Author: Vanshika Verma, University School of Law and Legal Studies, GGSIPU
Case Title: In Re: The Berubari Union and the Exchange of Enclaves
Court: Supreme Court of India
AIR Citation: AIR 1960 SC 845
SCR Citation: (1960) 3 SCR 250
Bench: B.P. Sinha (C.J.), A.K. Sarkar, K. Subba Rao, J.C. Shah, N. Rajagopala Ayyanagar, K.N. Watchdog, and S.K. Das, JJ.
Date of decision: March 14, 1960
Provision Involved: Article 143(1), Article 1, Article 3, and Article 368 of the Constitution of India
Abstract
The landmark Supreme Court opinion in In Re: The Berubari Union and the Exchange of Enclaves stands as a constitutional cornerstone in interpreting the framework of territorial sovereignty and the procedure for cession of India territory. Delivered under the President’s reference power in Article 143(1) of the Constitution, the judgement addressed a critical legal question of whether India could cede territory to a foreign state (Pakistan) through executive action or parliamentary legislation, or whether such an act necessitated a constitutional amendment under Article 368.
This advisory opinion had wide ranging implications. It set the precedent for the Ninth Constitutional Amendment Act, 1960, which was enacted to give effect to the Berubari agreement. The judgment continues to influence Indian Constitutional jurisprudence on matters involving international treaties, territorial integrity, and the basic structure doctrine.
Through this article, the Berubari case is dissected to reveal its foundational impact on Indian federalism, the limits of executive and legislative power, and its enduring relevance in the modern geopolitical context, and particularly in relation to the 100th Constitutional Amendment Act (2015) involving the Indo-Bangladesh Land Boundary Agreement.
Keywords: Territorial Sovereignty, Constitutional Amendment, Article 368, Radcliffe Award, Advisory Jurisdiction, Basic Structure Doctrine, Land Boundary Agreement, Supreme Court of India, Judicial Review.
Background and Factual Matrix
On September 10, 1958, the Commonwealth Secretary, Ministry of External Affairs,
Government of India and the Foreign Secretary, Ministry of Foreign Affairs and Commonwealth, Government of Pakistan, discussed 10 items of disputes and submitted it to their respective Prime Ministers, with a view to resolve border disputes and problems related to Indo-Pakistan Border Areas and establishing peaceful conditions, the Prime Ministers, acting on the behalf of their respective Governments, entered into an agreement settling the disputes. The agreement has been called the Indo-Pakistan Agreement.
This case lies between the post-partition territorial complexities following the creation of India and Pakistan in 1947. The partition was based on the Mountbatten Plan, and the division of Bengal and Punjab was to be carried out by Sir Cyril Radcliffe, whose award demarcated the boundary lines between the two nations. In Bengal, the boundary between India and East Pakistan (now Bangladesh) created several enclaves and ambiguities, particularly in the Jalpaiguri district, where the Berubari Union No.12 was located.
Initially, Berubari Union was part of the Malda District, which was awarded to India. However, due to a clerical ambiguity in the Radcliffe Line description, Berubari Union was shown as part of Pakistan in one map and India in another. This led to a territorial dispute between India and Pakistan. While the Indian Government exercised control over Berubari, Pakistan persistently laid claim to it.
In an attempt to resolve this issue diplomatically, Prime Minister Jawaharlal Nehru and Pakistan Minister Feroze Khan Noon signed the Indo-Pak Agreement (Nehru-Noon Agreement) on September 10, 1958. Under this agreement:
The southern half of Berubari Union was to be transferred to East Pakistan.
In return, Pakistan would cede certain enclaves under Indian control to India.
This proposed territorial exchange provoked significant political and constitutional controversy, especially within the state of West Bengal, where Berubari was located. Several political leaders and legal scholars raised concerns over whether the Government of India could legally cede Indian territory through an executive agreement or parliamentary legislation alone.
