The Constitutional Pal

Partition, Preamble, and Perimeters: A Landmark Case By The Supreme Court Of India : In Re: The Berubari Union and Exchange of Enclaves

BACKGROUND

The Berubari Union dispute traces back to the tumultuous Partition of India in 1947, when the Radcliffe Commission hastily demarcated the boundary between India and Pakistan. Berubari Union No.12, a small area (~9 square miles with about 12,000 residents) in Jalpaiguri district of West Bengal, was awarded to India under the Radcliffe Award and was administered as part of West Bengal after Independence. However, ambiguities in the Radcliffe map and description led Pakistan, a few years later, to claim that Berubari should have formed part of East Pakistan. This border ambiguity, along with the existence of several small enclaves of Indian and Pakistani territory within each other’s borders (notably in Cooch Behar), became a source of tension between the two new nations.

In the interest of maintaining peaceful relations, Prime Minister Jawaharlal Nehru entered into a diplomatic settlement with his Pakistani counterpart, Feroze Khan Noon. On September 10, 1958, the two PMs signed the Indo-Pakistan Agreement (known as the Nehru-Noon Agreement) to resolve outstanding boundary disputes. Key provisions of this accord included dividing the Berubari Union area between India and Pakistan in equal halves, and exchanging the enclaves in Cooch Behar between the countries for clarity of borders. This compromise aimed to ease local frictions and symbolized a post-Independence willingness to adjust territories for lasting peace.

However, the prospect of ceding any part of Indian territory sparked political and constitutional concerns domestically. The Chief Minister of West Bengal at the time, Dr. Bidhan Chandra Roy, staunchly opposed transferring Berubari to Pakistan, insisting the region was an integral part of his state and that New Delhi could not alter state boundaries unilaterally. The Nehru-Noon pact thus faced resistance, raising fundamental questions: Could the Union government lawfully give away Indian territory by executive agreement? Did the Constitution allow such a territorial cession, and if so, by what procedure? These uncertainties prompted the President of India to exercise his power under Article 143(1) of the Constitution, referring the issue to the Supreme Court for an advisory opinion. The reference sought clarity on the constitutional requirements for implementing the Berubari settlement, balancing India’s foreign policy commitments with the supremacy of the Constitution.

In Re: The Berubari Union And Exchange Of ... vs Unknown

Case No : REF. U/S 143 No. 1/1959

DATE OF JUDGMENT: 14/03/1960

Disposal Nature : Reference answered

BENCH: B. P. SINHA, C. J., S. K. DAS, P. B. GAJENDRAGADKAR, A. K. SARKAR, K. SUBBA RAO, M. HIDAYATULLAH, K. C. DASGUPTA and J. C. SHAH, JJ.

FACTS

The Presidential Reference (Special Reference No. 1 of 1959) placed before the Supreme Court a set of questions arising from the Indo-Pak agreement. By this agreement, India was to cede the southern half of Berubari Union No.12 to Pakistan, while retaining the other half, and a reciprocal exchange of enclaves would occur. Berubari had indisputably been part of Indian territory since 1947, so giving away a portion of it amounted to a transfer of sovereignty. Before acting on the accord, the Government of India sought the apex court’s advice on whether such implementation required legislative or constitutional action. Specifically, the reference asked: (1) does the division of Berubari Union (and exchange of enclaves) involve a cession of Indian territory; (2) if so, is parliamentary legislation under Article 3 (which allows reorganization of states) sufficient to carry it out, or is an amendment of the Constitution under Article 368 necessary (either in addition or alternatively); and (3) whether the Preamble of the Constitution imposes any limitations on the power to cede territory

A Bench of eight judges (led by Chief Justice B.P. Sinha) heard the reference. The Union Government’s stance, essentially, was that the Nehru-Noon Agreement merely settled an unsettled boundary (clarifying the Radcliffe Award’s intent) rather than truly ceding Indian land. If the agreed line placed some territory under Pakistan’s control, the government viewed it as a boundary adjustment rather than a new boundary creation, implying no fundamental change in India’s territory. It was contended that the executive agreement could be given effect by executive action alone, or at most by a law under Article 3 of the Constitution, without a constitutional amendment. On the other hand, those opposing the transfer (including the West Bengal government) argued that Berubari was unquestionably Indian territory de jure and de facto, and no organ of the state had authority to cede it away without proper constitutional sanction. They invoked the Constitution’s Preamble (which, by the way, proclaims India to be a “Sovereign Democratic Republic”) to assert that the entire territory of India is inalienable and beyond the reach of Parliament’s ordinary powers. In their view, neither a statute nor even a constitutional amendment could lawfully strip away a part of “We the People’s” territory without contravening the very founding resolve of the nation.

