The Government of India Must Renegotiate Pending Issues in the Indira – Mujib Accord before ratifying it

In 1974, India and Bangladesh entered into an agreement on borders. Popularly known as Indira – Mujib Pact – the two signatories of the pact were the Indian Prime Minister Indira Gandhi and the  Bangladesh Prime Minister Mujib-ur-Rehman – this agreement sought to cover the demarcation of the land boundary between the two countries and other related issues. There were 15 border related issues over which a settlement was arrived at by the two countries through this agreement. Those issues relate to states like Tripura, Meghalaya, Assam and West Bengal.

Article 5 of the Agreement stipulated that: “This agreement shall be subject to ratification by the Governments of India and Bangladesh and Instruments of Ratification shall be exchanged as early as possible. The Agreement shall take effect from the date of the exchange of the Instruments of Ratification”.

This Agreement was signed in two originals by both the Prime Ministers on May 16, 1974.

On November 28, 1974 Bangladesh Parliament had passed the Constitution (Third Amendment) Act, 1974 ratifying the Indira – Mujib Accord. Since passing this Amendment and ratifying this Agreement as per Art 5 of it the Bangladesh Government has repeatedly taunted India for not doing their bit by getting the same in Indian Parliament.

It is true that Government of India has not been able to get the Parliament’s nod for the Agreement in all these four decades. One of the reasons could be the flawed nature of the Agreement. In the form it was agreed upon by both the former PMs that it would have certainly created a huge backlash in India, at least over some sections of the Agreement.

Almost after 40 years the Government of India suddenly woke up and decided to ratify the Agreement in our Parliament. Thankfully, since this flawed agreement involves Indian Territory being transferred to Bangladesh without any compensation from the other side, it required an amendment to our Constitution as well. In an earlier case of Berubari transfer – to which we shall turn very soon – the Supreme Court of India had mandated that the Government can only play with the territory of India through a Constitutional Amendment that will have the support of the majority members of the Parliament and two thirds of the members present.

The current session of the Parliament is likely to witness the introduction of the Constitution Amendment Bill for the purpose of ratifying the four-decades-old Indira – Mujib Accord.

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Pending Issues

There are three major issues that are still pending calling for implementation to make this agreement fully operational.

1. There is a 6.1 kilometre long stretch on the border between the two countries which is still not demarcated. It is spread in three sectors; Daikhata – 56 in West Bengal, Muhuri river – Belonia in Tripura and Lathitila-Dumabari in Assam.
2. Enclaves: The partition of India in 1947 had created a peculiar situation in Bengal, which was divided into two. A total of 162 enclaves on both sides became a contentious issue. Enclaves are land-locked areas in each country that don’t belong to that country. There were historical reasons for this situation, For instance,  if the Nawab of Bengal had gifted land to a Sardar, perhaps post Partition, the gifted part of the land remained in Pakistan, with the rest of the Sardar’s territory becoming a part of Independent India. There are about 111 such enclaves that belong to India but remain to this day in Bangladesh territory. They measure an area of approx. 17,161 acres. Similarly there are 51 enclaves in India measuring approximately 7,110 acres that belong to Bangladesh.  All the enclaves belonging to Bangladesh are located in the Coochbehar district of West Bengal whereas all the Indian enclaves in Bangladesh fall in four districts – Panchagarh, Lalmonirhat, Kurigram and Nilphamari.
3. Adverse possession: The third major issue is adverse possession. Adverse possession means areas occupied by people of each country across its boundary in the other country. These are human encroachments leading to settlement of people for decades in areas along undemarcated borders inside the territory of the other country. Although it is very difficult to identify each and every adverse possession area the two governments have so far identified 14 places where border realignment is needed. Six of them are in West Bengal; two are in Assam, five in Meghalaya and one in Tripura.

A serious exercise to resolve these three issues began sometime in late 90s, although one of the major issues in the 1974 Agreement was implemented through a perpetual land transfer in Tin Bigha area in 1992. A Joint Boundary Working Group (JBWG) was created in 2001 to address these three outstanding issues. According to the information provided by the Indian Government this JBWG held meetings four times in last ten years.

