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Kazi Mukhlesur Rahman Vs. Bangladesh and another, 1974, 3 CLC (AD) WEDNESDAY, 28 NOVEMBER 2007 20:01
Supreme Court
Appellate Division
(Civil)
Present:
Sayem CJ
AB Mahmud Husain J
Abdullah Jabir J
Ahsanuddin Chowdhury J
Kazi Mukhlesur Rahman.........................Appellant
Vs.
Bangladesh and another …………………………Respondents
Judgment
September 3, 1974.
Cases Involved To:
Banarasi Prashad vs. Kashi Krishna Narain, IR 28 IA 11; Radha Krishna Das Vs Rai Krishna
Chand. LR 28 IA 182, Radhar Krishna Ayyar Vs. Swaminatha Ayyar, LR 48 LA 31; Member,
Board of Revenue Vs Akhtar Khan, PLD 1968 SC 270; Shasi Bhusan Vs Asgar Ali, 20 DLR
(SC) 217; McCabe Vs. Atchison 235 U S. 151; 59 L. ed. 169; Massachusetts Vs. Mellon;
Fronthingham Vs Mellon, 262 U.S. 447= 67 L. ed. 1078 and Joint Anti. Fascist Com V.
McGrath, 31 U.S. 132s 95 L. ed. 817; Charanjit Lai V Union of India, AIR 1951 SC 41;
Calcutta Gas Co. Prop.) Ltd. V. State of W Bengal, AIR 1962 SC 1044; Maganbhai
Iswarbhai Patel Vs Union of India, AlE 1969 SC, 789 , Anderson V. Commonwealth, 47 CLR
50; Mia Fazal Din Vs. Lahore Improvement Trust, 21 DLR (SC) 225 ; Blackburn Vs
Attorney-General, (1971) I WLR 1037; Walker Vs. Baird, 1892) AC 491 PC; Johnstone Vs.
Pedler, (1921) 2 AC 262; Nissan Vs. Attorney-General (1970) AC 179; Canada Vs.
Attorney-General, AIR 1937 PG 82.
Lawyers Involved:
Ahmad Sobhan, Senior Advocate with Abdul Malek, Md. Amar Ali, A.Z.M. Khalilullah Md.
Fazlul Karim, Md. Ruhul Amin, Advocates, instructed by S. M Huq, Advocate-on-Record—
For the Appellant.
Syed Ishtiaq Ahmad, Additional Attorney-General with K.Z Alam, Dy, Attorney-General
Ismailuddin Sarker, Mahmudul Islam, A W. Bhuiyan, Asstt. Attorney General, instructed
by A. Rab, I. Advocate-on-Record—For the Respondents.
Civil Appeal No 23 of 1974.
(From the judgment and order of the High Court Division dited20-5-74 passed in Writ
Petition No, 559 of 1974).
Judgment
Sayem CJ.- This appeal arises out of an application under Article 102(2)(a)(ii)
of the Constitution. It is by the applicant before the High Court Division. The application
was summarily dismissed by the learned Judges of that Division, who however, granted
the appellant certificate under Article 103(2)(a) of the Constitution. The certificate
contains the following words: "Certificate for leave, as prayed for, under Article 103 (2)
(a) of the Constitution is granted”
2. In his application the appellant prayed before the High Court Division for a declaration
that the recent agreement between the Governments of the People's Republic of
Bangladesh and the Republic of India signed on the 16th day of May, 1974 by the Prime
Minister of the two countries (hereinafter referred to as the Delhi Treaty) which the
appellant claimed, involved cession of Bangladesh territory was without lawful authority
and of no legal effect. The declaration was sought with special reference to a part of
what is known as Berubari Union No 12 and the adjacent enclaves that are under the
administrative control of the Indian State of West Bengal The relevant portion of the
Delhi Treaty, including its title and the preamble, is set down below :—
"BETWEEN THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF BANGLADESH
AND THE GOVERNMENT OF THE REPUBLIC OF INDIA CONCERNING THE
DEMARCATION OF THE LAND BOUNDARY BETWEEN BANGLADESH AND INDIA
ANE RELATED MATTERS.
"The Government of the People's Republic of Bangladesh and the Government of the
Republic of India,
“Bearing in mind the friendly relation existing between the two countries,
"Desiring to define more accurately a certain points and to complete the demarcation of
the land boundary between Bangladesh and India,
"Have agreed as follows: —
* * * * * * * ** * *
"Article 1
“The land boundary between Bangladesh and India in the areas mentioned below shall
be demarcated in the following manner:
“14. Berubari
India will retain the southern half south Berubari Union No. 12 and the adjacent enclaves,
measuring an area of 2.64 square miles approximately, and exchange Bangladesh will
retain the Dhagram and Angarpota enclaves. India will lease in perpetuity to Bangladesh
area of 178 meters X 85 metres near 'Tin Bigha' to connect Dahagram with Panbari
Mouza (P.S. Patgram) of Bangla
* * * * * * *
Article 5
"This agreement shall be subject to ratification by the Governments of Bangladesh and
India and Instruments of Ratification shall be exchanged as early as possible. The
Agreement shall take effect from the date of the exchange of the Instruments of Rati-
fication."
It will appear that the Delhi Treaty, prima facie, purports to determine the boundary
between Bangladesh and India.
