1 and 2. Union and its Territories + Federalism PDF

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CLASS I: INITIAL LECTURES

In re. Berubari Union, AIR 1960 SC 845 (Full Bench of the Supreme Court; Gajendragadkar wrote the decision. Unanimous). Background: The partition of India resulted in two new states being created, and a Boundary Commission being set up in order to determine the boundary between East Punjab and West Punjab, and East Bengal and West Bengal. This tribunal was headed by Sir Cyril Radcliffe. While in many cases the boundary followed pre-existing districts, in some cases the boundary relied on Thanas and occasionally cut through even these Thanas. The award was explained through a written description, and a map. The Berubari Union, a territory of 8.75 sq miles and 12000 persons, was described as part of West Bengal (and therefore, India) as per the written text of the agreement, but was marked as part of East Bengal in the map. As a result, this was administered as part of India, but was later challenged (in 1952) by Pakistan. In 1958, therefore, an IndIa-Pakistan agreement was effected as a result of which the Berubari Union was proposed to be divided between India and Pakistan. Legal Issue: (1) Whether any legislative action was necessary for this land to be transferred from India to Pakistan? (2) If the territory that is being given amounts to a cession of territory, is the procedure under Article 3 sufficient to deal with the matter? (3) If not, does an amendment need to be made to the Constitution under the procedure that is given under A. 368 of the Constitution? Note: Article 368: Amendment procedure—2/3 majority in parliament. Supreme Court: Whether the transfer was a cession, or merely a clarification of a boundary? The attorney-general argued that there was no need for any legislative action because the territory was not being transferred to Pakistan as such, but that the agreement merely amounted to a clarification of the boundary between India and Pakistan. Hence (para 17.), ”this is merely the recognition or ascertainment of the boundary…and not an alienation or cession of any of India’s territory.” As a result, there is neither real diminution of the territory of the country (as all that the decision is doing is clarifying the boundary, and nor is there any alteration of the border. Indeed, the attorney-general tried to argue that even the exchange of the Cooch-Behar enclaves (which only happened in 2015) would also be a mere clarification. Court: The Court held that: 1. The agreement between India and Pakistan suggests that the most expedient and reasonable way to divide the territory of the Berubari Union would be through the exigency of dividing it half and half between the two countries. (para. 22). 2. Therefore, there was no trace to “interpret the award” or to “determine what it meant”—the intention was clear. 1

3. Even though there existed a confusion between what the map depicted and what was said by the text of the agreement, the terms of the Boundary Award clearly provided that the written record would be definitive. Therefore, since the language of the agreement had clearly provided that Berubari would be a part of India, the agreement could not be regarded as a way of merely clarifying the boundaries between the country; rather, it amounted to a cession of India’s territory. 4. Implicitly, therefore, the transfer of the Cooch Behar enclaves would necessarily involve an even more obvious case of cession of territory.

(II) Whether the Constitution allowed for the cession of territory to any other state. It was argued that the Parliament had no power to cede Indian territory through any process. The argument relied on the language of the Constitution, in particular: (a) Preamble: The preamble of India’s constitution commences with “We the people of India” and therefore, implicitly refers to the people in the entire territory of the country. (b) Article 1 (3) (c), Constitution of India. Article 1(3)(c) provides for acquisition of territory— however, there Is no corresponding provision for cession of territory. This argument, however, was rejected by the Court. The Court clearly said that the cession of territory was an essential attribute of sovereignty and could not, therefore, be compromised. Article 1(3)(c) merely makes a formal provision for the absorption of territory, without at any point suggesting that this would impose a limitation on ceding territory. Indeed, Article 1(3)(c) does not even specify the procedure for incorporation of any territory into India as well. (III) How could such power be exercised? The Court held that this power could be exercised through the provisions of the Constitution itself. In doing so, it examined questions of what procedure had to be followed for ceding territory: (i)

Whether the procedure under Article 3 of the Constitution would be sufficient?

