In Re Berubari Union and Exchange of Enclaves (1960) 

Citation: AIR1960SC845, [1960]3SCR250 

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

Date Of Judgment: 14 March, 1960 

HISTORY: 

Cyril Radcliffe of Britain established the border between India and the newly formed nation of  Pakistan during the 1947 Indian partition; this boundary line became known as the “Radcliffe  line.” Radcliffe gave several “thanas” to Pakistan and India, dividing the Jalpaiguri District.  After being granted to India, Berubari Union No. 12 was included into West Bengal, an  independent state in India. Beginning in the early 1950s, Pakistan began to make Berubari its  own. The Nehru-Noon Agreement was signed into law by the prime ministers of Pakistan and  India in 1958. Prime Minister Nehru gave Pakistan permission to take Berubari village through  this deal. Nonetheless, the West Bengal Chief Minister vehemently disagreed with the ruling  of the government. His belief lied in the fact that Berubari was an essential part of India.  

FACTS OF THE CASE:  

The governments of India and Pakistan examined ten points of contention between their  countries on September 10, 1958, and approved a joint statement indicating their understanding  over certain disagreements. They then gave the statement to their respective prime ministers.  This agreement aimed to remove sources of conflict, bring these border areas to peace, and  establish peaceful conditions. 

Items 3 and 10 in paragraphs 2 and 3 of the Agreement were the primary topics of concern in  this Presidential Reference. A part of the Berubari Union No. 12 was to be given to the Pakistani  province of East Pakistan, according to item number 3. The swap of Old Cooch-Behar enclaves  in Pakistan was mentioned in item number 10 Pakistan enclaves in India devoid of any demand  for recompense for the additional area being given to Pakistan. 

Later, uncertainty developed as to whether the implementation of the Berubari accord required  any legislative action through suitable legislation of the Parliament pertaining to Article 3 or 

Article 368 of the Indian Constitution. Similar questions surfaced in relation to the swap of  enclaves. 

Berubari was in the Rajshahi Division of Bengal, in the Jalpaiguri District, prior to the country’s  independence. However, the Independence Act’s First Schedule made no mention of it  specifically. It was a part of West Bengal if you looked at the timetable provided earlier. The  Governor-General proclaimed the division of Bengal in 1947. For this reason, a boundary  commission was suggested. The border commission was made up of four High Court judges  and a chairman who was Cyrill Radcliffe. Regarding Bengal, the commission’s terms of  reference required it to draw a line dividing West Bengal, which belongs to India, from East  Bengal, which belongs to Pakistan. After conducting its investigation, the panel issued an award  on August 12, 1947, which became known as the “Radcliffe Award” (also termed the “Award”). 

The Maharaja of Cooch Behar and the Government of India approved a merger agreement in  August 1949. As a result of the agreement, Cooch Behar became a part of India in September  1949 when the Government of India took control of the region. West Bengal absorbed the State  of Cooch Behar in 1950. Its territories included the areas that were a part of Cooch Behar State  after it was merged into West Bengal. 

There were some Pakistani enclaves inside of Indian territory in various locations that were  formerly a part of Cooch Behar State and later became a part of West Bengal. Similarly, there  were a few Indian communities in Pakistan. These enclaves caused disagreements between  India and Pakistan. This issue of enclaves was to be solved by item 10 in the agreement.  

ISSUES:  

1. Does the accord pertaining to the Berubari Union require any parliamentary action? 2. Is a piece of Parliamentary legislation that complies with Article 3 sufficient to achieve  the goal, or is there another way? Does the Constitution need to be amended to comply  with Article 368? 
2. Is Article 3 legislation of the Parliament sufficient for the implementation of the  agreement about the exchange of enclaves, or is an Article 368 Constitutional  Amendment necessary for the goal in addition, or is there another way? 

