Case Summary : Re Berubari case, AIR 1960 SC 845

Court : Supreme court of India 

Bench: B Sinha, A S Shah, K Dasgupta, K S Rao, M Hidayatullah, P Gajendragadkar, S Das

Date of judgement : March 14, 1960

Relevant provisions or statutes: Article 1, 3 and 368 of Constitution of India.

Brief Facts :

In the case of Re Berubari, the states Punjab and Bengal were to be partitioned. In the month of February, 1947, the Britishers had decided to shift the power to the government of India by June of 1948.  After the Mountbatten Plan of 1947, also called the Independence Act, India was divided into two nations—India and Pakistan—based on the two-nation theory. The problem, however, was deciding which specific areas would belong to which country, since the boundary map was not ready at that time. To solve this, Sir Cyril Radcliffe, a surveyor, was asked to draw the boundary within five weeks. It was indeed a difficult task for Radcliffe as well to divide and draw the boundaries to settle the conflicts. In the end, he used the principle of majority population—Muslim-majority areas went to Pakistan, and Hindu-majority areas went to India. 

During this process, Berubari, a place in the Jalpaiguri district of West Bengal, was left out by mistake in Radcliffe’s report and ended up with India. Berubari was a small town covering about 8.57 square miles, situated in the Jalpaiguri district. At that time, Jalpaiguri came under the Rajshahi division. Berubari was regarded as a part of West Bengal, India. Pakistan later claimed Berubari, which caused a dispute.

 In order to fix the conflicts going on between the 2 nations, the Prime Minister of India, Jawaharlal Nehru, and Prime Minister of Pakistan ,Feroz Khan Noon  in 1958 signed an agreement, which was called as the Nehru–Noon Agreement, to settle down the ongoing disputes. The Nehru-Noon Agreement of 1958 proposed that Berubari would be shared equally between India and Pakistan. In addition, the exchange of certain small enclaves in Assam and East Pakistan (now Bangladesh) was also agreed upon. Because this question was of great constitutional importance, the President of India, Dr. Rajendra Prasad, made a Presidential Reference under Article 143 of the Constitution, asking the Supreme Court for its opinion on the legality of implementing the Nehru–Noon Agreement.

Issues involved in the case : 

1. Is It necessary to pass a law in order to implement the Berubari Union Agreement?
2. Could the Government of India cede territory to another country simply through executive action or by passing a law under Article 3 (which allows Parliament to reorganise state boundaries within India)? 
3. For carrying out the exchange of enclaves, is a law under Article 3 alone sufficient, or is it necessary—either solely or along with it—to amend the Constitution under Article 368?

Arguments :

From side of Government: 

In the Berubari Union case, the Union Government argued that as the sovereign authority representing India in international relations, it has the power to enter into treaties and agreements with other countries. 

The agreement did not create a new boundary or change the existing one. Instead, it was only a recognition of the boundary already decided by the Boundary Commission. Therefore, giving a portion of land to Pakistan under this “award” was not seen as giving up Indian territory, but rather as a way to settle a boundary dispute. 

The Government stressed that honouring the Nehru–Noon Agreement was important for maintaining international goodwill and peaceful relations with Pakistan. Delays or insistence on constitutional amendments could harm India’s credibility in the international sphere.

Arguments against the Government(i.e. in favour of amendment under Article 368 of Constitution of India) :

Opponents argued that Article 1 of the Constitution defines the “territory of India,” and this cannot be altered by a simple executive order or ordinary legislation. Any cession of land to another country would reduce the extent of India’s territory, which goes beyond the scope of Article 3. They further highlighted that while Article 1(3)(c) of the Constitution empowers India to acquire new territories, it does not authorize the cession or transfer of any part of Indian territory to another country. 

Article 3 allows for creation of new states, change of boundaries, or merger/split of existing states within the Union of India. It does not empower Parliament to transfer territory to a foreign state, because that would affect the sovereignty of India itself.

Opponents also argued that residents of Berubari would lose their Indian citizenship if the territory was transferred, which was a fundamental change in their legal and constitutional rights. Such a drastic change could not be imposed merely through executive action.

