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PETITIONER: IN RE: THE BERUBARI UNION ANDEXCHANGE OF ENCLAVES

       Vs.

RESPONDENT: REFERENCE UNDER ARTICLE 143(1) OFTHE CONSTITUTION OF INDIA

DATE OF JUDGMENT: 01/04/1959

BENCH:

ACT: President’s Refeyence-Indo-Pakistan Agreement, 1958-Division of  Berubari Union and exchange of  Cooch-Behar  Enclaves-If involve  cession  of  territory-Implementation-Amendment  of Constitution-Constitution of India, Arts.  1, 3, 368.

HEADNOTE: As  a result of the Radcliffe Award dated August  12,  1947, Berubari  Union  No.  12 fell within  West  Bengal  and  was treated as such by the Constitution which came into force on January 26, 195o, and has since been governed on that basis. Certain disputes arose between India and Pakistan subsequent to the Radcliffe Award but Berubari was not in issue  before the Badge Commission set up by agreement between the parties to decide those disputes.  That commission made its award on January 26, 195o.  Pakistan raised the question of  Berubari for the first time in 1952 alleging that under the Radcliffe Award  it  should form part of East Bengal and  was  wrongly included  in West Bengal.  On August 28, 1949, the Ruler  of the State of Cooch-Behar 251 entered  into an agreement of merger with the Government  of India  and that Government took over the  administration  of Cooch-Behar which was ultimately merged with West Bengal  on January  1, 1950, so as to form a part of it.  It was  found that  certain  areas which belonged to the State  of  Cooch- Behar  became enclaves in Pakistan after the partition,  and similarly certain Pakistan enclaves fell in India. In  order to remove the tension and conflict caused  thereby the  Prime Ministers of India and Pakistan entered  into  an agreement,  called the Indo-Pakistan Agreement on  September 10, 1958, and items 3 and 10 of that agreement provided  for a division of Berubari Union half and half between India and Pakistan  and  for an exchange of  Cooch-Behar  Enclaves  in Pakistan and Pakistan Enclaves in India. Doubts  having subsequently arisen regarding  the  implemen- tation  of the said items, the President of  India  referred the  matter  to the Supreme Court under Art. 143(1)  of  the Constitution: Held,  that item NO. 3 of the Agreement leaves no manner  of doubt that the parties to it were thereby seeking to  settle the  dispute apart from the Award, amicably, and on  ad  hoc basis  by  dividing the territory half and half.   There  is absolutely  no  indication in it that they were  seeking  to interpret  the  Award  and determine the  boundary  on  that basis.   The question relating to Berubari must,  therefore, be  considered on the basis that it involves cession  of  ;1 part of India’s territory to Pakistan and this applies  with greater  force to the agreement relating to the exchange  of

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the enclaves. There  can  be  no  doubt that  the  implementation  of  the Agreement would alter the boundary of West Bengal and affect Entry 13 in the First Schedule to the Constitution, since as a  matter  of fact Berubari was treated as a  part  of  West Bengal  and governed as such from the date of the Award  and was  thus comprised therein before the commencement  of  the Constitution.   Any  argument  to the  ’contrary  cannot  be accepted. The  State of Australia v. The State of Victoria, (1911)  12 C.L.R.  667  and the State of South Australia- v.  State  of Victoria,   [1914]   A.C.  283,   distinguished   and   held inapplicable. Although it may be correct to describe the preamble as a key to the mind of the Constitution-makers, it forms no part  of the Constitution and cannot be regarded as the source of any substantive  power which the body of the Constitution  alone can  confer on the Government, expressly or by  implication. This  is equally true of prohibitions and  limitations.   It was  not, therefore, correct to say that the preamble  could in  any way limit the power of Parliament to cede  parts  of the national territory.  Nor was it correct to say that Art. 1(3)(c) did so. Article  1(3)(c)  correctly construed, confers no  power  to acquire foreign territories but merely recognises  automatic absorption  of such territories as may be acquired by  India in  its sovereign right and, consequently, does not  exclude by  implication,  the  power  to  cede  national  territory. Moreover, the power to amend 252 the  Constitution  under Art. 368 gives the  Parliament  the power  to amend Art. 1(3)(c) so as to include the  power  to cede  national  territory  as  well.   It  was,   therefore, incorrect  to  suggest  that the sovereign  State  of  India lacked the two essential attributes of sovereignty,  namely, the power to acquire foreign territory and the power to cede national territory, and that no process of legislation could validate the Agreement in question. Although such cession of territory, which amounts in law  to a transfer of sovereignty must cause great hardship from the human point of view, the right of a sovereign State to do so in  the exercise of its treaty-making power and  subject  to such  limitations as the Constitution may, expressly  or  by necessary implication, impose, can never be in doubt and the question  as  to whether the treaty can  be  implemented  by ordinary  legislation  or by constitutional  amendment  must depend on the provisions of the Constitution itself. It may be assumed in construing Art. 3 that the Constitution contemplated  changes  of  the  territorial  limits  of  the constituent  States  and  there was no  guarantee  of  their territorial integrity.  Broadly speaking, that Article deals with the territorial adjustment inter se of the  Constituent States  of  India, and not merely  their  reorganisation  on linguistic  or  other basis.  Article 3(c)  deals  with  the diminution of the area of a State and it is unreasonable  to suggest that it is wide enough to cover cession of  national territory.  The true position is that the Constitution  does not  expressly  provide either for  acquisition  of  foreign territory  or forcession of national territory;  powers  are inherent in that behalf in every sovereign State. Consequently,  the Agreement cannot be implemented by a  law relatable  to Art. 3 and legislation relatable to  Art.  368 would be inevitable. It follows, therefore, that the Parliament acting under Art. 368  can  make  a  law to  give  effect  and  implement  the

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Agreement  in  question  covering  both  Berubari  and   the Enclaves or pass a law amending Art. 3 so as to cover  cases of  cession of the territory of India and thereafter make  a law under the amended Art. 3 to implement the Agreement.

JUDGMENT: ADVISORY JURISDICTION : Special Reference No. 1 of 1959. Reference by the President of India under Article 143(1)  of the Constitution of India on the implementation of the Indo- Pakistan  Agreement relating to Berubari Union and  Exchange of Enclaves. The  circumstances  which  led  to  this  Reference  by  the President  and the questions referred appear from  the  full text  of  the  Reference  dated  April  1,  1959,  which  is reproduced below:- WHEREAS   the  Boundary  Commission  appointed   under   the Chairmanship of Sir Cyril Radcliffe in 253 accordance  with sub-section (3) of section 3 of the  Indian Independence Act, 1947, made an Award, hereinafter  referred to  as  "the  Radcliffe Award", a copy  whereof  is  annexed hereto  as  Annexure 1, determining the  boundaries  of  the Province  of  East Bengal and the Province  of  West  Bengal constituted by clause (b) of sub-section (1) of section 3 of the said Act; AND  WHEREAS certain boundary disputes having arisen out  of the  interpretation of the Radcliffe Award, the Dominion  of India  and the Dominion of Pakistan set up, by agreement,  a Tribunal under the Chairmanship of the Hon’ble Lord  Justice Algot Bagge for the adjudication and final settlement of the said  boundary  disputes and for  demarcating  the  boundary accordingly: AND  WHEREAS  the said Tribunal gave decisions on  the  said boundary disputes, such decisions being hereinafter referred to  as "the Bagge Awards", a copy whereof is annexed  hereto as Annexure 11; AND WHEREAS, with respect to the District of Jalpaiguri, the demarcation  of  the boundary line between the  Province  of West Bengal and the Province of East Bengal is described  in paragraph  1  of  the Schedule forming  Annexure  A  to  the Radcliffe Award as follows :- "A line shall be drawn along the boundary between the  Thana of  Phansidew a in the District of Darjeeling and the  Thana Tetulia  in the District of Jalpaiguri from the point  where that boundary meets the Province of Bihar and then along the boundary  between  the Thanas of Tetulia  and  Rajganj;  the Thanas  of Pachagar and Rajganj, and the Thanas of  Pachagar and  Jalpaiguri, and shall then continue along the  northern corner of the Thana Debiganj to the boundary of the State of Cooch Behar.  The District of Darjeeling and so much of  the District  of  Jalpaiguri as lies north of  this  line  shall belong  to  West Bengal, but the Thana of  Patgram  and  any other portion of Jalpaiguri District which lies to the  east or south shall belong to East Bengal"; 254 AND  WHEREAS a further dispute arose between the  Government of  India  and the Government of  Pakistan  whether,  having regard  to the above description of the boundary  line  with respect  to the District of Jalpaiguri, the Radcliffe  Award assigned  the  territory  in  the  said  District  known  as Beruibari Union No. 12 (being the territory covered by  blue parallel lines in the sector map, a copy whereof is  annexed hereto  as Annexure III) to the Province of West Bengal,  as

