India - Bangladesh Relations Documents
Tin Bigha - A Proper Perspe
|1.||Tin Bigha corridor is the name of a strip of land measuring 178 mtrs x 85 mtrs. in the District of Cooch-Behar in West Bengal ( Please see the map at Annexure I ). In accordance with the Agreements signed in 1974 and 1982 with the Government of Bangladesh, Government of India would shortly lease in perpetuity the above strip of land to Givt. of Bangladesh under agreed terms and conditions. These, in particular, would fully ensure that India's sovereignty over the area and Indian nationals' right to access through the corridor remain intact.|
|2.||The importance of the Tin Bigha question involves much more than leasing of a particular piece of land. Its resolution symbolises, above all, the will of the people of India and Bangladesh to live together in amity and good neighbourliness. The leasing reflects the shared resolve of the two Governments to eliminate a long-standing and major irritant in bilateral relations, thus setting the stage to bring about a mutually beneficial upgradation of Indo-Bangladesh relations.|
|3.||The tin Bigha question has a long and complex background. For a proper appreciation, one needs to go back to the Radcliffe Award, the Berubari dispute and the legal developments that follwoed.|
|I. Radcliffe Award||4.||
East Pakistan (after 1971 Bangladesh) was created by dividing the Province of Bengal and by adding to the part separated from India some areas of Assam. This division took place on the basis of the report of the Bengal Boundary Commission, known as the Radcliffe Award. The terms of reference of the Boundary Commission were as follows:
" The Boundary Commission is instructed to demarcate the boundaries of the two parts of Bengal on the basis of ascertaining the contiguous areas of Muslims and non-Muslims. In doing so, it will take into account other factors."
|5.||"Other factors" were taken into account, because as the Radcliffe Award, inter alia, said "The province offers few, if any, satisfactory natural boundaries, and its development has been on lines that do not well accord with a division by contiguous majority areas of Muslims and non-Muslims majorities", In the first few months after the Radcliffe Award, disputes of interpretation arose. These disputes were not resolved till the Indo-Pakistan Agreement of September 10, 1958, (the Nehru-Noon Agreement). Because these disputes, originally arising out of the anomalies in the Radcliffe Award, were not settled for such a long time, tension continued and new disputes arose.|
|II. The Berubari Dispute||6.||The Berubari dispute was one such, arising from an ommission in the written text of the Radcliffe Award and erroneous depiction on the map annexed therewith. Radcliffe had divided the district of Jalpaiguri between India and Pakistan by awarding some thanas to one country and others to the other country. The boundary line was determined on the basis of the boundaries of the thanas. In describing this boundary, Radcliffe omitted to mention one thana. Berubari Union No. 12 lies within Jalpaiguri thana which was awarded to India. However, the ommission of the thana Boda and the errorneous depiction on the map referred to above, enabled Pakistan to claim that a part of Berubari belonged to it.|
|7.||The dispute was resolved by the Nehru-Noon Agreement of 1958 whereby half of Berubari Union No. 12 was to be given to Pakistan and the other half adjacent to India was to be retained by India. In addition, four Cooch Behar enclaves contiguous of this part would also have gone to Pakistan. To implement this Agreement, 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 proddted the implementation of the Agreement. The Supreme Court decision on March 29, 1971, finally cleared the way for the implementation of the Agreement. This, however, could not be done because of the Pakistani Army crackdown in East Pakistan and the subsequent events which led to the emergence of Bangladesh as an independent country.|
|8.||The total area of South Berubari Union No. 12 is 22.58 sq. kms. of which 11.29 kms. was to go to Bangladesh. The area of the four Cooch Behar enclaves which would also have to go to Bangladesh was 6.84 sq. kms. making the total area to be transferred 18.13 sq. kms. The population of the area including the four enclaves to be transferred, as per 1967 data, was 90% Hindu. The Bangladesh enclaves, Dahagram and Angorpota, were to be transferred to India. Their total area was 18.68 sq. kms. and as per 1967 data more than 80% of their population was Muslim. 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 and South Berubari Union No. 12 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 Union No. 12 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. The Berubari dispute was thus finally resolved by Article 1.14 of the Agreement which stated:
"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 th Dahagram and Angorpota 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."
