Mostafa Faruque Mohammed*
The Agreement on the demarcation of Land Boundary between Bangladesh and India and related matters, signed in May 1974 is a unique document that epitomized the depth of the friendship, goodwill and mutual trust and above all, the vision of peace and harmony of two great statesmen, Bangabandhu Sheikh Mujibur Rahman, and Smt. Indira Gandhi. This comprehensive agreement was intended to resolve all lingering and vexing problems that history had bequeathed on the two nations. It has been recognized by all concerned that the implementation of the Agreement in letter and spirit is a sine qua non for the redress of the causes of tension and conflicts, big and small, along the long border between the two countries. The two leaders even fixed practical time frames for completion of various steps they knew would be necessary for the Agreement to be implemented. However, the later governments in the two countries and those in authority failed their hopes. They prevaricated and procrastinated and did not do what was necessary. The problems along the border were allowed to linger on and with the passage of time to grow in complexity. Now, they cast an increasingly darker shadow in the bilateral relations of Bangladesh and India.
A little retrospection will help to better understand the issue. Most of the border problems between Bangladesh and India are as old as the partition of India at independence from the British in 1947. The surveyors of India and East Pakistan ( that is, Bangladesh, post-1971) started their work in delineating the international boundary right from Day One. They tried to follow the lines drawn and description written by Sir Cyril Radcliffe, but soon came to face irreconcilable differences. Came the Bagge Awards (26 January 1950) and with them a host of political and legal imponderables. Prime Ministers Jawaharlal Nehru of India and Firoze Khan Noon of Pakistan concluded the first Boundary Agreement in 1958 (10 September 1958 ). In the eastern theatre the Agreement of 1958 sought to achieve, among others, three major objectives. First, to resolve differences which 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 Sir Radcliffe but belonged to Pakistan according to his written description. In case of such a conflict written description of the boundary was to prevail. However, the mostly non-Muslim population of the Union opposed the territory going to Pakistan. More than a decade elapsed, but the matter could not be resolved. The South Berubari Union No.12 continued to remain in India as a part of India. The Government of India could not make it over to Pakistan. Nor could the Government of Pakistan take over its possession. In the 1958 Agreement it was agreed to divide the union by two halves, roughly equally, the southern half along with two enclaves going to Pakistan and the northern half remaining with India. Secondly, 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. The Agreement decided to merge the enclaves with the country they fell within. That is, Indian enclaves inside East Pakistan will merge with East Pakistan and East Pakistan enclaves inside India will merge with India. India will not receive any compensation for the extra area going to Pakistan. Thirdly, the agreement decided to exchange territories as a consequence of the demarcation of the boundary. Territories which were found upon demarcation to be wrongfully held (that is, under adverse possession) were to be transferred to the country they rightfully belonged to.
However, the Nehru-Noon Agreement of 1958, in so far as the mutual exchange of the 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 due to litigation filed by Indian nationals, claiming that the entire union of South Berubari, was Indian territory at the time of coming into force of the Indian Constitution and the enclaves belonging to Cochbehar state were also parts 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 Supreme Court of India. The Court ruled that Constitution of India has to be amended to exclude from the Republic of India the southern half of the South Berubari Union No.12 and the Indian enclaves inside East Pakistan in order to give effect to the exchange stipulated in the Agreement. The Indian Constitution was accordingly amended in 1960 (9th Amendment). However, the stipulated exchanges did not take place. Why, that is another story; providence, perhaps.1
At birth, therefore, Bangladesh inherited, among others, all these unresolved problems in respect of its long international boundary with India. The two Prime Ministers, Bangabandhu Sheikh Mujibur Rahman and Smt. Indira Gandhi decided to address these problems with utmost dispatch for they knew that a clearly delineated border and mutual respect for its inviolability were indispensable for strong and abiding friendship between the two countries. Extensive and threadbare negotiations followed, at the working level, at senior officials level and finally at the highest political level. On 16 may 1974 the two Prime Ministers signed the Agreement on the Demarcation of the Land Boundary between Bangladesh and India and related matters, in New Delhi. The LBA 1974 provided meticulous guidelines to the survey authorities of the two countries for an early and amicable delineation of the hitherto undemarcated portions of the boundary in as many as 13 sectors as well as for an expeditious resolution of related matters like the exchange of the enclaves and adverse possessions. In addition, it also provided for a pragmatic and sensible solution of the highly litigious and politically sensitive issue of the South Berubari Union No. 12, which, on account of the non-implementation of the Nehru-Noon Agreement of 1958, had continued to remain within India in accordance with the boundary line drawn by Sir Cyril Radcliffe in 1947.
