Author: Kshiraj R, RV University, Bangalore
To the Point
Can a country casually exchange a piece of its territory to another nation as part of a diplomatic deal? In 1960, this question took a turn in everyone’s mind in the stage in India when the government decided to exchange part of Berubari Union to Pakistan under the Nehru-Noon Agreement but just before this territory was tied up exchanged in a ribbon and shipped off, the President referred the matter to the Supreme Court under Article 143 of the Constitution and the result u ask a landmark advisory opinion that clarified what is the set the ground rules for territorial cession. Let me give you a spoiler alert, you can’t lose land in a friendly handshake not without amending the Constitution.
Use of Legal Jargon
The exchange of territory implicates fundamental questions of sovereignty, constitutional amendment, and territorial integrity. Article 3 empowers Parliament to reorganize internal state boundaries, but keep in mind it does not give the power to alter. That task demands a constitutional amendment under Article 368, reflecting the doctrine of constitutional supremacy. The Court’s analysis relied on principles like expressio unius est exclusio alterius, if Parliament’s power under Article 3 is confined to internal adjustments and addition of territory, it excludes international transfer of territory in this case exchange of territory.
The Proof
Following the Nehru-Noon Agreement (1958), India signaled its intent to partition the Berubari Union between itself and Pakistan. However, before Parliament could simply exchange the land via a statute, President referred the matter to the Supreme Court under Article 143. The questions were straightforward:
Can a simple Act of Parliament under Article 3 legally cede territory to a foreign country?
Or does such a move mandate a constitutional amendment under Article 368?
The Court answered with constitutional clarity. Article 3 addresses internal state reorganization changing names, jurisdictions, inter-state borders. It does not and cannot allow surrender of sovereign territory abroad. Any attempt to do so bypasses the Constitution’s amendment mechanism, violating constitutional hierarchy and sovereignty. Parliament can’t “trade land like baseball cards” without constitutional approval.
Abstract
In Re: The Berubari Union (1960) remains a defining moment in Indian constitutional law, standing as a judicial compass on the sensitive issue of territorial sovereignty. The Supreme Court’s advisory opinion clarified that Parliament’s power under Article 3 is confined strictly to internal territorial rearrangements such as the creation of new states or alteration of state boundaries and the power does not extend to giving of Indian territory or exchange it to foreign powers. Such sovereign transfers can be made possible by a formal constitutional amendment. The Court held,a constitutional amendment under Article 368 is necessary. In this case it was for a diplomatic exchange and the constitutional amendment is needed. This demarcation of power reinforced the doctrine of constitutional supremacy and ensured that international diplomacy could not bypass the procedural given in the Constitution.
Moreover, the Berubari ruling closed any backdoor through which executive agreements might dilute national sovereignty. By interpreting Articles 1, 3, and 368 harmoniously, the Court laid down a clear rule of law, territorial integrity is not merely a political question but a constitutional guarantee. The judgment acted as a legal protection against unilateral or purely executive action in matters of land cession and prompted the Ninth Constitutional Amendment to validate the Nehru-Noon Agreement through proper legislative process.
Its impact resonates to this day, including in the 100th Constitutional Amendment (2015), where India and Bangladesh formally exchanged enclaves following the constitutional route that Berubari mandated decades earlier. In a world where borders are still contentious and geopolitical pressures high, Berubari continues to guide international land agreements, ensuring that even well-meaning diplomatic deals stay tethered to the anchor of constitutional procedure and democratic oversight.
Case Laws
In Re: The Berubari Union and Exchange of Enclaves, AIR 1960 SC 845
The Supreme Court held that Parliament has no authority under Article 3 to cede Indian territory to foreign countries. Such action is unconstitutional and can only be effected through a constitutional amendment under Article 368.
State of West Bengal v. Union of India, AIR 1963 SC 1241
Though not directly connected, this case followed soon after Berubari and clarified that the Union of India could make laws affecting state territories even without state consent but again, not for the purpose of ceding territory to foreign nations. Sovereignty, the Court emphasized, is a matter of constitutional structure.
Conclusion
Berubari isn’t just a legal footnote it’s a constitutional checkpoint. It taught us that territory, dignity, and legal procedure are non-negotiable. Peaceful agreements over land require more than diplomatic pen strokes; they require legislative rigor under the Constitution. The decision also served as the footpath for the 100th Amendment done in 2015, which ratified the India and the Bangladesh enclave exchange constitutionality. Whether it’s Pakistan in 1960 or Bangladesh in 2015, Berubari affirmed that Indian territory is protected not just politically, but constitutionally.
FAQS
Q1. Did India ever end up giving away Berubari to Pakistan?
Nope. Despite the original plan under the Nehru–Noon Agreement to transfer part of Berubari to Pakistan. The required constitutional amendment was passed (the 9th Amendment), but due to political shifts and other disputes, the transfer never took place. So, Berubari stayed put firmly in India’s map.
Q2. What happened after the decision?
India passed the 9th Amendment in 1960 and later the 100th Amendment in 2015 The act amended the 1st schedule of the constitution.
Q3. Is Berubari still relevant today?
Absolutely. It remains the go-to precedent for any international adjustment of Indian territory, ensuring no territorial change can occur without full constitutional compliance.
Q4. What constitutional principles does Berubari safeguard?
It enforces constitutional supremacy, central sovereignty, and the sanctity of Article 368. It ensures no land is ceded without formal, democratic sanction.
