INTRODUCTION
Immediately after independence the Indian constitution saw many challenges on issues that are at the cusp of its sovereignty, federal character, and international affairs. One of these issues has arisen not on account of any provision of the Indian constitution, but on account of its omission. While the Indian constitution is extremely elaborate on matters relating to the acquisition of territories or internal restructuring of territories in its Schedule I, there is no provision on cession of territory to a foreign State.
This silence acquired constitutional significance in the year 1958, with the Indo-Pakistan Agreement contemplating the division of Berubari Union No. 12, an area which has been under the administration of the State of West Bengal since the Radcliffe Award of 1947 and the exchange of enclaves lying along the Indo-Pakistan border.
Berubari Union No. 12 was under continuous administration as part of West Bengal since 1947, and it was deemed to be Indian territory when the Constitution applied from 26th January 1950. Notably, when India and Pakistan chose to refer their boundary disputes regarding their post-Partition boundary to the Indo-Pak Boundary Disputes Tribunal, popularly known as the Bagge Commission, Berubari was not within these boundary disputes. It was for the first time in 1952 when the Pakistani claim over Berubari was put forward before Bagge Commission. These circumstances assumed the gravitas of becoming constitutional because while the Agreement of 1958 did not purport to interpret or attempt to give effect to the Radcliffe Award but suggested dividing Berubari Union ‘half and half’.
The constitutional issue was not about the political desirability of signing and ratifying such an Agreement, but about the legal mechanism to accomplish it. A dispute arose as to whether it could be carried out through an act of Parliament using Article 3 of the Constitution, which allows changes to State boundaries and reduction of State area, or if it required a constitutional amendment under Article 368. Considering its significance and the fact that it was to take a long time through constitutional litigation, the President of India referred it to the Supreme Court under its advisory jurisdiction under Article 143.
The Berubari dispute was not simply a cartographic misfortune but a consequence of the arbitrary delineation of the Radcliffe Line, which often paid little or no attention to geographical continuities and local realities. Villages adjoining the Teesta River were mapped onto the “wrong” side of the border, with many villages and towns ending up as enclaves-elephantine administrative uncertainties for their populations. The boundary aberrations turned Berubari into an “adverse possession land,” torn as it was between two unequal sovereign claims. It is against this legal ambiguity and human uncertainty that the Indo-Pakistan Agreement of 1958 was negotiated.
ARTICLE 1 AND THE CONSTITUTION OF INDIA
Article 1 of the Constitution states that “India, that is Bharat, shall be a Union of States” and delineates the Union’s territorial composition. By specifying in clause (3) that the territory of India consists of the territories of the States and the Union Territories as listed in the First Schedule plus “any other territories that may be acquired” the Supreme Court of India in In re Berubari Union and Exchange of Enclaves stated that Article 1 does not empower the government to acquire territories but recognizes the consequences of the law that follows once territory is transferred by obtaining sovereign authority under international law. By regarding the claim in Article 1 as one of assertion and not one of empowerment, the Supreme Court made sure that the issue of territorial movements would not be open for a narrow or literal reading of Part I of the Constitution. Article 1 was considered as a constitutional declaration of the territory of India at a certain time, not as a provision laying down the legal ways through which this identity might be changed. Any change in the territorial description as provided in Article 1 would thus necessitate following the relevant constitutional procedure.
The Court next analysed the importance of the non-discussion of territorial cession in Article 1. The requirement for acquisition is made clear, but the provision does not in any way refer to the disposal or transfer of Indian territory. The Court did not agree to the argument that this silence indicated a total constitutional prohibition on cession, since it acknowledged that under international law the power to cede territory is innate to sovereignty. Nevertheless, this silence was given an importance akin to a constitutional matter. It pointed out that such a dramatic change of sovereignty could not be done through a mere hint, executive power, or ordinary legislation. To make the matter more complicated, the Union claimed that the Agreement merely consisted of the settlement or confirmation of a disputed boundary in accordance with the Radcliffe Award. The Court said no to this kind of characterization, noticing that the Agreement was not trying to interpret or implement the Award, rather it was reflecting an independent political decision to split Berubari Union No. 12 equally between India and Pakistan. With this reasoning, the Court arrived at the conclusion that the Agreement encompassed the outright cession of Indian territory instead of just minor boundary adjustment.