In Article 1, Section 12 and Section 14 dealt with the exchange of enclaves and Berubari respectively. In the former Section it was stipulated that the Indian enclaves in Bangladesh and Bangladesh enclaves in India should be exchanged expeditiously. The only exception was allowed for two enclaves adjacent to Southern half of the South Berubari Union No. 12, measuring in total approximately 2.64 sq. miles, as they would cease to be enclaves if the southern half of South Berubari is to be a part of India. In exchange of the southern half of South Berubari Union No.12 and the two enclaves Bangladesh was to retain the two enclaves of Dahagram and Angarpota, also of the same approximate size. Besides, India agreed to lease in perpetuity to Bangladesh an area of 178 m x 85 m, or 3.74 acres approx. to connect these two enclaves with Panbari Mouza of mainland Bangladesh. The stipulated lease in perpetuity finally materialized in June 1992 after protracted negotiations and exchanges of letters of understanding between the two Governments, first in October 1982 and lastly, in March 1992. The lease provided connection between the enclaves of Dahagram and Angarpota and mainland Bangladesh in a somewhat limited fashion, that is, at alternate hours during daylight. Later, however, at the express intervention of the Indian Union Home Ministry this was further eased to cover the entire day light period.
Some words about ratification of the LBA 1974. Article 5 of the Agreement stated that Agreement would be subject to ratification by the two Governments and should take effect from the date of the exchange of the instruments of Ratification. The two governments were also urged to exchange Instruments of Ratification as early as possible. Obviously, ratification was a technical requirement to put into effect the LBA 1974. The Instrument of Ratification, a legal document, is usually signed by either the Prime Minister, or the Foreign Minister or the concerned Minister or any person authorized to sign it, once the legal requirements to do so are met. The Contracting Parties then exchange these Instruments and the process is complete. This is not a big deal. The Land Boundary Agreement of 1974 enjoins upon the contracting parties in Article 1 to demarcate the border in certain mentioned sectors and gives clear guidelines how to go about the demarcation and also what action to take in some other related matters. The Indian side has been found keen in implementing some of the sections of Article 1 of the Agreement, but refuses to implement others, saying that they can not do so for they have not yet ratified the Agreement, etc. Bangladesh claims that she has ratified the Agreement. India says that it is not true, etc. etc. All this is a case of misplaced emphasis. The two sides have been wasting time on who has or has not ratified the Agreement. The fact is that the Instruments of Ratification have not been exchanged. Yet, the two governments have already in actual practice put the Agreement in force. If that was not so how they could go ahead implementing most of the Sections of Article 1 which stipulated the manner in which the land boundary between our two countries would be demarcated. Since Article 1 is an integral part of the Agreement how it could be implemented without the Agreement being ratified. The two sides have been able to demarcate all but 6.5 kms of the land boundary in accordance with the stipulation of the Agreement. It is also according to Section 14 of Article 1 that India has retained the southern half of South Berubari Union No.12 and the two adjacent enclaves and Bangladesh has retained the two enclaves of Dahagram and Angarpota. The term ‘retain’ here deserves special attention. It means that other enclaves are not so retained, but have been exchanged in accordance with section 12 of Article 1. That would have been only logical. That it was not done in one pretext or the other shows that the Agreement was being selectively implemented and this unfortunately smacks of double standard.