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contended by the Government of India or it assigned a  major portion  of  the  said territory to  the  Province  of  East Bengal, as contended by the Government of Pakistan ; AND  WHEREAS certain other disputes also arose  between  the Government of India and the Government of Pakistan regarding the interpretation and implementation of certain other parts of  the  Radcliffe  Award and of some  parts  of  the  Bagge Awards; AND  WHEREAS  the  problem arising  from  the  existence  of enclaves  in Pakistan of certain territories of India  which formed part of the territories of the former Indian State of Cooch-Behar (shown in red in the sector map, a copy  whereof is  annexed hereto as Annexure IV) and of enclaves in  India of  certain  territories of Pakistan (shown in blue  in  the said  sector  map) was, along with  other  border  problems, engaging  the attention of the Government of India  and  the Government of Pakistan;  AND WHEREAS, with a view to removing causes of tension  and resolving  border  disputes and problems relating  to  Indo- Pakistan  border areas and establishing peaceful  conditions along  those areas, the Prime Minister of India, for and  on behalf of the Government of India, and the Prime Minister of Pakistan,  for and on behalf of the Government of  Pakistan, entered into an agreement settling some of the said disputes and  problems  in  the manner set out in  the  note  jointly recorded  by  the  Common  wealth  Secretary,  Ministry   of External  Affairs,  Government  of India,  and  the  Foreign Secretary,  Ministry.  of Foreign Affairs  and  Commonwealth Relations, Government of Pakistan’ a copy whereof is annexed hereto as Annexure V, the agreement as embodied in the said 255 note  being  hereinafter referred to as  "the  Indo-Pakistan Agreement"; AND   WHEREAS  the  Indo-Pakistan  Agreement   settles   the aforesaid  dispute  relating  to  the  territory  known   as Berubari Union No. 12 in the manner specified in item (3) in paragraph   2  thereof,  the  agreement  relating  to   such settlement  being hereinafter referred to as "the  Agreement relating to Berubari Union" ; AND   WHEREAS  the  lndo-Pakistan  Agreement   settles   the aforesaid  problem  arising  from the  existence  of  Indian enclaves  in  Pakistan  and Pakistan enclaves  in  India  by exchange of enclaves in the manner set out in Item (10) read with Item (3) in paragraph 2 thereof, the agreement relating to  such exchange of enclaves being hereinafter referred  to as "the Agreement relating to Exchange of Enclaves"; AND WHEREAS a doubt has arisen whether the implementation of the  Agreement  relating  to  Berubari  Union  requires  any legislative  action  either  by way of  a  suitable  law  of Parliament relatable to article 3 of the Constitution or  by way   of  a  suitable  amendment  of  the  Constitution   in accordance  with  the  provisions  of  article  368  of  the Constitution or both; AND  WHEREAS  a doubt has arisen whether a suitable  law  of Parliament  relatable  to article 3 of the  Constitution  is sufficient  to implement the Agreement relating to  Exchange of Enclaves or whether, in addition or in the alternative, a suitable  amendment of the Constitution in  accordance  with the  provisions  of  article  368  of  the  Constitution  is necessary for the purpose; AND  WHEREAS  there  is  likelihood  of  the  Constitutional validity  of any action taken for the implementation of  the Agreement  relating  to  Berubari Union  and  the  Agreement relating to Exchange of Enclaves being questioned in  courts of law, involving avoidable, and protracted litigation;

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AND  WHEREAS, in view of what has been hereinbefore  stated, it  appears to me that the questions of law hereinafter  set out  have  arisen  and  are  of  such  nature  and  of  such importance  that  it is expedient that the  opinion  of  the Supreme Court of India should be obtained thereon; 256 Now, THEREFORE, in exercise of the powers conferred upon  me by  clause  (1)  of  article 143  of  the  Constitution,  1, Rajendra  Prasad,  President  of  India,  hereby  refer  the following  questions  to  the Supreme  Court  of  India  for consideration and report thereon, namely:- "(1)Is   any   legislative  action-  necessary   for   the, implementation of the Agreement relating to Berubari Union ? (2) If so, is a law of Parliament relatable to article 3 of the  Constitution  sufficient  for  the  purpose  or  is  an amendment of the Constitution in accordance with article 368 of  the  Constitution  necessary,  in  addition  or  in  the alternative ? (3)  Is  a law of Parliament relatable to article 3  of  the Constitution sufficient for implementation of the  Agreement relating  to Exchange of Enclaves or is an amendment of  the Constitution   in  accordance  with  article  368   of   the Constitution  necessary for the purpose, in addition  or  in the alternative ?" [Annexures omitted] 1959.  December 8, 9, 10 and II.  M. C. Setalvad,  Attorney- General  of  India,  C. K. Daphtary,  Solicitor  General  of India, H. N. Sanyal, Additional Solicitor General of  India, G.  N. Joshi, R. H. Dhebar and T.. M. Sen, for the Union  of India.   It is important to note that the integrity  of  the territory   of   the  States  is  not  guaranteed   by   the Constitution  of India and Parliament is made  Supreme  even with  respect  to the questions relating to  the  territory. Part  1  of the Constitution is a self-contained  code  with respect to the territory of the Union.  The residuary powers are   vested   in  Parliament.   The   provisions   in   the Constitution of the United States, Australia and Canada  are entirely different’ The Prime Ministers’ agreement with regard to Berubari Union No.  12  does not involve any cession of territory,  but  it merely ascertains the boundary between East Bengal and  West Bengal,  which had been left vague by the  Radcliffe  Award. As  such, this part of the agreement can be  implemented  by executive 257 action.  Where there is merely settlement of boundaries,  it is not a case of alienation of cession of land. The State of South Australia v. State of Victoria, 12 C.L.R. 667; Penn v. Baltimore, 1 Ves.  Sen. 444; Gran-dall on Treaties, 1  Edn., pp. 115 and 161 ; The Lessee of Lattimer et al v. Poteet, 10 L.  Ed. 328.  The territories of Berubari Union No. 12  were being governed by West Bengal unconstitutionally and did not fall   within.  item  3  of  the  First  Schedule   to   the Constitution.’  Berubari  Union  was  administered  by  West Bengal as its own territory, though legally it was not  part of  its  territory and it was not administered "  as  if  it formed part of West Bengal " within the meaning of item 3 of Sch.  1. The giving of a part of the Berubari Union to  East Bengal under the Prime Ministers’ agreement did not  involve any  amendment  to the First Schedule to  the  Constitution. A.I.R. 1959 Cal. 506 at 517 and 518. The  executive power of the Union is co-extensive  with  the powers of Parliament with this limitation that the executive cannot act against the provisions of the Constitution or  of any law made by Parliament. [1955] 2 S.C.R. 225 at  234-237.

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The  power of making treaties is within the sovereign  power and  resides both in the executive and in Parliament.   What the  executive can do in respect of treaties and  agreements is part of the Governmental function.  The executive can  by entering  into  a  treaty or  agreement  settle  a  boundary dispute  which  does not involve acquisition or  cession  of territory. If  the agreement relating to Berubari does not amount to  a mere settlement or delineation of boundary, then legislation by Parliament relatable to Art. 3 of the Constitution  would be  sufficient  but,  legislation under Art.  368  would  be incompetent.  Part 1 of the Constitution is a self-contained code  dealing with the territories of the Union.  Article  1 defines  the  territory  of India as the  territory  of  the States;  the  description of the territories of  the  States describes  the territory of India.  Article  2  contemplates addition to the territories of the Union by the admission of new  States or new areas.  Article 3(a) contemplates in  its last part uniting any territory to 158 a  part  of  any State and any  territory  includes  foreign territory  that may be acquired.  Article 3(b)  contemplates increase in the area of any State which may be by  acquiring foreign  territory  and  adding it to  that  of  the  State. Article 3(c) contemplates the diminishing of the area of any State which may be by cession to a foreign power.  There  is no restriction or limitation placed on the words "  increase " or " decrease in clause (b) and(c) of Art. 3 and they  are comprehensive  enough  to include increase  or  decrease  by acquisition  of  foreign  territory or cession  of  a  State territory.  See Babulal Parate’s case, [1960] 1 S.C.R.  605. No  doctrinaire approach or preconceived notions  should  be imported  in  the  interpretation of Arts. 2  and  3  of  an organic instrument like the Constitution.  Legislation under Art.  368  of  the Constitution  is  neither  necessary  nor proper.  Legislation under Art. 368 would put the States  to a  disadvantage  as  under  that Article  it  would  not  be necessary, as it would be under Art. 3, to refer the bill to that State for expressing its views thereon. The  exchange of the Cooch-Behar enclaves does  not  involve cession   of  territory  and  executive  action   alone   is sufficient  to  implement  the agreement.   An  exchange  of territory  for administrative considerations as a part of  a larger  settlement does not amount to  cession.   Oppenhiem, 8th  Edn.,  p.  451, Art. 169, p. 548,  Art.  216,  p.  547; Halsbury,  Vol.  7,  Art.  604.   Even  if  the  transaction involves  cession of territory, legislation under Art. 3  of the  Constitution  will  be  sufficient  to  implement   the agreement. The  Union has the right to cede territory if and  when  the occasion  arises.   Such a right vests  in  every  Sovereign State  and  can  be  implied  even  when  not   specifically conferred by its Constitution.  Willoughby, Vol.  1, p. 572. S.   M. Bose, Advocate-General, West Bengal, B. Sen, K.   C. Mukherjee  and  P. K. Bose, for the State  of  West  Bengal. Under the Indian Independence Act the whole of the  district of  Jalpaiguri was provisionally given to West  Bengal.   If the Radcliffe Award fixed the boundary line, then there  can be  no dispute and no necessity for the agreement.  But,  if the Award 259 did  dot fix the line and left it undetermined,  then  under the  Indian Independence Act, the whole of Berubari went  to West Bengal.  The Act contemplate settlement of the boundary by an Award and not by agreement of the Prime Ministers.  If

