Berubari Union Case (1960)

– Cession of Indian Territory

Background of the Case

After Independence, disputes arose regarding the exact boundary between India and Pakistan in certain areas of West Bengal.

One such disputed area was the Berubari Union in the district of Jalpaiguri (West Bengal).

To resolve this:

• India and Pakistan entered into the Indo-Pak Agreement, 1958, also known as the Nehru–Noon Agreement
• The agreement proposed:
  • Transfer of part of Berubari Union to Pakistan
  • Exchange of Cooch-Behar enclaves

However, a constitutional doubt arose:

Can Parliament transfer Indian territory to a foreign country using its existing powers?

This question was referred to the Supreme Court under Article 143 (Presidential Reference).

Core Constitutional Issues

The Supreme Court had to determine:

1. Does Article 3 empower Parliament to cede Indian territory to a foreign state?
2. Is a constitutional amendment under Article 368 required for such cession?
3. What is the constitutional status of the Preamble?

Supreme Court’s Judgement

(a) Article 3 Does NOT Permit Cession of Territory

The Court held that:

• Article 3 allows Parliament to:
  • Form new states
  • Alter areas, boundaries, or names of states

But this power:

• Applies only to internal adjustment inter se of territories within India
• Does not extend to cession of Indian territory to a foreign country

In simple terms:
Parliament can rearrange states within India, but it cannot give away Indian territory to another country under Article 3.

(b) Cession Requires Constitutional Amendment (Article 368)

The Court ruled that:

• Transfer of Indian territory to a foreign state affects the First Schedule, which lists the territory of India
• Therefore, such transfer can be done only by amending the Constitution under Article 368

Hence:

• Parliament must use its constituent power, not ordinary legislative power

(c) Preamble Is Not a Part of the Constitution (Then View)

In this judgment, the Court also held that:

• The Preamble is not a part of the Constitution
• Hence, it has no substantive legal effect

(This view was later overruled in Kesavananda Bharati (1973).)

Impact of the Judgement

(a) 9th Constitutional Amendment Act, 1960

To implement the Nehru–Noon Agreement in conformity with the Court’s ruling:

• Parliament enacted the 9th Constitutional Amendment Act, 1960
• This amendment:
  • Altered the First Schedule
  • Transferred Berubari Union (West Bengal) to Pakistan
  • Enabled exchange of Cooch-Behar enclaves

Thus, the judgment ensured that territorial transfer followed proper constitutional procedure.

Constitutional Significance

This case is important because it:

• Clearly distinguished between internal territorial reorganisation and external territorial cession
• Restricted the scope of Article 3
• Strengthened the role of Article 368 in matters affecting national territory
• Triggered a constitutional amendment to implement an international agreement
• Took an early view on the status of the Preamble

Place in Constitutional Evolution

• Berubari Union (1960) → Cession requires constitutional amendment
• 9th Amendment (1960) → Territory transferred lawfully
• Kesavananda Bharati (1973) → Preamble recognised as part of the Constitution

Thus, this judgment belongs to the territorial integrity and amendment jurisprudence stream.

Conclusion

The Berubari Union Case (1960) held that Indian territory cannot be ceded to a foreign state under Article 3, such cession requires a constitutional amendment under Article 368, declared that the Preamble is not part of the Constitution (then view), and led to the 9th Constitutional Amendment, 1960.