Prime Minister of Bangladesh Sheik Hasina was in India in January 2010. During her visit she expressed her strong desire to see the border issues resolved. The Government of India too concurred.  Year-long negotiations, land surveys and joint visits to disputed areas by teams of officials followed, resulting in the announcement of a Protocol in 2011. This Protocol to the demarcation of the land boundary as envisaged in the 1974 Agreement was signed during the visit of Indian Prime Minister Dr. Manmohan Singh to Bangladesh in September 2011. Called ‘Protocol to the Agreement Concerning the Demarcation of the Land Boundary between India and Bangladesh and Related Matters’, this Protocol was signed on 7 September 2011 by the Foreign Ministers of India and Bangladesh, Shri S.M. Krishna and Smt. Dipu Moni respectively.

As per this Protocol, India is now bound to resolve the three pending issues of the 1974 Agreement as mentioned earlier and get the Agreement ratified by Indian Parliament. After that the Government of India has to exchange the Instrument of Ratification with Bangladesh, thus finally sealing the border issue. In order to complete this task the Government of India is now hastily pushing for the said Constitutional Amendment.

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Territorial Integrity Compromised

The entire issue smacks of ad-hoc-ism and meekness, and the disrespect for the sovereignty of the nation and sentiments of the people.  It also shows the anti-Constitutional approach of the Government of India. On their part, the Pakistan Government before 1971 and the successive Bangladesh Governments post Liberation, displayed sleight and skulduggery on this issue of border settlement.

For example, take the case of the enclaves. Article 1.12 of the 1974 Agreement states:

“12. Enclaves

The Indian enclaves in Bangladesh and the Bangladesh enclaves in India should be exchanged expeditiously, excepting the enclaves mentioned in paragraph 14 without claim to compensation for the additional area going to Bangladesh.”

There are two major contentious issues in this one sub-section. The statement ‘without claim to compensation for the additional area going to Bangladesh’ is the first.  How can any Government agree to a clause that is a gross violation of the principle of sovereignty? Is the Prime Minister authorised to simply give away territory in that manner? Internationally, when exchange of territory is mandated, it is ensured that both sides are equally compensated. But in this case Madam Gandhi found it prudent to agree for ‘additional area’ going to Bangladesh.

This so-called ‘additional area’ amounts to around 10,000 acres of land. As mentioned earlier, the Indian enclaves inside Bangladesh Territory measure 17,161 acres whereas the Bangladesh enclaves inside Indian Territory measure 7,110 acres. Thus, an additional area of 10,051 acres is being ceded by India to Bangladesh without claim to compensation.

Here it is relevant to turn to the reference to paragraph 14 of the Article 1 which reads thus:

“14. Berubari

India will retain the southern half of south Berubari Union No. 12 and the adjacent enclaves, measuring an area of 2.64 square miles approximately, and in exchange Bangladesh will retain the Dahagram and Angarpota enclaves. India will lease in perpetuity to Bangladesh an area of 178 metres x 85 metres near ‘Tin Bigha’ to connect Dahagram with Panbari Mouza (P.S. Patgram) of Bangladesh.”

This trickery can be easily understood by anyone. Dahagram and Angarpota enclaves measure around 4500 acres of area. They are inside Indian Territory in Coochbehar district. In principle they should become part of India under the exchange clause. It would have reduced the difference in loss of area to around 3000 acres. But through paragraph 14 of Art 1 of the 1974 Agreement, Bangladesh had ensured that not only the enclaves remain with them but that India would cede more of its own territory in Tin Bigha in the name of ‘lease in perpetuity’. This would be done to create a passage between mainland Bangladesh and the enclaves in the Indian Territory. The Tin Bigha corridor was transferred in perpetuity to Bangladesh by Indian Government led By Shri P.V. Narasimha Rao in 1992 despite massive popular protests all over the country.

It is also important to understand that the issue of adverse possession too is a total surrender by Indian Government to the Bangladesh Government’s high-handed attitude. Radcliff line was violated by Bangladesh in many places in the states of Assam, Bengal and Meghalaya, with Bangladesh citizens occupying Indian Territory. Now, through border realignment process, the Government of India is not only allowing those occupiers to retain the territory, but is also leaving behind scores of Indian families in what would become Bangladesh as a result of the realignment process. There is huge resentment in Assam, Meghalaya and Tripura over this grave injustice. Nevertheless, the Government wants to proceed with this border realignment process, on the facetious plea that India would gain 500 acres of territory by this realignment.

