The Indo-Bangladesh borderland contained the largest number of enclaves in the world. Until 2015, the majority of the world’s enclaves existed on the Indo-Bangladesh borderland. Bangladesh and India inherited an archipelago of enclaves at the time of partition in 1947. The complex set of enclaves included counter-enclaves within counter-enclaves.
The Land Boundary Agreement of 1974 resulted in the demarcation of the land boundary and led to the exchange of enclaves in 2015 when the agreement was implemented. 162 enclaves were exchanged in 2015. The enclaves are an intriguing aspect of the history of international law in the region. Bangladesh continues to retain the Dahagram-Angarpota enclave.
Enclaves exist in many parts of the world. In Western Europe, examples of enclaves include the Spanish enclave of Llivia in France, the German enclave of Biisingen in Switzerland, and the Italian enclave of Campione d'Italia in Switzerland. In the area of the former Soviet Union, exclaves exist such as the Kaliningrad Oblast of Russia and the Nakchivan Autonomous Republic of Azerbaijan.
Pre-partition history
In the 17th century, the Mughal state expanded into the northern part of Bengal but was unable to annex the kingdom of Cooch Behar situated between Bengal and Bhutan. Landlords in both Mughal Bengal and Cooch Behar retained landholdings in each other’s states. The landlords were responsible for tax collection on behalf of the rulers of their respective states.
In British India, Cooch Behar was a princely state under British suzerainty and surrounded by the Bengal Presidency. The status of the landholdings as enclaves in Bengal and Cooch Behar continued under British rule. The role of landlords as tax collectors was reinforced by the Permanent Settlement introduced by the East India Company.
Arbitration
When the subcontinent was partitioned in 1947, princely states were given the choice of joining either India or Pakistan. Cooch Behar chose to join India. Both India and Pakistan inherited the status of these enclaves. In 1948, India and Pakistan formed a boundary disputes tribunal chaired by Algot Bagge, a former member of the Supreme Court of Sweden. The other two members of the tribunal included India’s nominee Justice Chandrasekhara Aiyar, a retired judge of the Madras High Court; and Pakistan’s nominee Justice M. Shahabuddin, a judge of the Dhaka High Court.
The tribunal was tasked with interpreting the Radcliffe Award of 1947 and the report of the Bengal Boundary Commission. The tribunal delivered an arbitral award that became known as the Bagge Award. The Bagge Award covered the districts in which enclaves were located. In 1958, Indian Prime Minister Jawaharlal Nehru and Pakistani Prime Minister Sir Feroz Khan Noon signed an agreement to implement the Bagge Award and exchange enclaves in East Pakistan, West Bengal and Assam.
Litigation against the agreement by Indian citizens led to the Indian Supreme Court declaring that a constitutional amendment would be required to transfer any territory to Pakistan. Subsequently, the Indian parliament enacted the ninth amendment to the Constitution of India in 1960. However, enclaves were never exchanged. After 1971, Bangladesh inherited the enclaves of East Pakistan.
Land boundary talks in 1974
At a bilateral summit in New Delhi in 1974, the delegations of Bangladesh and India deliberated over the land boundary. At the talks, the Indian prime minister Indira Gandhi ushered in her most senior cabinet colleagues with rolls upon rolls of maps to discuss the matter. They included Fakhruddin Ali Ahmed, Jagjivan Ram, Swarant Singh, and Yashwant Rao Chavan. The Bangladesh prime minister Sheikh Mujibur Rahman then brushed aside all their legal and technical points to argue that as the larger neighbour, India should accommodate Bangladesh’s legitimate demands. He also pointed out that Bangladesh was a heavily populated country with a comparatively smaller territory. The two sides eventually reached a landmark agreement for the demarcation of the land boundary.
Berubari Union case
In the case of Kazi Mukhlesur Rahman v Bangladesh, the cessation of Bangladeshi territory to India was challenged in court. The Bangladesh Supreme Court gave a historic verdict which directed the government to get the approval of parliament to implement the land boundary treaty. Justice Sayem cited case law from around the world and the writings of the most distinguished jurists of international law. This was a momentous, eloquent, and erudite verdict from the Supreme Court.
Accordingly, the third amendment to the Constitution of Bangladesh was enacted in 1974. The amendment paved the way for the implementation of the treaty by Bangladesh.
2015 implementation
Implementing the land boundary treaty became a priority after the Awami League led by Prime Minister Sheikh Hasina assumed power in 2009. In 2011, Bangladesh and India adopted a protocol for the demarcation of the final stretches of undemarcated land on the border measuring 6.1 km.
India enacted its Constitution (One Hundredth Amendment) Act, 2015 on May 28, 2015. The exchange of 162 enclaves took place at midnight on August 1, 2015.
Umran Chowdhury works in the legal field.
