Berubari Case: The Third Amendment in the Constitution of Bangladesh
Berubari Case is formally known as Kazi Mukhlesur Rahman Vs. Bangladesh case which resolved the dispute regarding Berubari Union. For this reason, this case is called as Berubari Case. After getting directions from the Supreme Court of Bangladesh through this case, the Constitution (Third Amendment) Act 1974 was enacted on 28 November 1974 which brought a change in Article 2 of the constitution with a view to giving effect to an agreement between Bangladesh and India in respect of exchange of certain enclaves and fixation of boundary lines between India and Bangladesh.
On the basis of the plan for the partition of British India proposed by the last Viceroy, Mountbatten on June 3, the British Parliament passed the Indian Independence Act, 1947 on July 5, 1947 which received royal assent or approval on July 18, 1947. By this Act, the Two-Boundary Committee was formed, headed by Cyril John Radcliffe, popularly known as Sir Radcliffe, to demarcate a line between the Indian and Pakistani portions of the Punjab and Bengal which has become popular as Radcliffe Line.
Sir Radcliffe actually did not know about geography of India and never visited it. Though it was a part of ensuring no bias on demarcation. However, it was the main reason of the erroneous depiction of the maps which created some disputes in between newly formed India and Pakistan. One of such disputes was Berubari Dispute.
The Radcliffe Line was determined on the basis of the boundaries of the thanas. In describing this boundary, Radcliffe omitted to mention the Thana named Berubari Union No. 12 which lies within Jalpaigudi. Since then Pakistan has been claiming the part of Berubari belonged to it due to erroneous depiction on the map. Though India claimed that it was awarded to India by Radcliffe.
To solve this problem, Mr. Jawaharlal Nehru, Prime Minister of India and Mr. Feroze Khan Noon, Prime Minister of Pakistan arranged a meeting to reach an agreement and accordingly arrived at an agreement in 1958 which is recognized as Nehru -Noon Agreement. They agreed on the theory of “Exchange of enclaves on the basis of enclaves for enclaves without any consideration of territorial loss or gain”. According to this agreement Dahagram and Angorpota became the territory India which inter-alia provided for transfer of 11.29 sq. kms of southern half of Berubari to Pakistan.
Then it became a constitutional question in India that the power of the parliament to transfer the territory of Berubari to Pakistan is valid or not. In 1960, after detailed examination of article 3, the Supreme Court of India, on a reference made by the President, held that the parliament of India is not competent to make a law under article 3 for the implementation of the Nehru-Noon Agreement.
Without it, due to the break out of 1965 War between the two countries, the delivery of possession could not be transferred to Pakistan as per the Noor-Nehru pact of 1958. After independence of Bangladesh, another initiative had been taken by the agreement between the then Prime Minister of Bangladesh, Bangabandhu Sheikh Mujibur Rahman and Prime Minister of India, Shrimati Indira Gandhi, commonly known as Delhi Treaty of 16 May 1974 demarcated the land boundary between Bangladesh and India in certain areas including Berubari. As stated by this treaty, India will hold the southern half of the Berubari Union No. 12 with the adjacent enclaves which is approximately area of 2.64 square miles. On the other hand, Bangladesh will retain the Dahagram and Angarpota enclaves in exchange. India will lease it along with area of 178 meters x 85 meters near Tin Bigha to connect Dahagram with Panbari Mouza under Patgram Thana to Bangladesh in perpetuity basis.
The Delhi Treaty was challenged by one Kazi Muklesur Rahman on the ground that Prime Minister had no right to transfer Southern half of Berubari which was an integral part of Bangladesh rather he entered into this agreement by exercising the ultra vires powers of the Prime Minister.
In the petition, Advocate Ahmed Sobhan on behalf of the petitioner prayed before the High Court Division for a declaration that the Delhi Treaty involved cession of Bangladesh territory was without lawful authority and of no legal effect. The basic argument was that the Delhi treaty prima facie purported to determine the boundary between Bangladesh and India. So, the Prime Minister was not authorized to determine the boundary by mere treaty without the express enactment of parliament. Article 143(2) of the Constitution provides that Parliament may from time to time by law provide for the determination of the boundaries of the territory of Bangladesh and of the territorial waters and continental shelf of Bangladesh. The application was summarily dismissed by the learned Judges of High Court Division, who however, granted the appellant certificate under Article 103(2)(a) of the Constitution.