That is not all. If ratification would have to precede all actions implied and or stipulated by the Agreement how did India give out the lease in perpetuity of approximately 3.74 acre of land near “Tin Bigha” to Bangladesh in accordance with Section 14 of Article 1. By doing so India has clearly established that the stipulations of the Agreement could be complied with without having to wait for the formal ratification of the Agreement. In this connection what the Bangladesh Parliament did was perhaps the right thing to do, that is, to incorporate the stipulations of the Agreement in the Constitution and await the completion of demarcation of the boundary for final notification of the territories excluded from and included into what would constitute the country. However, to insist that ratification of the Agreement is not possible unless the Constitution of India is amended, which in its turn, can not be done unless the entire boundary is demarcated, is but arguing in a circle, ad nauseam, going nowhere. Even accepting that the Constitution of India has to be amended to exchange the enclaves, it must be stressed that it is not necessary to complete the demarcation of the entire land boundary for the purpose. India has herself shown that this has indeed been the case. The Nehru-Noon Agreement of 1958 also stipulated the exchange of the enclaves. The Supreme Court ruled that since the exchange of enclaves involved ceding of Indian territory the Indian Constitution which defined the area of the Republic had to be amended before the exchange could take place. Accordingly, the Constitution was amended.2 There remained a much larger portion of the land boundary undemarcated at the time. It was not then felt necessary to demarcate the entire boundary to amend the Constitution to exchange the enclaves.
The Nehru-Noon agreement of 1958 also called for an exchange of adverse possessions as were identified upon demarcation completed by that date. Adverse possessions, if any by either country, can only be found out after the boundary in a given sector has been delineated on the ground jointly by the surveyors of the two sides. When lines are drawn, pillars are erected and strip maps are signed, the two sides can identify the territories which are in adverse possessions. As Mr. A. C. Guha, then a Member of Indian Parliament said in 1963 adverse possessions “are lands on the other side of the border owned by Indian landlords and on this side of the border owned by the Pakistan landlords”. Prime Minister Jawaharlal Nehru told Parliament in November 1963 that when demarcations take place “such small matters come up to be rectified” through some “minor adjustment”. This is indeed the very purpose of joint demarcation, “to rectify” the small matters. Indian Minister for External Affairs Mr. M. C. Chagla told the Parliament on 13 July 1967, “ Under the Indo-Pakistan Agreement of 1958 it was decided that question of giving effect to the exchange of territory as a result of the demarcation already carried out should be given early consideration. As a result of demarcation of the border certain territories that happened to be in the possession of one country required to be transferred to the other country. Pakistan has, however, taken the view that, the exchange of these territories is to be made only after the entire border is demarcated and the strip maps are exchanged”. For good reasons Pakistan was blamed in those days for lack of will to resolve its problems with India in the eastern theatre. It is an irony that India now insists that the entire land boundary should be demarcated before the adverse possessions and enclaves could be transferred or exchanged.
Most of the territories under adverse possession are by definition situated invariably along and or straddling the boundary line. In 1974 when Bangabandhu Sheikh Mujibur Rahman and Smt. Indira Gandhi signed the Agreement the two sides had already prepared a list of a number of such adverse possessions to be transferred. They must have anticipated that given the nature of the border between the two countries more and more areas are likely to be found in adverse possessions as the demarcation work in the populated areas progressed. That was why they agreed in Article 2 that territories in adverse possessions in areas already demarcated in respect of which boundary strip maps are already prepared should be exchanged within six months of the signing of the strip maps. There were already many such strip maps awaiting signatures by the plenipotentiaries for areas demarcated before May 1974. Strip maps prepared since the signing of the Agreement also awaited signatures, especially in sectors where areas in adverse possessions have been recorded. The most glaring case is of the 35.5 kms of Bangladesh-West Bengal border where the Indian side is opposing erection of concrete boundary pillars on the plea that the pillars would expose the adverse possessions and disturb the status quo. This is a queer argument. Maintenance of the status quo is a purely temporary measure, a breathing time between demarcation and making the necessary administrative arrangements to transfer the possession to the right country. Status quo is not an end in itself. A drawn out status quo must be unacceptable to at least one of the parties involved and thus can not be conducive for friendly bilateral relations. It is strange that while the two sides are apparently trying to complete the demarcation of the boundary in regions yet undemarcated they are prevented to even erect concrete boundary pillars in areas already demarcated areas, which is a necessary and indispensable part of the demarcation process. This is further delaying the already delayed implementation of the Agreement and further compounding an already complicated issue. Bangabandhu Sheikh Mujibur Rahman and Smt. Indira Gandhi knew and understood this and that is why they had urged for an expeditious exchange of the adverse possessions. Alas, the latter leaders of the two countries lacked their vision, wisdom and sagacity!
