Tuesday, March 28th, 2023 01:43:32

Uncomfortable Questions On Land-Swapping With Bangladesh

Updated: March 30, 2013 2:24 pm

Pakistan has done it again. In its continuing hybrid war against India (about which I have already written in this column), two terrorists belonging to Hizbul Mujahedeen, which is based in Pakistan and aided as well as abetted by Pakistan’s military establishment, killed five CRPF jawans, who were guarding a school in Srinagar, on March 13. In fact, this attack came exactly four days later the chief operational commander of the al-Qaeda linked Punjabi Taliban Asmatullah Muawiya had threatened openly in Lahore—and this was prominently reported in the Pakistani media – that there would be major terrorist incidents in India to avenge the hanging of Ajmal Kasab and Afzal Guru. Muawiya, incidentally, is a former commander of Jaish-e-Mohammed, to which Guru belonged.

As has been its trademark over the last nine years, the Manmohan Singh government has issued a strong statement over the latest Pakistan-based terrorist attack. But that is all. There will be no strong countermeasures against Pakistan at the ground level. In fact, Manmohan Singh has systematically de-hyphenated terrorism from diplomacy with Pakistan. As a result, without Pakistan’s commitment to deny the anti-India forces from using its territory and resources, Indian officials and ministers have been meeting their Pakistani counterparts. Our foreign minister on March 10 did everything possible to make the private visit of the Pakistani Prime Minster Raja Pervez Ashraf to Ajmer Sharif comfortable, despite the fact that the patriotic head priest there boycotted him for his failure to apprehend and punish those who had beheaded our soldiers recently. If there was any protocol involved, it should have been handled by some one of the ministers of state rank as is the normal practice to look after the personal needs of any head of the state or government coming on an official visit to India. But the Pakistani premier got a special treatment, that too during a private visit!

The Manmohan regime seems to believe that India’s “soft power” will deliver goods. But that is not exactly happening, particularly with almost all our neighbours. Sri Lanka has distanced itself from us. The tiny Maldives is literally threatening us. Nepal’s official establishment is overwhelmingly anti-India today. China continues to belittle us in every possible way. If there is going to be change in regime in Bangladesh, which seems most likely, we will have another neighbour, which, like Pakistan, will export Islamic fundamentalism to us. Of course, the present regime in Dhaka led by Awami League leader Sheikh Hasina has been sensitive to our security concerns. She has been really cooperative. That is why our government is keen to conclude the sharing of Teesta river water accord as well as bring about a constitutional amendment to facilitate the hitherto contentious territorial exchanges with Bangladesh.

While one understands the government’s urgency with regard to Bangladesh, the problem with Manmohan Singh’s working style is that he and his Cabinet colleagues do not believe in building national consensus by sharing all the facts with the opposition and public. If the issue is legitimising the exchanges of enclaves that will affect West Bengal only, then there is no need for any new Constitutional amendment, bill to which effect the government is going to introduce during the current session of Parliament; to take care of that we already have the 9th Constitutional Amendment already in place. Let me cite the brief history of the case.

As a result of the Radcliffe Award dated August 12, 1947, Berubari fell within West Bengal and was treated as such by the Constitution which came into force on January 26, 1950, and has since been governed on that basis. Pakistan raised the question of Berubari for the first time in 1952 alleging that under the Radcliffe Award it should form part of East Bengal and was wrongly included in West Bengal. On August 28, 1949, the Ruler of the State of Cooch-Behar entered into an agreement of merger with the Government of India and that Government took over the administration of Cooch-Behar which was ultimately merged with West Bengal on January 1, 1950, so as to form a part of it. It was found that certain areas which belonged to the State of Cooch- Behar became enclaves in Pakistan after the partition, and similarly certain Pakistan enclaves fell in India.

In order to remove the tension and conflict caused thereby the then Prime Ministers of India (Jawaharlal Nehru) and Pakistan (Feroz Khan Noon) entered into an agreement, called the Indo-Pakistan Agreement, on September 10, 1958, and items 3 and 10 of that Agreement provided for a division of Berubari Union half and half between India and Pakistan and for an exchange of Cooch-Behar Enclaves in Pakistan and Pakistan Enclaves in India. But, constitutional problems arose over its implementation.

