By Ram Kumar Jha and Saurabh Kumar
May 25, 2015
The passing in Indian parliament of an agreement to settle land boundary disputes is a significant step forward.
May 7, 2015 was a historic day in India-Bangladesh relations. That was the day when Indian parliamentpassed a Land Boundary Agreement (LBA) Bill. The amendment ensures a settlement of the long-running land boundary dispute with Bangladesh. It will contribute to stability and better economic activities at the border points. The bill has now to be ratified and signed, which may happen in June when Indian Prime Minister Narendra Modi is due to visit Bangladesh.
The arbitrary division of the border in 1947 resulted in dispute over the control of numerous enclaves. These India-Bangladesh enclaves were known as the chitmahals. There were 102 Indian enclaves inside Bangladesh and 71 Bangladeshi enclaves inside India. Inside those enclaves are also 28 counter-enclaves and one counter-counter-enclave.
Thousands of people live in these enclaves, where they are subject to harassment from the security forces of both countries and are unable to access basic amenities and entitlements of citizenship or proper facilities such as electricity, schools, and health services. Even law-and-order agencies lack proper access to these areas. The LBA would allow residents to stay or migrate and become citizens. A joint Indo-Bangladesh delegation that visited these enclaves in May 2007 found that people residing in Indian enclaves in Bangladesh and Bangladeshi enclaves in India did not want to leave their land and would rather remain in the country where they had lived all their lives.
The Nehru-Noon (Indian Prime Minister Jawaharlal Nehru and Pakistan Prime Minister Firoze Khan Noon) Agreement of 1958 and the Agreement Concerning the Demarcation of the Land Boundary between India and Bangladesh and Related Matters of 1974 attempted to find a solution to the border demarcation. The Agreement of 1958 sought to achieve, among other things, three major objectives. First, to resolve differences that impeded demarcation of the boundary in different sectors of the border and the problem of the Union No. 12 of Southern Berubari, which was a part of India according to the line drawn by the British but belonged to Pakistan according to their written description. Second, the Agreement sought to resolve the problems of the so-called enclaves, 113 Indian enclaves inside East Pakistan and 53 East Pakistan enclaves inside India. Third, the agreement decided to exchange territories as a consequence of the demarcation of the boundary.
However, that 1958 agreement, at least as far as the mutual exchange of enclaves and the transfer of the southern half of South Berubari Union No. 12 to East Pakistan by India was concerned, could not be implemented because of litigation filed by Indian nationals, claiming that the entire union of South Berubari, was Indian territory at the time the Indian Constitution came into force and that the enclaves belonging to Cochbehar state were also part of India. Therefore, neither the southern half of the Union nor the enclaves could be ceded to a foreign country. In due course, the case reached India’s Supreme Court. The Court ruled that a constitutional amendment would be needed to proceed with the exchange stipulated in the Agreement. The Indian Constitution was in fact amended in 1960 (9th Amendment). Still, the exchanges did not happen.
Subsequently, a second agreement was concluded in May 1974 between Sheikh Mujibur Rahman and Indira Gandhi. Bangladesh ratified it in 1974, but India again needed a constitutional amendment. Consequently, which much of the agreement of 1974 was implemented, three outstanding issues were not: (i) an undemarcated land boundary of approximately 6.1 km in three sectors; (ii) an exchange of enclaves; and (iii) adverse possessions.
A protocol (referred to as the 2011 Protocol) to the 1974 LBA was signed on September 6, 2011 during a visit by then Indian Prime Minister Manmohan Singh to Bangladesh. The 2011 Protocol does not envisage the displacement of populations and ensures that all areas of economic activity relevant to the farmhouses have been preserved. The 2011 Protocol was prepared with the full support and concurrence of the State Governments involved (Assam, Meghalaya, Tripura and West Bengal).
And so we come to the bill passed earlier this month. That legislation faced opposition on the grounds that the proposed exchange of enclaves would result in a national loss of 10,000 acres and that it would fuel secessionist tendencies in other parts of India. Indian External Affairs Minister Sushma Swaraj said, “India will get 510 acres while Bangladesh will get 10,000 acres. But these are notional figures as these areas are deep inside the territories of the two countries. Our borders are not contracting.”
The bill is certainly bright news for those living in the enclaves, as they will get access to basic amenities such as schools and water. It will finally secure the border and will help curb illegal immigration and rampant cross-border smuggling. Under the agreement, enclave residents can continue to reside in their present location or move to the country of their choice. If they stay, they will become nationals of the state to which the areas were transferred. Hitherto stateless citizens will be granted citizenship, solving the question of identity. The agreement will also be helpful in settling border disputes at several points in Meghalaya, Tripura, Assam, and West Bengal. It will help increase connectivity and access to Southeast Asian countries as part of India’s North-East policy.
Ram Kumar Jha and Saurabh Kumar are working as Policy Analysts, CUTS International and can be contacted at rkj@cuts.org & sbk@cuts.org.
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