ARGUMENTS MADE BY THE PETITIONER:

1. Constitutional Violation: The petitioners contended that it would be against Indian law  to cede any portion of Indian land to a foreign nation without first adhering to the formal  constitutional procedures. They claimed that the Indian government lacked the power  to unilaterally change the nation’s borders by an executive arrangement such as the  Nehru-Noon arrangement. 
2. Article 3 Limitation: The petitioners claim that Article 3 of the Constitution only  permits internal state reorganizations within India, such as the creation of new states,  redrawing state borders, or renaming of already-existing states. It forbids giving up  Indian territory to a foreign power. Consequently, the petitioners contended that the  authority provided by Article 3 could not be expanded to excuse the transfer of territory. 
3. Article 3681 of the Constitution Must Be Amended: The petitioners said that any  move involving a change in India’s territory, particularly giving territory to a foreign  country, would necessitate amending the Constitution. This article describes the process  for changing the Constitution, which calls for the participation of the two houses of  Parliament as well as the states in certain situations. The petitioners stressed that in  order to preserve India’s sovereignty and integrity as outlined in Article 1, such an  amendment was required. 
4. Integrity and Sovereignty: The petitioners emphasized how crucial it is to protect  India’s territorial integrity and sovereignty. They maintained that the country’s  sovereignty was guaranteed by the constitution and that the unilateral choice to  surrender land violated that framework. Anything that might potentially change the  nation’s territorial boundary needed to be thoroughly scrutinized and approved by a  broader constitutional process, not merely through an executive decision. 
5. Function of the Parliament: The petitioners contended that the executive arm of  government should not be the only body to decide whether to cede land because doing  so has an impact on the entire country. Rather, the Parliament should make the choice,  representing the people’s desire. This would guarantee respect for constitutional values  and democratic accountability. 

RESPONDENT’S ARGUMENTS (Government of India):  

1. Executive Authority and Treaty Power: The Indian government maintained that it  possesses the innate sovereign right to negotiate and sign treaties with other countries,  

as this is the responsibility of the executive branch. Since the goal of the Nehru-Noon  Agreement was to settle a long-standing boundary dispute diplomatically and  internationally, it was within the executive branch’s jurisdiction. 

2. Interpretation of Article 3: The respondents argued that the right to transfer land to a  foreign country was implicitly contained in Article 3, which gives Parliament the  authority to create new states and modify areas, borders, or names of existing states.  They contended that the authority to change borders ought to be construed widely to  encompass boundary modifications made on the outside for diplomatic purposes as well  as internal reform.  
3. Implementation of International Agreements: In order to preserve cordial ties with  neighboring nations, the government stressed the significance of putting international  agreements into practice. The boundary dispute was thought to have a diplomatic  solution in the Nehru-Noon Agreement, and its non-implementation might strain ties  with Pakistan and jeopardize both national security and reputation abroad. 
4. Sovereign Rights: According to the government, India possesses the right to determine  its own borders based on its interests in foreign policy and national security as a  sovereign state. They contended that these choices are fundamental to state sovereignty  and shouldn’t be constrained by literal readings of the constitution. 
5. No Constitutional Amendment Needed: According to the respondents, Article 368 of  the Constitution did not need to be changed in order to execute the Nehru-Noon  Agreement. They maintained that the agreement was only an exercise of the executive  branch’s power in handling foreign policy and had no bearing on the fundamental ideas  of sovereignty and integrity or the fundamental structure of the Constitution. The  supreme court also interpreted article 1 of the c onstitution which defined territory and  also stated that any change in the territory boundaries require a constitutional  amendment.  

ANALYSIS:  

1. Interpretation of Articles 11 and 3: According to the Court, the states and territories  included in the First Schedule are included in Article 1, which defines the territory of India.  

As a result, any modification to this list, especially one that results in land being lost to a  foreign power, indicates that India’s territory has changed. 

According to one interpretation, Article 3 deals with changes that take place inside the Union  of India, like state reorganizations, boundary changes, and the creation of new states. The Court  concluded that the cession of territory to a foreign state was not permitted under Article 3 either  explicitly or tacitly. Its main emphasis was on internal restructuring rather than adjustments  that would have compromised the country’s integrity and sovereignty. 

2. Giving Up Territory and Sovereignty: The Supreme Court made clear that giving up a  portion of Indian territory raises serious questions about integrity and sovereignty.  According to Article 31, such an action cannot be carried out only by legislative legislation  or executive consent. 