The Court, having arrived at this conclusion, ruled that the execution of the Agreement would inevitably affect the territorial demarcation laid out in Article 1 and the First Schedule. This change could not be brought about through normal legislative or executive means but would need to be done under the Article 368 through the use of constituent power. Article 1, therefore, acted as a constitutional benchmark allowing the transfer of territory in principle, but putting it through rigorous constitutional and democratic scrutiny.
LIMITED SCOPE OF ARTICLE 2
Article 2 gives power to Parliament to admit into the Union or to constitute new States on such terms and conditions as it thinks fit. This provision is prospective in its operation. This provision applies when foreign or acquired territories come within the constitutional framework in India. This provision is integrative rather than destructive.
In the case of Berubari, the Supreme Court indicated that Article 2 must be read together with Article 1(3)(c). Both these articles ensure the constitutional assimilation of the territory after acquisition. Article 2 presumes the existence of territory that is not yet assimilated into the Indian Union and does not provide for the cession of the territory that already forms part of the Union.
It therefore follows that the Court viewed Article 2 in the matter of territorial cession with constitutional irrelevance. It seems strained should such authority be derived from Article 2. Thus, there is no effect on the distinction of integrative powers in contrast with the constituent power.
ARTICLE 3 AND THE LIMITS OF FEDERAL REORGANISATION
The Union of India maintained that the Agreement could be executed under Article 3(c) which permits Parliament to reduce the area of a State. At first sight, this assertion was quite reasonable as the cession of territory would automatically mean the area of a State would be diminished. However, the Court did analyse this point and said that the purpose and the limitation of Article 3 were the reasons to reject it. Article 3 was considered to deal only with the reshuffling of the States within the federal setup creation of new States, changing of boundaries, and reallocation of land among the constituent units. All these amendments are done within the Indian Union's framework. The "diminution" referred to in Article 3 implies that the territory remains under India's control. The idea of considering cession as part of Article 3(c) would change the very nature of the clause. The transfer of territory to another country includes the transfer of sovereignty which is entirely different from the case of internal boundary readjustments. The Court pointed out a structural flaw: Article 3 is applicable only to States but not to Union Territories. If cession was allowed under Article 3, Parliament could give away a part of a State but not a Union Territory this would be an illogical outcome from a constitutional standpoint. Thus, the Court stated that Article 3 cannot permit the transfer of Indian territory in any form, whether direct or indirect. Any such agreement that involves cession is thus ruled out of Article 3's scope.
ARTICLE 368 AND CONSTITUENT POWER
Having turned down Articles 2 and 3 as constitutionally valid grounds, the Court looked at Article 368 next. It stated that the relinquishment of territory must be accompanied by the changes in Article 1 and the First Schedule, thus it necessitates a constitutional amendment. Simultaneously, the Court dismissed the argument that India is completely powerless to give away territory. It accepted cession as a right of sovereignty, citing international law. Under the Indian Constitution, however, the exercise of such power is through the constituents only. Article 368 thus acts as a link between the two extremes of sovereignty and democracy. The procedural hurdles it imposes allow for the decisions that influence the territorial integrity to go through more vigorous democratic scrutiny. The Court also took a sophisticated stance saying that if Parliament wanted, it could go ahead and modify Article 3 to include cession and then pass the relevant law. However, this leeway did not at all reduce the core ruling that territorial cession cannot happen without the constituent power being invoked.
CLARIFICATION IN MAGANBHAI ISHWARBHAI PATEL V. UNION OF INDIA
The principles laid down in Berubari were elucidated in Maganbhai Ishwarbhai Patel v. Union of India, which dealt with the implementation of an arbitration regarding the boundary between Indo-Pakistan in the Rann of Kutch. The important issue that arose in this case revolved around the question as to whether the enforcement of such an arbitral award would be considered as the cession of the Indian territory and therefore require a constitutional amendment as mandated by Article 368.