These starkly different positions set the stage for the Supreme Court’s examination of constitutional provisions in light of foreign policy needs.

ISSUES

The Supreme Court distilled several key issues from the reference and arguments:

  1. Whether the division of Berubari Union and the exchange of Cooch Behar enclaves constitute a cession of Indian territory to a foreign state (Pakistan), or merely a routine demarcation of an existing boundary?
  2. Is the Preamble of the Constitution a part of the constitutional text, and if so (or if not), does it impose any substantive limitation on the power of the State to cede territory? In particular, does the Preamble’s declaration of India as a “sovereign democratic republic” forbid Parliament from altering the nation’s territorial integrity?
  3. Must the Indo-Pak agreement be implemented through parliamentary approval, or can the Union executive alone finalize the transfer of territory? This raised the ancillary question of the scope of executive treaty-making power vis-à-vis domestic law; essentially, did the pact require ratification in Indian law?
  4. If legislative action is needed, what form should it take? Specifically:
    1. Is a law passed by Parliament under Article 3 (which permits the formation of new states and alteration of state boundaries) sufficient to implement the agreed transfer of territory?
    2. Alternatively, is an amendment of the Constitution under Article 368 required to give effect to the agreement (either as an exclusive method or in addition to an Article 3 law)?
    3. In connection to this, did the constitutional amendment (if required) need to follow any special procedure, such as ratification by states, given that state boundaries (West Bengal’s) were at issue?

ARGUMENTS

1. Union Government’s Arguments:

The Union of India urged that the 1958 agreement did not truly amount to giving up Indian territory, but was rather a clarification of an ambiguous boundary. The government contended that Berubari’s status had been unresolved since Partition, due to conflicting interpretations of the Radcliffe Award’s description. The 1958 pact, in this view, merely acknowledged the correct border as intended in 1947 (with half of Berubari belonging in East Pakistan) and thus there was no change in India’s territorial extent, only a confirmation of it. By this logic, the transfer was an administrative adjustment. Government counsel argued that even if some territory under Indian control was to be handed over, it was part of settling a pre-existing dispute, “not a cession of territory but… a method of determining the boundary”. Consequently, the Union asserted that no constitutional amendment was necessary. They maintained Parliament could simply enact a law under Article 3 to alter the boundaries of West Bengal consistent with the agreement (or perhaps even that no new law was needed at all aside from executive action). Article 3, after all, empowers Parliament to diminish the area of a state; the government suggested this should cover the situation of giving a portion of West Bengal to Pakistan as well. The exchange of enclaves was presented as a minor, reciprocal detail ancillary to the main Berubari settlement, and likewise not a “cession” in the true sense.

2. Opponents’ Arguments:

On the opposite side, strong objections were raised that the Constitution does not permit the ceding of Indian territory through a mere statute or executive fiat. It was argued that Article 3, by its text, concerns internal reorganization of states within the Union of India, not the transfer of territory to a foreign nation. Nowhere does Article 3 or any provision explicitly allow alienating the Union’s territory to another country, whereas Article 1(3)© explicitly contemplates acquisition of new territories by India. By negative implication, the Constitution’s silence on cession was read as an intentional prohibition. Counsel pointed to the Preamble as embodying the will of the people to constitute India into a sovereign democratic republic comprising all its territory; in their view, the Preamble placed the nation’s territorial integrity “outside the purview of Parliament”. Neither a law under Article 3 nor even an Article 368 amendment, they contended, could authorize slicing away part of India – an act seen as fundamentally incompatible with the people’s sovereign will. This absolutist position effectively treated India’s territorial unity as sacrosanct and unalterable by ordinary processes. If the Government wished to honor the Berubari deal, opponents argued, it must secure a constitutional amendment; and some went further to suggest even a formal amendment might fail to legitimize what was seen as a basic betrayal of the Constitution’s spirit. The specter of setting a precedent for future dismemberment of India loomed large in these arguments, reflecting both legal and emotional resistance to ceding territory so soon after Independence.