The Indian Constitution forbids the executive from changing the nation’s borders unilaterally,  especially if doing so would cause territory to be ceded to another country. A constitutional  modification is necessary for any such action to have the support of the people’s will as  represented by their representatives in Parliament. 

3. Article 368:2 The Supreme Court held that a constitutional modification was required in  order to carry out the Nehru-Noon Agreement, which involved giving Pakistan control over  a portion of the Berubari Union. This was due to the fact that modifying India’s borders as  specified in Article 1 would essentially amend the Constitution, something that could only  be accomplished in accordance with Article 368. 

The ruling emphasized that a cession of this kind could not be justified short of a constitutional  amendment. The amendment would give the required authority to change the list of territories  that are part of the Constitution’s First Schedule. 

4. Judicial Review and the Basic Structure Doctrine: The Supreme Court’s reasoning in  the Berubari case established the foundation for acknowledging that certain constitutional  changes impact the fundamental structure and integrity of the Constitution, even though the  

Basic Structure Doctrine was not expressly stated in this case (it would be later developed  in the Kesavananda Bharati case of 19731). 

The Court’s ruling emphasized the importance of the judiciary in defending these essential  elements by underlining the rule that constitutional provisions guaranteeing India’s integrity  and sovereignty cannot be changed without a thorough amendment process. 

CONCLUSION:  

The Supreme Court, after considering the arguments, concluded that: 

1. Article 3 did not confer power on the Parliament to cede Indian territory to a foreign  country; it was limited to internal reorganization. 
2. Ceding territory to a foreign country involved a change in the boundaries of India as  mentioned in Article 1, which required a constitutional amendment under Article 368. 
3. The sovereignty and integrity of India are fundamental, and any decision affecting them  requires the approval of the people through their representatives in Parliament. 

Thus, the Court held that a constitutional amendment was necessary to cede any part of the  territory to a foreign country, affirming the need for parliamentary scrutiny and adherence to  the constitutional amendment process. 

References:  

Supreme Court of India Judgment:  

Supreme Court of India. Re: The Berubari Union and Exchange of Enclaves, Advisory Opinion,  AIR 1960 SC 845. 

Constitutional Provisions 

1. Article 1 of the Constitution of India: Defines the territory of India. 
2. Article 3 of the Constitution of India: Grants Parliament the power to reorganize  states’ boundaries. 

1 Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1461)

3. Article 368 of the Constitution of India: Outlines the procedure for constitutional  amendments. 

The Constitution of India, as amended, can be referenced for the text of these Articles, which  are central to understanding the Court’s judgment. 

Commentaries and Textbooks 

1. D.D. Basu, “Commentary on the Constitution of India”: 

o Basu’s work provides detailed commentary on various constitutional  provisions, including those discussed in the Berubari Union case. It is a  comprehensive resource for understanding constitutional law in India. 

2. H.M. Seervai, “Constitutional Law of India”: 

o Seervai’s multi-volume work is a fundamental text for understanding  Indian constitutional law and includes a detailed analysis of landmark cases  such as Berubari. 

3. M.P. Jain, “Indian Constitutional Law”: 

o This book is a widely referenced text that provides insights into the  interpretation of the Indian Constitution and includes discussions on  important cases. 

4. Granville Austin, “The Indian Constitution: Cornerstone of a Nation”: 

o Austin’s book provides a historical perspective on the making of the Indian  Constitution and its interpretation. It includes references to the Berubari  Union case and its significance in the broader constitutional framework. 

Law Journal Articles 

1. “The Berubari Union Case and its Impact on Constitutional Law” – Indian Journal  of Constitutional Law. 

o This article analyzes the implications of the Berubari Union case for Indian  constitutional law and is useful for academic discussion and understanding  judicial interpretation. 

2. “Judicial Interpretation of Sovereignty in India: The Berubari Union  Case” – Journal of Indian Law and Society.

o This article discusses the concept of sovereignty and the role of the judiciary in  maintaining it, with specific reference to the Berubari Union case.