq. miles of the territory in the Dewangiri Hill Block being a part of Dewangiri on the extreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the First Schedule to the Constitution, because such implementation would necessarily lead to the diminution of the territory of the Union of India. Such an amendment can be made under Art. 368. This position is not in dispute and has not been challenged before us; so it follows that acting under Art. 368 Parliament may make a law to give effect to, and implement, the Agreement in question covering the cession of a part of Berubari Union No. 12 as well as some of the Cooch-Behar Enclaves which by exchange are given to Pakistan. Parliament may, however, if it so chooses, pass a law amending Art. 3 of the Constitution so as to cover cases of cession of the territory of India in favour of a foreign State. If such a law is passed then Parliament may be competent to make a law under the amended Art. 3 to implement the Agreement in question. On the other hand, if the necessary law is passed under Art. 368 itself that alone would be sufficient to implement the Agreement. 52. It would not be out of place to mention one more point before we formulate our opinion on the questions referred to us. We have already noticed that under the proviso to Art. 3 of the Constitution it is prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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