3. At the hearing of the appeal respondents, namely, the Government of the People
Republic of Bangladesh and the Prime Minister raised preliminary objections as to the
competency of the appeal as well as the maintainability of the application before the
High Court Division presented under Article 102(2)(a)(ii) of the Constitution.
4. The first objection raised on behalf of he respondents was that the learned Judges of
the High Court Division having failed to specify the question or questions relating to the
interpretation of the Constitution which arose for consideration, the certificate was
plainly defective and consequently the appeal was incompetent. Reliance was placed in
this connection on Banarasi Prashad V Kashi Krishna Narain, (L R. 28 Indian
Appeals 11) Radha Krishan Das v. Rai Krishan Chand (L R. 28 Indian Appeals
182) and Radha krishna Ayyar V. Swaminatha Ayyar (L R. 48 Indian Appeals 31)
as well as Member Board of Revenue V Akhtar Khan (P.L.D. 1968 S C 270) and
Sashi Bhusan V. Asghar Ali [20 D.L.R (S.C.) 217.].
5. The three aforementioned Privy Council cases related to certificate under rule 3 of
Order 15 of the Code of Civil Procedure. It will suffice to refer to the case of
Radhakrishna Ayyar (L R. 48 Indian appeals 31) in which the other two Privy
Council cases have been relied upon. In this case the certificate granted by the High
Court of Madras was in the following terms; “It is hereby certified that, as regards the
value of the subject-matter and the nature or the question involved, the case fulfils the
requirements of ss 109 and 110 of the Code of Civil Procedure, and the case is a fit one
for appeal to his Majesty in Council". The Judicial Committee observed that when a
certificate is granted it is of the utmost importance that the certificate should show
clearly upon which ground it is based. The Judicial Committee proceeded thereafter to
say:
"There is no indication in the certificate of what the nature of the question is that it is
thought was involved in the hearing of this appeal, nor is there anything to show that the
discretion conferred by s. 109(c) was invoked or was exercised. Their Lordships think is
should be brought to the attention of the Indian Courts that these certificates are of great
consequence, that they seriously affect the rights of litigant parties, and that they ought
to be given in such a form that it is impossible to mistake their meaning upon their
face".
The appeal was dismissed, the Judicial Committee having also found no reason to grant
special leave to appeal.
6. The other two cases relied upon by the respondents, namely, Member, Board of
Revenue V Akhtar Khan and Sashi Bhusan V Asgar Ali related to certificate of
fitness for appeal to the Supreme Court of Pakistan under Article 58(2) (a) of the
Constitution of 1962. In the case of Member, Board of Revenue the certificate did not
specify as to what if any, question of law as to the interpretation of the Constitution was
involved in the case. Being itself unable to discover any such question, the Supreme
Court regretted that the High Court should have granted the Certificate without
specifying the question of law relating to the interpretation of the Constitution which it
thought arose in the case. Since, however, no objection was taken as to the validity of
the certificate; the appeal was disposed of on merits. In Sashi Bhusan's case S.A
Rahman CJ, who delivered the main judgment referred to the above Privy Council
decisions as also some other cases and repelled an argument that the mere physical fact
of the granting of certificate by the High Court should preclude the Supreme Court from
examining the propriety of the certificate on which the appeal was based. The learned
Chief Justice was of the opinion that this would lead to the absurd conclusion that the
jurisdiction of the Supreme Court was subject to control by the High Court. In his
supporting judgment Sajjad Ahmed Jan, J added that the grant of a certificate of fitness
for appeal was judicial function, which should be performed properly with the care and
certitude of a judicial mind and not as a mechanical act; and further shat it a fitness
certificate did not disclose a valid basis and found to have been granted in disregard of
the constitutional condition which regulates it. Namely, that the case must involve a
substantial question of law as to the interpretation of the constitution, the Supreme Court
would strike it down in termination of the proceeding which had been allowed to
commence without any foundation and on a wrong lead".
7. We are in respectful agreement with the above views Article 103 (2)(a) of our
Contribution, inter alia, provides that an appeal to the Appellate Division of the Supreme
Court from the judgment, decree, order and sentence of the High Court Division shall lie
as of right where the High Court Division certifies that the case involves a substantial
question of law as to the interpretation of this Constitution. In the instance case a
certificate purported to be under Article 103 (2)(a) is there, but it gives no indication of
application of the judicial mind to the question as to whether the case is a fit one for
appeal to this Division. It is not only that the question or questions of law as to the inter-
pretation of the Constitution which the learned Judges might have thought needed our
consideration have not been mentioned; the certificate speaks of 'leave' which did not
concern that Division at all. Strangely enough, the learned Judges thought the points
raised in the application were so simple as to merit summary disposal and yet they
granted the certificate. Such a mechanical approach cannot but call for strong
disapproval. Indeed it was not that the appellant alone who felt aggrieved by the
summary dismissal of his application by the High Court Division, the respondents also
made the grievance that they were prejudiced by the summary disposal of the
application since because of this they were denied the opportunity of filing an affidavit in
that Division incorporating material facts.
8. In view, however, of the objection raised by the respondents against the form of the
certificate, by way of abundant caution, the appellant filed a petition for special leave to
appeal in which he raised the question whether Article 55 (2) of our Constitution, by
virtue of which the Prime Minister exercises the executive power of the Republic,
authorises him to enter into an international agreement of the kind as Delhi Treaty. This
is a constitutional question which also floats on the surface of the brief judgment of the
High Court Division, summarily dismissing the appellant's application. We are, therefore,
of the opinion that the appeal before this Division is not incompetent, on the score of
detective certificate.
