Land Boundary Agreements and the Constitution – I: The Bangladesh Land Swap

(This is a guest post by Manish, who is a legal researcher based in Ahmedabad, and a regular contributor to this blog)

The one hundredth Amendment to the Constitution, passed by the Rajya Sabha on May 6 and the Lok Sabha on May 7, is not merely a statistical milestone, but an event of immense political and diplomatic significance. The Constitution (100th Amendment) Act, 2015 (“the Act”) may well bring to an end one of India’s longest-running boundary disputes that has spanned seven decades and two countries. This post discusses the Constitutional complications that compounded this dispute, and how the passage of the Act resolves them.

The Act makes changes to the significant, but rarely discussed, opening provisions of the Constitution: Part I and the First Schedule, which deal with the Union and its territory. A brief overview of these provisions will be in order before delving into the story behind the Act. Article 1 declares India to be a Union of states, and defines its territories to include the States and Union Territories, as described in the First Schedule, as well as “such other territories as may be acquired”. Article 2 empowers Parliament to admit into the Union, or establish, by law, any new States on such terms and conditions as it thinks fit. Article 3 gives Parliament legislative power to create new States and Union Territories, or alter the boundaries of existing ones. Article 4 provides that no law made under Articles 2 or 3 shall be deemed to be a Constitutional Amendment, thereby simplifying the procedure for the Union Government to carry out this process.

The story of the Act is intricately tied to the story of India itself. After the Partition of British India in 1947, India and East Pakistan were at one point separated by the then princely state of Cooch Behar, which, on account of a number of historical factors, had enclaves located in both countries. The accession of Cooch Behar to India in 1949 led to a situation where Indian enclaves were located in East Pakistan, and vice-versa, with some complicated second and third order enclaves as well (the details of these enclaves, with maps, are explained in this thesis). A series of attempts to resolve some of these issues by demarcating a common boundary in certain parts and exchanging some enclaves, culminated in the signing of the Nehru-Noon Agreement between the Prime Ministers of both countries in 1958.The operationalisation of the Nehru-Noon agreement presented the first significant Constitutional challenge to the resolution of the boundary dispute. The agreement envisaged, inter alia, the transfer of four enclaves of Cooch Behar to Pakistan, along with the southern half of a territory called the Berubari Union, hitherto part of the Jalpaiguri district of West Bengal. Parliament attempted to do this by exercising its power under Article 3 of the Constitution, enacting the Acquired Territories (Merger) Bill, 1958. Under the proviso to Article 3, the Bill was referred to the legislature of West Bengal for its opinion. Here it ran into trouble, with the Assembly passing a unanimous resolution rejecting the Bill and opposing the proposed ceding of Berubari and the other territories. Under these circumstances, the President, in exercise of his powers under Article 143, referred the matter to the Supreme Court for its opinion.

The three questions to be considered by the Court were as follows:

(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 ?

In its judgment delivered in Re: Berubari and the Exchange of Enclaves (AIR 1960 SC 845), the Constitution Bench unanimously answered the reference with the opinion that legislative action was necessary for implementation of the agreement, and a Constitutional Amendment would be required to implement the provisions relating to both the Berubari Union as well as the exchange of enclaves.

Re: Berubari was an unusual reference in the manner in which it was decided. The Court examined questions of fact and did not restrict its opinion to a question of law, and also adjudicated upon hypothetical questions (both of which, in later references, it declined to do). While the primary reasoning behind the Court’s decision lay in the words and scheme of Part I of the Constitution, there were several related aspects and Constitutional provisions that were considered.

The Court decided that the answer to the first question, of whether legislative action was required to implement the agreement, would turn on whether the agreement involved an actual transfer of territory, or was merely an interpretation of a pre-determined boundary (in this case, the Radcliffe Line).  To do this, it examined the historical background and factual aspects of the agreement, including maps, documents and deliberations of the Radcliffe commission. It eventually concluded that the agreement did involve a factual transfer of territory, specifically a cession of territory by India in favour of Pakistan. Consequently, its implementation would alter the boundaries of the state of West Bengal, as defined in the First Schedule, thereby requiring legislative action for its implementation.