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the  Award  did not settle the boundary, then the  whole  of Jalpaiguri   belonged  to  India.   The   Prime   Ministers’ agreement  in  fact divides Berubari half and  half  without making  any attempt to clarify the Award.  It was  wrong  to say that the agreement amounts merely to delineation of  the boundary.   It  involves  cession  of  Indian  territory  to Pakistan.   The  Constitution gives power  only  to  acquire foreign  territory  and  not to  cede  Indian  territory  to foreign powers.  First, it would be necessary to take action under Art. 368 empowering Parliament to make law for cession of  territory  and  then legislation under  Art.  3  can  be resorted  to.  In Art. 3(a) the words " any territory "  are not  wide  enough to include foreign territory;  they  apply what  has already been acquired and has become part  of  the Union under Art. 1. Parliament has power only to pass law in respect  of  territory  over  which  it  has   jurisdiction. Article 3 merely deals with the internal arrangement of  the territories of the States and does not deal with acquisition of  foreign territory or cession of the Indian territory  to foreign powers. N.C.  Chatterjee with Janardan Sharma for  Krishna  Kumar Chatterjee  and Ramaprasanna Roy and with U. M. Trivedi,  D. R. Prem, Veda Vyasa, R. Thiagarajan and Ganapat Rai, for (1) the President, Bharatiya Jana Sangh, Kerala, (2)  Secretary, Jana  Sangh,  Mandi, (3) Shri Tata  Srirama  Murthy,  Akhila Bharatiya Jan. sangh, Visakhapatam, (4) Chairman,  Bharatiya Jansangh,  Mangalore,  (5)  Secretary,  Bharatiya  Jansangh, Sitapur,  (6) Shri N. Thamban Nambiar,  Bharatiya  Jansangh, Thaliparambu and (7) President, Bharatiya Jansangh, Pattambi (Cochin).    The  Prime  Ministers’  agreement   cannot   be implemented  at  all.  Indian territory cannot be  ceded  at all.  Berubari is an integral part of the Union of India and it  was and has all along been under the possession of  West Bengal since the partition of the country in 1947.  The true nature  of the Prime Ministers’ agreement is that it is  not the 260 ascertainment of a boundary in accordance with the Radcliffe Award,  but  it is a pure case of cession  of  territory  to Pakistan.  The case reported in The State of South Australia v.  State of Victoria, 12 C.L.R. 667, has no bearing, as  in that  case there was no question of giving of any  territory to  a  foreign power.  Similarly, Penn v.  Baltimore,   Ves. Sen.  444,  was  not  concerned  with  the  cession  of  any territory.   There are certain implied prohibitions  in  our Constitution   and   it  is  not  a   completely   amendable Constitution.   The  preamble to the Constitution  does  not permit   the  dismemberment  of  India  and  preserves   the integrity of the territory of India.  Article 4, s. 3, para. 2, of the United States Constitution gives a specific  power to  cede territory.  It does not flow necessarily  from  the concept  of sovereignty that the Government must have  power to  cede its territory. 33 L. Ed. 642; 1933 U. S. 258.   The express mention of the power of acquisition in Arts. 1 and 2 excludes  the power to cede.  The maxim "  expression  unius exclusio alterius " is applicable to statutes also.   Brooms Legal  Maxims, 10th Edn., p. 452; Craies, 5th Edn., p.  240; 1951  U.  S. 914; Willoughby, Vol. 1, p.  518.   The  Indian Parliament  is  not  sovereign and  it  is  prohibited  from changing or dismembering or whittling down the territory  of India.  [1951] S.C.R. 744, 968.  The preamble is the key  to open the minds of the makers. 8 E.R. 1034; A.I.R. 1956  S.C. 246;  [1950] S.C.R. 1098.  In the transfer of the  areas  of Berubari to Pakistan, the fundamental rights of thousands of persons   are   involved.  The  rights  of   franchise   and

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citizenship cannot be taken away by executive action. C.B.  Agarwala  and A. G. Ratnaparkhi,  for  the  Secretary, Jalpaiguri Revolutionary Socialist Party, the Secretary, All India  Forward  Bloc,  Calcutta  and  Shri  Nirmal  Bose  of Jalpaiguri.    The  agreement  cannot  be   implemented   by executive  action.  The Government is not dealing  with  its own  property  but with the property of  the  States.   Even legislation under Art. 3 would not be sufficient.  The right of  citizenship cannot be taken away except  by  legislation under  Art. 1 1. In the implementation of the agreement  the fundamental rights guaranteed by Part III of the 261 Constitution  are involved and the citizens of that part  of Berubari which has to be given to Pakistan will be  deprived of all such rights.  Citizens of India cannot be deprived of their  fundamental rights by legislation under Art.  3.  The agreement  cannot be implemented even by  legislation  under Art.  368  as there are limitations on the  power  to  amend imposed  by  the preamble.  Such an agreement  can  only  be implemented with the consent of the people by referendum. D.R. Prem (with the permission of the court).  Article  3 deals  with the formation of new States and  alterations  of areas,  boundaries or names of existing States as  indicated in  the marginal note.  Article 3 makes the same  provisions in the present Constitution as s. 290 did in the  Government of India Act, 1935.  Both deal with internal arrangement and not with foreign territory. M.C. Setalvad, in reply.  The description of the boundary line  in the Radcliffe Award is not clear and the  provision in the agreement that the division would be horizontal  only means that the division is to be by means of a line  running east  to  west dividing the territory half  and  half.   The preamble  cannot  control the unambiguous  language  of  the Articles  of the Constitution.  Willoughby, Vol. 1,  p.  62. Constitution  of the United States of America, 1952 Edn,  p. 59.   The preamble is not a part of the  Constitution.   The language  of Art. 368 is perfectly clear and no  limitations can  be  placed  upon it on account of  the  preamble.   The rights  of  citizenship and the fundamental  rights  do  not affect the power under Art. 368.  It is only by  legislation under Arts. 2 or 3(a) that foreign territory can be acquired and can become part of India.  There is no reason or warrant to restrict the language or the scope of Art. 3. Clause  (a) of Art. 3 clearly deals with foreign territory and there  is no warrant for considering clauses (b) and (c) in any  other way  as  not  relating to foreign  territory.   Every  other provision in Part 1 of the Constitution envisages two  kinds of  territory-Indian and foreign-and there is no  reason  to envisage  only one kind of territory in cls. (b),  (c),  (d) and (e) of Art. 3. The Court should not construe the 34 262 provisions  in  such a manner as would make  adjustments  of boundary difficult.  It is of the essence of sovereignty  to cede  and to acquire territory.  Willoughby,.  Vol.  1,  pp. 575  and 576, Willis, pp. 254 to 255.  There is no  specific provision   regarding   cession   of   territory   in    any Constitution.   The  power to cede territory in  the  United States  is  included in its treaty making power and  is  not conferred  by  Article 4, section 3, part 2  of  the  United States  Constitution  as  stated by Shri  N.  C.  Chatterji. Willoughby,  Vol.  I, p. 90.  Parliament has been  empowered under  Art. 1 1 to take away the rights of  citizenship.   A law  under Arts. 3 and 4 will deal with "  supplemental  and incidental  "  provisions and may contain  provisions  under

