Berubari Union

The Berubari Union dispute was a significant territorial issue between India and Pakistan (later Bangladesh) concerning the division of certain enclaves and border territories in the district of Jalpaiguri, West Bengal, following the Partition of India in 1947. The controversy centred on the interpretation of the Radcliffe Award, which had demarcated the boundary between the two countries. The case became a landmark in India’s constitutional and diplomatic history, particularly after it led to the Supreme Court’s advisory opinion in 1960 and the subsequent Ninth Constitutional Amendment (1960) that enabled the settlement.

Historical Background

When India was partitioned in August 1947, the boundary between India and East Pakistan (now Bangladesh) was determined by the Radcliffe Line, named after Sir Cyril Radcliffe, the chairman of the Boundary Commissions for Punjab and Bengal. The Radcliffe Award (1947) specified territorial divisions between India and Pakistan in the provinces of Bengal and Punjab.
However, the Award contained several ambiguities, particularly in the Nadia and Jalpaiguri districts of Bengal. The Berubari Union No. 12, located in the Jalpaiguri district of West Bengal, became one such disputed territory. While the Radcliffe Award assigned the Jalpaiguri district to India, confusion arose because Berubari was described as part of the Thana of Jalpaiguri but lay near the Nawabganj sub-division, which was allotted to Pakistan. This ambiguity led both India and Pakistan to claim sovereignty over the area.

The Berubari Dispute

The Berubari Union covered about 8.75 square miles, with an approximate population of 12,000 people. It lay south of the Haldibari police station and was inhabited largely by Indian citizens.
After Partition, the Radcliffe Award map and its textual description did not correspond precisely, and administrative confusion ensued. India initially exercised control over Berubari, but Pakistan later raised a claim, arguing that the area should have gone to it according to the boundary description.
This dispute, along with similar issues concerning Cooch Behar enclaves and Chhitmahals (land enclaves) scattered along the India–East Pakistan border, created administrative difficulties and diplomatic friction between the two nations.

The Nehru–Noon Agreement (1958)

To resolve these boundary disputes amicably, the Prime Ministers of India and Pakistan—Jawaharlal Nehru and Feroz Khan Noon—signed the Indo-Pakistan Agreement (1958), commonly known as the Nehru–Noon Agreement.
Key provisions of the agreement included:

• The Berubari Union would be divided equally between India and Pakistan.
• Exchange of certain enclaves between the two countries to simplify the border.
• Adjustment of adverse possessions and demarcation of boundaries along other disputed segments.

The agreement was intended to maintain friendly relations and facilitate administrative efficiency, but it soon raised constitutional questions in India regarding the legality of ceding territory to another country.

The Constitutional Question

The President of India, Dr. Rajendra Prasad, sought the opinion of the Supreme Court of India under Article 143(1) of the Constitution, which allows the President to obtain the Court’s advisory opinion on questions of law or fact.
The question was:

• “Whether the implementation of the Nehru–Noon Agreement relating to the Berubari Union requires a constitutional amendment or can be effected by executive action alone?”

This question arose because the agreement entailed the cession of Indian territory, and it was unclear whether the government could transfer land without amending the Constitution.

Supreme Court’s Advisory Opinion (1960)

The Supreme Court delivered its advisory opinion on 14 March 1960 in the case titled “In re: The Berubari Union and Exchange of Enclaves, AIR 1960 SC 845.” The Court’s ruling is regarded as a landmark in defining the constitutional procedure for altering India’s territory.
Key observations and findings of the Court were:

1. Cession of Territory: The Court held that the cession of Indian territory to a foreign state is not within the executive power of the Government of India. It cannot be achieved merely through an agreement or executive order.
2. Requirement of a Constitutional Amendment: Any alteration of India’s boundaries or the transfer of territory to another country requires a constitutional amendment under Article 368.
3. Article 3 Insufficient: Article 3 of the Constitution, which deals with changes in the boundaries of states, does not authorise Parliament to cede national territory to a foreign power.
4. People’s Sovereignty: The Court emphasised that India’s territory is sovereign and belongs to the people; hence, its transfer must have parliamentary sanction through the constitutional amendment process.

This judgment clarified that territorial adjustments affecting India’s sovereignty require not just executive approval but also a constitutional mandate.

The Ninth Constitutional Amendment Act, 1960

Following the Supreme Court’s opinion, the Government of India enacted the Constitution (Ninth Amendment) Act, 1960 to give legal effect to the Nehru–Noon Agreement.
Key features of the amendment:

• It amended the First Schedule of the Constitution to redefine India’s boundaries in West Bengal and East Pakistan.
• It authorised the transfer of territory, including parts of the Berubari Union, to Pakistan in accordance with the agreement.
• The amendment ensured that the exchange of enclaves and adjustment of borders were constitutionally valid.

Thus, the Ninth Amendment provided the necessary legal foundation for implementing the agreement and upholding the Supreme Court’s constitutional interpretation.

Implementation and Aftermath

Although the amendment was passed, the actual exchange of territories was delayed due to administrative and political challenges, including local opposition and further disputes over demarcation.
The Indo-Bangladesh Land Boundary Agreement (LBA) signed in 1974 between Prime Minister Indira Gandhi and Bangladesh’s Sheikh Mujibur Rahman reaffirmed the principles of the 1958 agreement and sought to settle all remaining border issues. However, its implementation was delayed until 2015, when the 100th Constitutional Amendment Act was enacted, finally resolving all enclave and boundary disputes between India and Bangladesh.
Under this arrangement, India retained the southern half of Berubari, while the northern portion was transferred to Bangladesh.

Significance of the Berubari Case

The Berubari dispute and the subsequent Supreme Court judgment hold enduring importance in Indian constitutional and diplomatic history:

1. Clarification of Constitutional Procedure: It established that Parliament must pass a constitutional amendment under Article 368 for any transfer or cession of Indian territory.
2. Reaffirmation of People’s Sovereignty: The judgment underlined that the territory of India belongs collectively to its people and cannot be altered without their representatives’ consent.
3. Precedent for Future Cases: The ruling served as a precedent in later cases involving territorial adjustments, including those with Bangladesh (1974) and Sri Lanka (Kachchatheevu Island, 1974).
4. Strengthening Democratic Accountability: It reinforced the notion that the executive cannot unilaterally decide issues affecting the nation’s territorial integrity.
5. Diplomatic Resolution of Boundary Issues: The case demonstrated India’s commitment to resolving international disputes through negotiation, legal process, and constitutional means.