Power to cede Indian territory to a Foreign Nation under the Indian Constitution
The Union has the right to cede territory if and when the occasion arises. Such a right vests in every Sovereign State and can be implied even when not specifically conferred by its Constitution. The Constitution gives power only to acquire foreign territory and not to cede Indian territory to foreign powers. First, it would be necessary to take action under Art. 368 empowering Parliament to make law for cession of territory and then legislation under Art. 3 can be resorted to. In Art. 3(a) the words " any territory " are not wide enough to include foreign territory; they apply what has already been acquired and has become part of the Union under Art. 1. Parliament has power only to pass law in respect of territory over which it has jurisdiction. Article 3 merely deals with the internal arrangement of the territories of the States and does not deal with acquisition of foreign territory or cession of the Indian territory to foreign powers. This was established in the case of In Re: The Berubari Union And exchange of Enclaves. After the Nehru-Noon agreement was signed between India and Pakistan to divide the territory of Berubari Union, the Government of West Bengal opposed it. After this Union referred the matter to SC which held that the power of Parliament to diminish the area of a state (under Article 3) does not cover cession of Indian territory to a foreign country. Hence, Indian territory can be ceded to a foreign state only by amending the Constitution under Article 368. Consequently, the 9th Constitutional Amendment Act (1960) was enacted.
Definition of Sovereignty
Sovereignty, in political theory, the ultimate overseer, or authority, in the decision-making process of the state and in the maintenance of order. The concept of sovereignty—one of the most controversial ideas in political science and international law—is closely related to the difficult concepts of state and government and of independence and democracy. Derived from the Latin superanus through the French souveraineté, the term was originally understood to mean the equivalent of supreme power. However, its application in practice often has departed from this traditional meaning. Sovereignty is further divided into external and internal sovereignty. Internal sovereignty means the supreme authority within one's territory and external sovereignty relates to the recognition on the part of all states that each possesses this power in equal measure. According to Article 19 (2), nothing can stop the state from making any law, so far as it imposes reasonable restrictions on the exercise of rights mentioned in Article 19 (1) of the Indian constitution in the interests of the sovereignty and integrity of India and relations with foreign States.
External sovereignty is the right of a nation to be free from external forces of interference that would challenge, disrupt, or remove the rights & freedoms of that nation to exist & to govern its own territory & society. Internal sovereignty is the right of a nation to be free of internal forces of disruption to its rights & freedoms to exercise the internal governance of its society & territories. Internal sovereignty can be further subdivided to include the rights & freedoms of subsets of the sovereign nation to exercise their constitutional, or otherwise defined rights of governance within their regional boundaries. These subsets typically comprise provinces, states, territorial regions & municipalities.
Understanding External Sovereignty
A sovereign country has “inherent” right to acquire a foreign territory, it does not need to be explicitly mentioned. That also means that there is no need to enact any parliamentary legislation to acquire a new territory. As far as cession of a territory is concerned, Parliament of India is not competent enough to cede a territory. If there is a need to cede a territory via some agreement, Parliament would need to enact an amendment of the Constitution. Furthermore, the power to acquire or cede territory is not expressly conferred by the Constitution. Articles 1 to 4 of the constitution does not confer power on the Union to acquire or cede a territory. So, when India acquires a foreign territory, it automatically becomes Indian territory because of the implicit nature of sovereignty, yet to make it a legal entity, such as state or union or the part thereof, an act by parliament would be required. Also note that cession of a territory by India to another country in order to implement an award by an international tribunal is considered as a ‘servitude suffered” by India to respect and follow the international law. So, in this case, an act by parliament would also suffice.
In Ram Kishore Sen and Others v. Union of India, it was held that the power to cede a part of the national territory and the power to acquire additional territory were the inherent attributes of sovereignty; and if any part of the national territory was intended to be ceded, a law relating to Article 3 alone would not be enough unless appropriate action was taken by the Indian Parliament in Article 368. This Court then took the view that both the powers were the essential attributes of sovereignty and vested in India as an independent Sovereign Republic.
In Sugandha Roy v. Union of India, the court held that Article 1(3)(c) does not confer power to India to acquire territories. The court held that this Article purports to make a formal provision for absorption and integration of any foreign territory which may be acquired by India by virtue of its inherent flights to do so. Also, the court concluded that it would be unreasonable to conclude that there is no power in the Sovereign State of India to cede its territory and that the power to cede national territory which is an essential attribute to sovereignty is lacking in the case of India. It was further held that the acquisition of foreign territory by India in exercise of its inherent right as a sovereign State automatically makes the said territory a part of the territory of India. Also, the petitioner argued that the Prime Minister of the GOvernment of India has no power to cede any territory without any amendment in the constitution.
In Re: The Berubari Union case, the Court held that the power to cede territory is not specifically provided in the Constitution of India, and if they still do decide to do so, this must be done with an Amendment in the Constitution. The power to cede territory in the United States is included in its treaty making power and is not conferred in the United States Constitution.
In Bejoy Singh v, Surendra Narayan, the court held that without grant of territory cession of all powers of governance and administration would not tantamount to cession of territory. But a different rule of construction should apply to treaties or agreements, between two sovereign states, having for their object cession of jurisdiction for the purpose of the governance of territory.
From the above mentioned cases, it can be concluded that the power to cede Indian territory to a Foreign Nation can be given to the Government Of India or to the Prime Minister only with an Amendment in the Constitution under Article 368 of the Constitution. This was established in the cases mentioned above. To conclude, the power to cede to a foreign nation must be exclusively mentioned in the Constitution. The United States Constitution has taken note of this and has it exclusively mentioned. In India The diminution of the area of any State to which it refers postulates that the area diminished from the State in question should and must continue to be a part of the territory of India; it may increase the area of any other State or may be dealt with in any other manner authorised either by Art. 3 or other relevant provisions of the Constitution, but it would not cease to be a part of the territory of India. It would be unduly straining the language of Art. 3(c) to hold that by implication it provides for cases of cession of a part of national territory. Therefore, we feel no hesitation in holding that the power to cede national territory cannot be read in Art. 3(c) by implication.