Quick answer
No. In In re Berubari Union and Exchange of Enclaves (14 March 1960), the Supreme Court advised the President that giving Indian territory to another country (cession) cannot be done by an ordinary law under Article 3. Article 3 deals with forming States and altering their boundaries within India; a cession needs a constitutional amendment under Article 368. The same opinion said the Preamble is not part of the Constitution, a view later rejected in Kesavananda Bharati (1973).
The reference
In re Berubari Union and Exchange of Enclaves, AIR 1960 SC 845, [1960] 3 SCR 250, Supreme Court of India, 14 March 1960. Bench of eight judges led by B.P. Sinha, CJ; opinion written by P.B. Gajendragadkar, J. The President referred questions under Article 143(1) (advisory jurisdiction) after the Indo-Pakistan Agreement of 10 September 1958 provided for dividing Berubari Union No. 12 (in West Bengal) and exchanging enclaves. Held: implementing the Agreement involved cession of Indian territory; a law under Article 3 alone would be incompetent, and a law under Article 368 was competent and necessary.
Answers given by the Court
- Is legislative action necessary? Yes, because the Agreement involved cession of Indian territory.
- Is a law under Article 3 enough? No. A law relatable only to Article 3 would be incompetent.
- What is required? A law under Article 368, which can amend Article 1 and the First Schedule. Alternatively, Parliament could first amend Article 3 under Article 368 to cover cession, and then act under the amended Article 3.
- The same answers applied to the exchange of enclaves.
Article 3 versus Article 368
| Point | Article 3 | Article 368 |
|---|---|---|
| Purpose | Forming new States and altering areas, boundaries or names of States | Amending the Constitution |
| Procedure | Ordinary law of Parliament, introduced on the President's recommendation; if it affects a State's area, boundaries or name, the Bill must first be referred to that State's Legislature for its views | Special majority in each House |
| Can it be used to cede territory to a foreign State (as held in 1960)? | No | Yes |
The Preamble point
The Court described the Preamble as a key to open the mind of the makers, but said it is not a part of the Constitution and is not a source of substantive power or a limit on power. In Kesavananda Bharati v. State of Kerala (1973), Sikri, CJ said the Court in Berubari was wrong on this point, because the Preamble was expressly voted to be a part of the Constitution. Today the Preamble is treated as part of the Constitution. See Kesavananda Bharati v. State of Kerala (1973); for a fuller brief of the 1960 opinion, see In re Berubari Union and Exchange of Enclaves.
What followed
- Parliament passed the Constitution (Ninth Amendment) Act, 1960, amending the First Schedule to give effect to the transfer of territories. In Union of India v. Sukumar Sengupta (1990), the Supreme Court recorded that an appointed day (17 January 1961) was notified only for the western region; no appointed day was notified for the eastern border, so the Amendment was never brought into force there.
- The Constitution (One Hundredth Amendment) Act, 2015 amended the First Schedule to give effect to the 1974 India-Bangladesh Land Boundary Agreement and its 2011 Protocol, including the exchange of enclaves.
A treaty requires India to hand over a border village to a neighbouring country. Armaan argues that Parliament can simply reduce the State's area under Article 3. Under Berubari he is wrong: transferring land to a foreign country is cession and needs an amendment under Article 368.
Exam point
Berubari (1960): cession of Indian territory needs an Article 368 amendment, not an Article 3 law; its view that the Preamble is not part of the Constitution was corrected in Kesavananda Bharati (1973).
Sources and further reading
- In re Berubari Union and Exchange of Enclaves (14 March 1960), opinion text, Indian Kanoon
- Kesavananda Bharati v. State of Kerala (24 April 1973), judgment text, Indian Kanoon
- Union of India v. Sukumar Sengupta (3 May 1990), judgment text, Indian Kanoon
- Constitution (One Hundredth Amendment) Act, 2015, Indian Kanoon
