1.4.1. Does Cession of an Indian Territory need a Constitutional Amendment?

This question came up for examination before the Supreme Court in a reference made by the President in 1960. The decision of the Central government to cede part of a territory known as Berubari Union (West Bengal) to Pakistan (Nehru-Noon Agreement of 1958) led to political agitation and controversy and thereby necessitated the Presidential reference. The Supreme Court held that the power of Parliament to diminish the area of a state (under Article 3) does not cover cession of Indian territory to a foreign country. Since the implementation of the agreement would result in the reduction in the total area of India, Article 1 as well as relevant portions of the First Schedule of the Constitution would have to be amended. Hence, Indian territory can be ceded to a foreign state only by amending the Constitution under Article 368. Consequently, the 9th Constitutional Amendment Act (1960) was enacted to transfer the said territory to Pakistan.

During 2011, a protocol was signed to exchange enclaves under the Land Boundary agreement of 1974. The Agreement envisaged a transfer of 111 Indian enclaves to Bangladesh in return of 51 enclaves to India. However, the same needed to be ratified by the Parliament. In accordance with this, the Constitutional (119th Amendment) Bill was passed in 2015. The Bill amends the First Schedule of the Constitution to give effect to the agreement. The Bill amends the paragraphs relating to the territories of Assam, West Bengal, Meghalaya, and Tripura in the First Schedule. On the other hand, the Supreme Court in 1969 ruled that settlement of a boundary dispute between India and another country does not require a constitutional amendment. It can be done by executive action as it does not involve cession of Indian territory to a foreign country.

Katchatheevu Island: India ceded Katchatheevu island to Sri Lanka through treaties concluded between the two neighbours in 1974 and 1976. As per the position stated in the Berubari Union case, an Indian territory can be ceded to a foreign power only by a constitutional amendment. The cession of Katchatheevu to Sri Lanka was challenged in 2012 in the Supreme Court for

being violative of the procedure laid down by the Supreme Court. The case is still pending before the court.