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Art.  11  for taking away the rights  of  citizenship  also. Cession of territory necessarily affects the nationality and rights  of the inhabitants of the ceded territory.   Anson’s Law  and Custom of the Constitution, 4th Edn.  Vol. 2,  Part 11,  p. 141.  Fundamental rights cannot exist when there  is transfer of allegiance consequent upon cession of territory.                                 cur. adv. vult. 1960.  March 14.  The Opinion of the Court was pronounced by GAJENDRAGADKAR, J.-In accordance with the directives  issued by  the Prime Ministers of India and Pakistan, on  September 10,  1958, the Commonwealth Secretary, Ministry of  External Affairs,  Government  of India and  the  Foreign  Secretary, Ministry of Foreign Affairs and Commonwealth, Government  of Pakistan,  discussed  10 items of dispute  between  the  two countries and signed a joint note recording their  agreement in  respect of the said disputes and submitted it  to  their respective  Prime  Ministers; and with a  view  to  removing causes of tension and resolving border disputes and problems relating  to  Indo-Pakistan Border  Areas  and  establishing peaceful conditions along those areas, the Prime  Ministers, acting  on behalf of their respective  Governments,  entered into  an  agreement settling some of the said  disputes  and problems in the manner set out in the said joint note.  This agreement has been called the Indo-Pakistan 263 Agreement   and  will  be  referred  to  hereafter  as   the Agreement. 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 northeast 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." 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 for extra area going to Pakistan, is agreed to." It appears that subsequently a doubt has arisen whether  the implementation  of the Agreement relating to Berubari  Union requires any legislative action either by way of a  suitable law of Parliament relatable to Art. 3 of the Constitution or by  way  of  a suitable amendment  of  the  Constitution  in accordance   with  the  provisions  of  Art.  368   of   the Constitution  or both; and that a similar doubt  has  arisen about  the implementation of the Agreement relating  to  the exchange of Enclaves; and it further appears that there is a likelihood  of  the constitutional validity  of  any  action taken  for the implementation of the Agreement  relating  to Berubari  Union  as well as the Agreement  relating  to  the exchange  of  Enclaves  being questioned in  courts  of  law involving  avoidable and protracted litigation; that is  why the  President  thought  that questions of  law  which  have arisen are of such nature and of such importance that it  is expedient that the 264

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opinion  of  the Supreme Court of India should  be  obtained thereon;  and so, in exercise of the powers  conferred  upon him  by  cl.  (1) of Art. 143 of the  Constitution,  he  has referred  the  following three questions to this  Court  for consideration and report thereon:- (1)Is   any   legislative   action   necessary   for   the implementation of the Agreement relating to Berubari   Union? (2)If so, is a law of Parliament relatable to article 3 of the  Constitution  sufficient  for  the  purpose  or  is  an amendment of the Constitution in accordance with article 368 of  the  Constitution  necessary,  in  addition  or  in  the alternative ? (3)Is  a law of Parliament relatable to article 3  of  the Constitution sufficient for implementation of the  agreement relating  to Exchange of Enclaves or is an amendment of  the Constitution   in  accordance  with  article  368   of   the Constitution  necessary for the purpose, in addition  or  in the alternative ? Before  dealing  with the questions thus  referred  to  this Court  it  is necessary to set out briefly  the  historical, political  and constitutional background of  the  Agreement. On  February 20, 1947, the British Government announced  its intention to transfer power in British India to Indian hands by  June 1948 On June 3, 1947, the said Government issued  a statement  as to the method by which the transfer  of  power would be effected.  On July 18,1947, the British  Parliament passed  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 265 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 boundaries  are  so  determined,  (a)  the  Bengal  District specified     in    the    First    Schedule     of     this Act......................   shall   be   treated   as    the territories which are to be comprised as the new Province of East Bengal; (b) the remainder of the territories  comprised at  the date of the passing of this Act in the  Province  of Bengal shall ’be treated as the territories which are to  be comprised  in the new Province of West Bengal.   Section  3, sub-s.  (4), provided that the expression "award" means,  in relation  to  a  boundary commission, the  decision  of  the Chairman  of the commission contained in his report  to  the Governor-General  at  the  conclusion  of  the  commission’s proceedings.   The Province of West Bengal is now  known  as the State of West Bengal and is a part of India, whereas the Province of East Bengal has become a part of Pakistan and is now known as East Pakistan. Berubari  Union No. 12, with which we are concerned, has  an

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area  of  8.75 sq. miles and a population of ten  to  twelve thousand  residents.  It is situated in the  police  station Jalpaiguri  in the District of Jalpaiguri, which was at  the relevant  time  a  part  of  Rajashahi  Division.   It  has, however,  not  been specified in the First Schedule  of  the Independence Act, and if the matter had to be considered  in the  light of the said Schedule, it would be a part of  West Bengal.   But,  as we shall presently point out,  the  First Schedule  to the Independence Act did not really  come  into operation at all. On June 30, 1947, the Governor-General made an  announcement that  it  had been decided that the Province of  Bengal  and Punjab  shall  be  partitioned.   Accordingly,  a   boundary commission was appointed, inter alia, for Bengal  consisting of four judges of High Courts and a Chairman to be appointed later. 266 Sir Cyril Radcliffe was subsequently appointed as  Chairman. So  far  as  Bengal  was concerned  the  material  terms  of reference  provided  that  the  boundary  commission  should demarcate  the boundaries of the two parts of Bengal on  the basis  of ascertaining the contiguous areas of  muslims  and non-muslims;  in doing so it had also to take  into  account other  factors.   The commission then held its  enquiry  and made  an  award on August 12, 1947, which is  known  as  the Radcliffe Award (hereinafter called the award).  It would be noticed  that  this  award was made three  days  before  the appointed day under the Independence Act.  The report  shows 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?"  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 description in annexure A is to prevail." Paragraph 1 in annexure A is material.  It provided that " a line shall be drawn along the boundary between the Than&’ of Phansidewa  in  the  District of Darjeeling  and  the  Thana Tetulia in the District of 267 Jalpaiguri  from  the point where that  boundary  meets  the Province  of Bihar and then along the boundary  between  the Thanas  of Tetulia and Rajganj, the Thanas of  Pachagar  and Rajganj and the Thanas of Pachagar and Jalpaiguri, and shall then  continue  along  with  northern  corner  of  Thana  of Debiganj  to  the boundary of the State of  Cooch-Behar  the district  of  Darjeeling  and so much  of  the  district  of Jalpaiguri  as lies north of this line shall belong to  West Bengal,  but the Thana of Patgram and any other  portion  of Jalpaiguri  District which lies to the east or  south  shall

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belong to East Bengal." Since the award came into  operation three  days before the day appointed under the  Independence Act  the territorial extent of the Province of  West  Bengal never  came  to be determined under Schedule 1 to  the  said Independence Act but was determined by the award.  There  is no  dispute that since the date of the award Berubari  Union No.  12 has in fact formed part of the State of West  Bengal and has been governed as such. Meanwhile   the   Constituent  Assembly  which   began   its deliberations  on  December  9,  1946,  reassembled  as  the Sovereign  Constituent Assembly for India after midnight  of August 14, 1947, and it began its historic task of  drafting the  Constitution  for  India.   A  drafting  committee  was appointed by the Constituent Assembly and the draft prepared by  it  was presented to the Assembly on November  4,  1948. After  due  deliberations  the draft  passed  through  three readings and as finalised it was signed by the President  of the  Assembly and declared as passed on November  26,  1949. On  that date it became the Constitution of India;  but,  as provided  by  Art. 394, only specified  articles  came  into force as from than date and the remaining provisions as from January   26,1950,   which  day  is  referred  to   in   the Constitution  as  the  commencement  of  the   Constitution. Article  1  of the Constitution provides, inter  alia,  that India,  that is Bharat, shall be a Union of States and  that the  States and the territories thereof shall be the  States and  their territories specified in Parts A, B and C of  the First Schedule.  West Bengal was shown as one of the  States in Part A ; and it was provided that the 268 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. 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 beset 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 Allot  Badge. 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. It  was two years later that the question of Berubari  Union was raised by the Government of Pakistan for the first  time in 1952.  During the whole of this period the Berubari Union continued  to be in the possession of the Indian  Union  and was  governed  as a part of West Bengal.  In  1952  Pakistan alleged  that under the award Berubari Union  should  really have  formed  part of East Bengal and it  had  been  wrongly treated as a part of West Bengal.  Apparently correspondence took place between the Prime Ministers of India and Pakistan on  this subject from time to time and the dispute  remained alive until 1958.  It was under these circumstances that the present   Agreement  was  reached  between  the  two   Prime Ministers on September 10, 1958.  That is the background  of the present dispute in regard to Berubari Union No. 12. At this stage we may also refer briefly to the background of events  which  ultimately led to the  proposed  exchange  of