Let us now take a look at Article 3 of the Agreement. It is a follow up Article of the previous one and deals specifically with the people residing in the “territories under adverse possession” which are to be transferred. It says, “when areas are transferred the people in these areas shall be given the right of staying on where they are, as nationals of the State to which these areas are transferred.” The Article also enjoins it upon the two governments that pending the exchange of territories there should be no disturbance of the status quo and peaceful conditions should be maintained in the border regions. The two great leaders, Bangabandhu Sheikh Mujibur Rahman and Smt. Indira Gandhi, decided that the people residing in the “territories in adverse possession” should have the right to stay on where they are as nationals of the State to which the areas are transferred. Though they did not make similar reference to the national status of the peoples living in the enclaves, it could safely be assumed that they also had similar privileges in mind for those living in the enclaves. That is, the residents of the enclaves should also have the right to remain where they are as nationals of the State the respective enclaves are to merge into. All this was intended to avoid dislocations in the lives of the peoples concerned and the hardships they would suffer from if they were to leave their homes and hearths and become refugees in the State they would otherwise move to.
However, despite the lapse of some three and a half decades since the Agreement was signed and despite the express intent of the two Prime Ministers to effect the exchanges expeditiously neither the territories under adverse possession nor the enclaves were exchanged and thus the question of exercising this right by the residents did not arise. As a result neither could census be held in these enclaves after the census of 1941 nor could the residents of the enclaves cast their votes in any elections either in Bangladesh or India. Thus in this instance also the latter day leaders of the two countries failed their peoples.
It is a widely held view, and correctly so, that tension, conflicts and skirmishes at the border regions between our two countries are largely due to either ill-defined or undefined boundary. As strong fences make good neighbours so does a well defined and well delineated boundary between neighbouring countries. It is true that the border between Bangladesh and India has by and large remained peaceful. However occasional outbreaks of hostilities, though few and far between, have sometimes taken such ugly turns as to jeopardize the painstakingly nurtured good relations between the two countries.
One can cite for instance the incidents which took place at Pyrduwah/ Padua and Boraibari in 2001.
The village of Pyrduwah/Padua lies on the Bangladesh side of Bangladesh-Meghalaya border. When the area was demarcated in 1967 the village inhabited by the Khasi hills people was found to belong to then East Pakistan. It was then placed among areas under adverse possessions of India, the international boundary line lying to the north of the village. Strip maps were prepared accordingly and duly signed by the Plenipotentiaries. At the height of Bangladesh war of Liberation in 1971 Padua was a relatively safe place for training and sanctuary of the boys of Bangladesh Muktibahini. They set up a camp in Padua. When the war ended in December 1971 the freedom fighters left the village and the BSF moved in and set up a BSF camp in Padua. It was really an inexplicable situation in so far as the public perception in Bangladesh was concerned, an Indian BSF camp was set up inside the territory of Bangladesh even, and particularly, after Bangladesh was liberated from Pakistani occupation. On several occasions Bangladesh has requested the Indian authorities to move the BSF post out of Padua, but to no avail. During the War of liberation of Bangladesh in 1971 Indian armed forces personnel including members of the BSF were regarded as comrades in arms by the people of Bangladesh and were warmly welcomed. After liberation in December 1971 it was decided that all Indian armed forces personnel would be withdrawn from Bangladesh by 25 March 1972 and in fact were withdrawn by 15 March 1972, but not the men of the BSF in Padua. They remained in their camp in Padua inside Bangladesh in clear defiance of the commitment of Prime Minister, Smt. Indira Gandhi. In any case, in terms of the Land Boundary Agreement of 1974 also Padua was to be transferred to Bangladesh as were all other areas under adverse possession of the two countries, once they would be so identified through joint survey. This, however, was not done. Adverse possessions turned into adversary possessions.
