When Jawaharlal Nehru ignored Supreme Court and brought a constitutional amendment to give parts of Indian territory in Bengal to Pakistan
Yesterday President Droupadi Murmu invoked Article 143(1) of the Constitution and sent 14 questions to the Supreme Court seeking its advisory opinion on them. BJP MP Nishikant Dubey wrote on X how the provision was invoked by President Rajendra Prasad in 1959 after the then Prime Minister Jawaharlal Nehru entered into an agreement with the then Prime Minister of Pakistan Feroz Khan Noon to give certain parts of the Indian territory on the eastern border to East Pakistan (now Bangladesh) to settle a border dispute.
“Berubari was a part of India, in 1958 Nehru ji made an agreement with Pakistan’s Prime Minister Noon and decided to merge it with Pakistan. In Article 143, the then President Rajendra Prasad sent it to the Supreme Court that can we give our land to a foreign country, the Supreme Court said that the Constitution of India does not allow this. Nehru ji was a king, he was not in the habit of listening to a no, 9th amendment of the constitution was made and we gave Berubari to Pakistan. Hand of Congress?” Dubey wrote.
This resulted in the famous Re Berubari Union Case wherein the Supreme Court gave its advisory opinion on certain constitutional issues including whether the Indian government was empowered under the Constitution to cede a territory in favour another country. Here is a glance through the historical events that happened before and after President Rajendra Prasad sought the advisory opinion of the Supreme Court.
Ahead of the partition of India in 1947, the task of demarcating a boundary line between India and Pakistan was given to an English Barrister Sir Cyril John Radcliffe, who had never visited India before and had no knowledge of the subcontinent. With an arduous task at hand and the lack of understanding of the geopolitical landscape of the country, Radcliffe decided to demarcate the territories for India and Pakistan based on their population. He gave the territories with Muslim majority population to Pakistan and those with Hindu majority to India.
The case in question relates to a region called Berubari Union No. 12 in the Jalpaiguri district of West Bengal. This region was given by Radcliffe to India but Pakistan started asserting its claim on it in 1952 that led to a dispute between the two countries.
The Nehru-Noon Agreement
To resolve this boundary dispute, Indian Prime Minister Jawaharlal Nehru concluded an agreement with Pakistani Prime Minister Feroz Khan Noon in 1958 and decided to divide the Berubari Union No. 12 equally between India and Pakistan. The agreement that came to be known as the Nehru-Noon Agreement also provided for the exchange of other such disputed enclaves along the border of India and the erstwhile East Pakistan. It was at this time that President Rajendra Prasad invoked Article 143 (1) and sought the opinion of the Supreme Court on the validity and the enforceability of the Nehru-Noon agreement.
Supreme Court’s opinion and the 9th constitutional amendment
The central issue before the Supreme Court was whether the Indian government could transfer an Indian territory to another country under Article 3 of the Constitution or did it require a constitutional amendment. The Supreme Court observed that Article 3 did not conceive of a cession of Indian territory to a foreign country.
Therefore, it could only be done through a constitutional amendment under Article 368 of the Constitution and an ordinary legislation would not be sufficient for this. This led to the enactment of the Ninth Amendment Act, 1960 by the then Nehru government to implement the Nehru-Noon agreement and facilitate the transfer of territory to Pakistan.
How Nehru gave up Coco Islands
The Berubari enclave case is not the only instance when Nehru failed to assert the territorial integrity of India. In a similar manner, he let go of the opportunity to take control of the strategically important Coco Islands in the Bay of Bengal, located north to Andaman islands. The Coco Islands are now part of Myanmar due to Nehru’s historical blunder.
At the time partition, the British wanted to deprive India of the strategic islands in the Indian Ocean, Bay of Bengal and the Arabian Sea. Sardar Patel, the then Deputy Prime Minister of India who was a strong stateman foiled the British plans by taking control of the Lakshadweep and Andaman islands.
Well aware of the tactfulness of Patel, the British decided to approach Nehru to convince him to give up the Coco Islands. The British succeeded in their plans and India lost the Coco islands to Burma. The islands are now being used by China who has built an airstrip and a radar station there to keep an eye on India.
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