9. The second objection raised on behalf of the respondents relates to standing or locus
standi of the appellant to move the High Court Division under Article 102 (2) (a) (ii) of the
Constitution which runs as follows :—
"(2) The High Court Division may, if satisfied that no other equally efficacious remedy is
provided by law—
(a) on the application of any person aggrieved, make an order-
(i) ......... ...............
(ii) declaring that any act done or proceeding taken by a person performing functions in
connection with the affairs of the Republic or of a local authority has done or taken
without lawful authority, and is of no legal effect."
10. Admittedly the appellant not being a resident of any part of the territories involved in
the Delhi Treaty, the respondents contended that the appellant could have no interest
therein which could be affected by the treaty and as such he was not a ‘person
aggrieved’ within the meaning of Article 102 (2) of the Constitution entitling him to apply
thereunder. In this connection the respondents referred to several decisions of the
American and Indian jurisdictions, as well as one decision of the Australian High Court.
The American decisions are McCabe V. Atchison (235 U. S.151:59 L. ed 169)
Massachusetts V. Mellon; Fronthingham V. Mellon (262 US 447; 67 L. ed 1078)
and Joint Anti Fascist Com V McGrath (31 U.S. 123: 95 L. ed. 817). The Indian
decisions are Charanjit Lai V. Union of India (AIR. 1951 S C 41), Calcutta Gas Co,
(Prop) Ltd.; V. State of West Bengal (AIR 1962 SC 1044) and Maganbhai
Ishwarbhai Patel V. Union of India (AIR 1969 SC 783. The lone decision of the
Australian jurisdiction is Anderson V. The Commonwealth (47 C.L. R 50).
11. McCabe V. Atchison arose out of a suit for injunction restraining the defendants
from complying with the provisions of a Statute for reasons that it was repugnant, inter
alia, to the commerce clause of the Constitution of the United States as well as the 14th
Amendment. The relief asked for by the plaintiffs was refused, on the ground of absence
of standing or locus standi. The Supreme Court observed: —
"It is an elementary principle that, in order to justify the granting of this extraordinary
relief, the complainant's need of it, and the absence of an adequate remedy in law, must
clearly appear. The complainant cannot succeed because some one else may be hurt.
Not does it make any difference that other persons who may be injured are persons of
the same race or occupation. It is the fact, clearly established, of injury to the complain-
ant—not to others—which justifies judicial intervention."
12. In Massachusetts V. Mellon the constitutionality of an Act of Congress viz, the
Maternity Act; which provided for appropriations to be apportioned amongst such several
states as might accept and comply with its provisions, was challenged. It was pointed out
that the relation of a tax-payer of a municipality to the municipal corporation was
different from the relation of a tax-payer of the United States to the Federal Government,
since the interest of a tax-payer of the United States in the monies in the Treasury—
partly realised from taxation and partly realised from other sources—is shared with
millions of others; is comparatively minute and determinable; and the effect upon future
taxation of any payment out of funds so remote, fluctuating, uncertain that no basis is
afforded for an appeal to the preventive powers of a Court of equity. Thereafter the
following observation was made:—
''The party who invokes the power must be able to show not only that the statute is
invalid, but that he has sustained or is immediately in danger of sustaining some direct
injury as the result of its enforcement and not merely that he suffers in some indefinite
way in common with the people generally".
Joint Anti-Fascist Refugee Com V. McGrath rose out of suits for declaratory and
injunctive reliefs by three organisations seeking removal of their names from a list of
groups designated by the Attorney-General as communist, raising various constitutional
objections and asserting that they were organised for a permissible purpose only. The
defendant Attorney-General's motion to dismiss the suits were granted by Courts below,
in two cases on the ground that the plaintiffs failed to state a cause of action and in the
third case on the ground that the plaintiff had no standing to sue. The majority of the
Justices including Mr. Justice Frankfurter agreed, though on different grounds that the
Complaining organisations had standing to sue. Our attention was drawn on behalf of the
respondents to certain observations of Mr. Justice Frankfurter to the effect that the
simplest application of the concept of "standing" is to situations in which there is no real
controversy between the parties, that a petitioner does not have a standing to sue unless
he is "interested in and affected adversely by the decision" of which he seeks review,
that his "interest must be of a personal and not of an official nature". That his interest
must not be wholly negligible as that of tax-payer of the Federal Government is
considered to be; and further that a litigant must show more than that "he suffers in
some infinite way in common with people generally". He, however, added that adverse
personal interest even of such an indirect sort as arises from competition is ordinarily
sufficient to meet institutional standards of justifiability. Mr. Justice Frankfurter
decided that the plaintiffs had standing to sue and the action presented a justiciable
controversy; because the plaintiffs objected to the validity of the executive order which,
apart from principle of Governmental immunity, would be clearly actionable in common
law. As to the constitutional issues he held that due process was violated.
