In Re Berubari Union (I) (1960)

It is the Indian answer to the question every treaty paper asks: how far can the executive's treaty-making power reach into the constitutional order? The reference concerned a treaty that would cede Indian territory, and the Court held that such a treaty cannot be implemented by ordinary law under Article 3 but requires a constitutional amendment under Article 368. It is also cited for the proposition that India follows the British practice, so a treaty does not by itself alter municipal law.

An agreement between India and Pakistan, of which Items 3 and 10 were referred to the Court, provided that Berubari Union No. 12 would be divided horizontally so as to give half the area to Pakistan and retain the other half with India, and that the old Cooch-Behar enclaves in Pakistan and the Pakistan enclaves in India would be exchanged without claim to compensation for the extra area going to Pakistan.

A doubt arose whether implementation required legislative action, and if so whether a law under Article 3 sufficed or an amendment under Article 368 was needed. Rather than face protracted litigation over the constitutional validity of whatever was done, the President referred three questions to the Court under Article 143(1).

1. Is any legislative action necessary to implement the Berubari agreement?
2. If so, is a law relatable to Article 3 sufficient, or is an amendment under Article 368 necessary, in addition or in the alternative?
3. The same question for the exchange of enclaves.

Counsel argued that the Agreement was void and could not be made effective by any legislative process. Two grounds were advanced. First, that the preamble, by declaring that the people of India had solemnly resolved to constitute India into a sovereign democratic republic, irrevocably postulates that the entire territory of India is beyond the reach of Parliament, the makers of the Constitution having been painfully conscious of the tragic partition. Second, that Article 1(3)(c), which provides for acquisition of territory but says nothing of cession, attracts expressio unius est exclusio alterius.

The Court rejected both: "In our opinion, there is no substance in these contentions."

The Agreement amounts to a cession of Indian territory. Its implementation necessarily involves diminution of the territory of the Union, and therefore alteration of Article 1 and of the relevant part of the First Schedule. That can be done under Article 368. Parliament may, if it chooses, first amend Article 3 under Article 368 so as to cover cession to a foreign State, and then legislate under the amended Article 3; but a law passed under Article 368 itself would alone suffice.

The nature of the treaty-making power. The Court began from sovereignty: "it is an essential attribute of sovereignty that a sovereign State can acquire foreign territory and can, in case of necessity, cede a part of its territory in favour of a foreign State, and this can be done in exercise of its treaty-making power." Cession in law amounts to the transfer of sovereignty over the territory by the owner State in favour of another State, and history presents several examples.

The human cost, acknowledged. Quoting Oppenheim, the Court noted that "hardship is involved in the fact that in all cases of cession the inhabitants of the territory who remain lose their old citizenship and are handed over to a new sovereign whether they like it or not", and that the hardship may be mitigated by stipulating an option to emigrate within a certain period.

The constitutional limitation. The crucial move follows. The power to cede "is of course subject to the limitations which the Constitution of the State may either expressly or by necessary implication impose in that behalf". How treaties may be made regarding cession, and how they may be implemented, "would be governed by the provisions in the Constitution of the country." Whether a treaty can be implemented by ordinary legislation or requires constitutional amendment depends on the Constitution itself.

Why Article 3 will not do. Article 3 permits Parliament to alter the areas, boundaries and names of States. It does not on its fair and reasonable construction reach a cession of Indian territory to a foreign State, because such a cession diminishes the territory of the Union and so requires amendment of Article 1 and the First Schedule. The Attorney-General cited Act 47 of 1951, by which about thirty-two square miles of the Dewangiri Hill Block in Assam had been ceded to Bhutan under Article 3; the Court held that single instance could not assist in construing the scope and effect of Article 3.

The price of using Article 368. The Court acknowledged the objection candidly. The proviso to Article 3 requires the President to refer a Bill affecting a State's area, boundaries or name to that State's legislature for its views. Using Article 368 deprives the legislature of West Bengal of that opportunity. "That no doubt is true; but, if on its fair and" "reasonable construction Article 3 is inapplicable this incidental consequence cannot be avoided."

Against that loss the Court set the safeguard Article 368 supplies: passage in each House by a majority of the total membership and by not less than two-thirds of those present and voting, which normally means the consent of the major parties.

A gap noted, not filled. The Court pointed out, incidentally, that amendment of Article 1 consequent on a cession does not attract the safeguard in the proviso to Article 368, because neither Article 1 nor Article 3 is among the entrenched provisions listed there. Whether they should be included was a matter for Parliament to consider and decide.

• The three-step structure: sovereign States may cede territory by treaty; that power is subject to constitutional limitations; under the Indian Constitution the limitation is that cession requires an amendment under Article 368 rather than a law under Article 3.
• Use this case for the dualist point in the Indian context. A treaty does not execute itself. Where it touches the constitutional text, nothing short of an amendment will implement it.
• Note the sequel in constitutional history: the Ninth Amendment followed this opinion.
• Pair with Jolly George Verghese for the transformation rule, with Vishaka for the interpretive use of unimplemented treaties, and with Vellore Citizens' Welfare Forum for the incorporation of custom. Those four cases together are the Indian practice.