In 1975, Bangladesh Rifles, BDR and the BSF, the Border Security Force of India, jointly worked out an agreed set of principles to guide them in doing what has been essentially the same job of maintaining peace and harmony at the border, check illegal movements, smuggling, transborder crimes, trafficking in arms, drugs and contrabands, and the like. These guidelines are comprehensive do’s and don’ts for the BDR and the BSF. Although the guidelines have not been signed into an agreement between the two governments, yet they are accepted by the two border forces as virtually sacrosanct. Both sides take issues when these guidelines are flouted by the other side. At every meeting at any levels both sides reiterate their unequivocal commitment to abide by these guidelines. Whenever one side has been found doing something in contravention of the guidelines the other side, again in accordance with the terms of the guidelines, has called for a flag meeting at an appropriate level and things have been sorted out, isolated skirmishes notwithstanding.
In this connection a particular provision of the guidelines deserves to be mentioned. It is agreed in the guidelines that neither side should construct any defensive structure within 150 yds. of the zero-line. The two sides have often differed in their definitions of defensive structure. However, it has been generally agreed that defensive structures include paved road, watch towers and, of course, camps and outposts. In July 2000, BDR learnt that the BSF was building a pucca concrete road within 30 meters of the zero-line to connect one of their BOPs inside India with their camp at Padua. The BSF camp at Pyrduwah/Padua has been an illegal structure itself, being an Indian camp inside Bangladesh. The attempt by the BSF to build a pucca road to Pyrduwah was as provocative as it was untenable from Bangladesh point of view. BDR repeatedly asked for flag meetings with the BSF, but without success. They also protested to the BSF over the construction of the road and urged the BSF to dismantle it. The request was ignored and the protest went unheeded. Contrary to the norms of good neighbbourly behaviour, in defiance of the decision of the Government at the highest level that all Indian troops should withdraw from Bangladesh territory by 25 March 1972, ignoring the express intent of the Land Boundary Agreement of 1974 that areas under adverse possession should be exchanged expeditiously and in contravention of the joint border guidelines of 1975 not to construct any defensive structure within 150 yds of the zero line, the BSF not only continued to maintain their armed presence inside Bangladesh at Pyrduwah/Padua, but also built a concrete road there. The incidents that took place on 14-19 April 2001 in Pyrduwah on the Bangladesh-Meghalaya border and in Boraibari on Bangladesh-Assam border on 18-22 April 2001, are now history and need no reiteration. Bangladesh maintains and it has not been refuted by anybody that the BDR moved in Pyrduwah/Padua village with a view to putting up passive resistance to the unlawful construction of concrete road by the BSF. They did not fire a shot at the BSF camp and there was no casualty. In the Boraibari area, on the other hand, intrusion by the BSF battalion well inside Bangladesh took place without any provocation whatsoever and the very unfortunate and regrettable exchange of fires that followed resulted in the deaths of 16 men of the BSF and 2 of the BDR.
The unfortunate state of affairs as above and the status of the implementation of the 1974 Land Boundary Agreement being as it is it has already taken a big toll of the friendly relations between the two countries. Further downhill slide must be averted and reversed. Both Governments must continue to take sincere concerted efforts to achieve the goal.
