In the case of Re Berburi case
, the state of Punjab and Bengal were to be
partitioned. Berburi union, with which we are concerned, has an area of 8.75 sq.
Miles and a population of ten to twelve thousand residents. It is situated in
jalaiguri district. According to the Indian independence Act, 1947, the boundaries
of India and Pakistan were to be assessed by Radcliffe committee. But the award'
determined by the Radcliffe committee was not accepted by India and Pakistan
There arose boundary disputes between two nations. To resolve
these boundary disputes the then Indian prime minister Shri jawaharlal Nehru
and Prime minister of Pakistan Mr. Feroge khan Noon signed an agreement in
1958. The Pakistani government contended its claim over the berburi union for
the first Tim in 1952. During all these processes way underway, the Indian
constitution came into force on 26th of January 1950, and Article-1 of our
constitution provided India shall be a union of states and shall be mentioned in
part A,B, or C of the first schedule of the constitution.
7 Judge Bench:
Hon'ble Justice (B.Sinha, AS Shah, K Dasgupta, KS Rao, M
Hidayatullah, S Das, P Gajendragadkar) - Supreme Court Of India - Judgement Date
:- 14 March 1960
- If so, is a law of parliament relatable to Article-3 of the constitution sufficient
for the purpose or is an amendment of the constitution in accordance with
Article-368 of the constitution necessary in addition or in the alternative?
- Is a law of parliament relatable to Article-3 of the constitution sufficient for
implement of the agreement relating to exchange of Enclaves or is an amendment
of the constitution in accordance with Article-368 of the constitution necessary
for the purpose, in addition or in the alternative?
- In any legislative action necessary for the implement of the agreement
relating to Berburi union?
It was argued that even parliament has no power to code any of the territory of
India in favour of a foreign state either by ordinary legislation or even by the
amendment of the constitution and so, the agreement is void and cannot be made
effective by any legislative process.
The very first sentence in preamble which declares that:
we the people of the India, having solemnly resolved to constitute India into a sovereign democratic republic.
Irrevocably postulates that india geographically and terriorially must
always continue to be democratic and Republicans. The other ground on which
this contention is raised is founded an Article-1(3)(c) of the constitution which
The territory of India shall comprise such other territories as
may be acquired:.
And thus it is argued that whereas the constitution has
expressly given to the country the power to acquire other territories it has made
no provision for ceding any part of its territory.
Regarding Article-368, it was held that the power to amend our constitution
must inevitably include the power to amend Article_1. And that logically would
include the power
Name and territory of the union
- India, that is Bharat, shall be a union states
- The states and the territories thereof shall be as specified in the
- The territories of India shall comprise:
- the territories of the states
- the union territories specified in the first schedule
- such other territories as may be acquired.
Legislative action is necessary for the execution of all amendment.
For the exchange of Enclaves too, the same procedure as to followed.
The supreme court in the Berburi union case concluded that:
- the preamble is not part of the constitution
- the parliament has the power to amend or constitution (Including
- A cession of a part of the territory of India would lead to the
diminution of the territory of India. Such an amendment can be made
under Article-368 of our constitution.