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India-Bangladesh Land Boundary Agreement, Constitution 100th Amendment Bill, 2015

With the purpose of giving effect to the Land Boundary Agreement, 1974 signed between the Government of Republic of India and The Government of People's Republic of Bangladesh and the Protocol to the agreement signed between the Prime Ministers of the two countries in 2011, the documents which hold historical significance in the history of both the countries, inked between both the countries aspiring to put an end to the decade-old pending issues concerning the demarcation of the Land Boundary between the two countries that perhaps has been in concern dates back to the Partition of India and Pakistan,1947 or even if perused comprehensively through a magnifying glass then can be attributed to the local legend when the two Kings of the Princely States lost their territories at stake in a chess-game without ascertaining their boundaries, the Constitution 100thAmendment Act 2015 has been passed in the Parliament of India on 7-May-2015, approved by the President of India on 28thMay 2015 and ratified on 6-June-2015 in order to grapple with three cardinal issues namely, the un-demarcated segments, exchange of Enclaves and Adverse Possessions that settled the boundary disputes permanently. It has paved the way for effective cross-border co-operation. This also helps in security concern, including security co-operation and denial of Sanctuary to elements inimical to India.

In the words of Mr. Narendra Modi, Prime Minister of India, "We have shown Political Consolidation and goodwill with the signing of this deal".

Need for Passing this Amendment:
The hasty partition of the sub-continent depicts relics of lacunae in the form of unresolved fate of hundreds of enclaves and Adverse Possessions of both the countries. No Constitutional Amendment is required for a resolution of the un-demarcated segments of the land boundary by an agreement as this is within the competence of the Executive-wing of the Government. However, the issue of exchange of enclaves and adverse possessions involves transfer of territories from one state to another and therefore requires a constitutional amendment. Following are the grounds that befell the passing of the said amendment:

1.Un-demarcated Segments:

Owing to various grounds such as erroneous depiction of some areas (Berubari Union No. 12) on the Map on the one hand and omission in the written text of Radcliffe line (Thana Boda) on the other, differences of opinion in the interpretation of Land Boundary Agreement 1974, lack of clarity on the boundaries of two countries caused tensions and disrupted the lives of people in these areas which somewhere made them to subject to an angst situation.

2.Enclaves:
The inhabitants of the enclaves could not enjoy legal rights of their country along with poor infrastructure facilities such as electricity, schools and health services. Besides this, due to poor access to these areas of law and order enforcing agencies and weak-property rights, certain enclaves became the hubs of criminal activities which wreaked havoc on the lives of people residing in the areas involved who are "as deserving to enjoy the Civil Rights and Liberties with 'Equity' as any other citizen of a nation." A number of Parliament questions, the consideration of ground realities, Representation from the NGOs, inhabitants of the enclaves and Members of Parliament urged the expeditious exchange of enclaves.

3.AdversePossessions:
Despite the limited nature of disputes on the border, the non-settlement of Adverse Possessions has led to conflicts and tensions between the border guarding forces of the two countries. Muktapur, Pyrdiwah and Naljuri along the Meghalaya-Bangladesh border had witnessed firing incidents in the recent past. In Dumabari area (Assam), firing took place between the two security agencies as early in 1962 and again in 1965.In Muhuri River (Tripura), 10 incidents of firing were reported between BSF and BGB, the last reported in 1999.Likewise in Borobari (Assam), 16 BSF personnel were killed in a firing incident in 2001. Thus, Adverse Possessions have been the flash-points and crux of contention between India and Bangladesh exacerbating the tensions between the two neighboring countries. Further exasperation was wreaked due to the issues such as increasing Population pressure in Bangladesh, leverage of Bangladesh soil for terrorist activities against India and refuge for terrorists, militants and criminals. All these aspects earnestly made it highly indispensible to take a call in order to resolve the outstanding Land Boundary disputes existing between the two nations which were supposed to live in the bosom of one State erstwhile.

By taking into consideration the ground realities, wishes of the people and views of the concerned State Governments during a joint-visit of India-Bangladesh delegates to the areas adversely held in May 2007, it was decided to maintain status quo in these areas as the people residing there expressed reluctance for the exchange of Adverse Possessions saying that they wanted to live in the areas where they had lived all their lives, thus it would be exclusively converting a de-facto situation into a de-jure situation. In brief, the areas are technically already in the possession and a mere procedural acceptance is required to legalize it.

Ø Features of the Agreement:
This Agreement of 1974 (consists of 15 clauses under Article 1 and 4 other Articles) provided meticulous guidelines for an early and amicable delineation of the hitherto un-demarcated portions of the boundary in 13 sectors as well as for an expeditious resolution of other related matters such as Exchange of Enclaves and Adverse Possessions.
I. For Enclaves: While Article1(12) of the said agreement provides that the Indian enclaves in Bangladesh and the Bangladeshi enclaves in India shall be exchanged as expeditiously as possible excepting the enclaves included in the paragraph 14 without claim to compensation for the additional area going to Bangladesh.