(a) Transfer of the enclaves and adverse possessions can hardly brook further delay. It is also accepted that the Ninth Amendment of the Indian Constitution would not help as it referred to the transfer of the enclaves to East Pakistan and now East Pakistan was no more in existence. It is, however, not understood why the entire length of boundary should have to be demarcated before the transfer could take place. When the Indian Constitution was amended in 1960 for the purpose of transferring the enclaves to East Pakistan it was not insisted at that time that the whole of the boundary should be demarcated beforehand. The demarcation of the disputed 6.5 km border at Muhuri, Lathitila and Doikhata has, for long 64 years, including the thirty-four years after the Land Boundary Agreement of 1974 was signed, eluded resolution at the expert and the official levels. It seems that higher political levels also have failed to provide the necessary direction. It will, therefore, simply be unfortunate if the implementation of this important stipulation of the Land Boundary Agreement and the friendly relations between the two countries should be made hostage to the dispute involving 6.5 km of the undemarcated border. If in the past India were able to amend its Constitution to hand over territories to Pakistan without completely demarcating its border one fails to understand why she can not do so now vis-a-vis Bangladesh when there is also an Agreement to that effect signed at the highest level. Further, it also defies logic as to why to transfer adverse possessions it should be necessary to amend the Constitution at all. Adverse possessions, by definition do not belong to the country that holds them. Their transfer will involve no cession of territories and should give rise to no legal problem. However, as regards the residents of the adverse possessions the two Governments will have to rise to the vision of Bangabandhu Sheikh Mujibur Rahman and Smt. Indira Gandhi. They should actively encourage and ensure that the people involved in the transfer do stay on where they are now as nationals of the State to which these territories rightfully belong. Going through the records of proceedings of Indian Parliament even as early as in 1967 on the question of boundary disputes and on adversely held areas one would get the impression that to the Indian Government demarcation of the boundary was necessary for identifying adversely held areas with a view to transferring their possessions to the country they rightfully belonged to.
(b) Besides, the two sides should send down clear instructions to the experts and officials in the field to jointly erect concrete pillars on the boundary already surveyed and delineated, to prepare the necessary strip maps and arrange for their signature by duly appointed plenipotentiaries. Construction of concrete pillars and signing of the strip maps are the essential next step of boundary demarcation by joint field survey. This has been done for most of the border demarcated since before the birth of Bangladesh. Indian side has opposed construction of concrete pillars in 29 kms of the already demarcated boundary at Singapara-Khudipara region and 6.5 kms of the already demarcated boundary at Berubari region, both on Bangladesh-West Bengal border on plea that this would bring into focus areas under adverse possession and thus create problems in maintaining the status quo. It is difficult for Bangladesh to appreciate this line of argument. The whole idea of demarcating the border is to draw the exact boundary line and if there be any adverse possessions the joint survey is bound to bring them out. In the past concrete pillars were erected and adverse possessions were earmarked without any hitch whatsoever. The same should be done also in the 35.5 kms of already demarcated boundary.
(c) In order to abide by Article 5 of the Land Boundary Agreement of 1974, it is not too late now for the two friendly Governments, to exchange the Instruments of Ratification, without further delay and ado. By their action both sides have clearly demonstrated that they have ratified the Agreement de facto, for they have willingly enjoyed the benefits of ratification, without going through the process of doing so or observing the rituals thereof. What is needed now for the two countries is to immediately authorize their respective plenipotentiaries to sign the Instrument of Ratification of the 1974 Land Boundary Agreement and exchange the same at an agreed date to retrospectively put the Agreement in to force thus providing the legal cover to the demarcation done so far under the Agreement as well as to such other acts as lease in perpetuity of the corridor to Bangladesh near Tin Bigha.
1. . The transfer of the enclaves between East Pakistan and Cochbehar was scheduled for 27 March 1971. This could not take place as Bangladesh Liberation war began on 26 March 1971.
2. In 1966 Indian Supremeg Court (Justice Gajendragadkar) in the case Ram Kishore vs Union held that the Berubari opinion was wrong and that the Constitution ( 9th Amendment) Act of 1960 was wholly unnecessary because a law reference to Article
3 would have been adequate to implement the Noon-Nehru Agreement of 1958.
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