|10.||The Government of Bangladesh ratified the Agreement in November 1974. Subsequently, protracted negotiations were held between the two countries to finalise the terms of the lease of the Tin Bigha corridor. The terms of the lease in perpetuity of the Tin Bigha corridor were eventually agreed upon through an Exchange of Letters on October 7, 1982 between Shri P. V. Narasimha Rao, the then Foreign Minister of India and Mr. A. R. Shams-ud-Doha, the then Foreign Minister of Bangladesh (Annexure II).|
|III. The Legal History||11.||The opposition to the 1974 and 1982 Agreements came from the people of Kuchlibari. Dhaprahat and Mekhliganj. Two organisations to spearhead the agitation, the Kuchlibari Sangram Committee and the Tin Bigha Sangram Committee were formed. In March 1983, the agitators took recourse as the judicial system. Three writ petitions challenging the 1982 Lease Agreement on various constitutional grounds were filed in the Calcutta High Court by some persons including the owner of a plot of land which would have to be acquired for being leased to Bangladesh. The main arguments adduced by the petitions were : (i) the 1974 Land Boundary Agreement and subsequent Tin Bigha Lease Agreement were inconsistent with the 1958 Nehru-Noon Agreement; (ii) since the lease was in perpetuity, it amounted to cession of Indian territory and (iii) the provisions of the Lease Agreement resulted in a dilution of India's sovereignty over the leased area.|
The court delivered its judgement on 1 September 1983 in which it disallowed all three petitions. The judge held that :
|13.||Following this judgment, the Government of West Bengal commenced acquisition of land for the corridor consisting of 16 private plots totalling approximately 3.17 acres for the corridor by issuing a gazette notification on 6 August, 1984 under the Land Acquisition Act, 1984.|
|14.||Not satisfied with the earlier judgment, the Kuchlibari Sangram Parishad filed an appeal on 12 April, 1984 before a Division Bench of the Calcutta High Court. In their appeal, the petitioners (i) reiterated that the 1974 and 1982 Agreements were inconsistent with the 1958 Nehru-Noon Agreement; (ii) stated that the 1974 Agreement could not be implemented unless it had been suitably ratified and (iii) that India would not have jurisdiction over Bangladesh nationals in respect of crimes committed in the leased area which would amount to a dillution of Indian Sovereignty over the corridor. The petitioners questioned the judge's interpretation of the term "lease in perpetuity". Lastly, the petitioners argued that the Tin Bigha corridor converted the Kuchlibari area into an enclave inside Bangladesh and prevented its residents from exercising their constitutionally guaranteed right to move freely throughout the territory of India.|
|15.||Due to the importance of the case, the Attorney General personally appeared on behalf of the Government of India. The Division Bench pronounced their judgment in the appeal case on 19 September 1986, which broadly upheld the earlier judgment of the Calcutta High Court. The 1974 and 1982 Agreements were upheld as being valid. No cession of Indian territory was seen to be involved. The Bench maintained that as a result of these Agreements it could not be said that India had surrendered its sovereignty over Tin Bigha as there was a clause in the 1982 Agreement that sovereignty over Tin Bigha would continue to vest in India. Residual jurisdiction was also to remain with India. However, the Division Bench added that before implementing the 1974 and 1982 agreements the Union of india was directed :
(a) "to amend the Constitution of India suitably so that the Berubari Union is not transferred to Bangladesh along with the other territories as contemplated by the 9th Amendment of the Constitution. The Agreements of 1974 and 1982 are directed to be suitably noted or recorded in the relevent schedules to the Constitution authorising the transfer of the territories to Bangladesh and not to Pakistan;
(b) to take steps for acquisition and acquire the land owned by Indian citizens in the said area in accordance with the law;
(c) to consider and effect suitable amendment of Indian law and, in particular, the Indian Penal Code as presently applicable in the said area of Tin Bigha".
|IV. The Supreme Court Judgment||16.||On 18 December 1986 Government of India filed a Special Leave Petition in the Supreme Court against the directions given to the Union of India by the Calcutta High Court as these were extraneous to the points of appeal of the petitioners. The Special Leave Petition was admitted by the Supreme Court in October 1987. The Supreme Court delivered its judgment in May 1990. It had considered the entire gamut of issues raised by the opponents of the Tin Bigha lease. The Supreme Court judgment was categorical that the Lease should be implemented fully (Extracts at Annexure III)|
|17.||The main points of the Supreme Court's judgment were as follows:
(a) It certified that, as stipulated in the 1982 Lease Agreement, sovereignty over the Tin Bigha corridor would continue to vest in India and that Bangladesh would merely have "undisturbed possession" and "use" for the express purpose of connecting Dahagram with Panbari Mouza of Bangladesh in order to exercise sovereignty over Dahagram and Angorpota and for no other purpose.
