Friday, August 2, 2013

The Saga of Berubari

  • Berubari, a small group of villages in Jalpaiguri sitrict of today’s West Bengal falls under the two Thanas of Jalpaiguri and Boda. 
  • At the time of the Partition of India, Sir Cyril Radcliff, who was the Chairman of the Borders Commission, was vested with the responsibility of delineating the border between East and West Bengal. 
  • Radcliff Award included entire Berubari region in Indian Union and gave it to West Bengal. 
  • However in the written narrative Thana Boda was omitted in mentioning. 
  • Since the lines on the map, when translated into actual border lines on the ground, are liable for minor errors, Pakistan wanted to exploit the omission of Thana Boda’s mention in Radcliff Award and started claiming rights over Berubari. 
  • That the claim was illegal can be concluded from the very fact that in 1948, a commission by name Bagge Tribunal was set up to address certain kinds of boundary disputes.  
  • Its report, submitted in 1950 was never objected to by Pakistan. In fact until 1952, Pakistan never raised the question of Berubari and it was generally concluded that Berubari was an integral part of the Indian Union.

But some time in 1952 the Pakistan Government had raised the issue of Berubari claiming that the territory belonged to them. Its claims were based on the specious grounds that Thana Boda was never mentioned in the Radcliff Award and the boundary line, on the maps places Berubari in its territory. People of Berubari, majority of whom were Hindus, and the then Government of West Bengal too stoutly opposed these Pakistani claims. Bidhan Chandra Roy, the first Chief Minister of West Bengal, got the State Assembly to pass a resolution against the illegal demand of Pakistan. More than 12,000 villagers had cut their fingers and wrote to then President of India Rajendra Prasad: 

Amra rakto debo, pran debo, Berubari debona. (We will rather give blood than give Berubari).

  • In spite of all this, Prime Minister Jawaharlal Nehru decided to have an agreement with the Governor of East Pakistan, Feroz Khan Noon on the issue of Berubari. 
  • Nehru and Noon signed an agreement on Berubari splitting it into two, and awarding South Berubari (comprising several villages) to East Pakistan (now Bangladesh). 
  • The agreement also included exchange of enclaves, wherein India will retain Bangladeshi enclaves in Coochbehar district and Bangladesh will retain certain Indian enclaves present in its territory. 
  • Here too, 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. 
  • Nehru had not even thought it prudent to consult the Chief Minister of West Bengal B.C. Roy on these issues.

However, the nation must be ever-grateful to President Rajendra Prasad who was not inclined to support the Nehru-Noon Pact. He decided to use his powers as President to refer the matter to the Supreme Court of India. Under a special Presidential Reference this question of whether the Executive Wing of the Government has the right to enter into an agreement ceding territory of India was taken up. 

This Presidential Reference under Art 143(1) of Indian Constitution was made on April 1, 1959.

Through this Presidential reference Dr. Rajendra Prasad placed the following queries before the Supreme Court:

(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?

The Attorney Generals representing Union Government argued that the Executive wing – meaning Prime Minister and his Government – is as powerful as the Legislature – the Parliament in entering into such treaties. 

They also tried to mislead the Court by arguing that there was no ceding of territory and it was merely a boundary adjustment. This line of argument amply demonstrates the arrogance, authoritarianism and utter disrespect for territorial integrity of India of Prime Minister Nehru. The West Bengal Government and others in the case contested the claim stoutly. 

Lawyers of the West Bengal Government argued that it was wrong to say that the agreement amounts merely to delineation of the boundary. It involves cession of Indian Territory to Pakistan.

On March 14, 1960 Js. Gajendragadkar of the Supreme Court of India delivered his verdict on the Presidential Reference. The learned Justice categorically demolished the highhanded argument about the legislative competence of the Government in ceding territory to Pakistan. 

“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 ceded 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”, the Court observed.

The judgement opined that “the agreement (Nehru-Noon Accord) 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”. It also expressed its displeasure over the argument of the Government placed before it through the Attorney General Berubari was never included in Indian Union in finality. “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”, they said.

In conclusion, the Supreme Court had categorically stated that the Executive had no powers to enter into agreements ceding the territory of India. 

  • Such a power rests only with the Parliament of India, and even there it has to happen through a Constitutional Amendment under Art 368 which will have the support of the ‘majority of the total membership of the House and by a majority of not less than two-thirds of the House present and voting’. 
  • The Supreme Court gave a broad hint that what is needed in such situations is a national consensus. 
  • It made a parting observation saying: “….it (Government) 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.”

The great democrat in Nehru didn’t find it necessary to go by the spirit of the judgement.  Instead he chose to go by the technicalities. Ignoring huge protests by people, including that of the Government of West Bengal and many political parties such as the Bharatiya Jana Sangh, Nehru went ahead with the ceding of the Indian territory in Berubari to Pakistan by using the brute majority in the Parliament through the Ninth Amendment to the Constitution of India on 28 August 1960.

However, a spate of appeals, court cases and opposition from West Bengal Government and people of the state, especially those living in the Berubari area prevented the Government of India to implement the transfer of South Berubari to Pakistan. The Supreme Court had finally upheld the right of the Parliament to cede Berubari to Pakistan in March 1971. By that time Pakistan had plunged into a massive internal struggle, leading to the division of that country into two. On March 26, 1971 Bangladesh emerged as a new nation, comprising entire East Bengal. This has resulted in a piquant situation as the Ninth Amendment became unimplementable. Thus, South Berubari also remained a part of India in spite of the Amendment.

In 1974, under the Indira – Mujib Accord, it was decided that Berubari will remain with India. In exchange, India will give away the Bangladesh enclaves of Dahagram and Angarpota which fall in the Indian Territory a corridor link to mainland Bangladesh will also be provided to them. This corridor is known as The Tin Bigha Corridor.


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