August 05, 2016

Can Parliament give its territory to a foreign country? This question was answered by the Honourable Supreme Court of India in Berubari Case. Berubari was a small area of 9 square miles and population of 12000 in the State of West Bengal. There was an agreement between India and Pakistan that, Berubari shall be transferred to Pakistan.

This was objected by certain citizens of Berubari, challenging the Government of India’s act of giving away Berubari to Pakistan, contenting that, said act is against the principles of Indian Constitution. Honourable President of India sought advice from the Honourable Supreme Court in this regard.

Accordingly, Honourable Supreme Court gave its opinion that;

By virtue of Article 3 of the Constitution of India, Parliament can only adjust the internal territory. Article 3 does not empower the Parliament to cede its territory to a foreign country. Thus the agreement between India and Pakistan, transferring the territory of Berubari was void.

The Constitution Bench unanimously answered the reference with the opinion that legislative action was necessary for implementation of the agreement, and a Constitutional Amendment would be required to implement the provisions relating to both the Berubari Union as well as the exchange of enclaves.

In other words, if the Parliament wants to transfer any part of Indian Territory to a foreign country, it could do so by bringing an amendment to the constitution. Subsequently, Parliament passed the Constitution (9th Amendment) Act, in the year 1960, amending the First Schedule and paving the way for the implementation of the agreement entered between India and Pakistan to transfer Berubari.

However, it could not be implemented, and as a result Article 3 of the Constitution of India remained unamended. A comprehensive agreement between India and Bangladesh for settling the boundary disputes was entered in the year 1974 soon after the liberation of Bangladesh from East Pakistan, which in turn demanded the Indian Parliament to pass an amendment to the First Schedule to implement the provisions of 1974 agreement.


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