(b) The implementation of the 1974 and 1982 Agreements is not dependent on steps beign taken to amend Indian Laws.
(c) The implementation of the 1982 Agreement was not dependent on the ratification of the 1974 Agreement.
(d) " ... This was really a fight over the non-issue ... without the change in the law or change in the Constitution, the Agreements should have been implemented fully and we hope that all will be done for the restoration of the friendly relations between India adn Bangladesh".
|18.||Subsequently, in November 1991, a case challenging the acquisition of land for the corridor filed in the Calcutta High Court under the West Bengal Land/Acquisition Act, was dismissed by the Court.|
|19.||The decks have thus been cleared for leasing Tin Bigha to Bangladesh. The opponents of the Lease have had the opportunity of expressing their views in all courts of the land for several years without let or hindrance but their arguments have not been able to stand up to scrutiny. The verdict of the Supreme Court, the highest court of the land, is now morally and legally binding on all. Yet, some opposition continues. What are their arguments?|
|V. The Opposition's Case||20.||The Opposition's case rests on the following propositions :
(i) The lease of Tin Bigha amounts to a surrender of sovereignty to Bangladesh, the main outcome of which would be that Kuchlibari will become an enclave thus forcing its residents to migrate from there to India.
(ii) The historic and legal right to unfettered movement by Indian nationals from and to Kuchlibari would be affected by the lease.
(iii) The leased area will become a conduit for large scale illegal migration of Bangladeshis into India.
(iv) The lease could lead to the encroachment of Indian territory by Bangladeshis and result in major law and order problems arising from clashes between nationals of two countries, decoitis, cattle theft, etc.
(v) Bangladesh will be able to transport military personnel, equipment and ammunition into Dahagram and Angarpota, thus endangering the security interests of the region.
|21.||The opponents of the lease have offered three alternatives to resolve the issue:
(i) Exchange of all enclaves between India and Bangladesh. India would not only keep South Berubari but also Dahagram and Angarpota and in exchange, a piece of continguous to Bangladesh may be given to Bangladesh as compensation. This would automatically obviate the need for a corridor.
(ii) Bangladesh may be asked to construct a flyover above the Tin Bigha corridor to connect Dahagram and Angoapota with the Bangladesh mainland or connect Dahagram and Angarpota with Bangladesh through a bridge over the river Teesta.
(iii) India may enter into a new treaty with Bangladesh to resolve this and other outstanding issues relating to the land boundary.
|VI. Government's Stand||22.||The Government of India are fully alive to these and other concerns and apprehensions. While many of them are misplaced and based upon incomplete facts, Government are committed to take all necessary steps for the protection of our national interests.|
|23.||On the question of sovereignty, all courts to whom this matter was referred have been unanimous in the view that there is no dilution of sovereignty. The Supreme Court has been the most emphatic on this point. It has stated that the lease in perpetuity has to be understood in the context of and with reference to the objects of the Agreements concerned. It has stated that no right to administer Tin Bigha has been given to Bangladesh nor had it been given the right to occupy parmanently the area or to construct buildings and fortifications therein or to lay railway lines through the area. The Agreements gave Bangladesh only specific and limited rights. The Supreme Court concluded that the Agreements did not amount to the lease or surrender of Sovereignty as understood in international law. This view accords with the view of the Government of India, and it is in this light that the Tin Bigha lease is being put into effect.|
|24.||The Government of India will ensure that the historic and legal right to movement by Indians remain unaffected. The question of Kuchlibari turning into an enclave thus does not arise.|
|25.||The question of illegal migration and law and order problems is a matter of high priority for the Government not only in Tin Bigha area but throughout the Indo-Bangladesh border. Steps to control and eliminate these problems are being taken on a continuous basis. Where necessary, special security measures will be taken for Tin Bigha. It is, however, worth nothing that the nature and volume of traffic across the corridor will only be in relation to the small population and the area of Dahagram and Angarpota.|
|26.||On the question of transport of military personnel and equipment by Bangladesh to Dahagram & Angarpota, this is covered by the 1982 Lease Agreement. The Government will certainly ensure that the interests of India and its citizens in this area are fully protected. This intention has been clearly indicated to and accepted by Bangladesh.|