What all this demonstrates clearly is that the rulers of the country have scant regard for its territorial integrity and sovereign rights.  Here it is important to understand the aforementioned issue of Berubari in order to fully appreciate the implications of the present ratification issue.

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The Saga of Berubari

Berubari, a small group of villages in Jalpaiguri sitrict of today’s West Bengal falls under the two Thanas of Jalpaiguri and Boda. At the time of the Partition of India, Sir Cyril Radcliff, who was the Chairman of the Borders Commission, was vested with the responsibility of delineating the border between East and West Bengal. Radcliff Award included entire Berubari region in Indian Union and gave it to West Bengal. However in the written narrative Thana Boda was omitted in mentioning. Since the lines on the map, when translated into actual border lines on the ground, are liable for minor errors, Pakistan wanted to exploit the omission of Thana Boda’s mention in Radcliff Award and started claiming rights over Berubari. That the claim was illegal can be concluded from the very fact that in 1948, a commission by name Bagge Tribunal was set up to address certain kinds of boundary disputes.  Its report, submitted in 1950 was never objected to by Pakistan. In fact until 1952, Pakistan never raised the question of Berubari and it was generally concluded that Berubari was an integral part of the Indian Union.

But some time in 1952 the Pakistan Government raised the issue of Berubari claiming that the territory belonged to them. Its claims were based on the specious grounds that Thana Boda was never mentioned in the Radcliff Award and the boundary line, on the maps places Berubari in its territory. People of Berubari, majority of whom were Hindus, and the then Government of West Bengal too stoutly opposed these Pakistani claims. Bidhan Chandra Roy, the first Chief Minister of West Bengal, got the State Assembly to pass a resolution against the illegal demand of Pakistan. More than 12,000 villagers had cut their fingers and wrote to then President of India Rajendra Prasad: ‘Amra rakto debo, pran debo, Berubari debona. (We will rather give blood than give Berubari).

In spite of all this, Prime Minister Jawaharlal Nehru decided to have an agreement with the Prime Minister of Pakistan, Feroz Khan Noon on the issue of Berubari. Nehru and Noon signed an agreement on Berubari splitting it into two, and awarding South Berubari (comprising several villages) to East Pakistan (now Bangladesh). The agreement also included exchange of enclaves, wherein India will retain Bangladeshi enclaves in Coochbehar district and Bangladesh will retain certain Indian enclaves present in its territory. Here too, item 10 of the Agreement is as follows:” (10) Exchange of Old Cooch- Behar Enclaves in Pakistan and Pakistan Enclaves in India without claim to compensation for extra area going to Pakistan, is agreed to. Nehru had not even thought it prudent to consult the Chief Minister of West Bengal B.C. Roy on these issues.

However, the nation must be ever-grateful to President Rajendra Prasad who was not inclined to support the Nehru-Noon Pact. He decided to use his powers as President to refer the matter to the Supreme Court of India. Under a special Presidential Reference this question of whether the Executive Wing of the Government has the right to enter into an agreement ceding territory of India was taken up. This Presidential Reference under Art 143(1) of Indian Constitution was made on April 1, 1959.

A seven-member Constitutional Bench of the Supreme Court headed by Justices B Sinha, A S Shah, K Dasgupta, K S Rao, M Hidayatullah, P Gajendragadkar and S Das took up the matter.

Through this Presidential reference Dr. Rajendra Prasad placed the following queries before the Supreme Court:

“(1) Is any legislative action necessary for the implementation of the Agreement relating to Berubari Union? (2) If so, is a law of Parliament relatable to article 3 of the Constitution sufficient for the purpose, or is an amendment of the Constitution in accordance with article 368 of the Constitution necessary, in addition or in the alternative?

(3) Is a law of Parliament relatable to article 3 of the Constitution sufficient for implementation of the Agreement relating to Exchange of Enclaves or is an amendment of the Constitution in accordance with article 368 of the Constitution necessary for the purpose, in addition or in the alternative?”

