Summary of In Re: Berubari Union Case

This article is written by Aditi Shah and Geetika Khandelwal, 2nd-year students of Institute of Law Nirma University.

Brief facts of the Case

The borders of India and Pakistan were to be evaluated by the 'award' of a boundary commission appointed by the Governor-General, according to the Indian Independence Act, 1947. The term 'award' applies to the committee chairman's decision comprising the final report sent to the Governor-General. Consequently, under Sir Cyril Radcliffe's chairmanship, the Governor-General appointed a commission.

But the ‘award’ determined by the Radcliffe committee was not accepted by India and Pakistan. Consequently, border conflicts have arisen between the two countries. In 1958, Indian Prime Minister Shri Jawaharlal Nehru and Pakistani Prime Minister Mr Feroze Khan Noon signed an agreement to settle these border disputes.

The dimensions of the Berubari was 8.75 square miles. It had a population of nearly 12000 people. It is located in the District of Jalpaiguri in West Bengal.

As laid down by the agreement, ‘Berubari Union No. 12’ was to be divided horizontally, in such a way that half the area would be given to Pakistan and the other half would be retained by India.


The Supreme Court got the jurisdiction over this matter through Article 143(1) of the Indian Constitution, wherein the President may seek the Supreme Court’s opinion on a matter of public importance. For this dispute, The President made a reference in 1960, which paved the way for the Supreme Court to have its jurisdiction.

Question of Law

Whether the enforcement of the Agreement relating to the Berubari Union and the exchange of enclaves involves some legislative intervention either through the law of the Parliament referred to in Article 3 of the Constitution or through the necessary amendment of the Constitution referred to in Article 368, or both?

The President, therefore, felt that the problems presented were of such a nature and significance that the opinion of the Supreme Court should be sought. He then referred the following questions to the Supreme Court by exercising the power provided for in Article 143 of the Constitution–

  • a) Does the implementation of the agreement regarding the Berubari Union require legislative action?

  • b) If so, will a law enacted by Parliament under Article 3 of our Constitution be sufficient for the execution of the agreement regarding the Berubari Union or an amendment to the Constitution under Article 368[3] of our Constitution required? And if necessary should it be considered in addition or as an alternative?

  • c) If so, will a law enacted by Parliament under Article 3 of our Constitution be sufficient for the execution of the agreement regarding Exchange of Enclaves or an amendment to the Constitution under Article 368 of our Constitution required? And if necessary should it be considered in addition or as an alternative?

Reliance on relevance

1. Relevant statutes-

a) Constitution of India, 1950

b) Foreign Jurisdiction Act, 1947 [repealed]

c) Government of India Act, 1935 [repealed]

2. Decided cases-

  • a) The State of Australia v. The State of Victoria, (1911) 12 CLR 667

  • b) The State of South Australia v. State of Victoria, (1914) AC 283

Legal issues for determination

  • What should be the mode to execute the agreement, is there a need for legislative amendment?

  • Is preamble a part of the Indian Constitution?

  • What is the nature of the treaty-making power of a sovereign State?

Nature of Issues

The first issue questioned the necessity of a legislative with regard to their agreement for Berubari Union. The other two issues also focused on the scope or interpretation of a law enacted under Article 3, by the parliament; whether it’s sufficient to implement the two agreements governing the Berubari Union and the Exchange of Enclaves.

Reasoning and decision

An agreement was signed between India and Pakistan which lead to the equal division of the territory of Berubari Union equally between India and Pakistan. After some disputes and continuous criticism, the matter was referred to the Supreme court.

Supreme Court in its decision held that the Parliament is not competent to make a law relatable to Article 3 of the Constitution to implement the purpose of the agreement as Article 3 does not refer to the Union territories and there is no doubt that Article 3 covers Union territories. Hence if any part of Union territory is to be handed over law relatable to Article 3 would not be competent to make such decision.

Supreme court also stated that Article 3(c) of the Constitution confer the power on parliament to diminish the state territory but not to cede. Considering this it was held that to implement the agreement laws relatable to Article 368 is to be made which says that an amendment can be initiated only by the introduction of the Bill in either of the houses and if the Bill is passed by the special majority it is to be passed to the President for his assent.

President’s assent will decide the amendment of the Constitution according to the conditions of the Bill. If the law is passed under Article 368 then that law itself is competent enough to implement the agreement.

According to Den v. Urison, the preamble cannot control the enacting part of the statute, in cases where the enacting part is expressed in clear, unambiguous terms; but in case any doubt arises on the enacting part, the preamble may be resorted to explain it, and show the intention of the lawmaker."

Supreme court further stated that just because Preamble is the key to the mind of the framers it cannot stop the functioning of the legislature neither can be the deciding factor when it comes to the questionable part of the constitution. If Preamble has certain powers then these powers are equally balanced with certain limitations.

New Principles/ guideline

The case laid down that Preamble is not a part of our Constitution and the Parliament, under Article 368, has an authority to amend the Constitution, including Article 1. Hence, it would include the authority to cede national territory for the benefit of a foreign state.

Further, it said that both, the power to acquire and cede a part of national territory are essential features of sovereignty.

That the transfer of part of the territories of the Union should take place in accordance with Article 368 of our Constitution, and not under Article 3. In the end, with regard to Article 1(3(c), the court said that this Article doesn’t grant that authority to India for acquiring territories. It only makes a provision for integrating and accommodating foreign territories that may be acquired by it.

Present status of the ruling

The Honourable Supreme Court held that Preamble is not a part of The Constitution and should not be regarded as a source of any substantive powers and is made for the general purpose for which some provisions have been made in The Constitution. ‘There is no doubt that the declaration made by the people of India in the exercise of their sovereign will in the preamble to the Constitution is, in the words of Story, "a key to open the mind of the makers" which may show the general purposes for which they made the several provisions in the Constitution; but nevertheless, the preamble is not a part of the Constitution.’ Further, the preamble is not enforceable in the court of law. The Court was of the same view in the case of Golak Nath v. State of Punjab, Wanchoo, J., relied on Berubari case and said:

“On a parity of reasoning, we are of opinion that the preamble cannot prohibit or control in any way or impose any implied prohibitions or limitations on the power to amend the Constitution contained in Article 368.”

However, In the case of Kesavananda Bharati, the majority opined that the Preamble is as much a part of the Constitution as other provisions and agreed that the Court was wrong in its previous holding Some facts were not noticed in the Berubari Case that would establish that the Preamble is very much a part of The Constitution and it should be interpreted in the light of the vision stated in the Preamble.


The judges who have been prominent and were accountable in regard to the presidential reference in the above case failed to notice the past i.e. the constitutional events. It is evident enough through many statements made by the constituent assembly indicating that the Preamble is a part of the constitution. Hence, we can say that the supreme court was inexact in its decision that the Preamble is not part of the constitution and overlooked some past events.

The Preamble is considered to be the key to the minds of the framers of the constitution. Preamble embraces the actual goals of the state i.e. to secure justice, liberty, equality and to promote fraternity so that unity and the integrity of the nation maintained. But the methods needed to attain all these goals stated in the preamble are given in the constitution of India. Preamble shows the general grounds and impetus because of which they made various provisions in the constitution.

“In re Berubari gave timely guidance to the Central Government as to how it should implement the Indo-Pakistan Boundary Agreement between the Prime Ministers of India and Pakistan. Had the agreement been implemented in the way the government was contemplating (through an Act of Parliament), great embarrassment would have been caused to it had the Act been declared unconstitutional later, as it was bound to be in view of the Supreme Court's opinion.”

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