13. Of the three Indian decisions in Charanjit Lal’s case the principle quoted above
from McCabe Vs. Atchison was referred to and concurred in by Fazal Ali, J. In the case
of Calcutta Gas Co. what was held was that the right that can be enforced under Article
226 of the Indian Constitution must ordinarily be the personal or individual right of the
petitioner himself though it need not be so in the case of Habeas Corpus or Quo
Warranto. We will refer to the third Indian decision after having considered the Australian
case of Anderson V. The Commonwealth (47 C L R 50) in which an agreement
between the Commonwealth of Australia and the State of Queensland was involved. The
substance of the agreement was that the Government of the Commonwealth prohibited
importation of certain kinds of sugar upto a certain date, while the Government of
Queensland would acquire raw sugar in Queensland and New South Wales for certain
specified prices. This increased the cost of sugar. It was held that the plaintiff, who had
no interest in the subject-matter beyond that of any other member of the public, had no
right to bring the action which was for a declaration that the agreement in question was
illegal and invalid. It was, however, pointed out that the "public is not or should not be
without remedy, for the Attorney-General of the Commonwealth or of any of the states
sufficiently interested, might take proceedings; necessary to protect their rights and
interest".
14. The appellant did not dispute the principles enunciated in the aforesaid case; nor
there do any reason for differing from those principles, generally. The question, however,
is whether regard being had to the special features of the instant case, the appellant
could be given a hearing under Article 102(2) of the Constitution.
15. The instant case involves an outstanding Constitutional issue relating to an
international treaty concerning an alleged cession of territory and affecting the rights of
the people of Bangladesh as a whole. It cannot be expected that any person residing in
the territory involved in the Delhi Treaty would move such an application since
admittedly it is under the administrative control not of Bangladesh but of India. In none
of the above mentioned decisions the question of international treaty came in for
consideration, far less a treaty involving cession of territory. The only decision cited by
respondents that approximates the instant case and which remains to be considered is
Maganbhai Ishwarbhai Patel V Union of India (A.I.R. 1969 S C 783) in which an
international arbitration came up for examination relating to what is known as the Rann
of Kutch, a marshy waste land which was in some seasons under water and in others
muddy desert without any habitation. Admittedly, neither India nor Pakistan had any
control or possession in any part of the Rann. There was a long standing dispute over this
area between India and Pakistan which resulted in border clashes and ultimately cul-
minated into open armed hostilities in April, 1965. A ceasefire was arranged followed by
a joint proposal for arbitration. The arbitrators having given an award dividing the Rann
between Pakistan and India by a boundary line, some persons moved the High Court
under Article 206 of that Indian Constitution and having lost there, took appeals to the
Supreme Court of India. Some others moved the Supreme Court direct under Article 32 of
the Constitution, None of the petitioners could claim to be a resident of the Rann of
Kutch. All of them, however, claimed locus standi to move the court on the basis of their
fundamental rights, to travel, to reside or settle down and to acquire and hold property in
the Rann by virtue of clauses (d),(e) and (f) of Article 9(1) of the Indian Constitution. One
of them named Madhu Limaye put forward an additional plea that he had attempted to
penetrate the Rann to reconnoiter the possibility of settlement but was turned back. The
Supreme Court heard Mr. Madhu Limaye as well as the other petitioners, Mr. Madhu
Limaye for his additional plea and the rest because they might also contribute to the
result of the hearing. The Supreme Court observed:-
"The only person who can claim deprivation of fundamental rights is Mr. Madhu Limaye,
although is his case also the connection was temporary and almost ephemeral. However,
we decided to hear him and as we were to decide the question, we heard supplementary
arguments from the others also to have as much as assistance as possible. But we are
not to be taken as establishing a precedent for this Court which declines to issue a writ of
mandamus except at the instance of party whose fundamental rights are directly and
substantially invaded or are in imminent danger of being so invaded. From this point of
view we would have been justified in dismissing all petitions except perhaps that of
Madhu Limaye."
16. On the question of locus standi the appellant contended before us that since the
remedies available under Article 102(2) of our Constitution are discretionary, the words
"any person aggrieved'' should be construed liberally and given a wide meaning,
although in the facts and circumstances of a particular case the Court may regard the
personal interest pleaded by a petitioner as being slight or too remote. In support of this
contention the appellant relied upon Mia Fazl Din Lahore Improvement Trust (1969)
21 DLR (SC) 225. In delivering the unanimous judgment of the Supreme Court of
Pakistan, Hamoodur Rahman, CJ., had occasion to say that the right considered
sufficient for maintaining a proceeding of this nature is not necessarily a right in the
strict juristic sense but it is enough if the applicant discloses that he has personal interest
in the matter which involves loss of some personal benefit or advantage or the
curtailment of a privilege or liberty of franchise
17. We have given the respondents objection as to the appellant’s locus standi to move
the High Court Division our anxious consideration. It appears to us that the question of
locus standi does not involve the Court's jurisdiction to hear a person but of the
competency of the person to claim a hearing so that the question is one of discretion
which the Court exercises upon due consideration of the facts and circumstances of each
case. The appellant has complained that he is under an impending threat of deprivation
of his fundamental rights under Article 36 of the Constitution and his right of franchise.