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Cooch-Behar  Enclaves between India and  Pakistan.   Section 290 of the Government of India 260 Act,  1935, had provided that His Majesty may  by  Order-in- Council  increase  or diminish the area of any  Province  or alter  the boundary of any Province provided  the  procedure prescribed  was  observed.   It is common  ground  that  the Government  of India was authorised by the  Extra-Provincial Jurisdiction  Act  of 1947 to exercise necessary  powers  in that   behalf.   Subsequently  on  January  12,  1949,   the Government  of India Act, 1935, was amended and s. 290A  and s. 290B were added to it.  Section 290-A reads thus :- "  290-A.   Administration of certain Acceding States  as  a Chief Commissioner’s Province or as part of a Governor’s  or Chief Commissioner’s Province:- (1)Where  full and exclusive authority,  jurisdiction  and powers for and in relation to governance of any Indian State or  any  group  of  such  States  are  for  the  time  being exercisable by the Dominion Government, the Governor-General may by order direct- (a)that  the  State  or  the  group  of  States  shall  be administered in all respects as if the State or the group of States were a Chief Commissioner’s Province ; or (b)that  the  State  or  the  group  of  States  shall  be administered in all respects as if the State or the group of States formed part of a Governor’s or a Chief Commissioner’s Province specified in the Order;". Section 290-B(1) provides that the Governor-General. may  by order direct 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  neighboring Acceding  State as if such area formed part of  such  State, and thereupon the provisions of the Government of, India Act shall apply accordingly. 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. 35 270 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 apart of the territory of India  and  was accordingly included in the list of Part C States as  Serial No.   4   in  the  First  Schedule  to   the   Constitution. Thereafter,  on December 31, 1949, the States  Merger  (West Bengal)  Order, 1949, was passed.  It provided that  whereas full and exclusive authority, jurisdiction and power for and in relation to the governance of the Indian State of  Cooch- Behar  were exercisable by the Dominion Government,  it  was expedient to provide by the order made under s. 290A for the administration  of the said State in all respects as  if  it formed part of the Province of West Bengal.  In consequence, on  January 1, 1950, the erstwhile State of Cooch-Behar  was merged  with West Bengal and began to be governed as  if  it was part of West Bengal.  As a result of this merger  Cooch- Behar  was  taken out of the list of Part C  States  in  the

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First Schedule to the Constitution and added to West  Bengal in  the  same Schedule, and the territorial  description  of West Bengal as prescribed in the First Schedule was  amended by  the  addition  of  the  clause  which  referred  to  the territories which were being administered as if they  formed part of that Province.  In other words, after the merger  of Cooch-Behar  the Territories of West Bengal  included  those which   immediately   before   the   commencement   of   the Constitution  were comprised in the Province of West  Bengal as  well as those which were being administered as  if  they formed  part  of  that  Province.   Subsequently  a  further addition has been made to the territories of West Bengal  by the  inclusion of Chandernagore but it is not  necessary  to refer to the said addition at this stage, 271 It  appears  that  certain areas which formed  part  of  the territories  of the former Indian State of  Cooch-Behar  and which  had subsequently become a part of the territories  of India  and  then of West Bengal became after  the  partition enclaves  in Pakistan.  Similarly certain Pakistan  enclaves were found in India.  The problem arising from the existence of these enclaves in Pakistan and in India along with  other border  problems was being considered by the Governments  of India  and  of Pakistan for a long time.  The  existence  of these enclaves of India in Pakistan and of Pakistan in India worked as a constant source of tension and conflict  between the two countries.  With a view to removing these causes  of tension  and  conflict the two Prime  Ministers  decided  to solve  the  problem  of  the  said  enclaves  and  establish peaceful  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. 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 not an alienation  or cession of the territory of India, and according to him, if, as a result of the ascertainment of the true boundary in the light of the award, possession of some land has had to be 272 yielded  to  Pakistan  it  does not  amount  to  cession  of territory;  it  is merely a mode of settling  the  boundary. The  award  had  already settled the boundary  but  since  a dispute arose between the two Governments in respect of  the location  of the said boundary the dispute was  resolved  in the  light of the directions given by the award and  in  the light  of the maps attached to it.  Where a dispute about  a boundary  thus arises between two States and it is  resolved in the light of an award binding on them the agreement which embodies the settlement of such a dispute must be treated as no more than the ascertainment of the real boundary  between

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them  and it cannot be treated as cession or  alienation  of territory by one in favour of the other.  According to  this argument  there was neither real alteration of the  boundary nor  real  diminution of territory, and there  would  be  no occasion to make any alteration or change in the description of  the territories of West Bengal in the First Schedule  to the Constitution. It is also faintly suggested by the learned Attorney-General that  the exchange of Cooch-Behar Enclaves is a part of  the general  and broader agreement about the Berubari Union  and in  fact it is incidental to it.  Therefore, viewed  in  the said  context, even this exchange cannot be said to  involve cession of any territory. On this assumption the learned Attorney-General has  further contended  that the settlement and recognition of  the  true boundary  can be effected by executive action alone, and  so the  Agreement which has been reached between the two  Prime Ministers can be implemented without any legislative action. In support of this argument the learned Attorney-General has relied  upon certain provisions of the Constitution  and  we may at this stage briefly refer to them. Entry  14 in List 1 of the Seventh Schedule reads thus  :  " Entering into treaties and agreements with foreign countries and  implementing  of treaties, agreements  and  conventions with  foreign  countries ". Article 253 occurs  in  Part  XI which  deals  with  relations between  the  Union  and  the, States,.  It provides 273 that " notwithstanding anything in the foregoing  provisions of the said Chapter Parliament 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. It  is,  however,  urged that in regard  to  the  making  of treaties  and implementing them the executive powers of  the Central  Government are co-extensive and co-incidental  with the powers of Parliament itself.  This argument is sought to be  based  on the provisions of certain  Articles  to  which reference  may  be made.  Article 53(1)  provides  that  the executive  power  of  the  Union  shall  be  vested  in  the President  and shall be exercised by him either directly  or through  officers subordinate to him in accordance with  the Constitution.  Article 73 on which strong reliance is placed prescribes  the extent of the executive power of the  Union. Article 73(1) says " that subject to the provisions of  this Constitution  the executive power of the Union shall  extend (a)  to  the matters with respect to  which  Parliament  has power to make laws; and (b) to the exercise of such  rights,

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authority  and  jurisdiction  as  are  exercisable  by   the Government  of  India by virtue of any treaty  or  agreement provided that 274 the  executive power referred to in sub-cl. (a)  shall  not, save  as expressly provided in this Constitution or  in  any law made by Parliament, extend in any State to matters  with respect  to which the Legislature of the State has also  the power  to  make laws "; and Article 74 provides  that  there shall  be a Council of Ministers with the Prime Minister  at the head to aid and advise the President in the exercise  of his functions; and Article 74(2) lays down that the question whether  any,  and if so what, advice was  tendered  by  the Ministers to the President shall not be inquired into in any court.  According to the learned Attorney-General the powers conferred  on the Union executive under Art.  73(1)(a)  have reference  to the powers exercisable by reference  to  Entry 14,  List  1, in the Seventh Schedule,  whereas  the  powers conferred  by  Art.  73(1)(b) are analogous  to  the  powers conferred on the Parliament by Art. 253 of the Constitution. Indeed  the  learned Attorney-General  contended  that  this position  is  concluded by a decision of  this  Courtin  Rai Sahib  Ram Jawaya Kapur & Ors. v. The State of  Punjab  (1). Dealing with the question about the limits within which  the executive   Government   can  function  under   the   Indian Constitution  Chief  Justice Mukherjea,  who  delivered  the unanimous  decision  of the Court, has observed that  "  the said  limits can be ascertained without much  difficulty  by reference  to the form of executive which  our  Constitution has  set up ", and has added, " that the executive  function comprised  both the determination of the policy as  well  as carrying  it  into execution.  This evidently  includes  the initiation of legislation, maintenance of order, the  promo- tion  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. 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 hoe basis by dividing the disputed territory  half and half ?  Reading the relevant portion  of the Agreement it is (1)  [1955) 2 S.C.R. 225. 275 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 give half the area to Pakistan, the other  half adjacent to India being retained by  India.   In other  words, the Agreement says that, though the  whole  of the  area of Berubari Union No. 12 was within  India,  India was  prepared to give half of it to Pakistan in a spirit  of give and take in order to ensure friendly relations  between the  parties  and  remove causes of  tension  between  them. Having come to this decision the Agreement describes how the decision  has  to  be carried out.   It  provides  that  the division  of the area will be horizontal starting  from  the northeast  corner of Debiganj Thana.  It also provides  that the division should’ be made in such manner that the  Cooch-

