THE ECONOMIC WEEKLY

December 10, 1960

Calcutta Letter

Storm over Berubari

the date f i x e d f o r the transfer of B e r u b a r i d r a w s near, the clouds on the p o l i t i c a l h o r i z o n of Bengal grow d a r k e r and darker. For some time past occasional r u m bles were h e a r d ; o m i n o u s preludes. Now the s t o r m has b r o k e n . Last week as the Assembly was considering the Acquired Territories ( M e r g e r ) B i l l r e f e r r e d to it by the President, an I n d e p e n d e n t member intervened dramatically and challenged its c o n s t i t u t i o n a l i t y . T h e Assembly took up the issue and by an unanimous resolution rejected the B i l l as unconstitutional on no less than seven counts and r e f e r r e d it back to the Centre. T h e storm over B e r u b a r i is the c u l m i n a t i o n of events going as far back as 1947 when the Radcliffe a w a r d was made, demarcating the b o u n d a r y between the two newly created provinces of West and East Bengals. A c c o r d i n g to the a w a r d , B e r u b a r i U n i o n No. 12, c o m p r i s i n g an area of 8.75 sq miles situated in J a l p a i g u r i district and f o r m i n g a p a r t of the then Rajshahi d i v i sion, was described as p a r t of West Bengal and allotted to I n d i a on the advent of independence. But the map annexed to the a w a r d , however, showed this area as part of Mast Bengal though the a w a r d had specifically provided that in the event of any discrepancy between its descriptive part and the m a p . the description was to p r e v a i l . AS half given to Pakistan. Another t e r m of the. agreement related to exchange of the old Cooch-Behar enclaves. The decision to transfer a port i o n of B e r u b a r i was soon challenged. In December 1958 the West Bengal Assembly declared f i r m l y that B e r u b a r i was and should rem a i n part of India. A Berubari Defence Committee came i n t o existence. Mass meetings were held to protest against the proposed transfer. Legal difficulties in implem e n t i n g the N e h r u - N o o n agreement also became apparent. On an app l i c a t i o n made under A r t 22b of the C o n s t i t u t i o n , M r Justice S i n h a issued an i n j u n c t i o n on the State, of West Bengal and the U n i o n of I n d i a r e s t r a i n i n g them f r o m g i v i n g effect to the proposed transfer. It was in these circumstances that the President referred to the Supreme Court the question of what l e g i slative action was necessary Jo i m plement the agreement. By unanimous o p i n i o n the Supreme C o u r t field that the agreement amounted to cession or alienation of a part of I n d i a n t e r r i t o r y in favour of Pakistan and that it was not a mere ascertainment or d e t e r m i n a t i o n of the b o u n a r y in the l i g h t of. and by reference to. the Bagge a w a r d . U n d e r the Constitution, as it stood. the Executive had no power to cede any portion of Indian territoryits power to acquire new territories. There was however no restriction on its power to acquire new t e r r i tories. In the light, of this o p i n i o n , the Central Government has decided to tackle the two aspects of the N e h r u Noon agreement by two separate measures w i t h regard to B e r u b a r i . An amendment of the Constitution is proposed w i t h a view to m a k i n g it possible for the Executive to i m plement the agreement. T h e present A c q u i r e d T e r r i t o r i e s ( M e r g e r ) B i l l has been introduced to deal w i t h the question of a c q u i s i t i o n or exchange of enclaves. claves and that i n a s m u c h as the transfer is illegal w i t h o u t a constitutional amendment, the B i l l f o r the exchange of enclaves is also u n constitutional and f i n a l l y that an attempt to solve issues by piecemeal legislation deprives the State Legislature of its r i g h t to express its o p i n i o n in respect of the cession of a p a r t of its t e r r i t o r y , p a r t i c u l a r ly w h e n such cession is the consideration f o r the t e r r i t o r y proposed to be acquired under the present Bill. The House could not a p p r o bate and reprobate simultaneously. It is difficult to disentangle facts from the p l e t h o r a of statements and counter-statements. It is t r u e that, at the time of the N e h r u - N o o n a g r e e m e n t the Chief Secretary of West Bengal as well as some State revenue officers were present and that they were asked how d i v i s i o n of the B e r u b a r i Union could best be effected, whether vertically or h o r i zontally. But the view of the State Government is that such officers were obviously not empowered to concur in decisions as to p o l i c y . They assumed that they were merely to suggest how a p o l i c y decision, if made, could best be implemented. On the other h a n d the P r i m e M i n i s t e r thinks that a l t h o u g h B e r u b a r i d i d not stand out in the talks relating to the general agreement, the impression given by the West Bengal officials was one of tacit a p p r o v a l . In this context, it might be observed that f o r the smooth funct i o n i n g of a federal system it is essential to develop certain healthy conventions. T h e power to enter i n to treaties is undoubtedly w i t h the O u t r e ; as a matter of law. the consent of the State affected by action on the part of the Central Government, is not necessary. Nevertheless, it is in the u l t i m a t e interest of the country that power should be exercised as f a r as possible in a democratic manner. It can, of course, be said that the State Government, h a v i n g been a p p r i s e d of what was h a p p e n i n g , should have taken steps at the earliest possible stage. On the other h a n d , as the responsibility for the exercise of paramount power is w i t h the Centre, it is f o r the Centre to take f o r m a l steps to ascertain the wishes of the State Government in a mat-