Article 3: Parliament may, by law: (a) Form a new state by separation of territory from any state or by uniting two or more states of parts of states or by uniting any territory to a part of any state. (b) Increase, diminish, alter the boundaries and alter the name of any state. Under Article 4(2), No laws made under Article 2 and 3 would be deemed to be an amendment of the Constitution for the purpose of Article 368. Court: Relies on the example of Chandannagar to see how territory can be incorporated into India. Under Article 2, Parliament may, by law, admit into the Union or establish new states as it sees fit. Further, Article 3 provides for the scheme for the internal arrangement of the country. Indeed, Article 3(a), (b) and (c) can technically provide for territory that is either added to the country or ceded from it. 2

Court: The Court then effects a distinction between the ‘Union territories’ and the ‘States’, holding that, under Article 3, reference is only made to the states and not to the Union territories. On that basis, it interprets Article 3 to assume that it is not wide enough to provide for territory that is ceded from a country to another. “Prima facie, it appears unreasonable that the makers of the Constitution wanted to provide for the cession of Indian territory under Article 3(c). If the power to acquire territory which is an essential attribute of sovereignty is not provided by the parliament, it seems strange to assume that the power to cede a part of the national territory would be provided by the parliament.” (para. 46). It appeared strange, furthermore, that the Constitution, through Article 3 (which the Court held was applicable only to ‘states’ and not Union territories) should provide for a separate procedure for ‘states’ and that a separate procedure deriving from A. 368 should be used in the case of ‘union territories’. This argument was used even though there was precedent for the territory of Assam being ceded to Bhutan without any amendment. The Court held that there was no reason why that should constitute a past precedent. IV: The procedure that is to be followed, therefore, is as under A. 368 of India’s Constitution: Therefore, it is necessary that A. 368 be used to amend the ‘First Schedule’ of India’s Constitution which provides for the territory of India’s states. Hence, it is only if 2/3 of the legislatures agree that this territory may be transferred. Case II: Ram Kishore Sen v. Union of India, AIR 1966 SC 644: 5 Judge Bench, Gajendragadkar, J. writing for the bench (Unanimous) Background: Subsequent to the In re. Berubari Union case, the Parliament enacted the 9th amendment to the Constitution according to which the portion of the Berubari Union transferred to Pakistan as part of the 1958 agreement would be transferred to Pakistan on the ‘Appointed Day’. The petitioners, six men who lived in the Berubari area, challenged this transfer. Agreement: The Berubari Union will be so divided as to give half the area to Pakistan, the other half being retained by India. This division will be horizontal, starting from the North East corner of Debiganj Thana. Issues: The following issues were raised by the parties in this case: (i)

Language: The petitioners contended that the language of the Amendment Act itself was convoluted and involved, and would not result in a correct division of the territory in question. On the other hand, the state argued that there was no such confusion, and that the intent of the Act, in any case, was not to have a strictly horizontal line dividing both countries. The trial court judge, therefore, had examined conflicting maps (adduced by the petitioners and the Union) and had held that the maps provided by the Union were right. These maps allowed for a division to be effected in a horizontal line.

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(ii)

At para 6, the trial judge had stated that the division could not be viewed as a Mathematical problem, and that the horizontal nature of the division merely meant that the partition was not supposed to be vertical. The status of Chilahati: The petitioners contended that the village of Chilahati, in any case, would not come within the ambit of the Act. Chilahati, according to the petitioners, was a part of West Bengal and had been a part of the territory of West Bengal since partition. On the contrary, the respondents argued that the bulk of village of Chilahati had already, at the announcement of the Radcliffe award, been transferred to Pakistan. All that was proposed to do was the transfer a little bit of territory that had not been already transferred to Pakistan. The trial judge, here, against held in favour of the state.

Supreme Court: (i) The Supreme Court corrected its logic in Berubari, where it had effected a distinction between a ‘state’ and ‘Union territory’ under Article 3 of the Constitution. In doing so, it examined s. 3 (58) (b) of the General Clauses Act, according to which the term ‘state’ would include ‘Union Territory’ as well/ (Importantly, even though this had been an important limb of the argument as a result of which the Berubari decision had said that territory could only be transferred by an Amendment to the Constitution under Article 368, the Court did not modify this argument.In fact, it held that this had merely been an incidental reason, and that the territory of the state could not be modified through this provision) (ii)

(iii)

(iv)

Maps: Both the petitioners and respondents had produced maps in order to make their position clear. The Supreme Court held that there was no reason to believe that the maps adduced by the petitioners (as they were neither official, nor had any definite mark of provenance) were legitimate maps. The words in the agreement, the Court felt, should not be interpreted too literally. While the agreement had provided for a ‘horizontal’ division and had marked the point from where such a line could take away, the Court held that this division could not be half-and-half. Chilahati: With regard to the village of Chilahati, the Court held: a. That all the evidence that had been placed on record seemed to suggest that Chilahati was a part of Debigunj Thana and therefore should have been transferred to Pakistan at partition. Indeed, apart from a portion of the village measuring 512 acres, the rest of the village had been transferred to Pakistan. b. Entry 13 of the first schedule specified the territory that was included within the state of West Bengal. This included territory which “immediately before the commencement of the constitution” was ”being administered” as though it was part of the territory of West Bengal. The petitioners used this to argue that, in respect of these 512 acres, as the territory of Chilahati in India was being administered as though it was part of the territory of West Bengal immediately before the commencement of India’s constitution, it would be considered the territory of West Bengal. The Court rejected this argument, on the grounds that Entry 13 would not apply to territories that were ‘accidentally’ being administered as part of West Bengal. Indeed, 4

as per Para. 29, “the physical fact of administering the territory was not referable to any merger at all; it was relatable to the accidental circumstance that the area had not been transferred to Pakistan as it should have been.” III: Maganbhai Ishwarbhai Patel v. Union of India, AIR 1969 SC 783: 5 Judge Bench (Hidayatullah, C.J. wrote majority opinion): Background: The issue over here pertained to the delimitation of the boundary between Kutch (which, after the partition of India, became a part of India) and Sind (which, at partition, became a part of Pakistan). The dispute over this boundary resulted in armed hostilities in 1965, as a result of which it was decided to refer the matter to arbitration. This agreement provided: (i) (ii)

For a cease-fire and a return to the status quo ante-bellum pending the arbitration. That the area under dispute (3500 sq miles) be dealt with through a tribunal created, consisting of three members, nominated by each government. The chairman would either be selected by both governments, or nominated by the Secretary-General of the United Nations.

As a result of this agreement, the award was announced in 1968. India got 3150 sq m. of the Rann, and Pakistan was given 350 sq m of the disputed territory including the areas of Kanjarkot, Chhadbet, and Dhara Banni. The petitioners challenged this, claiming that their fundamental rights (right of freedom of movement) would be infringed through the transfer of this territory to Pakistan. Issue: The following were the issues that emerged in this case: i.

Whether the 350 sq m that were granted to Pakistan could be ceded to Pakistan directly through executive action without any constitutional amendment.

ii. NOTE: Distinction between Berubari, Ramkishore Sen and Maganbhai: a. In Berubari, the Court had rejected the argument that the dispute was merely one relating to the demarcation of the border. Instead, the Court had held that the 1958 agreement between India and Pakistan, whether in respect of the enclaves, or the Berubari Union, involved cession of territory by the Indian government. b. In Ramkishore, the question was fundamentally the same as Berubari, with the exception of the Chilahati area. There, the Court had held that the transfer of this territory would not amount to cession, and would not require a constitutional amendment, because India’s control over this territory was ‘accidental’. c. Furthermore, in both Berubari and Ramkishore, the issue pertained to the creation of a boundary at partition. In Maganbhai, Sind and the princely states of Kutch had historically been separate territories. d. Therefore, the chief distinguishing feature between this decision and the earlier decisions was with regard to the nature. In both the other cases examined, there had been no boundary dispute of the sort that the present cases had.

