- CJI B.P. SinhaFavored
- Justice J.L. KapurFavored
- Justice P.B. GajendragadkarFavored (Authored)
- Justice A.K. SarkarFavored
- Justice K. Subba RaoFavored
- Justice K.N. WanchooFavored
- Justice M. HidayatullahFavored
- Justice K.C. Das GuptaFavored
- Constitution of India (Preamble, Article 1, 3, 143, 368)
- Indo-Pakistan Agreement, 1958 (Nehru-Noon Agreement)
- Indian Independence Act, 1947
- Radcliffe Award
This case arose from a Presidential Reference seeking the Supreme Court's advisory opinion on the constitutional validity and implementation method of the Nehru-Noon Agreement (1958) between India and Pakistan. The agreement involved, among other things, the division of the Berubari Union No. 12 and the exchange of Cooch-Behar enclaves.
The core question was whether the Union government could cede Indian territory to a foreign country by ordinary legislation under Article 3 or if a constitutional amendment under Article 368 was necessary. The Court also examined the significance of the Preamble.
ARGUMENTS / QUESTIONS REFERRED
Questions before the Court
- Is any legislative action necessary for implementing the agreement relating to Berubari Union?
- If so, is a law under Article 3 sufficient, or is an amendment under Article 368 required?
- Is legislative action necessary for the exchange of enclaves? If so, is Article 3 sufficient or is Article 368 required?
Government's (Implied) Position
- The agreement could potentially be implemented via executive action or ordinary legislation under Article 3 (related to forming new states/altering boundaries).
- Cession of territory might not require a constitutional amendment.
- The Preamble is not a source of substantive power or limitation.
Case Progression Timeline
Partition & Radcliffe Award
India is partitioned, and the Radcliffe Award demarcates boundaries, but ambiguity remains regarding Berubari Union.
1947Nehru-Noon Agreement
India and Pakistan sign an agreement to resolve border disputes, including the division of Berubari Union and exchange of enclaves.
September 10, 1958Constitutional Doubts Arise
Questions are raised about the method required to implement the agreement, particularly the cession of territory.
1958-1959Presidential Reference
The President of India seeks the Supreme Court's advisory opinion under Article 143.
1959 (Special Reference No. 1)Supreme Court Opinion Delivered
The 8-judge bench unanimously opines that a constitutional amendment under Article 368 is necessary to cede territory.
March 14, 1960Ninth Amendment Passed
Parliament passes the Constitution (Ninth Amendment) Act, 1960, to give effect to the agreement.
December 28, 1960The Supreme Court delivered a unanimous advisory opinion, holding that the power to acquire and cede territory is an essential attribute of sovereignty. However, it clarified that this power must be exercised in accordance with the Constitution.
The Court held that Article 3, which deals with the internal reorganization of states, does not grant Parliament the power to cede Indian territory to a foreign state. Such an action requires amending the Constitution under Article 368. The Court also famously observed that the Preamble, while significant in indicating the source and objectives of the Constitution, is not a part of the Constitution in a way that grants or limits substantive power.
COURT'S ANALYSIS
Justice Gajendragadkar, writing for the Court, distinguished between altering state boundaries internally (covered by Article 3) and diminishing the territory of India itself by ceding it to another sovereign power. The Court reasoned that the power to diminish territory impacts sovereignty and the very definition of India under Article 1, which could only be altered through the specific amendment procedure in Article 368. It emphasized that while acquiring territory might be possible through executive action or treaty, ceding territory involved a potential modification of Article 1 and required parliamentary action via constitutional amendment. Regarding the Preamble, the Court noted its importance but concluded it wasn't a source of prohibition or limitation on Parliament's powers under the operative articles of the Constitution.
FINAL VERDICT (Advisory Opinion)
- Legislative action is necessary to implement the Nehru-Noon agreement regarding both Berubari Union and the exchange of enclaves.
- A law enacted under Article 3 is not sufficient for ceding territory like the Berubari Union.
- A Constitutional Amendment under Article 368 is necessary and competent to implement the agreement involving cession of territory.
- The Preamble is not a source of substantive power or limitation on Parliament's amending power.
RATIO DECIDENDI
Parliament's power under Article 3 of the Constitution is limited to the internal re-adjustment of the territories of the constituent States of India and does not empower it to cede any part of the territory of India to a foreign State. The cession of national territory can only be effected by means of an amendment to the Constitution under Article 368. The Preamble to the Constitution is a key to open the mind of the makers but does not form part of the Constitution's operative provisions and cannot restrict Parliament's substantive powers.
(Note: The observation regarding the Preamble not being part of the Constitution was later overruled in Kesavananda Bharati.)