What is interesting in this case was that State of West Bengal, then ruled by a Congress Government under Dr. B.C. Roy, had deputed its lawyers to contest the claim of the Union Government. Besides the West Bengal Government, many others too impleaded themselves into this case. Most of them were from Bharatiya Jana Sangh.

The Attorney Generals representing Union Government argued that the Executive wing – meaning Prime Minister and his Government – is as powerful as the Legislature – the Parliament in entering into such treaties. They also tried to mislead the Court by arguing that there was no ceding of territory and it was merely a boundary adjustment. This line of argument amply demonstrates the arrogance, authoritarianism and utter disrespect for territorial integrity of India of Prime Minister Nehru. The West Bengal Government and others in the case contested the claim stoutly. Lawyers of the West Bengal Government argued that it was wrong to say that the agreement amounts merely to delineation of the boundary. It involves ceding of Indian Territory to Pakistan.

On March 14, 1960 Js. Gajendragadkar of the Supreme Court of India delivered his verdict on the Presidential Reference. The learned Justice categorically demolished the highhanded argument about the legislative competence of the Government in ceding territory to Pakistan. “We cannot accede to the argument urged by the learned Attorney-General that it does no more than ascertain and determine the boundaries in the light of the award. It is an Agreement by which a part of the territory of India has been ceded to Pakistan and the question referred to us in respect of this Agreement must, therefore, be considered on the basis that it involves cession or alienation of a part of India’s territory”, the Court observed.

The judgement opined that “the agreement (Nehru-Noon Accord) does not appear to have been reached after taking into account these facts and is not based on any conclusions based on the interpretation of the award and its effect”. It also expressed its displeasure over the argument of the Government placed before it through the Attorney General Berubari was never included in Indian Union in finality. “We are not impressed by this argument either. As we have already indicated, since the award was announced, Berubari Union has remained in possession of India and has been always treated as a part of West Bengal and governed as such”, they said.

In conclusion, the Supreme Court had categorically stated that the Executive had no powers to enter into agreements ceding the territory of India. Such a power rests only with the Parliament of India, and even there it has to happen through a Constitutional Amendment under Art 368 which will have the support of the ‘majority of the total membership of the House and by a majority of not less than two-thirds of the House present and voting’. The Supreme Court gave a broad hint that what is needed in such situations is a national consensus. It made a parting observation saying: “….it (Government) should obtain the concurrence of a substantial section of the House which may normally mean the consent of the major parties of the House, and that is a safeguard provided by the Article in matters of this kind.”

The great democrat Nehru didn’t find it necessary to go by the spirit of the judgement.  Instead he chose to go by the technicalities. Ignoring huge protests by people, including that of the Government of West Bengal and many political parties such as the Bharatiya Jana Sangh, Nehru went ahead with the ceding of the Indian territory in Berubari to Pakistan by using brute majority in the Parliament through the Ninth Amendment to the Constitution of India on 28 August 1960.

However, a spate of appeals, court cases and opposition from West Bengal Government and people of the state, especially those living in the Berubari area prevented the Government of India to implement the transfer of South Berubari to Pakistan. The Supreme Court had finally upheld the right of the Parliament to cede Berubari to Pakistan in March 1971. By that time Pakistan had plunged into a massive internal struggle, leading to the division of that country into two. On March 26, 1971 Bangladesh emerged as a new nation, comprising entire East Bengal. This has resulted in a piquant situation as the Ninth Amendment became unimplementable. Thus, South Berubari also remained a part of India in spite of the Amendment.

In 1974, under the Indira – Mujib Accord, it was decided that Berubari will remain with India. In exchange, India will give away the Bangladesh enclaves of Dahagram and Angarpota which fall in the Indian Territory and a corridor link to mainland Bangladesh will also be provided to them. This corridor is known as The Tin Bigha Corridor.

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The Hollowness of Government’s Arguments

Berubari saga is symptomatic of the attitude of Prime Ministers Nehru and Indira Gandhi towards the territory of India. In fact during the Supreme Court trial the Advocates General of West Bengal Government make a very important point. They state that Berubari was not the private property of Nehru nor can the Union Government completely ignore the views, opinions and sentiments of the states concerned.