Because of this as well as of the exceptional and extraordinary constitutional issue raised
in this case involving consideration of an international agreement between this country
and the friendly Republic of India, we decided to bear the appellant. In the recent case of
Blackburn V. Attorney. General (1971) I WLR 1037 involving a treaty, namely. the
Treaty of Rome for being a member of the European Economic Community which was yet
to be signed by the United Kingdom and on which no agreement bad yet been reached,
one Mr. Blackburn challenged the treaty seeking a declaration to the effect that by
signing the treaty of Rome the Government "will surrender in part the sovereignty of the
Crown in Parliament and would surrender it for ever". Mr. Blackburn pointed out that
regulations made by the European Community would become automatically binding on
the people of the Union Kingdom and that all the Courts, including the House of Lords,
would have to follow the decisions of the European court in certain defined respects,
such as the construction of the treaty. Thus Mr Blackburn challenged the treaty of Rome
in of a capacity of a citizen of the United Kingdom and a member of the general public. A
point was raised as to whether Mr. Blackburn had the standing or locus standi to come
before the Court Lord Denning M.R. observed as follows:—
"That is not a matter which we need rule upon today. He says that he feels very strongly
and that it is a matter in which many persons in this country are concerned "I would not
myself rule him out on the ground that he has no standing. But I do rule him out on the
ground that these courts will not impugn the treaty-making power of Her Majesty, and on
the ground that insofar as Parliament enacts legislation we will deal with that legislation
as and when it arises."
18. The fact that the appellant is not a resident of the southern half of South Berubari
Union No. 12 or of the adjacent enclaves involved in the Delhi Treaty need not stand in
the way of his claim to be heard in this case We heard him in view of the constitutional
issue of grave importance raised in, the instant case involving an international treaty
affecting the territory of Bangladesh and his complaint as to an impending threat to his
certain fundamental rights guaranteed by the constitution, namely, ro move freely
throughout the territory of Bangladesh, to reside and settle in any place therein as well
as his right of franchise. Evidently, these rights attached to a citizen are not local. They
pervade and extend to every inch of the territory of Bangladesh stretching upto the
continental shelf.
19. The respondent's third objection was that the treaty-making being an act of state, the
Delhi Treaty was not amenable to judicial review. Our attention was drawn in this
connection to Halsbury's Laws of England (3rd Edition), Vol. 7, page 279, where an act of
state has been defined as an act of the executive as a matter of policy in the course of its
relations with another state, including its relations with the subjects of that state, unless
they are temporarily within the allegiance of the Crown At page 281 it has been stated
that typical acts of state are the making and performance of treaties, the seizure or
annexation of land or goods in right of conquest, or the declaration of war, or of
blockade. It has also been pointed out in that volume at page 280: "There can be no act
of state against my one who owes allegiance to the Crown." This principle was
propounded by Lord Herscheil in Walker V Baird (1892) A C 491 P.C and followed
by the House of Lords in John-stone V Pedlar (1921) 2 A.C 262. This principle as
again recently been reiterated by Lord Reid in Nissan V. Attorney-General (1970)
A.C.179.
We are clearly of the opinion that, in peace time the plea of act of state is not available in
an action involving deprivation of rights and liberties of the citizen. The Courts have
always intervened with a view to examining if the plea of act of state could be taken in
defence against a citizen. The jurisdiction of courts cannot be excluded by merely raising
a plea of act of state.
20. The fourth and the last objection raised by the respondents is that the application
before the High Court Division was premature. In support of this objection, the
respondents contentions were two-fold, Reference was made to Attorney-General of
Canada V. Attorney-General of Ontario (A.I.R. 1937 P C 82) where Lord Atkin
observed that it was essential to keep in mind the distinction between (1) the formation
and (2) the performance ''of the obligations constituted by a treaty using the word as
comprising any agreement between two or more sovereign sates; and further that the
question is not 'how is the obligation formed, that is the function of the executive; but
how is the obligation to be performed and that depends upon the authority of the compe-
tent legislature or legislatures. The respondents contended before us that the mere
making of a treaty does not affect the citizen who must wait till the performance of the
obligations of the treaty. There can be no dispute as to what Lord Atkin said But we are
unable to accept the contention of the respondents that a citizen cannot be allowed to
move the court before the obligations under the treaty are performed. In the instant case
the mere signing of the treaty has resulted in an impending threat to the appellant's
rights as a citizen.
21. The second branch of the respondent’s contention in support of the fourth objection
appears, however, to have substance. We have quoted above the last article in the Delhi
Treaty which says that it is subject to ratification and chat it would take effect "from the
date of the exchange of the Instruments of Ratification". The respondents contended that
since the Delhi Treaty was in terms stipulated to come into effect only upon the
happening of the event of ratification, and exchange of the instruments of ratification,
the application before the High Court Division seeking a declaration that the Delhi Treaty
was without lawful authority and of no legal effect was premature. True it is that though
the Delhi Treaty is dispositive in nature, in the face of the express stipulation just
referred to, it cannot be said to be an executed treaty. Something is yet to be done
before it can be so we. therefore, agree with the respondents that she application before
the High Court Division out of which his appeal has arisen was premature, because there
can be no question of a document being declared to be without lawful authority and of no
legal effect when the document itself stipulates that it will be effective only on the
happening of a certain event in future, namely, the exchange of instruments of
ratification. This would suffice for disposing of the appeal which is liable to be dismissed
on this ground alone.
22. Since, however, we have heard the parties on merits in relation to the question of
interpretation of Article 55 (2) of our Constitution; we feel that we should express our
opinion on this question.
23. It may be mentioned at this stage that the appellant did not dispute the proposition
that treaty-making is an executive act and so also ratification, if a treaty contains
provision for ratification and that both fall within the ambit of the executive power of the
State. Let us now examine Article 55(2) of our Constitution.
