Indian Kanoon - Search engine for Indian Law

15. War and peace."

These entries enable laws to be enacted on these topics. They are to be read with Article 253 which occurs in Part XI (Relations between the Union and the States) Chapter 1 (Legislative Relations) and is headed Distribution of Legislative Powers, it provides.

"253. Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory ,of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body."

These two cases did not really decide the point we are called upon to decide. The first Berubari Case dealt with transfer of territory which was de facto and de jure Indian territory and there-fore as the extent of Indian territories as defined in Art. I read with the 1st Schedule was reduced a constitutional amendment was held necessary. The second case concerned territory which ,was de facto under the administration by India but being de jure that of Pakistan, transfer of that territory which was not a part of Indian territory was held not to require a constitutional amendment. Neither case dealt with a boundary dispute although in the first case the case from Australia was distinguished on the ground that that case concerned the demarcation of boundaries pure and simple. However it was not said that for adjustment of boundaries a constitutional amendment was not required. Neither case adverted to the practice of Nations particularly Britain, nor attempted to interpret the relation of Articles 1,253 and 73 of the Constitution read with Items 14 and 15 of List I of Schedule

The argument raised at the Bar that power to make treaty or to implement a treaty, agreement or convention with a foreign State can only be exercised under authority of law, proceeds upon a misreading of Art. 253. Article 253 occurs in Ch. 1 of Part XI of the Constitution which deals with legislative relations: Distinction of Legislative Powers. By Art. 245 the territorial operation of legislative power of the Parliament and the State Legislatures is delimited, and Art. 246 distributes legislative power subject-wise between the Parliament and the State Legislatures. Articles 247, 249, 250, 252 and 253 enact some of the exceptions to the rule contained in Art. 246. 'Me effect of Art. 253 is that if a treaty, agreement or convention with a foreign State deals with a subject within the competence of the State legislature, the Parliament alone has notwithstanding Art. 246(3), the power to make laws to implement the treaty, agreement or convention or any decision made at any international conference, association or other body. In terms, the Article deals with legislative power thereby power is conferred upon the parliament which it may not otherwise possess. But it does not seek- to circumscribe the extent of the power conferred by Art. 73. If, in consequence of the exercise of executive power, rights of the citizens or others are restricted or infringed, or laws are modified, the exercise of power must be supported by legislation: where there is no such restriction, infringement of the right or modification of the laws, the executive is competent to exercise the power. It may be recalled that cl. 3 (iv) of the Agreement included a covenant that the decision of the Tribunal shall be binding on ,both the Governments. The power of the executive to enter into that covenant cannot also be challenged, and was not challenged. It was conceded that if the contention based on Art.. 253 was not accepted, the award of the Tribunal by majority of two (Judge Gunnar Lagergren with whom Ambassador Nasrollah Entezam agreed) was binding upon the Government of India. It was accepted that as an international agreement between the two States represented by their executive Governments it became binding between the two States as expressly undertaken. No argument was urged that there exist any grounds which may justify the Union of India from declining to implement the agreement. The award of the Tribunal has, it was conceded, to be implemented as an international obligation. Counsel who represented the claimants, and claimants who argued their cases, before us: adopted an eminently fair attitude. it was not urged that the award was not binding upon the Union of India : their plea urged with moderation was that insofar as the award affected the territorial limits of India, it required a constitutional amendment. It was not suggested that apart from the claim to exercise rights to move freely throughout the territory of India under Art. 19(1) (d), and to reside and settle in any part of the territory of India under Art. 19 (1) (e) any other right of any individual citizens was likely to be infringed by the implementation of the award. The nature of the terrain of the disputed territory precludes any other claim being made, There are no local residents, no private property and no agriculture. For four months in the year it is mostly under water, for the rest of the year it is marshy land. But it was claimed that every individual citizen of India is entitled to exercise the privileges under cls. (d) and (e) of Art. 19(1) in respect of territory between the boundary shown in Map 'A annexed to the award, and the boundary delineated by Map 'C" which represents, in the view of the Tribunal, the border between the two States, is Indian territory and deprivation of the rights of the citizens under Art. 19 (1)