Bench A 7-Judge Bench of the Supreme Court: B.P. Sinha, C.J. S.K. Das, J. P.B. Gajendragadkar, J. A.K. Sarkar, J. K. Subba Rao, J. M. Hidayatullah, J. K.C. Das Gupta, J. Facts Berubari Union was a region located in West Bengal, India, near the border with East Pakistan (now Bangladesh). After India’s independence in 1947, border disputes arose between India and Pakistan regarding the territorial control of Berubari Union. The Radcliffe Award, which determined the boundary between India and Pakistan, was unclear about the status of Berubari Union. In 1958, Prime Minister of India Jawaharlal Nehru and Prime Minister of Pakistan Feroze Khan Noon signed an agreement (Indo-Pakistan Agreement) to divide Berubari Union between India and Pakistan. The agreement also included an exchange of enclaves (small land areas surrounded by foreign territory) between the two countries. A doubt arose as to whether the implementation of the agreement required a constitutional amendment or could be done by executive action alone. The President of India referred the matter to the Supreme Court under Article 143(1) of the Constitution for advisory opinion. Issues Is any legislative action necessary for implementing the Indo-Pakistan Agreement regarding Berubari Union? If legislative action is needed, would a law passed under Article 3 of the Constitution be sufficient, or is an amendment under Article 368 necessary? Would a law under Article 3 be enough for the exchange of enclaves, or is an Article 368 amendment also required? Ratio Decidendi (Legal Principle) The Supreme Court held that Parliament does not have the power under Article 3 to cede Indian territory to a foreign country. Article 3 allows Parliament to alter state boundaries but not to transfer Indian land to a foreign country. Article 368 (Constitutional Amendment) is required for ceding Indian territory, as it involves modifying the First Schedule of the Constitution, which defines India’s territory. The agreement to transfer Berubari Union to Pakistan amounted to “cession of territory,” which required a constitutional amendment. The exchange of enclaves was also considered a transfer of sovereignty and needed a constitutional amendment. Observations The Indian government cannot transfer territory without amending the Constitution, as the First Schedule specifically defines the country’s boundaries. The preamble of the Constitution does not impose any restrictions on Parliament’s power to amend the Constitution. The treaty-making power of the government is subject to constitutional limitations; even if the government signs an international treaty, it cannot implement territorial changes without following constitutional procedures. The power to acquire territory (Article 1(3)(c)) does not imply the power to cede territory. Decision The Supreme Court ruled that Parliament cannot transfer Indian territory to another country through a law under Article 3. A constitutional amendment under Article 368 is necessary to implement the Indo-Pakistan Agreement regarding Berubari Union. The same requirement applied to the exchange of enclaves between India and Pakistan. As a result of this ruling, the Indian government passed the Constitution (Ninth Amendment) Act, 1960 to implement the agreement. Important Terms 1. Article 143 (Advisory Jurisdiction of the Supreme Court) This article allows the President of India to seek advice from the Supreme Court on matters of law or constitutional interpretation. In this case, the President referred the issue of Berubari Union’s transfer to the Supreme Court for an opinion. 2. Article 3 (Alteration of State Boundaries) Article 3 allows Parliament to change state boundaries and names. However, the Supreme Court ruled that Article 3 does not allow Parliament to transfer Indian territory to a foreign country. 3. Article 368 (Constitutional Amendment Procedure) This article provides the procedure for amending the Constitution. The Supreme Court held that territorial changes require an amendment under Article 368 because they modify the First Schedule of the Constitution. 4. Radcliffe Award (1947) This was the boundary commission report that divided India and Pakistan in 1947. The award was unclear about Berubari Union’s status, leading to a territorial dispute. 5. Cession of Territory Cession means the transfer of sovereignty over a piece of land from one country to another. The Supreme Court ruled that India cannot cede its land without a constitutional amendment. 6. Indo-Pakistan Agreement (1958) Signed between India and Pakistan to resolve border disputes. It proposed dividing Berubari Union and exchanging enclaves between the two nations.