24. Article 55(2) of the Constitution says: "The executive power of the Republic shall, in
accordance with this Constitution, be exercised by or on the authority of the Prime
Minister." The Prime Minister, or one in his authority, is thus required to exercise the
executive power in accordance with the Constitution and not otherwise. This is in keeping
with the settled principle that Parliament has constitutional control over the Executive.
Clause (2) of Article 143 of our Continuation says: "Parliament may from time to time by
law provide for the determination of the boundaries of the territory of Bangladesh and
the territorial waters and the continental shelf of Bangladesh”. The Prime Minister
cannot, therefore, unilaterally determine the boundaries of the country. This can only be
done by law enacted by parliament in that behalf.
We have earlier set out the fourteenth paragraph of Article 1 of the Delhi Treaty which,
inter alia, says that India will retain the southern half of south Berubari Union 2 and the
adjacent enclaves.
25. It is worth noting that as early as on September 10, 1958 there was a treaty between
Pakistan (of which this country was then a province named East Pakistan) and India
resolving certain territorial disputes. Pakistan claiming sovereignty over those territories
on the basis of the Radcliff Award which was given on the eve of the partition of India
under section 3 of the Indian Independence Act, 1947. The treaty was known in this
country after the names of the then respective Prime Ministers of Pakistan and India as
Noon-Nehru Pact. It contained several items of dispute between the two countries
including enclaves. As to Berubari Union No. 12 and the enclaves the agreement arrived
at by the High Contracting Parties was recorded in Noon-Nehru Pact, which contained no
provision for ratification and was duly signed and executed by their respective accredited
agents, in the following manner:—
"(3) Berubari Union No. 12.
"This will be so divided as to give half the area to Pakistan, the other half adjacent to
India being retained by India. The division of Berubari Union No 12 will be horizontal,
starting from the north-east corner of Debiganj thana. The division should be made in
such a manner that the Cooch Behar enclaves between Pachagar thana of East Pakistan
and Berubari Union No 12 of Jalpaiguri thana of West Bengal will remain connected as at
present with Indian territory and will remain with India. The Cooch Behr enclaves lower
down between Boda thana of East Pakistan and Berubari Union No. 12 will be exchanged
along with the general exchange of enclaves and will go to Pakistan."
26. Consequent upon the conclusion of Noon-Nehru Pact the southern half of south
Berubari Union No. 12 together with the adjacent enclaves, thus fell in the share of
erstwhile East Pakistan. Noon-Nehru Pact did not contain any provision for ratification,
evidently signifying a manifest intention on the part of the High Contracting Parties that
the details of the treaty settling the disputes between the two countries would
immediately come in to effect upon its execution by their accredited agents. It was
accordingly a dispositive treaty, and as such internationally binding. No question of a
fresh boundary dispute could, therefore, arise. Besides, soon after the execution of Noon-
Nehru Pact, Constitution (Ninth Amendment) Act. 1960 was enacted by the Indian
Parliament on the advice tendered by the Supreme Court of India under Article 143 of the
Indian Constitution: See AIR 960 S.C. 845. In the Ninth Amendment the manner in which
disputes relating to Berubari and the enclaves were resolved by Noon-Nehru Pact were
incorporated. Actual physical possession of the portion of Berubari and the enclaves that
were given to Pakistan could not be made over to bet owing to certain litigations pending
in the Indian Supreme Court and due to hostilities that broke out, between India and
Pakistan in September, 1965. That cannot, however, be of any consequence since the
question of sovereignty over that portion of territory had already been settled and
recognised by the common consent and conduct of Pakistan and India demonstrated by
Noon-Nehru Pact, which was again followed the aforesaid Constitutional amendment in
India, incorporating the details of Noon-Nehru Pact. The southern half of south Berubari
lion No. 12, together with the enclaves, thus formed an inseparable and integral part of
the territory of Bangladesh in view of Article 2 (a) our Constitution which defined the
territory of the People's Republic of Bangladesh as comprising "the territories which
immediately before the proclamation of independence on the 26th day of March, 1971
constituted East Pakistan". Agreeing to their retention by India stipulated in the Delhi
Treaty cannot but, therefore, involve cession of territory by Bangladesh. In this
connection we will content ourselves by referring to three leading cases, namely,
Columbia V Venezuela (U. N Rep, Vol. I, page 223), Belgium V. Netherlands
reported in (1959) I. C. J Reports page 209 and Cambodia V. Thailand reported
in (1962) I.C.J. page 6.
27. In Columbia V. Venezuela (U. N Rep., Vol. I, page 223), which involved a
boundary dispute between the two countries, at page 279. It has been noticed that the
Swiss Federal Council refused to accept the view that sovereignty does not pass until
delivery in its award in 1922 in the dispute in question and made the following
observation:—
"A state which occupied a territory the sovereignty over which has been recognised as
belonging to another State has no right to insist on formal delivery of territory which it
retains without legal rights; its holding of the territory in question has ceased to be
legitimate with the entry into force of the sentence. The State which continues to occupy
the territory in contradiction to the terms of the award has only one duty, that is to say,
to evacuate the territory in question. The other State has the right to proceed to
occupation subject to such duties of country as may be required by the necessity to
avoid conflicts and to inform inhabitants.”