JUDGEMENT

1. The unanimous advisory opinion authored by Justice P.B. Gajendragadkar.

the Supreme Court answered the reference by first unequivocally affirming that the Indo-Pak agreement did involve a cession of Indian territory. The Court rejected the Union Government’s characterization of the pact as a mere boundary clarification. Nothing in the text of the Nehru-Noon Agreement indicated an interpretation of the Radcliffe Award; rather, it was “an amicable ad hoc division” of a disputed area, a deliberate exchange of sovereignty, not a technical rectification. In blunt terms, the Court stated that “a part of the territory of India [is] being ceded to Pakistan”, and the issue had to be considered on that footing of cession. This finding set the stage for addressing the constitutional mechanism required.

2. For the Preamble is NOT a part of the Constitution

The Supreme Court held that the Preamble is not a part of the Constitution and thus cannot limit or expand the powers conferred by the Constitution’s substantive provisions. The opinion famously quoted the jurist Joseph Story, calling a preamble “a key to open the mind of the makers” of a law, but reiterated that “nevertheless, the preamble is not a part of the Constitution.”. In other words, the Preamble can illuminate the general purposes and foundational values (the “spirit” of the Constitution), but it is not an operative provision and does not by itself confer rights or powers. Therefore, any argument that the Preamble’s declaration of Indian sovereignty prohibits cession was deemed misplaced. The Court concluded that nothing in the Preamble could override the clear constitutional scheme: if the Constitution, properly amended or interpreted, allowed territorial adjustments, the Preamble could not be read as a bar.

(Notably, the judges observed that it would be erroneous to treat a constitutional preamble on par with the preamble of an ordinary statute which is a point later scholars would criticize the Court for, as discussed below.)

3. The power to cede territory: Article 3 vs Article 368

The heart of the Court’s opinion lay in delineating Parliament’s power under Article 3 and under the amendment provision Article 368. Article 3 (clauses a–e) empowers Parliament to form new states, alter areas, boundaries, or names of existing states. The Court analyzed Article 3 in the context of Part I of the Constitution (Articles 1–4). It held that Article 3 deals with “internal adjustment inter se of the territories of the constituent States of India.” This means changes purely within India’s domestic federal structure – such as creating a new state, merging states, or adjusting boundaries between states – are contemplated by Article 3. In contrast, ceding Indian territory to a foreign country is outside the scope of Article 3. The Court reasoned that it would “unduly strain” the language of Article 3 to imply a power of external cession from the clause permitting diminishment of a state’s area. Clause © of Article 3 (“diminish the area of any State”) must be read in context as part of internal reorganization, not as a license to sign away territory to another nation. Neither Article 2 (admission of new territories) nor Article 3 covers the scenario of alienating national territory to an external sovereign. Thus, any law passed by Parliament solely in reliance on Article 3 for this purpose would be constitutionally incompetent.

Having ruled out Article 3 as a sufficient basis, the Court held that the only way to lawfully cede territory to Pakistan (or any foreign state) was through a constitutional amendment under Article 368. Implementing the Berubari settlement required amending Article 1 of the Constitution (which enumerates the territories of India) and the relevant entry in the First Schedule (which lists the areas of each state). Such amendments would effectively subtract the ceded area from the territory of India and from West Bengal. The Court noted that an amendment for this purpose would not trigger the special state-ratification requirement in Article 368’s proviso, because the provisions regarding the Union’s territory (Articles 1–4) were not among those “entrenched” clauses requiring ratification. In other words, Parliament alone (by the requisite special majority) could pass the needed amendment without approval from state legislatures: a point the Court left to Parliament’s wisdom to consider for the future (hinting that perhaps such fundamental territorial changes ought to involve the states).

The Supreme Court outlined two possible legislative routes:
(1) Parliament could pass a single constitutional amendment act under Article 368 to directly give effect to the agreement, i.e., amend Article 1 and the First Schedule to transfer Berubari’s half and exchange enclaves. This one-step amendment would itself sanction the cession.
(2) Alternatively, Parliament could first amend Article 3 via Article 368 to explicitly expand its scope to cover cession of territory to a foreign state, and thereafter enact an ordinary law under the revised Article 3 to implement the transfer.

The Court made clear that either approach would satisfy constitutional requirements, but some form of Article 368 amendment was indispensable before India could part with Berubari.