Faced with growing opposition and legal ambiguity, the President of India, Dr. Rajendra Prasad, in exercise of his powers under Article 143(1) of the Constitution, referred the matter to the Supreme Court of India for its advisory opinion. The Central question was whether the implementation of the Indo-Pakistan Agreement particularly the transfer of part of Indian territory that is, Berubari Union required:
A constitutional amendment under Article 368, or
Could be achieved by ordinary legislation under Article 3, or
Be effectuated solely by executive action.
The case was heard by an eight-judge Constitution Bench of the Supreme Court and became one of the earliest and most important references under Article 143. The Court’s opinion would ultimately set a precedent for the constitutional process required to alter India’s territory, including future boundary settlements like the 100th Constitutional Amendment Act (2015) involving the Indo-Bangladesh Land Boundary Agreement.
Core Legal Issues
Ques 1. Is any legislative action necessary for the implementation of the Agreement relating to the Berubari Union ?
Ques 2. Is a law of Parliament referable to Article 3 of the Constitution sufficient for the purpose or is an amendment of the Constitution in accordance with Article 368 of the Constitution necessary, in addition or in the alternative ?
Ques 3. Is a law of Parliament referable to Article 3 of the Constitution sufficient for the implementation of the agreement relating to Exchange of Enclaves or is an amendment of the Constitution in accordance with Article 368 of the Constitution necessary for the purpose, in addition or in the alternative ?
Arguments Advanced by the Union Government
The Union of India, represented by the Attorney General, presented that the agreement between Prime Minister Nehru and Prime Minister Feroze Khan Noon (popularly known as the Nehru-Noon Agreement) did not amount to the cession of Indian territory, but merely to a rectification or clarification of the Radcliffe Award, which demarcated the India-Pakistan Border in 1947. The Union asserted that such matters of external boundary adjustments fall under the exclusive domain of the executive, empowered by Article 73 of the Constitution, which extends executive authority to matters over which Parliament has the power to legislate, including foreign affairs.
The Union argued that the Nehru-Noon Agreement was a valid act of foreign policy and was within the competence of the Union Government. It cited the principle that making of treaty is an incident of sovereignty, and unless expressly restricted by the Constitution, the executive has the authority to enter into international agreements.
The Government further argued that even if legislative implementation was necessary, the transfer of Berubari Union could be effectuated under Article 3 of Indian Constitution, which empowers Parliament to alter the boundaries or area of any state. Since Berubari was a part of West Bengal, Parliament diminished its area after fulfilling the procedural requirement under Article 3, referring the proposal to the concerned State Legislature. The Union submitted that the Preamble to the Constitution, while providing interpretative guidance, does not confer or limit powers. Hence, invoking sovereignty or democratic ideals from the Preamble cannot override them express provisions empowering the executive and Legislature to act in matters of foreign policy and territorial reorganization.
Arguments Advanced by the Opponents
The opposing side, comprising constitutional experts, political leaders, and the State of West Bengal, presented an argument that the proposed transfer of a portion of Berubari Union No. 12 to Pakistan constituted a cession of Indian territory, and not a mere adjustments of boundaries. The Constitution provides no express authority to cede national territory except through an amendment under Article 368. Since the region was a part of the territory of India under Article 1(3)(a) and was included in the First Schedule, its removal required a formal constitutional amendment.
It was contended that Article 3 deals exclusively with internal reorganization of States and does not contemplate the cession of Indian territory to a foreign country. Article 3 allows Parliament to create new states, alter new states, and change boundaries within the Indian Union, but cannot be used to permanently transfer sovereignty over Indian territory to another side. The executive power of the Union under Article 73 is subordinate to the Constitution, and cannot override constitutional limitations. The doctrine of ultra vires was invoked to assert that any action by the executive or Parliament that goes beyond their constitutional mandate is nullity and void.
It was further submitted that territorial integrity is intrinsic to the basic structure of the Constitution, and any change affecting India’s territory should involve Parliamentary debate, supermajority approval, and, where necessary, State ratification under the procedure of Article 368. Ceding territory such as Berubari would not only diminish India’s geographical boundaries but would also disenfranchise the citizens of that region, stripping them of their fundamental right to representation in the democratic framework. Such a significant action must, therefore, be undertaken only after a constitutional amendment that reflects the will of the people through their elected representative.
