Along with some other disputes on the Western frontiers of India and Pakistan, the problems on the Eastern borders were largely due to the unnatural Radcliffe Boundary Award. Conflicts also arose due to the confusion about- the names of rivers or changes in their courses. The enclaves posed another ,problem which came under the category of boundary disputes. The enclave of Berubari union situated on the Rangpur (East Pakistan) and Jalpaiguri ( West Bengal was one of them. In September 1958, the Prime Ministers of Pakistan and India, Firoze Khan Noon and J awaharlal Nehru, signed an agreement whereby India agreed to cede the Berubari enclave. But the agreement became an issue of constitutional controversy in India and the subject of a tussle between the central government of India and the provincial government of West Bengal. In its ruling of March 1960, the Supreme Court of India declared the agreement illegal, thus the Noon-Nehru agreement was never implemented.
This dispute rose due to omission in the written text. Radcliffe had divided the district of Jalpaigudi between India and Pakistan by awarding some thanas to one country and others to the other country. The boundary line was determined on the basis of the boundaries of the thanas. In describing this boundary, Radcliffe omitted to mention one Thana. Berubari Union No. 12 lies within Jalpaigudi thana which was awarded to India. However, the omission of the Thana Boda and the erroneous depiction on the map enabled Pakistan to claim that a part of Berubari belonged to it.
This dispute was resolved by Nehru-Noon Agreement of 1958, whereby half of Berubari Union No. 12 was to be given to Pakistan and the other half adjacent to India was to be retained by India. In addition, four Cooch Behar enclaves contiguous of this part would also have gone to Pakistan.
Now the question arose, regarding the power of the parliament to transfer the territory of Berubari to Pakistan.
The detailed examination of article 3 was done by the Supreme Court on a reference made by the President in 1960. The Supreme Court held that the parliament of India is not competent to make a law under article 3 for the implementation of the Nehru-Noon Agreement. The conflict in judiciary and legislature was obvious.
This was followed by an amendment of the Constitution by parliament using power of Article 368. The result was the Constitution (9th Amendment ) Act 1960. The object of this amendment reads:
Agreements between the Governments of India and Pakistan dated 10th September, 1958, 23rd October, 1959, and 11th January, 1960, settled certain boundary disputes between the Governments of India and Pakistan relating to the borders of the States of Assam, Punjab and West Bengal, and the Union territory of Tripura.
According to these agreements, certain territories are to be transferred to Pakistan after demarcation. In the light of the Advisory Opinion of the Supreme Court in Special Reference No. 1 of 1959, it is proposed to amend the First Schedule to the Constitution under a law relatable to article 368 thereof to give effect to the transfer of theses territories.
What we conclude here is that by itself, the Parliament of India is not competent enough to cede a territory. However, to make such an agreement effective, Parliament would need to enact an amendment of the Constitution.