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Behar  Enclaves between Pachagar Thana of East Pakistan  and Berubari  Union  No. 12 of Jalpaiguri Thana of  West  Bengal will  remain  with  India.  This again is  a  provision  for carrying  out  the decision of dividing the  area  half  and half.  Yet, another provision is made as to the division  of Cooch-Behar  Enclaves lower down between Boda Thana of  East Pakistan  and Berubari Union No. 12 and it is provided  that they  shall be exchanged along with the general exchange  of enclaves and will go to Pakistan.  In our opinion, every one of  the clauses in this Agreement clearly and  unambiguously shows that, apart from, and independently of, the award,  it was  agreed to divide the area half and half and the  method of  effecting  this division was specifically  indicated  by making four material provisions in that behalf.  If that  be so, it is difficult to accept the argument that this part of the  Agreement  amounts to no more  than  ascertainment  and delineation of the boundaries in the light of the award. It  is  no doubt suggested by the  learned  Attorney-General that an examination of the description in 276 annexure  A  in  the Schedule to the award  in  relation  to police station boundaries revealed a lacuna in it,  inasmuch as there was DO mention in it of the boundary between police station Boda and police station Jalpaiguri; and the argument is  that  the result of this description was  that  the  two points  were specified, one on the western boundary  of  the Berubari  Union (the extremity of the boundary  between  the Thanas  of  Pachagar and Jalpaiguri) and the other  on  its- eastern boundary (the northern corner, of the Thana of Debi. ganj  where  it meets Cooch-Behar State) without  giving  an indication as to how these boundaries were to be  connected. 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. 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.  Para. graph 3 in annexure A shows that  the line  which was fixd by the award generally proceeded  along the boundaries between the Thanas, and this general  outline of the award would have assisted the decision of the dispute if  it was intended to resolve the dispute in the  light  of the  award.   The  line which was directed to  be  drawn  in paragraph  1  of  annexure A has " to  continue"  along  the northern  corner of Thana Debi ganj to the boundary  of  the State of Cooch-Behar, and 277 this  in the context may suggest that it had to continue  by reference to the boundaries of the respective Thanas.  It is principally   because  of  these  considerations  that   the territory  in  question was in the possession of  India  for some  years after the date of the award and no  dispute  was

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raised until 1952. We  have referred to these facts in order to emphasize  that the  agreement  does not appear to have been  reached  after taking  into  account these facts and is not  based  on  any conclusions based on the interpretation of the award and its effect.   In fact the second clause of the  Agreement  which directs  that the division of Berubari Union No. 12 will  be horizontal  starting from the north-east corner of  Debiganj Thana  is  not very happily worded.  The use of the  word  " horizontal  "  appears to be  slightly  inappropriate;  but, apart from it, the direction as to this horizontal method of division  as well as the other directions contained  in  the Agreement flow from the conclusion with which the  Agreement begins that it had been decided that India should give  half the area to Pakistan.  We have carefully considered all  the clauses  in the Agreement and we are satisfied that it  does not purport to be, and has not been, reached as a result  of any  interpretation of the award and its terms; it has  been reached  independently  of  the award and  for  reasons  and considerations which appeared to the parties to be wise  and expedient.   Therefore,  we cannot accede  to  the  argument urged  by the learned Attorney-General that it does no  more than ascertain and determine the boundaries in the light  of the  award.   It  is an Agreement by which  a  part  of  the territory  of  India  has been coded  to  Pakistan  and  the question  referred to us in respect of this Agreement  must, therefore,  be  considered  on the basis  that  it  involves cession or alienation of a part of India’s territory. What  is  true about the Agreement in  respect  of  Berubari Union  No.  12  is still more emphatically  true  about  the exchange  of  Cooch-Behar  Enclaves.   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 assump 36 278 tion  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. 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  legal1y  included  in  the   territorial description  of West Bengal contained in the said  Schedule. We  are not impressed by this argument either.  As  we  have already  indicated, since the award was  announced  Berubari Union  has  remained  in possession of India  and  has  been always  treated  as a part of West Bengal  and  governed  as such.   In view of this factual position there should be  no difficulty  in holding that it falls within the  territories which   immediately   before   the   commencement   of   the Constitution were comprised in the Province ’of West Bengal. Therefore,  as  a  result  of  the  implementation  of  this Agreement the boundaries of West Bengal would be altered and

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the  content  of  Entry  13 in the  First  Schedule  to  the Constitution would be affected. Before  we  part with this topic we ought to  refer  to  the decision of the Australian High Court in The State of  South Australia v. The State of Victoria (1) on which reliance has been  placed by the learned Attorney-General.  In  that-case the  boundary between the State of South Australia  and  the State  of New South Wales was by Act 4 & 5 Will.  IV, c.  95 and  the Letters Patent issued under that Act defined to  be the 141st meridian (1)  (1911) 12 C.L.R. 667. 279 of  East  Longitude.   In  1847, by  the  authority  of  the Governors  of New South Wales and South Australia  and  with the knowledge and approval of the Secretary of State a  line was  located  and marked on the ground as  being  the  141st meridian,  but it was discovered in 1869 that the said  line was  in  fact  about  two miles  to  the  westward  of  that meridian.   The  line  marked in  1847  had,  however,  been proclaimed  by the respective Governors as the boundary  and was  the de facto boundary thenceforward.  In  dealing  with the dispute which bad arisen in respect of the true boundary between  the  two  States Griffith, C.J.,  referred  to  the fixation of the boundary in 1847 and observed that "the real transaction  is  the  ascertainment of  a  fact  by  persons competent  to ascertain it, and a finding of fact  so  made, and  accepted  by  both, is in the nature  of  an  award  or judgment  in rem binding upon them and all persons  claiming under  them"  (p. 701).  The said dispute  was  subsequently taken  to  the Privy Council and it was held  by  the  Privy Council that "on the true construction of the Letters Patent it  was  contemplated that the boundary line  of  the  141st meridian  of  East  Longitude  should  be  ascertained   and represented  on  the surface of the earth so as  to  form  a boundary  line  dividing  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  perma- nently fixing such boundaries " (1).  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 (1)[1914] A.C. 283. 309. 280 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 line on the ground which was held to be  the   141st meridian  though it is true that in 1869 it  was  discovered that  the line so fixed was about two miles to the  westward of  the  meridian.  This was not a  case  where  contracting parties  independently  determined the line with a  view  to settle the dispute between the two respective States.   What they purported to do was to determine the line in accordance with  the provisions of the parliamentary statute.   In  the

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present  case, as we have already pointed out, the  position of  the  Agreement  is essentially different;  it  does  not purport to be based on the award and has been reached  apart from, and independently of, it.  Therefore, we do not  think that the learned Attorney-General can derive any  assistance from  the  decision  in  the case  of  The  State  of  South Australia  v.  The State of Victoria (1) in support  of  his construction of the Agreement. In  view  of our conclusion that the  agreement  amounts  to cession  or alienation of a part of Indian territory and  is not a mere ascertainment or determination of the boundary in the  light  of, and by reference to, the award,  it  is  not necessary  to  consider the other contention raised  by  the learned  Attorney-General that it was within the  competence of the Union executive to enter into such an Agreement,  and that  the Agreement can be implemented without any  legisla- tion.  It has been fairly conceded by him that this argument proceeds  on  the  assumption  that  the  Agreement  is   in substance  and  fact no more than the ascertainment  or  the determination of the disputed boundary already fixed by  the award.   We need not, therefore, consider the merits of  the argument  about  the character and extent of  the  executive functions  and  powers  nor need we  examine  the,  question whether the observations made by Mukherjea, C.J. in the case of  Rai Sahib Ram Jawaya Kapur (2) in fact lend  support  to the  said  argument, and if they do,  whether  the  question should not be reconsidered. (1) [1911] 12 C.L.R. 667. (2) [1955] 2 S.C.R. 225. 281 At this stage it is necessary to consider the merits of  the rival  contention  raised by Mr. Chatterjee  before  us.  He urges that even Parliament has no power to cede any part  of the  territory of India in favour of a foreign State  either by  ordinary  legislation or even by the  amendment  of  the Constitution; and so, according to him, the only opinion  we can give on the Reference is that the Agreement is void  and cannot  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  expressly  given to the country the  power  to  acquire otter  territories it has made no provision for  ceding  any part  of  its  territory; and in such a  case  the  rule  of construction,  viz., expressio unius est  exclusio  alterius must apply.  In our opinion, there is no substance in  these contentions. There is no doubt that the declaration made by the people of

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India in exercise of their sovereign will in the preamble to the  Constitution is, in the words of Story, "a key to  open the mind of the makers" which may show the general  purposes for   which  they  made  the  several  provisions   in   the Constitution; but 282 nevertheless the preamble is not a part of the Constitution, and,  as Willoughby has observed about the preamble  to  the American  Constitution, " it has never been regarded as  the source of any substantive power conferred on the  Government of  the United States, or on any of its  departments.   Such powers  embrace only those expressly granted in the body  of the  Constitution and such as may be implied from  those  so granted ". What  is  true about the powers is equally  true  about  the prohibitions  and limitations.  Besides, it is not  easy  to accept  the assumption that the first part of  the  preamble postulates  a  very serious limitation on one  of  the  very important  attributes  of sovereignty itself.   As  we  will point  out later, it is universally recognised that  one  of the attributes of sovereignty is the power to cede parts  of national  territory  if necessary.  At the  highest  it  may perhaps  be  arguable that if the terms used in any  of  the articles in the Constitution are ambiguous or are capable of two  meanings, in interpreting them some assistance  may  be sought   in  the  objectives  enshrined  in  the   preamble. Therefore,  Mr. Chatterjee is not right in  contending  that the preamble imports any limitation on the exercise of  what is generally regarded as a necessary and essential attribute of sovereignty. Then,  as  regards the argument that the  inclusion  of  the power to acquire must necessarily exclude the power to  cede or alienate, there are two obvious answers.  Article 1(3)(c) does  not  confer  power or authority on  India  to  acquire territories  as  Mr. Chatterjee assumes.  There  can  be  no doubt  that  under international law two  of  the  essential attributes  of sovereignty are the power to acquire  foreign territory as well as the power to cede national territory in favour of a foreign State.  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 maybe 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 283 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  to  cede national territory in favour  of  a  foreign State;  and  if  that is so, it  would  be  unreasonable  to contend  that  there is no power in the sovereign  State  of India  to  cede  its territory and that the  power  to  cede national  territory  which  is  an  essential  attribute  of

