In Re: Berubari Union & Exchange of Enclaves, AIR 1960 SC 845

Bench

A 7-Judge Bench of the Supreme Court:

1. B.P. Sinha, C.J.
2. S.K. Das, J.
3. P.B. Gajendragadkar, J.
4. A.K. Sarkar, J.
5. K. Subba Rao, J.
6. M. Hidayatullah, J.
7. K.C. Das Gupta, J.

Facts

• Berubari Union was a region located in West Bengal, India, near the border with East Pakistan (now Bangladesh).
• After India’s independence in 1947, border disputes arose between India and Pakistan regarding the territorial control of Berubari Union.
• The Radcliffe Award, which determined the boundary between India and Pakistan, was unclear about the status of Berubari Union.
• In 1958, Prime Minister of India Jawaharlal Nehru and Prime Minister of Pakistan Feroze Khan Noon signed an agreement (Indo-Pakistan Agreement) to divide Berubari Union between India and Pakistan.
• The agreement also included an exchange of enclaves (small land areas surrounded by foreign territory) between the two countries.
• A doubt arose as to whether the implementation of the agreement required a constitutional amendment or could be done by executive action alone.
• The President of India referred the matter to the Supreme Court under Article 143(1) of the Constitution for advisory opinion.

Issues

1. Is any legislative action necessary for implementing the Indo-Pakistan Agreement regarding Berubari Union?
2. If legislative action is needed, would a law passed under Article 3 of the Constitution be sufficient, or is an amendment under Article 368 necessary?
3. Would a law under Article 3 be enough for the exchange of enclaves, or is an Article 368 amendment also required?

Ratio Decidendi (Legal Principle)

• The Supreme Court held that Parliament does not have the power under Article 3 to cede Indian territory to a foreign country.
• Article 3 allows Parliament to alter state boundaries but not to transfer Indian land to a foreign country.
• Article 368 (Constitutional Amendment) is required for ceding Indian territory, as it involves modifying the First Schedule of the Constitution, which defines India’s territory.
• The agreement to transfer Berubari Union to Pakistan amounted to “cession of territory,” which required a constitutional amendment.
• The exchange of enclaves was also considered a transfer of sovereignty and needed a constitutional amendment.

Observations

• The Indian government cannot transfer territory without amending the Constitution, as the First Schedule specifically defines the country’s boundaries.
• The preamble of the Constitution does not impose any restrictions on Parliament’s power to amend the Constitution.
• The treaty-making power of the government is subject to constitutional limitations; even if the government signs an international treaty, it cannot implement territorial changes without following constitutional procedures.
• The power to acquire territory (Article 1(3)(c)) does not imply the power to cede territory.

Decision

• The Supreme Court ruled that Parliament cannot transfer Indian territory to another country through a law under Article 3.
• A constitutional amendment under Article 368 is necessary to implement the Indo-Pakistan Agreement regarding Berubari Union.
• The same requirement applied to the exchange of enclaves between India and Pakistan.
• As a result of this ruling, the Indian government passed the Constitution (Ninth Amendment) Act, 1960 to implement the agreement.

Important Terms

1. Article 143 (Advisory Jurisdiction of the Supreme Court)

• This article allows the President of India to seek advice from the Supreme Court on matters of law or constitutional interpretation.
• In this case, the President referred the issue of Berubari Union’s transfer to the Supreme Court for an opinion.

2. Article 3 (Alteration of State Boundaries)

• Article 3 allows Parliament to change state boundaries and names.
• However, the Supreme Court ruled that Article 3 does not allow Parliament to transfer Indian territory to a foreign country.

3. Article 368 (Constitutional Amendment Procedure)

• This article provides the procedure for amending the Constitution.
• The Supreme Court held that territorial changes require an amendment under Article 368 because they modify the First Schedule of the Constitution.

4. Radcliffe Award (1947)

• This was the boundary commission report that divided India and Pakistan in 1947.
• The award was unclear about Berubari Union’s status, leading to a territorial dispute.

5. Cession of Territory

• Cession means the transfer of sovereignty over a piece of land from one country to another.
• The Supreme Court ruled that India cannot cede its land without a constitutional amendment.

6. Indo-Pakistan Agreement (1958)

• Signed between India and Pakistan to resolve border disputes.
• It proposed dividing Berubari Union and exchanging enclaves between the two nations.