28. In Belgium vs. Netherlands (1959) I.C.J Reports page 209, certain parcels of
land lying between Belgium and Netherlands remained of uncertain sovereignty for many
years since 1843. By special agreement between the two states, the International Court
of Justice was asked to determine which of the two states had sovereignty over those
parcels of land. The controversy arose in connection with an error in the Boundary
Convention of 1843. The Court determined that the title to the disputed land vested in
Belgium by virtue of the 1843 Boundary Agreement, despite the fact that during most of
the period following the boundary agreement Netherlands officials had assumed that the
area in question formed part of their state inconsequence of the exercise of their
authority in the area through the imposition of taxes and taking other administrative rou-
tine acts. The Court took the view that if possession is adverse, the display of acts of
sovereignty which are "largely of a routine and administrative charter performed by local
officials are insufficient to display Belgium sovereignty established by that convention."
In Cambodia vs. Thailand (1962) I.C.J. page 6, a controversy of exceptional interest
arose involving the boundary between the two countries and the territorial sovereignty
over the area in which the Temple of Preah Vihear was located. The controversy was
submitted to the International Court of Justice in 1959. Until Cambodia attained her
independence in 1953 she was part of French Indo-China. It was common ground that the
boundary dispute was settled in the period 1904-1908 between France and Siam (as
Thailand was then called) and, in particular, that the sovereignty over Temple of Preah
Vibear depended upon the boundary treaty dated February 13, 1904, and upon events
subsequent to that date. As late as in 1962 the Court decided on the basis of a map pre-
pared by the Boundary Commission in 1907 that the Temple was situated in the territory
under the sovereignty of Cambodia
29. By virtue of Noon-Nehru Pact of 1958 earlier we have shown, Pakistan’s sovereignty
over the southern half of south Berubari Union on No. 12, together with some other lands
including the adjacent enclaves was permanently settled and recognised by India,
though their actual physical possession continued to lie with India. That also appears to
be the reason why the Delhi Treaty says that India will 'retain' the "southern half of south
Berubari Union No. 12 and the adjacent enclaves". Agreeing to such retention of the
portion of Berubari by India, in our view, cannot but entail peace time cession of territory
by Bangladesh to India. Even if the Delhi Treaty had resulted only in the settlement of
boundary between this country and the neighbouring friendly Republic of India, Article
143 (2) of our Constitution would intervene and require enactment by Parliament
determining the boundary. Cession of territory however, being involved in this case, the
question of taking recourse to Article 142 will arise.
30. We cannot help mentioning that the Delhi Treaty contains some reference also to
perpetual lease, exchange of enclaves along with exchange of territories under ''adverse
possession" of the parties. All these will create difficulties in implementation of the provi-
sions of the Delhi Treaty, necessitating a very close examination of the details thereof
vis-a-vis Noon-Nehru Pact.
31. On the question of necessity of the assent of Parliament to treaties involving cession
of territory, even in countries without written constitution, reference may be made to
certain standard treaties on the subject. In Hood Phillips Constitutional and Administra-
tive Law, 4th Edition the following passage occurs at page 267-
"The Crown was persuaded to seek Parliamentary approval for the cession of Heligoland
to Germany in 1890 (Anglo-German Agreement Act, 1890), and since then it has been
the practice to ask Parliament to confirm cessions e g., Anglo-Italian (East African Terri-
tories) Act 1925. Dindigs Agreement Approval Act, 1934; Anglo-Venezuelan Treaty
(Island of Patos) Act, 1942. The Anglo-Irish "Treaty" confirmed by the Irish Free State
(Agreement) Act, 1022 was in a special category. Whatever the law may be, this seems
to be now the convention Indeed, convention probably demands that Parliament should
be consulted beforehand, as in the case of the cession of Jubaland to Italy in 1927."
Wade and Phillips in their work Constitutional Law, 8th Edition, 1971, at page 278 say as
follows:—
“It is the practice, and probably by now may be regarded as a binding constitutional
convention, that treaties involving the cession, of territory require the approval of
Parliament given by a statute."
32. Peter G Richards in his Parliament and Foreign Affairs, 1st Edition, 1971, at page 42
says:—
“Whether the Crown has the right under the Royal Prerogative to cede territory without
Parliamentary consent is a matter of legal argument. Holdsworth was of the opinion that
it has such power. But since the cession of Heligoland to Germany in 1890 there have
been many cases in which treaties involving territorial transfer have been approved by
Parliament in subsequent legislation. It is thus regular practice, if not a binding
constitutional convention, for legislative sanction to be obtained."
In the Law of Treaties by Lord McNair, 1961 Edition, at page 96 the following passage
occurs:—
"(iv) Certainly upto half a century age minor cessions of British territory frequently took
place without Parliamentary sanction, though many of them were not true cessions but
either a withdrawal of protectorate or a relinquishment of a doubtful claim. But, at any
rate from 1891 onwards, there are several precedents of treaties of cession receiving
Parliamentary sanction in the form of a statute. These are the Anglo-German Agreement
Act 1890, sanctioning the cession to German of Heligoland; the Anglo-French Convention
Act, 1904, where the treaty for the cession of certain British territory to France was made
'subject to the approval of their respective Parliaments’; the Anglo-Italian (East African
Territories Act, 1925, which gave approval to a treaty involving, as a consequence of the
rectification of a frontier a cession of British-protected territory; the Striates Settlements
and Jchore Territorial Waters (Agreement) Act, 1928; the Dindings Agreement (Approval)
Act, 1934; an the Anglo-Venezuelan (Island of Patos Act, 1942, approving a treaty of
scession by Great Britain.