The Indian Constitution, as promulgated in 1950, gives power only to acquire foreign territory and not to cede Indian territory to foreign powers. That is how French colony of Pondicherry, the Portuguese colony of Goa and Sikkim became parts of India. Of course, under Article 3 of the Constitution, the Parliament, by law, can change the boundaries of states (either expanding or diminishing the area). But, Article 3 merely deals with the internal arrangement of the territories of the States and does not deal with the Indian territory to foreign powers.

Accordingly, Nehru referred the matter to the Supreme Court in 1960 for advice. And the Supreme Court held that if any Indian territory has to be ceded to a foreign state then that would be done only by amending the constitution under Article 368. As a result, to implement the Nehru-Noon Accord, the Constitution 9th Amendment Act and Acquired Territories (Merger) Act were adopted in 1960. This legislation was challenged in the courts by a series of writ petitions which prevented the implementation of the Agreement. But, the Supreme Court decision on March 29, 1971, finally cleared the way for the implementation of the Agreement.

In 1974, the then Prime Minister Indira Gandhi and her Bangladesh counterpart Sheikh Mujibur Rehman (East Pakistan had become independent Bangladesh) further fine-tuned the Agreement as it was realised that if this exchange had gone through, it would have meant a change of nationality for the population or migration of the population from Dahagram and Angorpota (80 per cent Muslims) to India and South Berubari (90 per cent Hindus) to Bangladesh and consequent serious rehabilitation problems. There were in any case major agitations by the people of Berubari protesting against the transfer. After 1971, India proposed to Bangladesh that India may continue to retain the southern half of South Berubari and the adjacent enclaves and, in exchange, Dahagram and Angorpota may be retained by Bangladesh. As part of the package a strip of land would be leased in perpetuity by India to Bangladesh, giving her access to Dahagram & Angorpota in order to enable her to exercise sovereignty on these two enclaves.

This was accepted by Bangladesh as part of a carefully constructed Land Boundary Agreement signed by Prime Minister Indira Gandhi and Prime Minister Sheikh Mujibur Rahman in May 1974. It was agreed that 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.” However, the fact remains that it has not been exactly implemented, because of some further legal cases, even though they were cleared by the Supreme Court in 1990.

But, the latest agreement, decided on the basis of “protocol” that Manmohan Singh signed with Sheikh Hasina during his visit to Dhaka in 2011, will, if implemented, override all this and involve further territorial loss, including those outside West Bengal. That is the reason we need further amendments to our Constitution. Unfortunately, the government has not made this simple fact clearer; nor the mainstream Indian media has tried to bother to find this out. For my clarity on the subject, I had to go through the Bangladesh media. According to the Daily Star, Bangladesh’s largest English daily, the proposed Land Boundary Agreement (LBA) will address the outstanding issues that include (i) 6.5 km un-demarcated land boundary in three sectors viz, Daikhata-56 (West Bengal), Muhuri River-Belonia (Tripura) and Dumabari (Assam) (ii) enclaves and (iii) adverse possessions.

The un-demarcated boundaries in all three segments have already been demarcated and the two countries have already exchanged the strip maps. As per the LBA, 111 Indian and 51 Bangladeshi enclaves will be exchanged with a population of 37,334 and 14,215 respectively. Besides, some adversely possessed land along the India-Bangladesh border in West Bengal, Tripura, Meghalaya and Assam will also be exchanged. With the demarcation of the boundary as per the LBA, India will receive 2,777.038 acres of land from Bangladesh and transfer 2267.682 acres back to Bangladesh.

If this is the case as per the versions carried out in the Bangladesh media, why is our government not providing the same to us? Secondly, is the LBA acceptable to the people of Tripura, Assam, Meghalaya and West Bengal whose territories will be lost? One has already witnessed violent protests against this proposed Agreement in Assam and Meghalaya. Thirdly, is the LBA even acceptable to the Indian citizens living in the enclaves inside Bangladesh? Are they prepared to become Bangladesh citizens? And if they want to migrate to India, what guarantee is there that they will not be accompanied by a substantial number of illegal immigrants?

The country needs answers to these questions.

By Prakash Nanda


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