II. For Adverse Possessions: Article 2 speaks of Adverse Possessions. It states that the territories involved in the Adverse Possessions whose boundaries have already been demarcated and in respect of which the boundary strip maps have been prepared shall be transferred within six months once the boundary strip maps are signed by the Plenipotentiaries. In the areas still to be demarcated, transfer of territorial jurisdiction may take place within six months of the signing of the concerned strip maps by the Plenipotentiaries.

III. For Legal Rights: Article 3states thatthe two governments also agreed to endow people with the "Citizenship Rights" of the state in which they were staying in. Pending demarcation of the boundary and exchange of territories by mutual agreement, 'status quo' of these areas should remain undisturbed and Peaceful condition to be maintained in the border regions.

IV. For Interpretation of Agreement: Article 4 provides that any dispute pertaining to the interpretation andimplementation of the Land Boundary Agreement, the same to be settled peacefully through mutual consultation.

V. For Ratification of Agreement: Article 5 provides for the Ratification of Agreement by both the Governments of India and Bangladesh through the exchange of Instruments of Ratification and specifies that this agreement shall come into effect from the date of the exchange of this Instrument of Ratification.

VI. Terms of Lease in Perpetuity near Tin Bigha, 7-oct-1982 and implementing Tin Bigha lease, 26-MAR-1992:Under Land Boundary Agreement 1974, Article 1(14) (terms) signed in New Delhi on 16-May-1974, India agreed to lease in perpetuity an area of 178m* 85m to Bangladesh or approximately 3.74 acres to connect the Dahagram and Angarporta Bangladeshi enclaves to the mainland of Bangladesh with Panbari Mouza, at a Token Price of BD Taka 1 per annum which has since been waived off. The stipulated lease in perpetuity ultimately came into effect on 26-June-1992 with the exchange of letters. The lease connected the Dahagram and Angarporta Bangladeshi enclaves to the mainland of Bangladesh at alternate hours during the day-light period. It provided Twenty-Four hours access to these enclaves for Bangladeshi nationals through Tin Bigha. It was acceded to when the Prime Minister of India visited Bangladesh in September 2011.

VII. Protocol: Protocol signed in 2011 to the Land Boundary Agreement between the Government of Republic of India and the Government of People's Republic of Bangladesh concerning the demarcation of land boundary and related matters-

# The Protocol of 2011 was signed on September 6, 2011 between the External Affairs Minister of India and Foreign Minister of Bangladesh in the presence of the Prime Ministers of the two countries to address the long-pending boundary issues. It forms an integral part of the Land Boundary Agreement, 1974 as it provides for the systematic implementation of the agreement and is subject to Instruments of Ratification by the Government of India and Bangladesh.

# The 2011 Protocol will result in a fixed demarcated boundary in all the un-demarcated segments, exchange of 111 Indian enclaves in Bangladesh with an area of 17,160.63 acres and 51 Bangladeshi enclaves in India with an area of 7,110.02 acres and a resolution of all Adversely Possessed areas. In reality, the exchange of enclaves denotes only a notional exchange of land as the Protocol converts a de-facto reality into a de-jure situation.

# In the implementation of the 2011 Protocol, the exchange of enclaves will have fulfilled the major humanitarian need to mitigate the hardships that the residents of the enclaves have had to endure for over six decades on account of the lack of Basic amenities and facilities that would normally be expected from citizenship of a state.

# 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 as slightly contrary to the Land Boundary Agreement.

# The Protocol of 2011 ensures that the areas involved in the Adverse Possessions where significant economic activities are carried out by people which are relevant to their homestead have been preserved.

Ø Implications of the Land Boundary Agreement:
#  Converting a de-facto situation to a de-jure situation:
As per the jointly verified cadastral enclave Maps and signed at the level of DGLRL& S, Bangladesh and DGLR&S, West Bengal, India in April 1997, 111 Indian enclaves with an area of 17,160.63 acres are to be transferred to Bangladesh and 51 Bangladeshi enclaves with an area of 7,110.02 acres are to be transferred to India. It seems from this that there is a loss of vast Indian land to Bangladesh but actually the scenario is quite different. These enclaves are located deep inside Bangladesh failing to get any direct access from India since 1947. Likewise, enclaves grounded in the remotest areas in India had no access from Bangladesh. So this Agreement merely facilitated a 'Notional Exchange'.

