In re Berubari Union (Supreme Court, 1960) — the Preamble is a key, not a source of power; territory is ceded by amendment, not by an Article 3 law

It is the first of the two cases every Preamble answer must cite: Berubari held that the Preamble is not part of the Constitution and confers no power; Kesavananda (1973) overtook the first half of that. It also decided a live constitutional question — whether India can give away a piece of its territory by an ordinary law under Article 3 — and its answer is the reason boundary agreements with neighbours are implemented by constitutional amendment.

To remove causes of tension over the boundary, the Prime Ministers of India and Pakistan entered into an agreement — the Indo-Pakistan Agreement — settling the dispute. Item 3 provided that "Berubari Union 12" in West Bengal would be so divided as to give half the area to Pakistan, and a further item provided for an exchange of the Cooch-Behar enclaves. A doubt arose whether implementing the agreement required legislation under Article 3, or an amendment under Article 368, or both. The President referred three questions to the Supreme Court under Article 143(1): whether any legislative action was necessary to implement the Berubari agreement; if so, whether a law under Article 3 was sufficient or an amendment under Article 368 was necessary; and the same question for the exchange of enclaves. The opinion was delivered for a Bench of eight — Sinha C.J., Das, Gajendragadkar, Sarkar, Subba Rao, Hidayatullah, Das Gupta and Shah JJ.

1. Does the Constitution permit Parliament to cede national territory to a foreign State at all, given the Preamble's promise of the unity of the Nation?
2. If it does, can cession be effected by a law under Article 3, or only by an amendment under Article 368?

On the Preamble. Mr Chatterjee, for the objectors, argued that even Parliament has no power to cede any part of India's territory "either by ordinary legislation or even by the amendment of the Constitution", because "the preamble to the Constitution clearly postulates that like the democratic republican form of government the entire territory of India is beyond the reach of Parliament." The Court rejected the argument. The Preamble, containing the declaration made by the people in the exercise of their sovereign will, is "a key to open the mind of the makers", which may show the general purposes for which the several provisions were made; nevertheless the Preamble is not a part of the Constitution. It has never been regarded as the source of any substantive power conferred on the government or on any of its departments, and "what is true about the powers is equally true about the prohibitions and limitations." The Preamble is not resorted to where the language of the enactment is clear.

On the power to cede. The power to acquire foreign territory and the power to cede a part of the national territory are both essential attributes of sovereignty; "both of these essential attributes of sovereignty are outside the Constitution and can be exercised by India as a sovereign State." The Court then turned to how the exercise is to be given legal effect within India. Article 3, which permits Parliament to alter the area, boundaries or name of a State, postulates that the area diminished from a State "should and must continue to be a part of the territory of India"; it may pass to another State, but not out of India. "We cannot, therefore, accept the argument of the learned Attorney-General that an agreement which involves a cession of a part of the territory of India in favour of a foreign State can be implemented by Parliament by passing a law under Art 3 of the Constitution." The answer lies instead in Article 368: "The power to amend Constitution must inevitably include the power to amend Article 1, and that logically would include the power to cede national territory in favour of a foreign State." The Attorney-General's reliance on Act 47 of 1951, by which a strip of Assam was ceded to Bhutan under a law passed as if under Article 3, did not alter the construction.

So the answers were: legislative action is necessary; a law under Article 3 is not sufficient; a constitutional amendment under Article 368 is required, for both the Berubari division and the exchange of enclaves. Parliament followed the opinion with the Constitution (Ninth Amendment) Act, 1960.

1. The Preamble is a key to the makers' minds and an aid to interpretation where the text is ambiguous; it is not a source of power or of limitation, and (as then held) not a part of the Constitution.
2. India, as a sovereign State, may cede territory; the power lies outside the Constitution.
3. A cession cannot be effected by a law under Article 3; it requires an amendment under Article 368, which reaches Article 1 and the First Schedule.

Kesavananda Bharati (1973) departed from the first proposition to the extent of holding that the Preamble is part of the Constitution, while agreeing that it is not a source of power. The second and third propositions stand: every later boundary settlement has gone through Article 368.