PRESIDENT OF INDIA Vs. BERUBARI UNION AND EXCHANGE OF ENCLAVES

JUDGEMENT

(1.) In accordance with the directives issued by the Prime Ministers of India and Pakistan, on September 10, 1958, the Commonwealth Secretary, Ministry of External Affairs, Government of India and the Foreign Secretary, Ministry of Foreign Affairs and Commonwealth, Government of Pakistan, discussed 10 items of dispute between the two countries and signed a joint note recording their agreement in respect of the said disputes and submitted it to their respective Prime Ministers; and with a view to removing causes of tension and resolving border disputes and problems relating to Indo-Pakistan Border Areas and establishing peaceful conditions along those areas, the Prime Ministers, acting on behalf of their respective Governments, entered into an agreement settling some of the said disputes and problems in the manner set out in the said joint note. This agreement has been called the Indo-Pakistan Agreement and will be referred to hereafter as the agreement.

(2.) In the present Reference we are concerned with two items of the Agreement; item 3 in paragraph 2 of the Agreement reads as follows:

(3.) It appears that subsequently a doubt has arisen whether the implementation of the Agreement relating to Berubari Union requires any legislative action either by way of a suitable law of Parliament relatable to Art. 3 of the Constitution or by way of a suitable amendment of the Constitution in accordance with the provisions of Art. 368 of the Constitution or both; and that a similar doubt has arisen about the implementation of the Agreement relating to the exchange of Enclaves; and it further appears that there is a likelihood of the constitutional validity of any action taken for the implementation of the Agreement relating to Berubari Union as well as the Agreement relating to the exchange of Enclaves being questioned in courts of law involving avoidable and protracted litigation; that is why the President thought that questions of law which have arise are of such nature and of such importance that it is expedient that the opinion of the Supreme Court of India should be obtained thereon; and so, in exercise of the powers conferred upon him by cl,. (1) of Art. 143 of the Constitution he, has referred the following three questions to this Court for consideration and report there on: