Part I of the Constitution of India contains provisions relating the Union
and its territories. Article 1 of the Indian Constitution describes India as a
Union of States, and provides that the territory of India is comprised of the
territory of the states, union territories and any other territory that is
acquired. Further, Article 2 provides that the Parliament has the power to
admit and establish new states in the Union. Article 3 of the Constitution
related to the internal reorganisation of the Union wherein it is stated that
the Parliament has the power to form new states by alteration of territory of
existing states. It also has the power to increase or decrease area of a state,
alter boundaries of a state and alter name of any state.
The foreign territories which are acquired by India under Article 1 (3) (c) can
be admitted into the Union or be established as new states by the Parliament
under Article 2. However, such newly acquired territories can also be dealt with
under Article 3(a) or (b).
The Supreme Court of India has held in the presidential reference case of In Re:
The Berubari Union v Unknown, that in the exercise of its inherent right as a
sovereign state, India can acquire a foreign territory and this territory would
automatically be a part of the territory of India. Hence, the Court said that
after such territory is acquired and made a part of the territory of India
factually, the Parliament can choose to assimilate this territory either under
Article 2 or Article 3 (a) or (b) of the Constitution.
The Court held that the expression ‘by law’ used in Article 2 and 3 is
significant in this reference. Under Article 3(a), the foreign territory
acquired can be absorbed into a new State which may be formed, further, the
increase in area of any state as provided for in Article 3(b) can also be the
result of adding any part of the newly acquired territory under to any state.
The Apex Court while interpreting Article 3(c) held that, it is irrational to
think that this provision would include the case of cession of national
territory to a foreign territory.
The power of acquisition and cessation can be exercised by a sovereign state as
fundamental facets of sovereignty and hence, a Constitution is not required to
expressly provide for such powers. Under Article 3(c), the area diminished from
any state must continue to be part of the territory of India and hence, the
power to cede national territory cannot be read into Article 3(c) of the
The issue in the first Berubari Union case
was that whether a legislative
action is required in order to implement the Indo-Pak Agreement entered into and
whether the settlement amounted to cession of the Berubari Union to Pakistan.
The argument for the Union was that settlement of boundary dispute does not
amount to cession of territory as it is only an ascertainment of the real
boundary between the two neighbours and it does not imply any alteration of the
territory of India.
The Attorney General contended that the settlement is merely a mode of settling
the boundary and is not alienation or cession of Indian territory. The Court
rejected this argument after analysing the Agreement and held that, the
Agreement has been entered into independent of the Award given by the
Indo-Pakistan Boundaries Disputes Tribunal and hence, it cannot be accepted that
it is merely ascertainment and delineation of boundaries in light of this Award.
Therefore, it was held that the Agreement involved cession of territory in
favour of Pakistan. In pursuance to this holding, the Court held that for the
cession of national territory, legislative action is required in the nature of
an amendment to the Constitution under Article 368 of the Constitution.
The reasoning for the holding abovementioned was that Article 3 does not apply
to union territories and hence, if a union territory was to be ceded to a
foreign State, law under Article 3 would be incompetent and an amendment under
Article 368 would be required. Hence, the Court could not accept the premise
that cession of union territory would be required to be implemented by way of
Article 368 whereas cession of state territory could be implemented by
legislation under Article 3.
In the case of Maganbhai Ishwarbhai Patel v Union of India
Supreme Court explicitly held that a settlement of boundary dispute cannot
amount to a cession of territory. It was observed by the Court that adjustment
of boundary between two sovereign nations is well-recognised in International
Law and should also be recognised by domestic courts.
The implementation of settlement of boundary disputes can be carried out by the
Executive unless a cession of home territory is involved, wherein then
Parliamentary interference should be expected. The Court seemed to imply that
in case of a disputed territory if a settlement is reached between two sovereign
nations, it would not amount to cession of territory whereas if an undisputed
territory is transferred from the national territory to a foreign State, it
would amount to cession of territory.
The question of cession of territory again came up in the case of Union of
India v Sukumar Sengupta
. The case related to territorial dispute between
India and Bangladesh because the 9th Constitutional Amendment, 1960, never fully
came into effect. The 9th Amendment to the Constitution was passed after the
Berubari Union I case, to give effect to the agreement entered between India and
The Supreme Court in the case of Union of India v Sukumar Sengupta
that there was no cession of territory in favour of Bangladesh under the
agreements of 1974 and 1982 as the territories in question were de facto and de
jure part of East Pakistan and not India. The Court clarified that cession of
territory in the context of International Law is understood as actual and
physical transfer of home territory to a foreign nation which would then have
the exclusive right to treat the transferred territory as part of its own
territory and exercise full control and sovereignty over the same.
In the case of the Berubari Union, Berubari Union no.12 was never a disputed
territory. Even in light of the Bagge Award, this territory was treated to be a
part of West Bengal, a contention was only raised by Pakistan regarding the
Award in 1952, wherein it said that Berubari Union no.12 should have formed a
part of East Bengal. The Indo-Pak Agreement expressly provided that the whole of
the territory of Berubari Union no.12 was within India and India was prepared to
cede half of the territory to Pakistan in the spirit to maintain friendly
Hence, interestingly there was no settlement of boundary dispute in this case
and it was only a case of cession of national territory to a foreign State.
Whereas, in the case of Maganbhai Patel, the territories in question were
disputed territories as there was no clear demarcation of boundary before the
Award by the Tribunal was decided. It was this Award that clearly demarcated the
boundary between India and Pakistan and hence, a settlement of boundary dispute
In light of the various judgements of the Supreme Court, I conclude that a
settlement of boundary dispute does not amount to cession of territory. A
boundary dispute only arises in cases where the territory is disputed and there
are no absolute geographical demarcations to ascertain the country the disputed
territory belongs to. Further, a disputed land is also not recognised to belong
to one specific country in the international community and law.
Therefore, in the event that two countries settle a boundary dispute in relation
to a disputed territory, it cannot amount to cession of territory as the
disputed territory did not absolutely and undisputedly belong to any of the
countries in the first place.
- Art. 1, the Constitution of India
- Art. 2, the Constitution of India
- Art. 3, the Constitution of India
- In Re: The Berubari Union v. Unknown, AIR 1960 SC 845
- Maganbhai Ishwarbhai Patel v. Union of India, 1969 AIR 783
- Union of India v Sukumar Sengupta, 1990 AIR 1692
- The Constitution (9th Amendment) Act, 1960
- Supra 8.
- Supra 4.
- Supra 6.