Finally, the Court addressed a sovereignty argument: Petitioners had contended that as a sovereign state, India simply could not cede territory. The Court disagreed to the extent this argument suggested the Constitution lacked power to do so. It observed that an essential attribute of sovereignty is the power to both acquire and cede territory in the national interest. India’s Constitution does not explicitly grant or deny a “cede territory” power, but the State’s sovereignty in external affairs is subject to the Constitution’s procedural requirements. Thus, if the Constitution is properly amended, the act of cession is legally valid. The Court acknowledged the human hardship and sentiment involved in surrendering territory (people losing their nationality or homes), but maintained that such “transfer of sovereignty” must be effectuated through the constitutional route and cannot be accomplished by executive action alone.

SUMMARY OF THE JUDGEMENT AND ITS EFFECT

In summary, the advisory opinion concluded:

(i) Yes, the agreement entails cession of Indian territory;
(ii) The Preamble does not bar such cession (and generally is not enforceable law);
(iii) Parliamentary legislation under Article 3 alone would be incompetent to implement the transfer; and
(iv) A constitutional amendment under Article 368 is not only necessary but also sufficient authority for the cession (no additional state ratification was needed).

The government was advised to proceed accordingly in effect, the Court gave its blessing conditioned on amending the Constitution.

Following this opinion, the Indian Parliament enacted the Constitution (Ninth Amendment) Act, 1960 to amend the First Schedule and facilitate the transfer of the designated territories to Pakistan. With that amendment in force, the Berubari half-union was formally ceded in 1961, and the enclave swap was completed. The Supreme Court’s guidance thus ensured that India’s international agreement was executed in conformity with the Constitution’s requirements, showcasing a textbook example of judicial review even in matters touching foreign policy.

NOTE ON THE JUDGEMENT

The In Re: Berubari Union advisory opinion stands as a landmark in illustrating how constitutional interpretation can mediate the tension between territorial sovereignty and foreign policy. In a young republic forged from Partition, the idea of giving up any territory was politically charged and emotive. By firmly requiring a constitutional amendment for the Berubari transfer, the Supreme Court affirmed the principle that the Union’s territorial integrity cannot be compromised by executive action alone. This bolstered the supremacy of the Constitution at a time when the government might have been tempted to treat international commitments as fait accompli (an irreversible accomplishment). In doing so, the Court arguably strengthened India’s democratic process: even high-level diplomatic deals had to pass the muster of constitutional due process. The ruling ensured that however expedient foreign policy might be, it must be carried out within the four corners of the Constitution which is a testament to the rule of law.

At the same time, the Court’s treatment of the Preamble in Berubari invited significant scholarly critique. The judges’ pronouncement that the Preamble was not part of the Constitution and had no substantive force was later deemed incorrect in view of history and principle. Constitutional scholars like H. M. Seervai pointed out that the Constituent Assembly debated, amended, and adopted the Preamble as an integral portion of the Constitution on November 26, 1949. By ignorantly equating the Indian Constitution’s Preamble with a non-binding preface of a normal statute, the Berubari Court, according to Seervai and others, “committed a fundamental mistake”. Indeed, just a few years later, in Sajjan Singh v. State of Rajasthan (1965), Justice Mudholkar mused whether the Preamble’s noble ideals could be excluded from the Constitution’s ambit, subtly questioning Berubari’s stance. Finally, in Kesavananda Bharati v. State of Kerala (1973), a 13-judge bench emphatically overruled Berubari on this point, holding that the Preamble is part of the Constitution and embodies the basic ethos of the document. The Kesavananda majority famously used the Preamble to discern the “basic structure” of the Constitution: something the Berubari opinion would not have countenanced. Thus, in retrospect, Berubari’s legacy was partly corrected to align with what Granville Austin described as the Constitution’s philosophy of inclusive (read: cooperative) federalism and social revolution: a philosophy clearly heralded in the Preamble’s text. The early Berubari view that the Preamble had no legal effect was too austere; it missed that the Preamble, while not a source of power, could serve as a guiding light to interpret ambiguous provisions in consonance with founding values (a proposition now well accepted).

