Vodafone International Holding v UOI
- 2022-02-16
Citation: AIR 1960 SC 845
Court: Supreme Court of India
Facts of the case: At the time of partition of India and Pakistan, the task of demarcation of boundaries was assigned to Sir Radcliffe. As a result of the Radcliffe award, Berubari Union No.2 fell within the West Bengal and was treated as part of India after the constitution came into force. However, there was continuous dispute with Pakistan on the subject. To settle the dispute, the Prime Minister of India and Pakistan entered into an agreement which provided transfer of Berubari Enclaves of West Bengal to Pakistan and Cooch Bihar enclaves were to come to India in exchange. This agreement caused uproar in the state of west Bengal as well as the society. The reaction caused the President of India to seek the opinion of Supreme Court under Article 143 of the Constitution
Issue: Whether Parliament could cede Indian territory to a foreign country by making a law under Article 3 or if an amendment on such matter is necessary?
Judgment: The Supreme Court held that Article 3, dealt with the internal adjustment inter se of the constituent states of the Indian Union. It was stated that Article 1(3)(c) does not grant authority to India to acquire territories. It only makes a provision for the absorption and integration of foreign territories that may be acquired by India. The provision “ to diminish the are a of a state” envisaged taking out a part of the state and adding it to another state. It does not refer to cession of national territory in favour of a foreign country. So the agreement relating to Berubari between Pakistan and India could be implemented only by amending the Constitution under Article 368. The Parliament does not have the power to implement such agreement by passing an ordinary Act under Article 3(c ).
However, the court observed that Parliament has the power to cede parts of national territory as it is one of the attributes available to a sovereign nation. The law required would have to be executed and passed under Article 368 of the Constitution. Since the Agreement amounts to a cession of a part of the territory of India in favor of Pakistan. So, its implementation would involve changes being made to Article 1 and the relevant part of the First Schedule of our Constitution, because the execution of the Agreement would lead to the diminution of the territory of India. Such an amendment can be made under Article 368 of our Constitution.
While adjudging the case, the Supreme Court also specified that preamble is not part of the constitution. In light of the judgment delivered, the 9th Constitutional Amendment Act 1960 was enacted to give effect to the agreement between Pakistan and India.
