India is presently involved in an escalating dispute with Nepal over the Kalapani region, with both states redrawing their political maps to include the disputed territory. India’s long and storied history of territorial disputes with its neighbours leads to the question: does the Constitution permit the secession or acquisition of territories to resolve these conflicts?
The majority of India’s territorial disputes can be traced to its independence and subsequent partition in 1947. The Radcliffe Award, which demarcated the borders of both India and Pakistan, contained inconsistencies which allocated certain territories to both countries. One of these inconsistencies resulted in a dispute between India and Pakistan over the Berubari Union territory.
Jawaharlal Nehru and Feroz Khan Noon formulated the Nehru-Noon Agreement of 1958, under which the Berubari Union was divided between both states, while certain enclaves were ceded to Pakistan. Initially, the plan was to give effect to the Agreement under Article 3 of the Constitution of India, 1950. However, public outcry and multiple legal challenges resulted in the reference of the matter to the Supreme Court as In Re: Berubari Union.
The question before the Court was whether the Agreement could come into effect under Article 3, or whether it required a constitutional amendment under Article 368. If legislation was passed under Article 3, then it would only require the support of a simple majority of Parliament. However, if the Court ruled that secession of territory to a foreign state did not come under Article 3, the Agreement could only be effected by the far more stringent procedure under Article 368.
How did the framers of the Constitution approach the issue of secession of territory to a foreign state? Simply put, they didn’t – there is no reference to this power in the Constitution or the debates. Article 3 only authorizes Parliament to alter, increase, or diminish a state’s boundaries; it makes no mention of the right to acquire or cede territories to foreign states. This exclusion formed one of the grounds of the arguments against the Agreement in Berubari, with one party arguing that the language of the Constitution only referred to the acquisition of territory, and therefore implicitly prohibited territorial secession.
The Court rejected this argument, and instead pointed out that India was a sovereign nation, and ‘two of the essential attributes of sovereignty are the power to acquire foreign territory as well as the power to cede national territory in favour of a foreign State.’ Therefore, the question in Berubari was not whether the state had the power to cede territory, but rather the procedural requirements that had to be met to legally perform this action.
Ultimately, the Court held that it was ‘unreasonable, illogical and anomalous to suggest that…cession of a part of the State territories can be implemented be legislation under Article 3’. Since the Congress party enjoyed a formidable majority in both houses of Parliament, it could give effect to the Agreement through the Constitution (9th Amendment) Act, 1960.
However, coalition governments later became the norm in India, and the infighting between parties often meant that subsequent land exchange agreements could not be implemented through a constitutional amendment. It was only in 2015 that the dispute at the centre of Berubari was formally resolved in its entirety.
We do not know why the framers did not engage with the matter of secession of territory, either in the debates or the text of the Constitution. The drafting of the Indian Constitution was a drawn-out and highly deliberative process and the sovereignty of certain territories was still in dispute during the constitution-making process; it is unlikely that this omission was a mere oversight.
In Berubari, it was argued that the tragedies caused by Partition had influenced this omission, as the framers wanted to ‘keep the entire territory of India as inviolable and sacred’. Although this was rejected by the court, there is a grain of truth in the argument: perhaps the framers wanted to discourage the exercise of the sovereign right to cede territory by complicating the process of secession?