Minimal Dislocation of People:
As per a headcount conducted on 14-17 July 2011, Population of 37,334 people lives in Indian enclaves in Bangladesh and Population of14, 215 people lives in Bangladeshi enclaves in India. Article 3 of the Land Boundary Agreement states that when the areas are transferred, the people shall be given the right of staying where they are as nationals of the state where they lived all their lives to which the areas are transferred. A joint visit was also conducted to these enclaves by the delegates of India and Bangladesh where they received the views of the people, they came to a conclusion and disclosed this fact that Many People did not want to leave their land and would rather live where they lived all their lives. Thus keeping in view the ground realities and wishes of the people, both the sides have arrived at a decision to maintain the status quo in the areas in order to establish tranquility in the border regions since in a Democracy, 'the Will of the People' stands paramount always.

Formal transfer of Adverse Possessions:
As per the Protocol of 2011, with respect to Adverse Possessions since it forges the agenda of preserving the areas of all economic activities which are relevant to the homestead of the people residing in the Adverse Possessions and are involved in occupation there, India will receive 2,777.038 acres of land from Bangladesh and will transfer 2,267.682 acres of land to Bangladesh. It is noteworthy that the areas that are to be transferred in both the countries have already been in their possession i.e. de-facto and a mere formal or legal procedure is to be done to legalize its status i.e. de-jure. It can be said that it is merely a procedural formal acceptance of a de-facto reality on the ground.

Delineation of Un-demarcated segments:
The demarcations of the three un-demarcated segments pending since decades have followed ground realities and have fixed a boundary thereby resolving a decade-old issue. Daikhata-56 (West Bengal), Muhuri River- Belonia (Tripura) and Lathitilla-Dumabari (Assam) have got a fixed boundary and thus resolved a problem that had been hammering both the Governments. Signing of the boundary-strip Maps pertaining to the Adverse Possessions would set a stage for the exchange of adversely affected areas as well as exchange of Land records and enclaves between the two countries.

Ø Effect on the State Governments due to the demarcation of Land Boundary:
West Bengal:
In case of South-Berubari with a Population of 15000 people, the craving of Hindu Population for a Temple, regarded as one of the 51 Shakti Peeths in the Indian sub-continent, a pilgrimage spot on the one hand whereas the ground realities and wishes of the people on the other hand with respect to Bousmari has thoroughly been taken into consideration, and these aspects became the determining factor to ascertaining the extent of boundaries in the respective areas. It has been decided that India will retain South-Berubari and Bousmari. As far as Daikhata-56 is concerned, then Natural Boundary in this region has made the International Boundary which is a normal vogue.

Meghalaya:
The State Government views on Adverse Possessions were accommodated through verification of actual position on the ground and wishes of the people. In Muktapur/ Dibir Hawor area, the Protocol facilitates the visit of Indian nationals to Kali Mandir. In other areas too, the homesteads and economic activities of Indian citizens have been protected.

Tripura:
In case of Muhuri River/ Belonia sector, keeping in mind the ground realities as well as wishes of the people, the boundary in this sector has been finalized according to the local demand. Further, the Protocol has provisions of raising the embankments by both the sides to stabilize the course of the river. The cremation ground area has been allotted to the Indian side and boundary has become a fixed boundary. To India's advantage, fencing on zero line has also been agreed. While agreeing to the demarcation in this sector, the Government of Tripura has conveyed that the compensation for the loss of Private property may be provided on account of demarcation.

Assam:
With regard to the demarcation of Lathitilla and Dumabari sector, the line drawn by Radcliffe and actual position on the ground has been followed.

Ø Conclusion:
The Success achieved by both the countries in facing the Knotty challenge of delineating the contested areas and systematic swapping of Enclaves and Adverse Possessions is truly a 'historical milestone' for both the countries. The fruit of industry and the worthwhile time, energy, resources and attention that had been dedicated for this cause by both the countries have paved the way for enhancing the mutual co-operation between them. The consistent threat of firing incidents and terrorist activities along the border region has diminished with the implementation of this deal.

1.The Exchange of enclaves will mitigate major humanitarian problems as the residents in the enclaves and others on their behalf had often complained of the absence of basic amenities and facilities.

2.The settlement of Adverse Possessions will lead to tranquility and peace along the border.

3. It provides for a comprehensive package solution involving "give and take" from both the sides.

4. The newly demarcated boundaries are a fixed boundary, thereby adding to certainty regarding the future.

5.A settled boundary reduces friction and helps neighbors consolidate mutually beneficial exchanges and promotes confidence in building better relations.

6.It paves the way for closer engagement and mutually beneficial relations between India and Bangladesh.

7.This also helps on the issues of strategic concern, including security co-operation and denial of sanctuary to elements inimical to India.

8.While land will be exchanged, there will be no dislocation of people.

9.This agreement ensures that there will be no more differences between India and Bangladesh as regards Interpretation and implementation of the Land Boundary Agreement.

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