Case Study: In Re: The Berubari Union and Exchange of Enclaves

By Yousuf Khan 10 Minutes Read

“Territory of India cannot be ceded to a foreign state without a constitutional amendment under Article 368, even if done to settle boundary disputes under international agreements.”

Citation: AIR 1960 SC 845, [1960] 3 SCR 250

Date of Judgment: 14^th March, 1960

Court: Supreme Court of India

Bench: B.P. Sinha (CJ), A.K. Sarkar (J), J.C. Shah (J), K.C. Das Gupta (J), K. Subba Rao (J), M. Hidayatullah (J), P.B. Gajendragadkar (J), S.K. Das (J)

Facts

• This case arose from an agreement signed on September 10, 1958, between the Prime Ministers of India and Pakistan to resolve disputes regarding border areas. The agreement included two key provisions: the division of Berubari Union No. 12 (a region in West Bengal) and the exchange of certain Cooch-Behar enclaves. As per the agreement, half of Berubari Union was to be ceded to Pakistan, while India retained the other half. Additionally, several enclaves in the Cooch-Behar region were to be exchanged between the two countries.
• The implementation of this agreement raised constitutional questions. Specifically, it was unclear whether the government could implement such an agreement without legislative action, or whether a constitutional amendment was necessary. The President of India referred these questions to the Supreme Court under Article 143(1), seeking clarification on the legal process required for ceding Indian territory.

Decision of the Supreme Court

The Supreme Court held that the agreement involved the cession of Indian territory, and such a cession could not be implemented without a constitutional amendment under Article 368. The Court further clarified that Article 3, which deals with the internal reorganization of states, did not provide Parliament with the power to cede Indian territory to a foreign state. Therefore, legislative action in the form of a constitutional amendment was necessary.

Key legal issues discussed

1. Is legislative action necessary for implementing the agreement relating to the Berubari Union?

Yes
The Court held that the agreement concerning Berubari Union involved ceding Indian territory to Pakistan, and thus could not be executed by executive action alone. Such a cession required legislative action, specifically a constitutional amendment under Article 368.

The Court rejected the argument that this agreement was merely an “adjustment of boundaries.” It observed that the agreement was not based on an interpretation of the Radcliffe Award, which had originally determined the boundary between India and Pakistan. Instead, the Court noted that the decision to divide Berubari Union was made independently of the award, as part of a broader diplomatic agreement between the two countries.

The court considered the the question of alienation of India’s territory which is manifest  in paragraph 25, where the Court observed “It is an Agreement by which a part of the territory of India has been ceded to Pakistan, and the question referred to us in respect of this Agreement must, therefore, be considered on the basis that it involves cession or alienation of a part of India’s territory.”

The Court’s recognition that this agreement involved the transfer of territory from India to Pakistan was key to its reasoning. The cession of territory goes beyond a mere administrative boundary adjustment; it constitutes an alteration in the sovereignty of a state. Therefore, the Court held that a constitutional amendment under Article 368 was required to give effect to such an agreement.

2. Is a law of Parliament under Article 3 of the Constitution sufficient to implement the agreement, or is an amendment under Article 368 also required?

A constitutional amendment under Article 368 is required.
The Court carefully analyzed the scope of Article 3, which deals with the internal reorganization of states. Article 3 allows Parliament to create new states, alter boundaries, and increase or diminish the area of any state within India. However, the Court made it clear that Article 3 does not cover the cession of Indian territory to a foreign state. Ceding territory to Pakistan, as contemplated in the Berubari agreement, was not an internal reorganization but an external transfer of sovereignty.

Extracting the reasoning of the Court in paragraph 46, the Court explained: “It would be unduly straining the language of Art. 3(c) to hold that by implication it provides for cases of cession of a part of national territory. Therefore, we feel no hesitation in holding that the power to cede national territory cannot be read in Art. 3(c) by implication”

The Court categorically stated that it cannot, therefore, accept the argument of the learned Attorney-General that an agreement which involves a cession of a part of the territory of India in favour of a foreign State can be implemented by Parliament by passing a law under Article 3 of the Constitution.

The Court also emphasized the importance of maintaining India’s territorial integrity and sovereignty. It concluded that the cession of Berubari Union required a constitutional amendment under Article 368, as this article governs amendments to the Constitution, including changes to Article 1 and the First Schedule, which define the territory of India.

3. Is a law of Parliament under Article 3 sufficient to implement the exchange of enclaves between India and Pakistan?

No
The Court extended its reasoning regarding Berubari Union to the exchange of enclaves between India and Pakistan. Like the division of Berubari Union, the exchange of enclaves involved the transfer of Indian territory to Pakistan, which could not be accomplished through ordinary legislation under Article 3.

The cession of a part of the territory of India in favour of a foreign State cannot be implemented by Parliament by passing a law under Article 3 of the Constitution.”The Court further explained that the exchange of enclaves was not a simple administrative action, but involved the transfer of sovereignty, making it necessary to follow the constitutional amendment procedure.

4. Does the Preamble of the Constitution restrict the power to cede Indian territory to a foreign state?

No
The petitioners argued that the Preamble of the Constitution, which declares India as a “sovereign democratic republic,” restricted the government’s ability to cede Indian territory to a foreign state. They contended that ceding territory would violate the sovereign character of India.

However, the Court rejected this argument, clarifying that while the Preamble reflects the objectives and spirit of the Constitution, it is not an operative or enforceable part of the Constitution. In paragraph 31, the Court explained “…preamble to the Constitution is, in the words of Story, “a key to open the mind of the makers” which may show the general purposes for which they made the several provisions in the Constitution; but nevertheless, the preamble is not a part of the Constitution,”

Furthermore, the Court noted that sovereignty includes the power to cede territory, when necessary, provided it is done in accordance with the proper constitutional procedure. Sovereignty includes the power to cede parts of national territory, and such cession does not violate the democratic or sovereign character of the Indian republic, provided it is done through the proper constitutional mechanism.

Thus, the Preamble does not impose any limitations on Parliament’s power to amend the Constitution, including provisions related to territorial changes. As long as the process is followed through a constitutional amendment under Article 368, the cession of territory does not conflict with the principles enshrined in the Preamble.

Yousuf Khan