The answer to the second and third questions was more closely connected to the interpretation of Part I, specifically Article 3. Extreme rival submissions were advanced on the one hand by the Union of India, which argued that Article 3(c) permitted the reduction of a State’s territory by ordinary legislative action and consequently, cession of the same to another country; and on the other hand, by the State of West Bengal, which argued that cession was not permissible under the Constitution at all. The Court declined to accept either extreme submission, concluding that while the scheme of Article 3, and Part I in general, only envisaged acquisition of territory by the Union and not its cession; it was possible, as a sovereign power, for the Union to cede territory. However, the Court held, since cession was not permitted under Part I, any amendment to the First Schedule as a result of the cession of territory would not be saved by Article 4. Therefore, an amendment to the First Schedule involving cession of territory would not be possible by ordinary legislation under Article 3, but only through an Amendment to the Constitution under Article 368. (The court also hypothetically opined that it would be possible for Parliament to amend Article 3 itself to expand its ambit to include cases of cession of territory.) Since the agreement in respect of both the Berubari Union and the exchange of enclaves involved cession of territory, the Court opined that the same would be possible only through an Amendment to the Constitution. Pursuant to the judgment, Parliament passed the Constitution (9th Amendment) Act, 1960, amending the First Schedule and paving the way for the implementation of the Nehru-Noon agreement and settling the border dispute in respect of some of the enclaves. However, it could not be implemented in its entirety.

East Pakistan was eventually liberated as Bangladesh in 1971, and three years later another, comprehensive agreement was signed between India and Bangladesh, covering the remaining aspects of the land boundary dispute. This came to be known as the Indo-Bangladesh Land Boundary Agreement of 1974, which envisaged a final boundary demarcation and exchange of enclaves involving a further cession of about 17,160 acres of land to Bangladesh and acquisition of about 7,110 acres by India. As a result of the judgment in Re: Berubari, and the fact that Article 3 remained unamended, Parliament was required to pass a Constitutional Amendment to the First Schedule to implement the 1974 agreement. Due to a variety of historical and political factors, this Amendment was never passed. In 2011, the two countries signed a Protocol to the 1974 Agreement, committing to implementing the exchange of enclaves and also lands which were in adverse possession on both sides of the border. A useful resource in this regard is this booklet compiled by the Ministry of External Affairs, containing the text of the 1974 Agreement, as well as the revisions brought about by the 2011 Protocol and the processes that went into creating it.

The Act brings into operation the 1974 Agreement, along with the 2011 Protocol. The main provision is Section 3, which alters provisions of the First Schedule in respect of the states of West Bengal, Assam, Meghalaya and Tripura, overriding the amendments made in 1960 and bringing them into consonance with the 1974 Agreement and the 2011 Protocol. Thus, after a process spanning nearly six decades, India’s longest border (4,096 km) will finally have legal clarity and Constitutional recognition.

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5 Comments

Filed under Sovereignty, Territory

5 responses to “Land Boundary Agreements and the Constitution – I: The Bangladesh Land Swap

  1. Was the 9th Constitution Amednemnt Act 1960 ratified by half the state legislatures? Why is the 100th CAB required to be ratified by state legislatures? is it only the affected states or half of the states?

  2. manishccg

    Neither the 9th nor the 100th Amendment require ratification of any state legislature.

    Article 368 of the Constitution requires ratification by half the States for amendments to certain parts of the Constitution, listed under sub-section (2). Amendments to Part I or the First Schedule are not included in this list.

    Article 3 requires changes to the territory of a State to be referred to the Legislature of that State for its opinion (which is not binding on Parliament). As the Court clarified in Re: Berubari, amendments involving cession of territory are not covered under Article 3 (see para 52 of the judgment, as linked in the article).

    Therefore, under both Article 3 and Article 368, the question of referring either the 9th or the 100th amendment to the State legislatures for ratification does not arise.

    • I am sorry but isn’t the ‘list’ of items requiring amendment under 368 (not by half the states, just special majority in Parliament) not exhaustive. In that case, amendments to the 1st schedule are and should be part of 368? I just check the text of the LBA Act and it does in fact amend 1st schedule (it is after all changing area of the states listed therein).

      Could you please clarify.

      • manishccg

        The answer to your question lies in Article 4(2) which provides that any law amending the First Schedule for altering the boundaries of a state, shall not be deemed to be an amendment under Article 368.

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