Aside from the Preamble issue, the Berubari opinion is largely praised for its pragmatic yet principled approach. It recognized that as a sovereign state, India must have the capacity to settle international boundaries (including ceding or acquiring territory) – a point essential for any nation’s foreign policy. However, the Court’s insistence on a constitutional amendment injected a necessary democratic check on the treaty-making power. By involving Parliament (and a supermajority at that), the decision ensured broader deliberation and legitimacy for an otherwise executive-driven act of state. In the context of Indo-Pak relations, this had immediate and long-term implications. In the immediate term, Nehru’s government, heeding the Court, secured the Ninth Amendment in 1960 and completed the Berubari and enclaves exchange. This demonstrated India’s capacity to honor international obligations without sidestepping constitutional processes, arguably a maturation of constitutional governance. In the longer term, Berubari set a precedent that any significant territorial change would go through the crucible of constitutional amendment. Decades later, when India considered ceding the small island of Katchatheevu to Sri Lanka in the 1970s, and again while resolving the protracted enclave problem with Bangladesh (eventually by the 100th Amendment in 2015), the shadow of Berubari loomed large. Detractors of those cessions cited Berubari to demand that proper constitutional procedures be followed – underscoring the case’s enduring authority in India’s constitutional jurisprudence on foreign agreements.

Nonetheless, one might question whether the judiciary strayed into the domain of foreign policy, traditionally the executive’s prerogative. In Berubari, the Court trod carefully: it did not opine on the wisdom of the Nehru-Noon Agreement, only on the means of effectuating it legally. This advisory role was squarely within its constitutional duty under Article 143. By clarifying the law, the Court arguably averted a potential constitutional crisis because imagine if the government had transferred Berubari by executive order, only to have it later invalidated for illegality. The opinion thus pre-empted conflict by guiding the political branches on the correct path. Granville Austin observed that the framers designed Article 3 and Article 368 to handle internal adjustments and fundamental changes respectively; the Berubari ruling exemplified this design in action, ensuring that a treaty altering India’s borders would engage the highest level of constitutional decision-making. Far from obstructing foreign policy, the judiciary’s involvement in Berubari buttressed the credibility of India’s commitments – because a treaty implemented through a constitutional amendment would be on unassailable legal footing domestically. This interplay of judiciary and executive in matters of treaty implementation highlights the system of “checks and balances”: the executive negotiates and signs agreements, but the legal validation, especially if the Constitution’s structure is impacted, may require judicial or legislative concurrence. As the Court wisely noted, no matter how expedient or significant an international agreement is, it “must defer to the Constitution in all cases”, for the Constitution is supreme law.

In Re: Berubari Union is a seminal case in the context of Indian constitutional law. It showcases a formative moment when the Supreme Court had to reconcile the ideal of territorial inviolability with the realpolitik of boundary agreements. The judgment reinforced that the Constitution is the ultimate arbiter, even over questions of sovereign territory. While its view on the Preamble was later revised, the core principles it laid down: regarding Article 3’s scope and the necessity of constitutional amendments for ceding territory; remain good law and have guided India’s approach to such sensitive matters ever since. In striking an academic balance, the Court neither impeded India’s foreign policy nor allowed the executive a free hand; instead, it channeled the resolution of Indo-Pak disputes through a constitutional prism. The result was a lawful consummation of the Nehru-Noon Agreement, achieved with the legitimacy conferred by Parliament’s mandate. As one reflects on Berubari more than sixty years later, the case stands as an exemplar of the judiciary’s role as the sentinel of the Constitution, capable of influencing foreign policy outcomes not by dictating them, but by ensuring they conform to our constitutional framework and founding principles.

SOURCES:

  1. In Re: Berubari Union and Exchange of Enclaves, Advisory Opinion of Supreme Court of India, AIR 1960 SC 845. Available here.
  2. Granville Austin, The Indian Constitution: Cornerstone of a Nation (1966) & Working a Democratic Constitution (1999) (for context and references on constitutional amendment processes and territorial governance). Available here.
  3. Constituent Assembly Debates, Vol. X, p. 456. Available here.
  4. Indo-Pakistan Nehru-Noon Agreement (1958). Available here.
  5. The Constitution (Ninth Amendment) Act, 1960. Available here.
  6. Smaran Shetty & Tanaya Sanyal, “Fraternity and the Constitution,” 9 NUJS L. Rev. 93 (2016), discussing the Preamble’s legal status and Kesavananda’s overruling of Berubari. Available here.
  7. Sajjan Singh v. State of Rajasthan (1965). Available here.
  8. Kesavananda Bharati v. State of Kerala (1973). Available here.