You are on page 1of 1

The petitioners have argued that ceding of Indian territory requires amendment of the Constitution by Parliament.

This is correct as a matter of Indian law. The territory of India is defined in Article 1(2) of the Constitution read with Schedule 1 to the Constitution. Entry 7 in Schedule 1 defines the territorial extent of the State of Tamil Nadu. Thus, alienation of any part of the territory of Tamil Nadu, to be valid in Indian law, requires an amendment of the first Schedule to the Constitution. This position was clarified by the Supreme Court of India in In re: Berubari Union case (1960) 3 SCR 250. A treaty entered into by India purportedly ceding Indian territory to a foreign power is without effect in Indian law unless Parliament chooses to give effect to the same through an amendment to the Constitution. The treaties of 1974 and 1976 establish a boundary line between India and Sri Lanka. Katchatheevu falls on the Sri Lankan side of this line. No legislation or amendment to the Constitution has been passed by Parliament of India to give effect to the treaties. In light of the above position, the treaties, so far as they concern Katchatheevu, are without effect in Indian law if Katchatheevu is included in the territory of India as defined in the First Schedule to the Constitution. Since Katchatheevu is not expressly mentioned in the First Schedule, the Supreme Court will have to enquire, based on the available facts, whether immediately before the commencement of the Constitution, the island was either comprised in the Province of Madras or [was] being administered as if [it] formed part of that Province, in which case it would be a part of the territory of Tamil Nadu as defined by Entry 7, Schedule I. Even if the court were to find that Katchatheevu forms a part of the territory of Tamil Nadu and that it has been ceded to Sri Lanka illegally, this ruling will have no binding effect on Sri Lanka, which is in control of the island. As a sovereign state, Sri Lanka is immune from the jurisdiction of Indian courts. Hence, the Supreme Court can merely make a declaration on the historical illegality of the cession. Can the court then direct the Central government to retake possession of the island? While there may not be express constitutional limitations on the power of the court to direct the government to retake Katchatheevu (or any other territory considered in Indian law to be part of India), considering that the Government of India cannot retake territory possessed by another sovereign state without unilateral forceful action, the court should exercise restraint in this regard. Any such order will amount to the judiciary dictating foreign policy and should be avoided.