The Indira – Mujib Agreement is not legal until it is ratified by the Indian Parliament. Any attempt to implement it without ratification by our Parliament is unconstitutional and ultra vires as per Js. Gajendragadkar’s judgement on Berubari. Yet, Madam Gandhi callously went ahead with its implementation and issued orders in 1982 for perpetual lease of Tin Bigha Corridor to Bangladesh, thereby facilitating a passage between the Bangladesh enclaves of Dahagram and Angarpota to the Bangladesh mainland.

Tin Bigha Agrement was opposed by many political parties including the Bharatiya Janata Party when the P.V. Narasimha Rao’s Government sought to implement it by formally handing over the leased territory in Tin Bigha to Bangladesh. The Akhil Bharatiya Vidyarthi Parishad (ABVP) gave call for a march to Tin Bigha on the day of the transfer of the territory – June 26, 1992. Thousands of students reached Coochbehar town of Mekhligunj, but were prevented from proceeding further to Tin Bigha to protest against this illegal transfer.

Initially the transfer provided for permission to the Bangladesh citizens to use this corridor during alternate hours in the day time. But during the 2011 visit of Indian Prime Minister Dr. Manmohan Singh to Bangladesh, his Bangladesh counterpart Madam Sheik Hasina prevailed upon him to provide 24-hour access to their citizens through the corridor. India has agreed to this proposal and a flyover bridge is being built to facilitate this movement.  This essentially means that India has given away a flyover corridor to Bangladesh permanently. This flyover will be built by India at its cost. All this is happening without any approval of the Parliament, and irrespective of protests by the people. This betrays the arrogant attitude of the ruling leadership.

The Proposed Constitutional Amendment should be viewed in this background. The Government seems determined to push through the Amendment using brute majority in the Parliament as it did in the Berubari case in 1960. But can and should the Opposition and nation at large allow this blatantly anti-national compromise with our territorial integrity?

The Government’s argument for pushing through this Amendment in such haste is ridiculous. Firstly, they claim that there is a friendly Government in power in Bangladesh under Sheik Hasina and that it is the right time to settle all outstanding border issues. Fair enough. But does that mean India should acquiesce to an unequal agreement? Does any country in the world give away its territory to another country without any compensation? Moreover if the Government of the day in Bangladesh is a friendly one, then this is the right time to go for the best deal, not a flawed one.

The other arguments of the Indian Government too are equally laughable. They say that a good gesture by India would yield better results in bilateral issues in future. Are international treaties entered into with assumptions of unspecified future benefits? If India is looking for any such benefits, it should make them explicit with the Bangladesh leadership as a part of this Agreement. The most ludicrous argument is that by ratifying this Agreement India would be strengthening Sheik Hasina’s hands and it would help her in winning the forthcoming elections in December this year in Bangladesh. Does   the Government of India want us to believe that it is amending the Indian Constitution in order to facilitate a victory for Sheik Hasina in Bangladesh?

What is most appalling is the meek and submissive attitude of the Indian leadership. ‘If we don’t ratify now, Bangladesh can resort to retaliation’, ‘China will take advantage of the situation’, ‘Khalida Zia will come to power and she will negate everything’… these are the fears expressed in the corridors in the South Block. Is India such a weak and timid country that it can be pushed around by Bangladesh? Do big countries settle their border disputes in such a shabby manner?

This meekness of the Indian Government has been cleverly exploited by Bangladesh all these years. Having ratified the 1974 Agreement immediately and having implemented all those parts that were beneficial to it, the Bangladesh Government had added a surreptitious clause in its Constitution Amendment, stating that full ratification is possible only after the pending issues are also resolved. And on issues like adverse possession, it was Bangladesh Government’s attitude that became a major hurdle for India.  Since it had the shield of the said clause in its own Amendment, Bangladesh could create enough hurdles for India, causing delay in settling the boundary question.

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Does this mean we should not settle the boundary issues with Bangladesh? Absolutely not. We must try and settle the issue as early as possible because India is a victim of several kinds of cross-border aggression of Bangladesh – both demographic and military.