Nehru-Noon Accord
Berubari was treated as a part of West Bengal and of I n d i a . Indeed the Bagge T r i b u n a l , which was set up in 1948 to consider certain categories of disputes rel a t i n g to the boundaries between I n d i a and Pakistan, d i d not even refer to the question of B e r u b a r i . It was only in 1952 that Pakistan for the first t i m e alleged that under the Radcliffe a w a r d the Berubari Union should have f o r m e d part of East Bengal and that it had been wrongly treated as p a r t of West Bengal. A f t e r this, some correspondence took place between the P r i m e M i n i s t e r s of I n d i a and Pakistan, and f i n a l l y on September 10, 1058 came the Nehru-Noon Agreement on the issue. One of the terms of the agreement was that the B e r u b a r i U n i o n should be d i v i d e d h o r i z o n t a l l y and the lower

State Assembly's Views

T h e State Assembly has raised serious objections to this B i l l . In its view, the N e h r u - N o o n agreement is one and i n d i v i s i b l e , that the transfer of a p o r t i o n of Berub a r i is part of the consideration f o r the exchange of Cooch-Behar en1785

December 10, 1960

THE ECONOMIC WEEKLY

ter w h i c h affects that State v i t a l l y . It m i g h t seem at first sight that the proposed transfer of only 4.37 square m i l e s to Pakistan is not a matter of great i m p o r t a n c e . It w i l l however mean the u p r o o t i n g of some 6000 persons in the area, of w h o m again a l a r g e p r o p o r t i o n are refugees f r o m East Bengal. The transfer woud thus add to, or aggravate, the already very serious p r o b l e m of refugees assailing the

State. M o r e o v e r , over the last 13 years. G o v e r n m e n t has spent large sums of money, i n c l u d i n g over a l a k h of rupees in the f o r m of loans, on the area to develop its resources a n d i m p r o v e the c o n d i t i o n of l i f e of its people. The Berubari question has not merely affected relations between the U n i o n Government and the Government of West Bengal. T h e manner in w h i c h it is likely to be set-

tled w i l l have significant effect on the fortunes o f the p a r t y i n power in the State at the next election. If the a g i t a t i o n does not s i m m e r d o w n (as it may d o ) , it m a y prove to be another nail d r i v e n i n t o the coffin of the Congress p a r t y . T h e p u b l i c of Bengal is still sore on the question of Assam. T h e lack of tart in the h a n d l i n g of the Berubari issue is certainly not going to act as an emollient.

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