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Court’s Opinion: 1. The Court examines practices in a variety of states w.r.t. the procedure that ought to be followed when territory is being ceded. In most cases, it concludes, that the opinion of the parliament has to be sought, and the parliament has to accept this cession for land to the ceded. 2. Here, the question is one of authority. The Court clearly held that a boundary dispute did not require any constitutional amendment, as there was no cession of territory that was, on the face of it, required. On the contrary, the question here was merely that of “ascertainment and representation on the surface of the earth” of the boundary between two countries. 3. Indeed, it is because a state is uncertain of its own rights that it approaches an international tribunal in order to determine and explicate what its rights actually are. The Court then goes further and explains that the evidence about whether the territory in question was Indian territory or not is most inconclusive. Indeed, maps and documents produced by India seem to clearly suggest that India was itself not sure of where the boundary would be placed. 4. Furthermore, given that India undertook to be bound by the award of the tribunal at the time which India agreed to the formation of the tribunal, the Indian Supreme Court could not sit in judgment over the decision of the Tribunal. Shah, J’s concurring opinion was in most respects the same as that of the majority. IV: Union of India v. Sukumar Sengupta, AIR 1990 SC 1692 (5 Judge Bench, Mukherjee, J. (author)) Background: The case deals with the lease of a small scrap of territory (175 m x 85 m) from India to Bangladesh. This territory would connect an enclave of Bangladesh’s territory to India. On 16.05. 1974, India and Bangladesh had entered into an agreement according to which it was decided— 1. That India would lease out the aforementioned territory to Bangladesh for a nominal rent of Tk 1/year. 2. Sovereignty over this land would continue to vest in India. 3. Bangladesh could have undisturbed possession and use of the area in perpetuity. 4. The citizens, including military, police and paramilitary forces, of both India and Bangladesh would have full, free and unfettered rights of movement in the area. 5. In the event that the citizens of India or Bangladesh were involved in any incident which gave rise to an offence under law in this area, the following procedure would be used: a. If the incident involves exclusively the citizens of only one country, then the law officials of that country will have jurisdiction. b. If the incident involves the citizens of both countries, then the initial jurisdiction will vest in the law officials who are at the scene. Forthwith, however, attempts will be made to transfer jurisdiction to the respective countries. c. Residual jurisdiction shall continue to vest in India.

Issue: The respondent (original petititoner) had challenged this transfer, holding that an amendment of the Constitution was necessary in order to transfer this territory to Bangladesh. However, the Union of India argued that there was no such need, as the case at hand merely represented the lease of a territory rather than cession, and that sovereignty would continue to vest in India.

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DECISION: 1. The transfer of this territory did not require the cession of any territory as it did not amount to India giving up its sovereignty. Bangladesh, in order to exercise its sovereignty in the areas of Dahagram and Angarpota, required that India allow it right to access its enclaves. Indeed, this right was required under international law. 2. On examining the nature of the agreement, it was clear that the agreement did not, at any point in time, envisage the giving up of Indian sovereignty. Indeed, the Court was clear that there was little possibility of Bangladesh being able to make permanent constructions in the area that would interfere with the free transit provided to India as per the agreement. 3. Cession implies an “actual and physical transfer” of the area to Bangladesh subsequent to which Bangladesh would have the right to treat the said transferred territories as part of its own territory and therefore exercise full control over the same. On the other hand, however, it is clear that this agreement does not contemplate such a possibility. On the contrary, it is clear that the sovereignty will continue to vest in India. 4. As the 9th amendment has no come into effect, there is no reason for a constitutional amendment that would specify this transfer.

V: N. Masthan Sahib v. Chief Commissioner, Pondicherry,AIR 1962 SC 797: (5 judge bench, Maj. Delivered by Ayyangar, J; Minority decision delivered by Sarkar, J.) Background: The status of Pondicherry was in question in this particular case. The petitioner made an application for the grant of stage carriage permits in the area of Pondicherry in 1959. However, the Motor Vehicles Act, 1939, was extended to Pondicherry. The petitioner, who was aggrieved by the order of the State Transport Authority to not provide him with a permit, decided to challenge this, ultimately up til the Supreme Court. In approaching the Supreme Court, he relied on Article 136(I) of the Constitution. Furthermore, the Chief Commissioner, who rejected the petitioner’s application for the grant of Stage Carriage Permits i...