Supreme Court Opinion in Re: Berubari Union
The Supreme Court of India, responding to a reference made by the President under Article
143(1) of the Constitution of India, delivered a unanimous advisory opinion in this matter.
The court observed that Berubari Union was an integral part of an Indian territory at the time of the reference and formed part of the State of West Bengal, as recognised under Article 1(2) and the First Schedule of the Constitution. Therefore, its transfer involved a cession of territory, which necessarily altered the territorial boundaries of India. The court held that such a cession affects India’s sovereign domain, and cannot be treated as a mere administrative or boundary adjustment. The court disagreed with an argument presented by the Union Government which argued that Article 3, which permits the alteration of state boundaries was broad enough to cover the case.
The court had made a clear distinction between:
Internal reorganization of states within the Union of India (permitted under Article 3), and
Cession of territory to a foreign state (which involves an international act and change in sovereignty).
The court held that Article 3 cannot be invoked to cede any part of Indian territory to another country.
Since Berubari was already a part of India, its transfer would necessitate a deletion from the First Schedule, which explicitly lists all Indian states and their territories. Thus, could only be done by amending the Constitution under Article 368, as the First Schedule is a part of the Constitution itself. Thus, Parliament does not have the power to cede Indian territory through ordinary legislation. A formal constitutional amendment is a mandatory prerequisite. The court also explained that such an amendment would not fall under Article 368(2) because the amendment did not affect the powers of the States but only involved a change in territory. Further, the Court said that the Preamble does not prohibit cession of territory. The Supreme Court delivered a clear opinion: “The implementation of the agreement relating to the Berubari Union requires a constitutional amendment under Article 368 of the Constitution of India. Neither executive action nor legislation under Article 3 is sufficient to carry out such a transfer”.
Based on this opinion, Parliament passed the 9th Amendment to lawfully give effect to the Indo-Pak agreement and transfer part of Berubari to Pakistan.
Legislative Aftermath
In response to the Court’s ruling, the Parliament of India enacted the Constitution (Ninth Amendment) Act, 1960. This was necessary to give constitutional effect to the Nehru-Noon Agreement, which involved the transfer of the southern half of Berubari Union No.12 to East Pakistan ( now Bangladesh), and the exchange of certain enclaves between India and Pakistan.
The constitutional provision amended as, “In the First Schedule to the Constitution, in the heading ‘THE STATES’, in the entry relating to the State of West Bengal, for the portion beginning with ‘the territories which immediately before the commencement of this Constitution were compromised’ and ending with ‘district of Darjeeling’, the following shall be substituted…”. This legal change enabled the cession of the Berubari territory to be formally carried out in accordance with constitutional requirements.
Conclusion
This case had established that cession of territory demands constitutional amendment not mere legislation. It confirms sovereignty as an entrenched constitutional value and reinforces Parliament’s duty to follow Article 368 scrupulously. Its legacy echoes in landmark agreements, inscribed constitutionalism in diplomatic processes.
FAQS
Ques 1. Can India transfer territory via ordinary legislation?
Ans: No, cession to a foreign country requires a constitutional amendment under Article 368, ordinary legislation under Article 3 is insufficient.
Ques 2. Why does not Article 3 permit territorial cession?
Ans: Its scope is confined to internal reorganization, it does not extend to transferring sovereignty abroad.
Ques 3. What role did the Preamble play in this decision?
Ans: The Preamble aids interpretation, but is not enforceable. The court held sovereignty includes territorial cession, which is permissible via proper amendment.
Ques 4. Which amendment gave legal effect to the Berubari transfer?
Ans: The Ninth Constitutional Amendment (1960), effective December 28, 1960, validated the agreement.
Ques 5. How does this case impact current border treaties?
Ans: Its imposes a constitutional procedure requiring amendment before ceding territory seen in the 100th Amendment and Land Boundary Agreement.