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sovereignty  is  lacking  in the case of  India.   We  must, therefore,  reject  Mr.  Chatterjee’s  contention  that   no legislative process can validate the Agreement in question. What  then  is the nature of the treaty-making  power  of  a sovereign  State  ? That is the next problem which  we  must consider  before  addressing  ourselves  to  the   questions referred to us for our opinion.  As we have already  pointed out  it  is  an essential attribute of  sovereignty  that  a sovereign  state can acquire foreign territory and  can,  in case of necessity, cede a part of its territory in favour of a  foreign  State, and this can be done in exercise  of  its treaty-making  power.  Cession of national territory in  law amounts  to  the  transfer  of  sovereignty  over  the  said territory  by  the owner-State in favour of  another  State. There can be no doubt that such cession is possible and  in- deed  history presents several examples of such transfer  of sovereignty.  It is true as Oppenheimer has observed that  " hardship  is  involved  in the fact that  in  all  cases  of cession  the  inhabitants of the territory who  remain  lose their  old  citizenship  and  are  handed  over  to  so  new sovereign whether they like it or 284 not" (1); and he has pointed out that "it may be possible to mitigate this hardship by stipulating an option to  emigrate within  a  certain period in favour of  the  inhabitants  of ceded  territory  as means of averting the charge  that  the inhabitants are handed over to a new sovereign against their will  " (p. 553).  But though from the human point  of  view great   hardship  is  inevitably  involved  in  cession   of territory by one country to the other there can be no  doubt that a sovereign state can exercise its right to cede a part of its territory to a foreign state.  This power, it may  be added,  is  of course subject to the limitations  which  the Constitution  of  the  state  may  either  expressly  or  by necessary implication impose in that behalf; in other words, the  question as to how treaties can be made by a  sovereign State  in regard to a cession of national territory and  how treaties  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. 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 basic structure of the Consti- (1)  Oppenheim’s  ,International  Law by  Lauterpacht,  Vol. 1,P. 551. (8th Ed.) 285 tution  in construing the relevant provisions of Art. 3.  He contends that the basic structure of the Constitution is the same as that of the Government of India Act, 1935, which had

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for  the  first time introduced a federal polity  in  India. Unlike  other  federations, the Federation embodied  in  the said  Act  was  Dot the result of a pact  or  union  between separate  and  independent communities of  States  who  came together for certain common purposes and surrendered a  part of   their  sovereignty.   The  constituent  units  of   the federation  were deliberately created and it is  significant that  they, unlike the units ’of other federations,  had  no organic   roots   in  the  past.   Hence,  in   the   Indian Constitution, by contrast with other Federal  Constitutions, the   emphasis  on  the  preservation  of  the   territorial integrity  of the constituent States is absent.  The  makers of  the Constitution were aware of the  peculiar  conditions under   which,  and  the  reasons  for  which,  the   States (originally Provinces) were formed and their boundaries were defined, and so they deliberately adopted the provisions  in Art.  3  with  a  view  to  meet  the  possibility  of   the redistribution of the said territories after the integration of  the Indian States.  In fact it is well-known that  as  a result of the States Reorganization Act, 1956 (Act XXXVII of 1956),  in the place of the original 27 States and one  Area which were mentioned in Part D in the First Schedule to  the Constitution, there are DOW only 14 States and 6 other Areas which constitute the Union territory mentioned in the  First Schedule.   The  changes thus made  clearly  illustrate  the working  of the peculiar and striking feature of the  Indian Constitution.   There may be some force in this  contention. It  may, therefore, be assumed that in construing Art. 3  we should  take  into account the fact  that  the  Constitution contemplated  changes  of  the  territorial  limits  of  the constituent  States and there was no guarantee  about  their territorial integrity. Part  1  of the Constitution deals with the  Union  and  its territories,  and in a sense its provisions set out a  self- contained  code in respect of the said topic.  Just as  Part 11 deals with the topic of citizenship, Part 1 deals 37 286 with the territory of India.  Art. 1 deals with the name and territory Of India.  It reads thus :- 1.(1) India, that is Bharat, shall be a Union of States. (2)The  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. 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  a,; 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 consequence Art. 243 in Part IX  was deleted.   That  is  how  under  the  present  Article   the

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territory  of  India  consists of  the  territories  of  the States, the Union territories and such other territories  as may  be acquired.  We have already referred to Art.  1(3)(c) and  we  have observed that it does not  purport  to  confer power  on India to acquire territories; it  merely  provides for and recognises automatic absorption or assimilation into the territory of India of territories which may be  acquired by  India  by virtue of its inherent right  as  a  sovereign State  to acquire foreign territory.  Thus Art.    describes India as a Union of States and specifies its territories. Article 2 provides that Parliament may by law admit into the Union or establish, new States on such 287 terms  and conditions as it thinks fit.  This Article  shows that  foreign  territories  which  after  acquisition  would become  a part of the territory of India under Art.  1(3)(c) can  by  law be admitted into the Union under Art.  2.  Such territories  may  be  admitted  into the  Union  or  may  be constituted into new States on such terms and conditions  as Parliament  may think( fit; and as we shall presently  point out  such  territories can also be dealt with by  law  under Art. 3(a) or (b).  The expression " by law " used in Arts. 2 and 3 in this connection is significant.  The acquisition of foreign territory by India in exercise of its inherent right as a sovereign State automatically makes the said  territory a  part of the territory of India.  After such territory  is thus acquired and factually made a part of the territory  of India the process of law may assimilate it either under Art. 2 or under Art. 3 (a) or (b). As an illustration of the procedure which can be adopted  by Parliament  in  making a law for  absorbing  newly  acquired territory we may refer to the Chandernagore Merger Act, 1954 (Act XXXVI of 1954), which was passed on September 29, 1954, and came into force as from October 2,1954.   Chandernagore, which was a French possession, was declared a free city, and in  June 1946 the French Government, in agreement  with  the Government  of India, stated that it intended to  leave  the people  of  the French establishments in India  a  right  to pronounce  on  their  future fate  and  future  status.   In pursuance  of  this  declaration a referendum  was  held  in Chandernagore  in 1949, and in this referendum the  citizens of  Chandernagore  voted  in favour 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).   Rele- vant  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 288 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 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 for  the  ad ministration  of  Chandernagore which came into  force  from

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June 30, 1952.  The Government of India then ascertained the wishes  of  the citizens of Chandernagore  by  appointing  a commission  of  enquiry, and on receiving  the  commission’s report   that  the  people  of  Chandernagore  were   almost unanimously  in  favour  of merging with  West  Bengal,  the Government introduced in Parliament the Chandernagore Merger Act  in question.  After this Act was  passed  Chandernagore merged with the State of West Bengal as from October 2,1954. This  Act  was  passed by Parliament under  Art.  3  of  the Constitution.   As  a result of this Act the  boundaries  of West  Bengal  were altered under Art. 3(d) and by s.  4  the First  Schedule to the Constitution was modified.   We  have their briefly referred to the history of the acquisition and absorption of Chandernagore and its merger with West  Bengal because  it significantly illustrates the operation of  Art. 1(3)(c) as well as Art. 3(b) and (d) of the Constitution. That  take-,  us  to Art. 3 which deals with  the  topic  of formation of new States and alteration of areas,  boundaries or names of existing States; but before we construe Art,.  3 it  would be convenient to refer to Art. 4. Article 4  reads thus 4.(1) Any law referred to in article 2 or article 3 shall contain  such  provisions  for the amendment  of  the  First Schedule and the Fourth Schedule as may be necessary to give effect  to  the provisions of the law and may  also  contain such  supplemental, incidental and consequential  provisions (including provisions as to representation in Parliament and 289 in  the Legislature or Legislatures of the State  of  States affected by such law) as Parliament may deem necessary. (2)No  such  law  as aforesaid shall be deemed  to  be  an amendment  of this Constitution for the purposes of  article 368. The effect of Art. 4 is that the laws relatable to Art. 2 or Art.  3 are not to be treated as  constitutional  amendments for the purpose of Art. 368, which means that if legislation is  competent under Art. 3 in respect of the  Agreement,  it would be unnecessary to invoke Art. 368.  On the other hand, it  is equally clear that if legislation in respect  of  the relevant topic is Dot competent under Art. 3, Art. 368 would inevitably  apply.  The crux of the problem, therefore,  is: Can  Parliament legislate in regard to the  Agreement  under Art. 3 ? Let  us  now  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; (e)  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." 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