There is, every reason to expect th these recent precedents will be follows in the future,
whatever may be the mode by which the territory was originally acquired: and it is
unlikely that the Crown will agree by treaty to cede any territory without being sure that
Parliament would approve, or, if in doubt, without inserting a clause making the cession
dependent upon Parliamentary approval".
33. In his Introduction to International Law, 7th Edn, page 90. J G. Starke has also said
that it has been established that "treaties involving the cession of British territory require
that approval of Parliament given by a Statute"
34 It will be evident from the above (tracts from works of authors of repute on
International law that even in a country like England which is not governed under a writ-
Constitution, the modern trend is to obtain the assent of Parliament in case of cession
territory.
35. Ours is a written Constitution. We ye already seen that the head of the Executive
namely, the Prime Minister cannot laterally determine the boundaries of Bangladesh
which has to be done by a law of under Article 143 (2) of our Constitution. It cannot but
be more so when cession of territory is involved. This limitation on the part of the head
of the Executive Bangladesh is on the face of it such a “manifest and notorious"
restriction on his treaty-making power that any such treaty entered in to by a foreign
state with Bangladesh without the sanction of the Parliament of Bangladesh will be ultra
vires and cannot pass title. This view finds authoritative support from authors of
international repute on subject.
36. In his International Law, Second Edition, while dealing with countries having written
Constitution, Professor D. P. O. Con-has observed at page 437:—
"The capacity to transfer territory is absolute in International Law, but the latter
obviously cannot ignore the question of capacity of the acting authorities in Municipal
Law. The Constitution determines the agency that is competent to dispose of national
territory, and if a purported transfer is ultra vires no title is acquired internationally".
Such is also the opinion of Oppenheim in his work International Law, Vol. I, 8th Edition. It
has been observed at page 547:
"The Constitutional Law of the different States may or may not lay down special rules for
the transfer or acquisition of territory. Such rules can have no direct influence upon the
rules of the Law of Nations concerning cession, since Municipal Law can neither abolish
existing nor create new rules of International Law. But if such Municipal rules contain
constitutional restrictions on the Government with regard to cession of territory, these
restrictions are so far important that such treaties of cession concluded by Heads of
States or Governments as violate these restrictions are not binding”.
Charles G. Fenwick in his work International Law, Third Indian Reprint, 1971, after having
examined the views of standard authors has observed at page 524 under the heading
"Effect of failure to observe Constitutional procedures”:—
"What is the validity of a treaty which has been ratified by the Head of the State without
submission to the Legislature in accordance with the provisions of the Constitution? A
number of authors have held that foreign governments are justified in considering the
act of the Head of the State as definitive, leaving it to Constitutional Law to determine
whether he has acted within the scope of his powers. Constitutional processes, they
hold, vary in the different states: and it is sufficient that the Head of the State shall
declare that they have been fulfilled to consider them as fulfilled. The majority of writers,
however, maintain that foreign governments should be held to a knowledge of the
Constitutional prerequisites of ratification is each country with which they are dealing;
and they insist that a treaty which has been ratified without the proper observance of the
requirements is ipso facto invalid, whatever, the proclamation of the Head of the State
may assert in that respect."
We will conclude this chapter by a" reference to the Vienna Convention on the Law of
Treaties, 1969 to be found in Basic Documents in international Law, Edited by Brownlie,
Second Edition (1972) at page 251 Article 46 of the Convention which is under section 2
(Invalidity of Treaties) runs as follows:—
Article 46.
"Provisions of Internal Law regarding competence to conclude treaties.
1. A State may not invoke the fact that its consent to be bound by a treaty has been
expressed in violation of a provision of its Internal Law regarding competence to
conclude treaties as invalidating its consent unless that violation was manifest and
concerned a rule of its Internal Law of fundamental importance.
2. A violation is manifest if it would be objectively evident to any State conducting itself
in the matter in accordance with normal practice and in good faith."
37. It may be also mentioned that in India too there can be no cession of territory without
amendment of the Constitution. The latest pronouncement of the Indian Supreme Court
on this question is to be found in Maganbhai Iswarbhai Patel vs. Union of India
(A.I.R 1969 S.C. 783) earlier noticed in another context.
38. There can thus be no escape from the position that though treaty-making falls within
the ambit of the executive power under Article 55 (2) of the Constitution, a treaty
involving determination of boundary, and more so involving cession of territory, can only
be concluded with the concurrence of Parliament by necessary enactment; in case of
determination of boundary by an enactment under Article 143(2) and in case of cession
of territory by amending Article 2(a) of the Constitution by taking recourse to Article
142.
39. Had the Delhi Treaty involved a mere determination of the boundary between this
country and our friendly neighbour India, it could be implemented by a single enactment
under Article 143 (2) of the Constitution. In view, however, of our conclusion that it
involves cession of territory by Bangladesh, we are clearly of the opinion that in order to
implement this treaty, prior to ratification thereof it will be necessary to take recourse to
Article 142, with a view to amending Article 2(a) which defines the territory of the
People's Republic of Bangladesh.
40. This appeal is, however, liable to be and is dismissed in view of our finding that the
application under Article 102(2)(a)(ii) of the Constitution, out of which it has arisen, was
premature. There will be no order as to costs.
Before parting with the case we would like to place on record our appreciation of the able
assistance rendered to us by Counsel on both sides.
Ed.
This Case is also Reported in: 26 DLR (AD) 44.