The court reaffirmed the major holding of Berubari, that cession of territory signifies a transfer of sovereignty and can never be actualized apart from the exercise of constituent power. Nevertheless, the Court cautioned against a too expansive interpretation of Berubari, such that every international delimitation of boundaries came within the jurisdiction of cession. The decision stated that constitutional scrutiny depends not upon form but upon substance.
The Court, thus, drew a basic distinction between cession of territory and demarcation or ascertainment of an existent boundary. The result of this decision was that if an international agreement or an arbitral award only determined the existent boundary in accordance with an international legal obligation and did not involve transfer of sovereignty over territory which was admittedly Indian, its implementation would not be taken as cession. The Court said:
“If as a result of the award some territory which was previously administered by India falls on the other side of the boundary, it does not follow that there has been any cession of territory. There is no question of any transfer of sovereignty where the award merely determines the boundary in accordance with the rights of the parties.”
Here unlike Berubari there was neither political compromise nor voluntary cession. Moreover the arbitral award did not attempt to cede any territory that was recognized to be within India. The award merely clarified within which limits the boundary lay, making it different from Berubari. The Court consequently held that the application of the award does not come within Article 368. Most importantly, Maganbhai defined the role of the executive regarding foreign relations and boundary delimitation. The Court held that the executive had the power to sign international treaties and agreements, which would include boundary delimitation. The Court declared the power could be acted upon without intervention from the legislature or the constitution, unless it led to cession. The court said:
“The executive is competent to enter into treaties and agreements with foreign States, and to give effect to them, so long as no law of the land is required to be changed and no constitutional amendment is necessitated.”
This aspect of the judgment assumes great significance in conjunction with Berubari. Whereas Berubari constitutionalized territorial cession by making it subservient to Article 368, Maganbhai ensured that the decision did not cripple India's ability to engage in foreign relations or settle boundary questions. The Court made it plain that constitutional amendment is necessary only when consequences of an agreement take effect in the shape of a surrender of sovereignty and not if those consequences are no more than merely territorial in nature.
The Court thus explicitly rejected the contention that any loss of control or administration over territory ipso facto suggests cession. What is determinative, it held, is whether the territory was unmistakably Indian in law prior to the agreement. Where the sovereignty itself is uncertain or disputed, and the agreement resolves that uncertainty, Article 368 is not attracted. As the Court explained
“The test is not whether the territory was in fact administered by India, but whether in law it belonged to India so that its transfer would amount to cession.”
In this respect, Maganbhai did not weaken the applicability of the decision in Berubari but rather protected it from mechanical or indiscriminate application. Berubari applies to situations involving a political choice to shed part of the sovereign domain of India. In Maganbhai's case, the applicable agreement merely gave effect to the legal demarcation of the boundary without affecting the sovereignty.
The two judgments put together provide a clear and consistent framework for the constitution. While Berubari ensures that the cessation of territorial integrity receives the highest form of judicial review through Article 368, Maganbhai supports this by protecting the powers of the executive in dealing with foreign relations and boundary issues. The two judgments, therefore, provide a clear and consistent doctrine that ensures a good work-out between the supremacy of the constitution and the realities of international law.
CONCLUSION
The advisory opinion in Berubari was a significant development in Indian constitutional law addressing the issue of territorial sovereignty within the realm of constitutional procedure. The Supreme Court held that the executive or normal legislation would by itself be inadequate in territorial cession and that the delivery of Indian territory would be done by the exercise of the constituent power under Article 368 of the Constitution. However, the Court did not adopt nihilistic overtones in that it upheld the sovereignty of India in giving up its territories but at the same time checked its exercise within the parameters of the Constitution. This position was further clarified in Maganbhai that it held that delimitation of territories would not constitute cession. Together, the decisions reconcile constitutional supremacy with the practical demands of international relations.
CITATIONS
1)Urvashi Butalia, The Nowhere People, Seminar No. 510 (2002).
2)Pradyumna P. Karan, The India–Pakistan Enclave Problem, 23 Political Geography Quarterly 1 (1966).
3)In re Berubari Union and Exchange of Enclaves, AIR 1960 SC 845 : MANU/SC/0026/1960.
4)H.M. Seervai, Constitutional Law of India, Vol. 1
5)Maganbhai Ishwarbhai Patel v. Union of India, (1970) 3 SCC 400.