Author – Sangini Mehta, NMIMS School of Law, Bengaluru
Abstract
The In Re: Berubari Union (AIR 1960 SC 845) advisory opinion stands as a constitutional milestone in India’s legal and territorial history. The Supreme Court was tasked with addressing a critical constitutional question: whether the Indian government could legally transfer a portion of its territory to another nation without enacting a constitutional amendment. The controversy stemmed from the 1958 Indo-Pakistan Nehru–Noon Agreement, which suggested partitioning the Berubari Union between the two nations. Despite the Radcliffe Award originally allocating the territory to India, its ownership remained a subject of contention. Through this landmark advisory opinion, the Supreme Court categorically held that the Indian government could not cede any part of Indian territory to a foreign power through mere legislative action under Article 3 of the Constitution. Instead, such cession would require a constitutional amendment under Article 368, as it involved a change to Article 1 and the First Schedule, which define the territory of India. This clarification drew a crucial line between internal state reorganization and international boundary modification, reaffirming constitutional supremacy over executive expediency.
The judgment reinforced that India’s sovereignty and territorial integrity are constitutionally enshrined, and that these cannot be altered except through formal amendment processes that reflect the will of Parliament. In doing so, the Court preserved the federal structure, limited executive power, and laid a foundational doctrine for all future border-related treaties involving territorial exchange or cession.
To the Point
The Supreme Court, in In Re: Berubari Union, gave its authoritative opinion that any act of territorial cession by India to a foreign country cannot be carried out by Parliament under Article 3, which allows for internal adjustments to state boundaries. Instead, such a move requires a constitutional amendment under Article 368, because it effectively alters the territory of India as specified in Article 1 and the First Schedule of the Constitution.
The case arose after India entered into the Nehru–Noon Agreement with Pakistan in 1958, which proposed dividing the Berubari Union. The President of India, invoking Article 143, sought the Supreme Court’s opinion on whether such a transfer could be effected by ordinary legislation or required constitutional amendment.
The Court decisively held that internal administrative adjustments within Indian states fall within Article 3, but the cession of territory to another nation lies outside its scope. The Court’s advisory opinion continues to be a guiding principle, ensuring sovereign integrity is not compromised by executive agreements alone.
Use of Legal Jargon
The In Re: Berubari Union advisory opinion is a cornerstone of Indian constitutional law, laden with complex legal and constitutional jargon. At the heart of the judgment lies a nuanced interpretation of several key constitutional provisions namely, Article 1, Article 3, and Article 368 each of which plays a distinct role in delineating the structure, territory, and amendability of the Indian Constitution.
Article 1 of the Indian Constitution portrays the nation as a “Union of States,” laying the foundation of its federal structure. It also goes a step further by clearly listing all the states and territories that together form the Republic of India in the First Schedule, giving a concrete shape to the country’s geographical and political identity. Any modification to India’s territorial extent whether through cession, acquisition, or exchange constitutes an alteration of the First Schedule, thereby invoking the constituent power of Parliament under Article 368, rather than its legislative competence under Article 3. The Supreme Court made a categorical distinction between the ordinary legislative process, which applies to internal matters like the formation, alteration, or renaming of states, and the constituent process, which involves amending fundamental parts of the Constitution, including its territorial integrity.
The Court held that the transfer or cession of territory is not a mere political or administrative act it is a sovereign act that affects the legal character of the Constitution. Such an act cannot be effectuated by executive action under Article 73, which only empowers the Union executive to act in matters where Parliament can legislate. The executive prerogative, even when exercised through international agreements (like the Nehru–Noon Agreement), cannot override the necessity of formal constitutional procedures.
The Court also emphasized that an international treaty or agreement does not by itself have the force of domestic law unless it is ratified through a constitutionally valid process. This aligns with the principle of dualism in Indian constitutional law, where international law does not automatically become part of municipal law unless enacted by Parliament.
Terms like “cession” (permanent transfer of sovereignty), “sovereignty” (the supreme legal authority), “executive agreement”, and “constituent power” were pivotal in the judicial reasoning. The Court’s use of interpretative tools such as harmonious construction, textual interpretation, and substantive constitutionalism revealed that the Constitution must be read as a coherent whole where the structure, procedures, and sovereignty are protected against ad hoc political actions.
Furthermore, the judgment underscores the supremacy of the Grundnorm (the foundational legal order), emphasizing that the Constitution is the supreme law and all branches of government must operate within its framework. The doctrine of separation of powers and constitutional supremacy were implicitly reinforced, as the judiciary insisted that the executive could not unilaterally alter India’s territory, even under the guise of diplomatic necessity.
In summary, the Berubari case showcases the dynamic interaction between executive diplomacy, legislative authority, and constitutional mandate, serving as a definitive statement on the limits of executive power, the scope of parliamentary competence, and the indispensable nature of formal constitutional amendment when dealing with India’s territorial integrity.
The Proof
Background
Berubari, in West Bengal’s Jalpaiguri district, was awarded to India by the 1947 Radcliffe Award. However, unclear borders especially near Thana Boda allowed Pakistan to stake a claim. The 1958 Nehru–Noon Agreement proposed dividing the region, sparking legal concerns over whether this could be done without changing the Constitution.
