Environmental lawyer specializing in trans-boundary water and land disputes in South Asia
Advisory member, BRIEF
The partitioning of India in 1947 and its aftermath changed the South Asian sub-continent forever. Amongst the worst implications of the partition was the hastily drawn up border (Radcliffe line) as a result of the Award by the Radcliffe Border Commission that represented views of two distinct Boundary Commissions set up by the Raj. The Border Commission was chaired by Sir Cyril Radcliffe and its objective was to look into the division of Punjab in the west and Bengal in the east. Mr. Radcliffe, the top man on the job, a brilliant legal mind but with no experience of drawing international borders and someone who has never been to India before, had accomplished the task nearly in less than five weeks. It’s not easy to dwell into the details of the factors that led Mr. Radcliffe into drawing a boundary line that resulted in loss of more than a million lives, nearly half a dozen wars, seemingly a never ending hostility with Pakistan and more than six decades of sufferings of people living on the eastern part of the Radcliffe line which became the India-Bangladesh border after a new nation of Bangladesh was carved out in 1971.
A rare display of unanimity to undo historical blunder is instructive
The Land Boundary Agreement (LBA) seeks to undo the historical blunder of hastily drawn borderline and marks the new beginning, not only in the Indo-Bangladesh bilateral relations but in the South Asian neighbourhood diplomacy wherein the political will to reach an amicable solution and the modus operandi put in place by both the countries to achieve this objective is instructive for settling land boundary disputes with other neighbouring countries in South Asia such as China and Pakistan. From the Indian perspective more significant is the fact that the Bill requiring Constitutional Amendment to give effect to the LBA was unanimously passed even by the upper house of the Indian Parliament (Rajya Sabha) where the ruling Modi Government is in minority. Also the passing of the Bill was perhaps a rare occasion in year long tenure of BJP government where it acknowledged and credited the previous UPA government for putting the tremendous hard work in preparing the ground for the realization of the LBA. This signals India’s strong political will and support to the border issue across political groups and party lines and thus provides greater legal and political gravitas to the LB Agreement. The LBA undoubtedly is ‘a win win situation for both the countries’ and paves the way for creating immense opportunities for trade, movement of goods and people and strengthening of peaceful relations between India and Bangladesh.
The Legal Framework for the settlement of Indo-Bangladesh boundary
The framework for the comprehensive settlement of land boundary between India and Bangladesh comprises of the original Agreement Concerning the Demarcation of the Land Boundary between India and Bangladesh and Related Matters (1974 LBA), the Protocol to the LBA (2011, Protocol), the letters exchanged by both the governments on the issue of giving effect to lease in perpetuity of Panbari Mauja in 1992 and then in 1996 and the 119th Constitutional Amendment Bill, 2015 passed by the Indian Parliament on 5th May, 2015.
The original 1974 LBA provided meticulous guidelines for the delineation and clear demarcation of boundary and related matters. More importantly, it established the intent of both the countries to resolve the boundary issue guided by the spirit of friendly relations. However, three outstanding issues pertaining to i) an un-demarcated land boundary of approximately 6.1 km, ii) exchange of enclaves and iii) adverse possessions remained unsettled.
The 2011 Protocol to the 1974 LBA comprehensively addresses these outstanding issues and converts de facto reality into a de jure situation. The Protocol is in favour of realigning the boundary to maintain status quo in respect of territories in adverse possession. Keeping in view that the legal accords between the two countries must not result in large scale uprooting and displacement of people, the 2011 Protocol makes a slight departure from the 1974 LBA in seeking to maintain the status quo of adverse possessions instead of exchange of territories in deference confirming to the wishes of the people to remain in their land.
Exchange and transfer: the effect on the ground
The implementation of the 2011 Protocol required Constitutional amendment with respect to the exchange of enclaves and drawing of boundaries (with consent from states) to maintain status quo with respect to adverse possession in accordance with the Article 368 of the Constitution of India Act, 1950. It is important to understand here that enclaves are non contiguous territories of a country over which it exercises sovereignty under international law where access and transportation to and through them is restricted or regulated. Thus, as per the Protocol, in effect, India will transfer 111 enclaves to Bangladesh in return of 51 enclaves which is a notional exchange of land as in actual reality these enclaves are deep inside the territories of each countries and have always remained inaccessible to India and Bangladesh, thus depriving people living there the benefits of citizenship of either country. With respect to adverse possession, the implementation of the Protocol will result in transfer of land by both the countries. The procedural formalities to give to effect to the LBA on the ground will follow. The remarkable feature of this scheme is that in both the cases of transfer of enclaves and transfer of land in adverse possession, the 2011 Protocol will allow people living in the adversely possessed areas to remain in the land to which they have deep-rooted ties, sentimental and religious attachments.
Unlocking the full potential
The LBA has been widely welcomed by both the countries, especially by those who will be positively impacted by its implementation. A settled boundary will help India and Bangladesh to involve their energies in consolidating efforts for enhancing mutually beneficial exchanges, including concerns on security. This will eventually lead to unlocking the full potential for mutually beneficial bilateral cooperation by way of trade, transit and development.