Then, the Appellate Division of the Supreme Court of Bangladesh, Composed with Hon’able Mr. Chief Justice Sayem, Hon’able Mr. Justice AB Mahmud Husain, Hon’able Mr. Justice Abdullah Jabir, Hon’able Mr. Justice Ahsanuddin Chowdhury accepted the petition and gave following observations:
The Government contended that the appellant not being a resident of any part of the territories involved in the Delhi Treaty, the respondents contended that the appellant could have no interest therein which could be affected by the treaty and as such he was not a ‘person aggrieved’ within the meaning of Article 102 (2) of the Constitution entitling him to apply there under. In this point, the Hon’able Court held that “… the appellant is not a resident of the southern half of South Berubari Union No. 12 or of the adjacent enclaves involved in the Delhi Treaty need not stand in the way of his claim to be heard in this case We heard him in view of the constitutional issue of grave importance raised in, the instant case involving an international treaty affecting the territory of Bangladesh and his complaint as to an impending threat to his certain fundamental rights guaranteed by the constitution, namely, remove freely throughout the territory of Bangladesh, to reside and settle in any place therein as well as his right of franchise. Evidently, these rights attached to a citizen are not local. They pervade and extend to every inch of the territory of Bangladesh stretching up to the continental shelf.” [Para: 18]
Another issue was raised that treaty-making is an executive act and so also ratification, if a treaty contains provision for ratification and that both fall within the ambit of the executive power of the State. On their examination, the Hon’able Court held that “Article 55(2) of the Constitution says: “The executive power of the Republic shall, in accordance with this Constitution, be exercised by or on the authority of the Prime Minister.” The Prime Minister, or one in his authority, is thus required to exercise the executive power in accordance with the Constitution and not otherwise. This is in keeping with the settled principle that Parliament has constitutional control over the Executive. Clause (2) of Article 143 of our Continuation says: “Parliament may from time to time by law provide for the determination of the boundaries of the territory of Bangladesh and the territorial waters and the continental shelf of Bangladesh”. The Prime Minister cannot, therefore, unilaterally determine the boundaries of the country. This can only be done by law enacted by parliament in that behalf.” [Para: 24]
Further it was pointed out that the power of determining the boundary of the territory of Bangladesh resided with the Parliament under Article 143(2) and the Hon’able Court held that “… Treaty involving the determination of boundary and more so involving cession of territory can only be concluded with the concurrence of Parliament by necessary enactment; in case of determination of boundary by an enactment under article 143(2) and in case of cession of territory by amending article 2(a) of the Constitution by taking recourse to article 142.” [Para: 38]
Thereafter, on 21st November, 1974, Mr. Monoranjan Dhar, Minister, Law and Parliamentary Affairs, introduced the Constitution (Third Amendment) Bill to the House to give effect the Bangladesh India Border Demarcation Agreement signed on May 16, 1974 which enable the country to transfer an area of 2.64 square miles approximately of Berubari union to India and bring in Dahagram and Angarpota enclaves from territory of India in exchange.
Locus Standi [See: Para – 16,17, 18]
The fact that the appellant is not a resident of the southern half of South Berubari Union No. 12 or of the adjacent enclaves involved in the Delhi Treaty need not stand in the way of his claim to be heard in this case We heard him in view of the constitutional issue of grave importance raised in, the instant case involving an international treaty affecting the territory of Bangladesh and his complaint as to an impending threat to his certain fundamental rights guaranteed by the constitution, namely, remove freely throughout the territory of Bangladesh, to reside and settle in any place therein as well as his right of franchise. Evidently, these rights attached to a citizen are not local. They pervade and extend to every inch of the territory of Bangladesh stretching upto the continental shelf.
Exercise of Executive Power by Prime Minister [See: Para – 8, 23, 24, 38]
The Prime Minister, or one in his authority, is thus required to exercise the executive power in accordance with the Constitution and not otherwise.
Power of Determining the Boundary of the Territory of Bangladesh [See: Para – 24, 29, 35, 38]
“…. a treaty involving determination of boundary, and more so involving cession of territory, can only be concluded with the concurrence of Parliament by necessary enactment; in case of determination of boundary by an enactment under Article 143(2) …”
Judgment of the Supreme Court of India on Berubari Union No. 12 – The Berubari Union And … vs Unknown [AIR 1960 SC 845, 1960 3 SCR 250]; For full judgment: Click Here
Judgement of the Supreme Court of Bangladesh – Kazi Mukhlesur Rahman Vs. Bangladesh [26 DLR (AD) (1974) 44]; For full judgment: Click Here
The Constitution (Third Amendment) Act, 1974; For full text (unofficial version): Click Here