Judgement:

Article 3 does not expressly in any way deal with  Union Territories. Even if they are assumed to be covered under the opening clause of Article 3(a), they are certainly not included under clauses (b), (c), (d), or (e).In the Berubari Reference case, the Court clarified that if there is any proposal to either expand or reduce the area of a Union Territory, or to change its boundaries or name, such changes cannot be made through laws enacted under Article 3. This interpretation is particularly important when reading Article 3(c). It is also significant to note that Article 3(c) deals only with the reduction of a State’s territory, not that of a Union Territory.

In the Berubari Union case, it was held that the Agreement amounted to the transfer of a part of India’s territory to Pakistan. To give effect to this, it was necessary to amend Article 1 of the Constitution and the corresponding entries in the First Schedule, since such transfer would reduce the area of India. This kind of change could only be made through the procedure laid down in Article 368, and this position was accepted without dispute.

Therefore, Parliament, by using its powers under Article 368, could validly pass a law to implement the Agreement, which involved both the cession of part of Berubari Union No. 12 and the exchange of certain Cooch Behar enclaves with Pakistan.

The Court also observed that Parliament, if it so wished, could amend Article 3 to specifically include the transfer of Indian territory to a foreign State. In that case, legislation could later be passed under the amended Article 3 to carry out such agreements. However, even without amending Article 3, legislation passed directly under Article 368 would be sufficient to enforce the Berubari Agreement.

Ratio Decidendi :

The Berubari Union case was referred to the Supreme Court under Article 143 of the Constitution, where the President of India sought the Court’s opinion on whether the Nehru–Noon Agreement of 1958, involving the transfer of a part of Berubari Union to Pakistan, could be implemented without a constitutional amendment. The Court’s ratio decidendi revolved around interpreting the scope of Articles 1, 3, and 368, and determining the proper constitutional process for ceding territory to a foreign state

1. Interpretation of Article 1 and the Territorial Integrity of India : The Court analyzed and interpreted Article 1, which provides the “territory of India” as comprising the states, union territories, and any other territories that may be acquired. The Court observed that once a territory forms part of India, it becomes an inseparable part of the Union, and its status cannot be reduced or changed without altering the Constitution itself. Thus, surrendering a portion of Indian territory to another state is not a matter of administrative convenience but a fundamental constitutional change, as it directly reduces the area of India described in Article 1 and the First Schedule. 
2. Limits of Article 3 : The Union Government argued that Article 3 authorizes Parliament to alter state boundaries, and hence, ceding Berubari to Pakistan could be achieved by passing a law under this provision. The Court rejected this contention by making a clear distinction between internal adjustments of territory and external cession of territory. According to the Court, Article 3 empowers Parliament to Form new states, Increase or diminish the area of a state, and Alter boundaries between states within India. However, all these powers apply only within the Indian Union. The provision does not contemplate the transfer of Indian territory to a foreign state. Such cession amounts to a reduction in the very extent of “India” as a nation, which is beyond the scope of Article 3. Therefore, the Court held that Article 3 could not be used for implementing the Nehru–Noon Agreement.
3. Requirement of a Constitutional Amendment under Article 368: After ruling out Article 3, the Court turned to Article 368, which prescribes the procedure for amending the Constitution. The Court reasoned that since the transfer of Berubari would reduce the territory of India as defined in Article 1, a constitutional amendment was necessary to give legal effect to such an agreement. This ensures that Parliament, representing the will of the people, has the opportunity to deliberate on a matter that affects the sovereignty and integrity of the country. The Court emphasized that the framers of the Constitution Intended territorial changes of such magnitude to undergo the rigorous process of amendment under Article 368, instead of being left to executive discretion or ordinary parliamentary law.

Final decision:

In the Berubari Union case (1960), the Supreme Court of India ruled that the Government cannot hand over any part of India’s territory to another country just by using executive powers or passing an ordinary law. Since giving away Berubari Union to Pakistan meant reducing the area of India as defined in the Constitution, the Court held that this could only be done through a formal amendment of the Constitution under Article 368. It also clarified that Article 3, which allows Parliament to change state boundaries within India, does not extend to transferring land to a foreign nation. The judgment made it clear that the sovereignty and territorial integrity of India are protected by constitutional provisions and cannot be altered casually. The Court further emphasized that such an important step, which directly affects the identity and extent of the nation, must be done only with the highest constitutional procedure. This opinion later guided the Government to bring in the Ninth Constitutional Amendment Act, 1960, which provided the legal framework to implement the Nehru-Noon Agreement.