|27.||No "alternative solutions" to the Tin Bigha lease are feasible. The 1974 and 1982 Agreements are international commitments undertaken by India at the highest level and cannot be reneged upon. To do so would damage India's credibility and not justifiable in international law. These agreements finely balance India's interests on the entire boundary. They resolved the vexatious Berubari dispute. They have been approved by the highest court of the land. Any change in them would mean the reopening of all the old and settled boundary issues. Dahagram and Angarpota cannot be a part of the overall exchange of enclaves since Article 1.12, of the 1974 Agreement specifically makes an exception to this.|
|28.||In this context, it may be underlined that the Government is committeed to the early implementation of the 1974 Agreement. It is through the full implementation of the provisions of this Agreement that the exchange of enclaves and other matters relating to the land boundary, will be finally resolved. An important aspect of this issue is the long-delayed demarcation of the Indo-Bangladesh land boundary. All efforts are now being made to expedite the demarcation process and the ratification of the 1974 Agreement by India.|
|29.||The suggestion that a contiguous piece of land of equal area be instead given to Bangladesh is fraught with risks and uncertainties. Will the local population of that agree to a change in their nationality? Or will there be large scale migration to India?|
|30.||Possibilities of having a flyover for Bangladesh across the corridor or construction of a bridge over the river Teesta to connect Dahagram and Angarpota with Bangladesh mainland have already been studied in detail by the Government. These were found to be neither practical nor in the interest of the country.|
|VII. Safeguard Measures||31.||Having taken into account the views of the local populace, the Indian Government have independently decided on a number of measures to enhance security in the Tin Bigha area and to promote development in Kuchlibari, thus underlining its continued commitment to better the lot of the people of this integral part of India. The package of measures to be taken by the Government includes the following:
(i) A number of development schemes of Kuchlibari which includes the construction of a pucca bridge, roads, primary health centre and other infrastructural facilities;
(ii) Introduction of a system of identity cards for Indian nationals in Kuchlibari and adjoining areas;
(iii) Strengthened security arrangements where necessary.
|VIII. Modalities||32.||The modalities for the implementation of the 1982 Lease Agreement have been worked out after discussions with the Government of Bangladesh. These were formalised through an Exchange of Letters between the Governments of India and Bangladesh in New Delhi on 26th March, 1992. A copy of the Letters exchanged is at Annexure IV.|
|33.||A Copy of the suo moto statement made by the External Affairs Minister in the Lok Sabha on 26th March, 1992 is at Annexure V .|
|34.||The Government of Bangladesh fully recognises India's Sovereignty over the Tin Bigha corridor. Significantly, the Indian flag will fly at the four corners of the corridor. The existing road which is beign used by Indian nationals to cross the corridor will continue to be used as heretofore. As regards the movement of Bangladesh traffic, a process of regulation of such movement has been worked out and it will normally have access through the corridor at alternate hours during the daylight period. The modalities imply that our checkposts on either of the corridor will always remain informed of Bangladesh traffic including movement of military personnel. To regulate the flow of traffic and to diminish the possibilities of avoidable friction or untoward incidents, appropriate measures will be adopted so as to avoid intermingling of the nationals or the traffic of the two countries. Concerning the question of dealing with offences in the corridor, existing arrangements will continue.|
|IX. Conclusion||35.||In putting into effect the Tin Bigha lease, India is fulfilling an international commitment. This obligation stands on its own merit.|
|36.||The lease is being implemented after all due processes of law have been completed in India. The Government of India have been in close touch with the West bengal Government at every stage. Leaders of a number of political parties have been consulted, their views have been taken into account and they have been assured that the lease will not harm India's interests. The Government of India are confident that the steps taken by it for the implementation of the lease will dispel all lingering doubts and misgivings and that it will receive the unstinted cooperation of all concerned.|
|37.||Given time and goodwill, Tin Bigha corridor which has unfortunately generated much controversy and tension in the past, will turn into a veritable crossroads of Friendship and Harmony between India and Bangladesh.|