Treaty Making in India: Berubari and Maganbhai Patel

In India, treaties are made by the Union executive. Parliament does not have to approve them, but its legislation is needed to give effect to a treaty that affects rights or changes the law, and a constitutional amendment is needed to cede Indian territory. This note explains the treaty making power, the line between executive and legislative action, and the decisions in Berubari, Ram Kishore Sen and Maganbhai Patel.

1. The Treaty Making Power

Figure 1: From negotiation to implementation

• Executive function. Entering into treaties falls within Union List entry 14, and under Article 73 the Union's executive power extends to it; the President acts on the advice of the Council of Ministers, and the Ministry of External Affairs handles negotiation and depositary formalities.
• No parliamentary approval. The Constitution does not require Parliament to approve or ratify a treaty; Parliament could regulate treaty making by law under entry 14 read with Article 246, but has not done so.
• Azadi Bachao Andolan (2003). The Supreme Court affirmed that making treaties is an executive function; a tax treaty notified under the Income-tax Act applied even where it departed from the Act.
• States. States have no power to make treaties; foreign affairs are wholly a Union subject.
• Suspension and termination. Decisions to suspend or end a treaty are also executive; in April 2025, the Government announced that the Indus Waters Treaty would be held in abeyance.

2. When Legislation or Amendment Is Needed

Figure 2: Testing what a treaty requires

• Executive action alone. Where a treaty does not affect the rights of citizens or others or modify existing law, the executive may implement it without legislation.
• Legislation under Article 253. Where it restricts justiciable rights, imposes obligations on individuals, or changes the law in force, Parliament must legislate; Article 253 permits this even on State List subjects.
• Constitutional amendment. Where a treaty cedes Indian territory to a foreign state, a law under Article 3 is not enough; an amendment under Article 368 is needed.

3. The Leading Cases

Figure 3: Supreme Court decisions on treaty implementation

• In re Berubari Union and Exchange of Enclaves (1960). On a presidential reference under Article 143 about the Nehru-Noon Agreement, 1958 with Pakistan, the Court held that ceding part of Berubari Union and exchanging enclaves involved cession of Indian territory; Article 3 covers changes in the territory of states within India, not cession to a foreign state, so an amendment under Article 368 was required; Parliament passed the Constitution (Ninth Amendment) Act, 1960.
• Ram Kishore Sen v Union of India (1966). The demarcation carried out under the agreement, as implemented by the Ninth Amendment, did not involve any further cession requiring another amendment.
• Maganbhai Ishwarbhai Patel v Union of India (1969). The Indo-Pakistan Western Boundary (Rann of Kutch) Tribunal award of 1968 determined a disputed boundary and did not cede territory that was de jure or de facto Indian; the executive could implement it without a constitutional amendment or a law; legislation is needed only where a treaty restricts the rights of citizens or others or modifies the laws of the State.
• Land Boundary Agreement with Bangladesh. The 1974 agreement and the 2011 protocol, involving exchange of enclaves, were implemented by the Constitution (One Hundredth Amendment) Act, 2015, following Berubari.

4. Cession and Settlement of a Boundary

• Cession. Transfer of territory that is part of India, whether de jure or under Indian administration with title, to a foreign state; needs an amendment under Article 368.
• Settlement of a boundary. Ascertaining or demarcating a boundary that was in dispute; no territory that is Indian is given up, so executive action suffices.
• Why the line matters. It decides whether the executive can act alone or must obtain a special majority in Parliament under Article 368.

5. Frequently Asked Questions

Does Parliament have to approve a treaty before India ratifies it?

No. The Constitution leaves treaty making to the Union executive. Parliament's role arises when a treaty needs legislation to take effect within India, or a constitutional amendment for cession of territory.

Why was Article 3 not enough in Berubari?

Because Article 3 deals with the formation of new states and the alteration of areas and boundaries of states within India. Giving Indian territory to a foreign country is outside it, so the Court required an amendment under Article 368.

Is settlement of a boundary dispute the same as cession?

No. In Maganbhai Patel (1969), the Court held that determining a disputed boundary gives up no territory that is Indian, so the executive may implement it without a law or an amendment. Cession transfers Indian territory and needs an amendment under Article 368.

Can a State government enter into an agreement with a foreign country?

No. Foreign affairs and treaties are Union List subjects, and the Union alone exercises treaty making power under Article 73. Parliament may also legislate on State subjects under Article 253 to implement a treaty.

6. Related Topics

• Topic 5: International Law in India. Articles 51, 73 and 253.
• Topic 13: Law of Treaties I. Conclusion, consent and entry into force.
• Topic 25: Acquisition and Loss of Territory. Cession and other modes.