Presidential Reference & Supreme Court Verdict
To resolve the issue, the government referred it to the Supreme Court under Article 143. The Court was asked whether Parliament could transfer territory under Article 3 or if an amendment under Article 368 was necessary. The Court ruled that ceding land to a foreign country alters India’s territorial identity and cannot be done by ordinary law. A formal constitutional amendment is required. It also emphasized that treaties involving territorial changes must follow constitutional procedures.
Preamble’s Role
The Court clarified that while the Preamble highlights India’s sovereignty, it cannot override specific constitutional provisions related to territory.
Case Laws
The Supreme Court’s advisory in In Re: Berubari Union (1960) laid the foundation for how territorial cession must be constitutionally authorized. This principle was upheld in Ram Kishore Sen v. Union of India (1966), where the Court dismissed challenges to the Ninth Constitutional Amendment and affirmed that ceding territory requires a constitutional amendment under Article 368.
In Maganbhai Ishwarbhai Patel v. Union of India (1969), the Court clarified that resolving border disputes through international arbitration does not equate to cession, distinguishing it from Berubari’s context of voluntary territorial transfer.
The principle laid down in In Re: Berubari Union was subsequently reaffirmed and expanded through multiple landmark rulings. In State of West Bengal v. Union of India (1963), the Supreme Court upheld Parliament’s overriding authority in matters involving national sovereignty, resonating with Berubari’s emphasis on constitutional supremacy.
An earlier decision, In Re: Delhi Laws Act (1951), underscored the limitations of executive authority, reinforcing the notion that international agreements cannot circumvent constitutional mandates. The landmark decision in Kesavananda Bharati v. State of Kerala (1973) strengthened the principles laid down in the Berubari case by introducing the basic structure doctrine. This ruling made it clear that any change to India’s territory must honor the fundamental framework of the Constitution, reinforcing that even Parliament’s powers have constitutional limits when it comes to protecting the nation’s integrity.
More recently, in Assam Sanmilita Mahasangha v. Union of India (2015), the Court explicitly invoked Berubari to uphold the India–Bangladesh Land Boundary Agreement, confirming that territorial exchanges must be effectuated through a constitutional amendment under Article 368.
Collectively, these rulings cement Berubari’s enduring authority in ensuring India’s territorial integrity can only be altered through formal constitutional mechanisms.
Conclusion
The advisory opinion in In Re: Berubari Union (1960) is a constitutional landmark that clarified how sovereign territory can be ceded by India only through a formal constitutional amendment under Article 368. By interpreting Articles 1, 3, and 368 together, the Supreme Court underscored that territorial cession lies beyond ordinary legislative or executive power.
This case affirmed the judiciary’s role as the guardian of constitutional limits, even in foreign policy matters. It highlighted the importance of upholding democratic procedures over political expediency, reinforcing that sovereignty must be exercised within the framework of the Constitution.
Through later cases like Maganbhai Patel, Ram Kishore Sen, and Assam Sanmilita Mahasangha, the Berubari doctrine has remained influential, ensuring that territorial integrity cannot be altered without legal and constitutional due process. It continues to serve as a vital precedent balancing diplomacy with constitutional fidelity.
FAQs
1. What role did the Radcliffe Award play in this dispute?
The Radcliffe Award of 1947, which delineated the borders of India and Pakistan, originally assigned the Berubari Union to India. However, due to mapping errors and administrative confusion, Pakistan laid claim to parts of the region. The 1958 Nehru–Noon Agreement sought to divide Berubari between India and Pakistan, triggering legal uncertainty about whether this required formal constitutional sanction.
2. Can India now reclaim a territory (e.g., PoK or Aksai Chin) without a constitutional amendment?
If such territory is currently not part of the First Schedule or Article 1, its inclusion would likely require a constitutional amendment under Article 368, especially if India wants to assert sovereign control. Berubari clarifies that the Constitution must reflect the actual territorial extent of the Republic, whether in addition or subtraction.
3. What was the Ninth Constitutional Amendment, and how is it connected to this case?
The Ninth Amendment to the Constitution (1960) was enacted to give effect to the Indo-Pakistan agreement concerning the Berubari Union. It amended the First Schedule to facilitate the transfer of territory to Pakistan, as advised by the Supreme Court in the Berubari opinion. This amendment operationalized the principle that only constitutional processes can authorize such cessions.
4. Did the Supreme Court consider public interest or practical difficulties in its ruling?
The Court’s approach was formalistic and constitutional. It did not weigh practical convenience or political expediency, choosing instead to focus on the textual and structural interpretation of the Constitution. This decision underscored the idea that constitutional procedures must be followed regardless of political motives.
5. How does Berubari compare to the basic structure doctrine?
While Berubari predates the basic structure doctrine laid down in Kesavananda Bharati (1973), it anticipated similar principles. It emphasized procedural sanctity and constitutional supremacy, setting the stage for later doctrines that would further restrict arbitrary amendments or executive action undermining the Constitution.