But no country in the world will go ahead with ratifying an agreement entered into four decades ago, without revisiting it and renegotiating clauses. Indian Government wants to do precisely the same.  Instead what should be done is to renegotiate the clauses pertaining to at least the pending issues like enclaves and adverse possession.

India should delete the clause of not demanding compensation for the excess land being transferred to Bangladesh through exchange of enclaves. Bangladesh should be asked to compensate for the excess land that it is getting. Just as India leased land in perpetuity, Bangladesh too can lease land to India, which is equivalent of the excess land that it is getting along the narrow Chicken’s Neck area. That would be of great strategic help for India. Alternately, India can demand commitment for compensation in the form of certain land masses that keep surfacing in the sea from time to time. Most importantly the sentiments of the people of Tripura, Meghalaya, Assam and West Bengal should be taken into account while determining the realignment of the adverse possession along the boundary.

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Agreement Should be Reviewed before Ratification

The people of India naturally expect something from the main opposition party, the BJP. This is not merely because they are the Opposition Party, but because right from the beginning, they are the only major national political party to have demonstrated consistent commitment to India’s territorial integrity and sovereign rights.

At the time of Berubari agreement, the Bharatiya Jana Sangh, the erstwhile avatar of the BJP, under the able leadership of Pt. Deendayal Upadhyaya and Atal Behari Vajpayee had taken a firm stand against the Nehru – Noon Accord. A resolution was adopted against transfer of Berubari by Bharatiya Jana Sangh in 1959, stating that even the Parliament had no right to cede territory. When the then President of India, Dr. Rajendra Prasad referred the matter to the Supreme Court under instructions from Deen Dayal Upadhyaya, several state units of Jana Sangh impleaded themselves in the case in the Supreme Court.  This included: 1. President, Bharatiya Jana Sangh, Kerala; 2. Secretary, Jana Sangh, Mandi; 3. Shri Tata Srirama Murthy, Akhil Bharatiya Jana Sangh, Visakhapatnam; 4. Chairman, Bharatiya Jana Sangh, Mangalore; 5. Secretary, Bharatiya Jana Sangh, Sitapur; 6. Shri N. Thamban Nambiar, Bharatiya Jana Sangh, Thaliparambu; 7. President, Bharatiya Jana Sangh, Pattambi (Cochin).

Shri Atal Behari Vajpayee, one of the most prominent leaders of Bharatiya Jana Sangh those days, explicitly advocated for compensation of territory when he said: “We gave some land to Pakistan in Tripura for a railway passage, but we did not demand some land from Pakistan for going to North Bengal from West Bengal and for going to Assam via East Bengal”. In the Parliament too, when Prime Minister Nehru placed the details of the Agreement the BJS members, although only a few in number, vehemently protested his ‘right’ to play with Indian Territory.

Again, when the Teen Bigha matter came up before the Parliament in 1992, the Bharatiya Janata Party, the Principal Opposition Party by then, took a firm stand against the proposal to lease the corridor perpetually to Bangladesh. Shri Lal Krishna Advani, the senior most leader of the Party along with Shri Vajpayee, strongly opposed the Government’s move.

“I regard lease in perpetuity as lapse of sovereignty. So, it is not a lease for the common man and citizens living here. We are subjecting our own people to the virtual sovereignty of Bangladesh. This is the hard reality”, said Shri Advani in his speech in the Parliament. He even demanded that the earlier agreements with Bangladesh – in this case the Indira and Mujib Agreement of 1974 – be reviewed. “Will the Government consider talking to Bangladesh once again and asking for a review of the earlier agreements?” Shri Advani urged. Shri. Advani was referring to a contention that involved a mere 3.5 acres of India Territory in Tin Bigha. While this is important, one sees that today the Government of India wants to give away more than 10,000 acres to Bangladesh through the proposed Constitutional Amendment. One can thus imagine the increased gravity of this issue.

What the nation wants today is a review and re-negotiation of all the pending issues before the Indira – Mujib Accord of 1974 is ratified by our Parliament. This is what the agitated people of Assam, Meghalaya, Tripura and West Bengal want; and this is what all the patriotic people of the country want.