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with the internal adjustment inter so of the territories  of the constituent States of 290 India.  Article 3(a) enables Parliament to form a new  State and  this  can  be done either by  the  separation  ,if  the 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.   There can be no doubt that  foreign  territory which  after acquisition becomes a part of the territory  of India under Art.. 1(3)(c) is included in the last clause  of Art.   3(a)   and  that  such  territory  may’   after   its acquisition,  be  absorbed  in the new State  which  may  be formed  under  Art.  3(a).  Thus Art. 3(a)  deals  with  the problem  of the formation of a new State and  indicates  the modes by which a new State can be formed.- Article  3(b) provides that a law may be passed to  increase the  area of any State.  This increase may be incidental  to the reorganisation of States in which case what is added  to one  State under Art. 3(b) may have been taken out from  the are&  of  another State.  The increase in the  area  of  any State  contemplated by Art.-3(b) may also be the  result  of adding to any State any part’ if the territory specified  in Art. 1(3)(c).  Article 3(d) refers to the alteration of  the boundaries  of any State and such alteration would.  be  the consequence  of  any of the adjustments  specified  in  Art. 3(a),  (b)  or  (c).   Article  3(e)  which  refers  to  the alteration of the name of any State presents no  difficulty, and  in fact has no material bearing on the  questions  with which  we are concerned.  We have yet to consider Art.  3(c) the  construction of which will provide  he answers  to  the questions under reference; but before we interpret Art. 3(c) we  would like to refer to one aspect relating to  the  said Article considered as a whole. It is significant that Art. 3 in terms does not refer to the Union  territories and so, whether or not they are  included in the last clause of Art. 3(a) there is no doubt that  they are outside the purview of Art. 3(b), (c), (d) and (e).   In other  words, if an increase or diminution in the  areas  of the  Union territories is contemplated or the alteration  of their boundaries or names is Proposed, it cannot be effected by  law  relatable  to Art. 3. This  position  would  be  of considerable assistance in interpreting Art. 3(c). 291 Article 3(c) deals with the problem of the diminution of the area of any State.  Such diminution may occur where 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 banded 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

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can be exercised by India as a sovereign State.   Therefore, even  if  Art. 3(c) receives the  widest  interpretation  it would  be difficult to accept the argument that it covers  a case of cession of a part of national territory in favour of a foreign State.  The diminution of the area of any State to which it refers postulates that the area diminished from the State  in question should and must continue to be a part  of the  territory  of India; it may increase the  area  of  any other  State  or  may  be dealt with  in  any  other  manner authorised  either by Art. 3 or other relevant provisions of the Constitution, but it would not cease to be a part of the territory of India It would be unduly straining the language of  Art.  3(c) to hold that by implication it  provides  for cases   of  cession  of  a  part  of   national   territory. Therefore,  we feel no hesitation in holding that the  power to  cede national territory cannot be read in Art.  3(c)  by implication. 292 There  is  another consideration which  is  of  considerable importance  in  construing Art. 3(c).  As  we  have  already indicated  Art.  3  does not in terms  refer  to  the  Union territories,  and there can be no doubt that Art. 3(c)  does not  cover them; and so, if a part of the Union  territories has to be ceded to a foreign State no law relatable to  Art. 3  would be competent in respect of such cession If that  be the true position cession of a part of the Union territories would  inevitably  have  to be  implemented  by  legislation relatable  to Art 368 ; and that, in our  opinion,  strongly supports the construction which we are inclined to place  on Art.  3(c)  even in respect of cession of the  area  of  any State   in  favour  of  a  foreign  State.,  It   would   be unreasonable,  illogical  and  anomalous  to  suggest  that, whereas  the cession of a part of the Union territories  has to  be  implemented by legislation relatable  to  Art.  368, cession   of  a  part  of  the  State  territories  can   be implemented   by  legislation  under  Art.  3.  We   cannot, therefore,  accept  the argument of  the  learned  Attorney- General that an agreement which involves a cession of a part of  the territory of India in favour of a foreign State  can be implemented by Parliament by passing a law under Art 3 of the Constitution.  We think that this conclusion follows  on a  fair  and  reasonable  construction of  Art.  3  and  its validity  cannot be impaired by what the  learned  Attorney- General has described as the special features of the federal Constitution of India. 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 293 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

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about,  32 sq. miles of the territory in the Dewangiri  Hill Block  being  a part of Dewangiri on  the  extreme  northern boundary  of Kamrup District.  This strip of  territory  was largely  covered by forests and only sparsely  inhabited  by Bhotias.   The  learned Attorney-General has not  relied  on this single statute as showing legislative practice.  He has only  cited  this as an instance where  the  Parliament  has given  effect to the cession of a part of the  territory  of Assam  in favour of the Government of Bhutan by  enacting  a law relating to Art. 3 of the Constitution.  We do not think that  this instance can be of any assistance  in  construing the scope and effect of the provisions of Art. 3. Therefore  our conclusion is that it would not be  competent to  Parliament  to  make a law relatable to Art.  3  of  the Constitution for the purpose of implementing the  Agreement. It  is  conceded by the learned Attorney-General  that  this conclusion  must inevitably mean that the law  necessary  to implement the, Agreement has to be passed under Art. 368. Art. 368 reads thus:- "  Art.  368.   An amendment of  this  Constitution  may  be initiated only by the introduction of a Bill for the purpose in  either House of Parliament, and when the Bill is  passed in each House by a majority of the total membership of  that House  and by a majority of not less than two-thirds of  the members  of  that  House present and  voting,  it  shall  be presented  to  the President for his assent  and  upon  such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in- (a)article  54,  article 55, article 73,  article  162  or article 241, or 38 294 (b)Chapter IV of Part V, Chapter V of Part VI, or  Chapter 1 of Part XI, or (c)  any of the Lists in the Seventh Schedule, or (d)  the representation of States in Parliament, or (e)  the provisions of this article, the  amendment  shall  also require to be  ratified  by  the Legislatures  of not less than one-half of the States * *  * by  resolutions to that effect passed by those  Legislatures before  the  Bill  making provision for  such  amendment  is presented to the President for assent." We have already held that the Agreement amounts to a cession of  a part of the territory of India in favour of  Pakistan; and  so  its  implementation  would  naturally  involve  the alteration of the content of and the consequent amendment of Art.   1 and of the relevant part of 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.

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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  prescribed  that  where  the proposal contained in the Bill affects the area,  boundaries or name of any of the States, the Bill has to be referred by the President to 295 the  Legislature of that State for its views thereon  within such  period  as is therein prescribed.  It has  been  urged before us by the learned Attorney General that if it is held that Parliament must act under Art. 368 and not under Art. 3 to  implement the Agreement, it would in effect deprive  the Legislature of West Bengal of an opportunity to express  its views on the cession of the territory in question.  That  no doubt   is  true;  but,  if  on  its  fair  and   reasonable construction   Art.  3  is  inapplicable   this   incidental consequence  cannot  be avoided.  On the other hand,  it  is clear that if the law in regard to the implementation of the Agreement  is to be passed under Art. 368 it has to  satisfy the  requirements prescribed by the said Article;  the  Bill has  to be passed in each House by a majority of  the  total membership  of the House and by a majority of not less  than two-thirds of the House present and voting; that is to  say, it should obtain the concurrence of a substantial section of the  House which may normally mean the consent of the  major parties  of the House, and that is a safeguard  provided  by the Article in matters of this kind. In  this connection it may incidentally be pointed out  that the amendment of Art.  1 of the Constitution consequent upon the cession of any part of the territory of India in  favour of a foreign State does not attract the safeguard prescribed by the proviso to Art. 368 because neither Art. 1 nor Art. 3 is  included  in the list of entrenched  provisions  of  the Constitution enumerated in the proviso.  It is not for us to enquire  or consider whether it would not be appropriate  to include the said two Articles under the proviso.  That is  a matter for the Parliament to consider and decide. We would accordingly answer the three questions referred  to us as follows:- Q. 1. Yes. Q.2.  (a) A law of Parliament relatable to Art. 3 of  the Constitution would be incompetent; (b)A  law  of  Parliament relatable to  Art.  368  of  the Constitution is competent and necessary; (c)A law of Parliament relatable to both Art. 368 and Art. 3  would  be necessary only if Parliament chooses  first  to pass a law amending Art. 3 296 as indicated above; in that case Parliament may have to pass a  law on those lines under Art. 368 and then follow  it  up with a law relatable to the amended Art. 3 to implement  the agreement. Q.   3.  Same as answers (a), (b) and (c) to Question 2. Reference answered accordingly.