Court caseAIR 1960 SC 845

Berubari Union No. 12 in the Jalpaiguri district of West Bengal had been awarded to India by the Radcliffe Commission in 1947 but was claimed by Pakistan. The Nehru-Noon Agreement of 10 September 1958 provided for dividing Berubari between India and Pakistan and for exchanging the Cooch Behar enclaves. Public objection led the President to refer three questions to the Supreme Court under Article 143(1): whether legislation was needed to implement the agreement, whether a law under Article 3 would suffice, and whether an amendment under Article 368 was necessary.

The eight-judge Bench, through Gajendragadkar J, advised that the agreement amounted to a cession of territory requiring legislation; that Article 3 does not cover cession, since the power to diminish the area of a State concerns internal readjustment among the States of the Union; and that an amendment of Article 1 and the First Schedule under Article 368 was necessary, which could also carry the consequential provisions under Article 3. On the Preamble, the Court held that although it is "a key to open the mind of the makers", it is not part of the Constitution, is not a source of substantive power and cannot limit the powers expressly conferred.