Bench A 5-Judge Bench of the Supreme Court: B.K. Mukherjea, C.J. Vivian Bose, J. B. Jagannadhadas, J. T.L.V. Venkatarama Ayyar, J. Syed Jaffer Imam, J. Facts A writ petition under Article 32 of the Constitution was filed by six petitioners engaged in the business of printing, publishing, and selling textbooks in Punjab. They operated under the name “Uttar Chand Kapur & Sons” and had been preparing textbooks for schools, particularly for primary and middle classes. In 1950, the Punjab Education Department issued notifications announcing a policy of nationalizing school textbooks. These notifications restricted private publishers from printing or selling textbooks, effectively monopolizing the business for the state. The petitioners claimed that this violated their fundamental right to carry on their trade under Article 19(1)(g) of the Constitution. They further contended that these restrictions were imposed without the authority of law and thus were not protected under Article 19(6). Issues Does the executive government of a state have the power to engage in trade or business without any legislative sanction? Can the government monopolize a particular trade (such as textbook publishing) without enacting a law to that effect? Does the action of the Punjab government violate the fundamental right to trade under Article 19(1)(g)? Does the nationalization policy infringe upon Article 31, which protects the right to property? Ratio Decidendi (Legal Principle) Separation of powers in India is not absolute. The executive can take actions in areas where the legislature has the authority to legislate, provided there is no existing law prohibiting such action. Articles 73 and 162 of the Constitution define the scope of executive power for the Union and State governments, allowing them to act in areas where they have legislative authority. The state can enter business and trade, but if it wants to create a monopoly, it must pass legislation that meets the requirements of Article 19(6). The government’s action did not completely prohibit private publishers from printing books. It only restricted which books could be used in government-recognized schools, which was held not to be a violation of Article 19(1)(g). The government did not seize or confiscate the petitioners’ business, so there was no violation of property rights under Article 31. Observations The Indian Constitution does not enforce strict separation of powers like the U.S. Constitution, but it does differentiate between legislative, executive, and judicial functions. The executive can act in areas where legislation is possible, even without a specific law, as long as it does not infringe fundamental rights. Government monopoly in trade must be backed by legislation, not just executive orders. The Punjab Government’s policy did not completely eliminate private publishers—it only affected government-recognized schools, so there was no total exclusion from the trade. Decision The Supreme Court rejected the petitioners’ claim that the government could not enter the business of publishing textbooks. However, it held that a complete state monopoly in trade requires proper legislation and cannot be imposed through executive orders alone. The Punjab Government’s actions were upheld, as they did not completely ban private businesses, nor did they violate fundamental rights under Articles 19(1)(g) or 31. Important Terms Article 32 (Right to Constitutional Remedies) Article 32 allows individuals to approach the Supreme Court directly if their fundamental rights are violated. In this case, the petitioners filed a writ petition under Article 32, claiming that their right to trade under Article 19(1)(g) was being violated. Article 19(1)(g) (Right to Trade and Business) This guarantees every citizen the right to practice any profession or carry on any occupation, trade, or business. However, Article 19(6) allows the government to impose reasonable restrictions, including creating state monopolies through legislation. In this case, the Punjab Government did not impose a total ban on private publishers, so there was no violation of Article 19(1)(g). Article 19(6) (Reasonable Restrictions on Trade) This article permits the government to impose restrictions on trade in the public interest. It also allows the government to carry on trade or business and even create state monopolies through proper legislation. The Punjab Government should have passed a law instead of just issuing executive notifications. Article 31 (Right to Property) [Before It Was Repealed] At the time, Article 31 protected property rights from being taken away by the government without compensation. The petitioners argued that their business was being taken away, but the Court ruled that no property was actually confiscated. Separation of Powers The concept that legislative, executive, and judicial powers should be distinct. The Supreme Court held that India does not follow strict separation of powers like the USA. The executive can take actions that fall under legislative powers, as long as there is no specific law restricting them. Articles 73 and 162 (Scope of Executive Power) Article 73 defines the executive power of the Union, while Article 162 defines the executive power of the States. The executive can act in matters where legislation is possible, even without an existing law. However, if a government wants to create a monopoly, it must pass a proper law.

Bench: A 6-Judge Bench of the Supreme Court: Facts: Issues: Ratio Decidendi (Legal Principle): Observations: Decision: Important Terms: 1. Article 131 (Original Jurisdiction of Supreme Court) 2. Coal Bearing Areas (Acquisition and Development) Act, 1957 3. Sovereignty 4. Quasi-Federalism 5. Entry 42, List III (Concurrent List) 6. Article 294 (Property Transfer Between Union and States) 7. Article 298 (State’s Power to Own Property and Trade)  

Bench: A 9-Judge Constitution Bench of the Supreme Court: Facts: Issues: Ratio Decidendi (Legal Principle): Observations: Decision: Important Terms:    

Facts: The case arose when Kesavananda Bharati, a religious leader and the head of a math (religious institution) in Kerala, challenged the constitutional validity of two major amendments: the 24th and 25th Constitutional Amendments. These amendments aimed to modify various aspects of the Constitution, especially regarding land reform laws and the power of judicial review. Kesavananda Bharati, whose religious institution’s land was subject to the Kerala land reforms, challenged these amendments on the grounds that they violated the basic structure of the Constitution. He argued that no amendment should have the power to alter the fundamental principles and values enshrined in the Constitution. The case was heard by a 13-judge bench, making it one of the largest benches in Indian legal history. The judgment was delivered after a prolonged deliberation and several opinions were written by different judges, with the majority and minority opinions differing on critical points. Issue: Ratio Decidendi: Observations: Decision: Important Terms: