101 historical judgments of SC- Case -6 Can govt of India give any part of country to another nation?
Table of Contents
Introduction-
At the time of partition, the division was done in a very erroneous manner. Soon the governments of both countries decided to reach some type of agreement. A pact was signed between the then Prime minister of India Jawahar Lal Nehru and the Prime minister of Pakistan Shri Feroz Khan Noon.
According to this agreement the states were divided between India and Pakistan.
A part of Berubari was to be given to Pakistan.
Provisions in discussion-
Article – 3 of the Constitution of India
Article 3 deals with the formation of new states and the alteration of areas, boundaries, or names of existing states. It reads as follows-
“(a) From 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”
Article 1 of COI was also in question. It contains the structure of India.
Its text-
Article -1(1): India, That is Bharat, shall be a Union of states
Article -1(2): The states and the territories thereof shall be as specified in the First Schedule.
Article-1(3): The territory of India shall comprise-
(a) The territories of India
(b) The union territories specified in the First Schedule
(c) Such other territories as may be acquired
The question was that if any legislative action is required for the implementation of the agreement relating to the Berubari Union. Now there is no right with the government to cede any part of India in favour of any other nation.
The Judgment-
The Supreme Court agreed that the governments have agreed upon the most expedient way and reasonable way to resolve the dispute. It will divide the area in half for each country. The Court rejected the thought that the agreement is “no more than ascertainment and delineation of the boundaries in the light of the award.
The court also held that the Preamble is not the part of Constitution.
Article 1(3)(c) doesn’t confer any power or authority on India to acquire territories.
The government can amend the Constitution including Article 1 of the Constitution.
The court said that in case any part is required to be ceded in favors of a foreign state, the law is to be implemented via Article 368 and not via Article 3 of COI.
Read & Download the Full Berubari Union Vs Unknown
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CA Shafaly Girdharwal
CA
New Delhi, India
CA Shaifaly Girdharwal is a GST consultant, Author, Trainer and a famous You tuber. She has taken many seminars on various topics of GST. She is Partner at Ashu Dalmia & Associates and heading the Indirect Tax department. She has authored a book on GST published by Taxmann.
