He insisted the power to amend the Constitution is restricted by Article 368 which implies that the basic structure cannot be altered. “Territory of India is a part of the Constitution. It cannot be reduced or altered by an amendment to the Constitution. I may be given permission to oppose the introduction of this Bill,” Jaitley said in his letter.
Minister of External Affairs Salman Khurshid, who was to introduce the Bill, wrote to the Rajya Sabha Chairman on December 13 countering Jaitley's claims.
“This is incorrect since India, as a sovereign state, has an inherent right to acquire foreign territory or alter or cede its territories and to suggest that it does not would be contrary to national interest,” Khurshid said.
He cited the Berubari Union judgement (1960), the Union of India versus Sukumar Sengupta judgement (1990) and the Attorney General's opinion to underline his point.
“The Supreme Court has upheld a universally acceptable principle that one of the attributes of sovereignty is the power to alter or cede parts of national territory, if necessary, but that power can only be exercised pursuant to a constitutional amendment under Article 368 which is sought to be done in the present case by way of a Constitutional amendment,” Khurshid said.
