Context:
India and Bangladesh have a land boundary of approximately 4,100 km. This boundary was determined by the 1947 Radcliffe Award as the India-East Pakistan land boundary, but disputes quickly arose regarding certain aspects. On 6 June 2015, the 1974 India Bangladesh Land Boundary Agreement entered into force, following the exchange of instruments of ratification. More than 5 years after the historic Land Boundary Agreement (LBA) between India and Bangladesh, a report released by civil rights organisations on the situation in erstwhile enclave’s states that protest and resistance have become an essential part of their survival in India.
Crux of the matter
- When India became independent, Sir Radcliffe demarcated the boundary between India and Pakistan as well as India and East Pakistan (now Bangladesh).
- While dividing the territory in East Pakistan, Radcliffe did not pay attention to small patches of land called ‘enclaves’. These enclaves were, in the pre independence era, called Chitmahals and they were used by the Raja of Cooch Behar and Maharaja of Rangpur as stakes in the game of chess.
Efforts made to resolve issue
- The Nehru–Noon agreement resolved this issue – Efforts were made by Nehru in 1958 to divide the territories through an agreement with Feroz Khan Noon. As per the agreement, India got the enclave of Dahagram and Angarpota while half of Berubari enclave was to be given to East Pakistan.
- To give effect to the Nehru–Noon agreement 1958, an amendment under article 368 of Indian constitution was made under the 9th Amendment Act of 1960. When Bangladesh was created in 1971, Indira Gandhi decided to resolve the pending disputes with Mujibur Rehman.
Land Boundary Agreement
- Following the independence of Bangladesh, India and Bangladesh signed the 1974 Land Boundary Agreement (“1974 LBA“), in an effort to resolve outstanding issues.
- In 1974, a Land Boundary Agreement (LBA) was designed which clarified the need to exchange 111 Indian enclaves in Bangladesh and 51 Bangladeshi enclaves in India. In these enclaves, citizens were living with no available rights and facilities.
- The agreement was signed but was not ratified by India and thereby the exchange under the LBA could not proceed successfully.
- The 1974 LBA was amended in 2011 by an additional Protocol (“2011 Protocol“, together with the 1974 LBA, the “Land Boundary Agreement“).
Implementation of Land Boundary Agreement
As the implementation of the Land Boundary Agreement involved the acquisition and cessation of territory by India, its ratification by India required an amendment to the Constitution. This was affected by the Constitution (One Hundredth Amendment) Act 2015.
Thus, the 2015 LBA implements the unresolved issues, which were first addressed in the 2011 Protocol. It is important to note that in the land swap, Bangladesh gained more territory than India did.
The Land Boundary Agreement entered into force on 6 June 2015. Implementation of the Land Boundary Agreement deals with three outstanding border issues, relating to:
(i) Adverse possessions;
(ii) Enclaves; and
(iii) An undemarcated land boundary of approximately 6.1 km.
Adverse possessions
- Adverse possessions are territories contiguous to the border of one country and within the control of that country, but legally part of the bordering country (e.g. contiguous to India’s border and within Indian control, but legally part of Bangladesh). Residents of these adverse possessions were considered to be citizens of the country in adverse possession, despite the territory being legally part of the bordering country.
- The 1974 LBA called for these adverse possessions to be exchanged. However, both India and Bangladesh agreed in the 2011 Protocol to redraw the international boundary to recognise the status quo.
- It was recognized that the people living in territories in adverse possession had strong ties to their land and were unwilling to be uprooted. The 2011 Protocol also recognised that the areas of adverse possession which the 1974 LBA called to be transferred were, in reality, within the de facto possession of the country in adverse possession.
- In this regard, the 2011 Protocol was merely the legal (de jure) recognition of this fact by both India and Bangladesh.
Enclaves
- An enclave is a territory of one State which is surrounded completely by the territory of another State (for example, West Berlin before the reunification of Germany). The enclaves on the India-Bangladesh border were hundreds of years old, but remained unsettled following the independence of India and East Pakistan.
- Because the enclaves were physically cut-off from the “home” State, the inhabitants of the enclaves, while citizens of the “home” State, suffered from a lack of access to basic State services, such as electricity, health services and schooling. Under the terms of the Land Boundary Agreement, India transferred 111 enclaves to Bangladesh and Bangladesh transferred 51 enclaves to India. The inhabitants of the enclaves were given the right to remain on the territories as nationals of the State to which the territories were transferred.
- As with the territories on adverse possession, the transfer of the enclaves is legal (de jure) recognition by both India and Bangladesh of the de facto situation on the ground.
Demarcation of 6.1 km land boundary
- The Land Boundary Agreement also demarcated the boundary between India and Bangladesh in three sectors (in the Indian states of West Bengal, Tripura and Assam), totalling 6.1 km.
Importance of this agreement
- Boundary disputes (whether relating to land or maritime boundaries) between neighbouring territories can cause significant risk and difficulties for companies looking to operate or invest in the disputed areas.
- In the energy sector in particular, boundary uncertainties have the potential to curb exploration or to create uncertainty in ownership of oil or gas.
- They also introduce risk to those who seek to invest in other sectors (for example, infrastructure, construction and telecommunications), which is particularly significant where the dispute itself may have led to under-development of essential services.
- The implementation of the Land Boundary Agreement has paved the way for significant cross-border investment by Indian investors in Bangladesh and will offer increased opportunities for foreign investment from further afield.
- In the energy sector, the two countries have indicated that an annual India-Bangladesh Energy Dialogue will be introduced between energy Ministers from both countries. The dialogue will undertake comprehensive energy sector cooperation including in areas of coal, natural gas, LNG, supply of petroleum products in the sub-region, renewable energy and oil and gas pipeline.
What’s the issue now?
- The situation has not improved. There are marked continuities in the problems that existed in the pre-LBA years, although the nature and context of the problems have perceptibly changed.
- On India’s part, the spotlight has now shifted from the identity crisis faced by erstwhile enclave dwellers in the pre-LBA situation, to issues of poor governance, as well as conflict of interest between the Centre and the state in the post-LBA years.
- The intractable discord regarding the implementation of the measures as promised to the new citizens, coupled with lack of coordination between the Centre and the state in India, has apparently transformed the enclaves into hotbeds of local politics.
