Barrister M. A. Muid Khan
Bangladesh has failed to fulfill its constitutional commitments towards its people living in the enclaves of Angarpota and Dahagram. Last week, I visited Dahagram-Angorpota through the Tin Bigha corridor with my younger brother Flight Lt Muqit Khan, on invitation from my second brother-in-law, Sharif Lutfur Rahman, Additional District Judge, Nilphamari. When I was asked by Indian security officers to show my passport for identification at the entrance of the corridor, I felt embarrassed. I considered such stoppage totally unconstitutional as it contradicted with my fundamental right "… to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh" (Article - 36: Constitution of Peoples Republic of Bangladesh), guaranteed by the supreme law of the land.
After crossing the corridor, when I entered Dahgram-Angorpota, I discovered that the local Bangladeshis are living in abject poverty. They have no access to gas, water or electricity. I have not seen any school, college or university, mill, industry, shopping center, market, or any presence of law enforcement agencies. When I spoke to the local Bangladeshis, they expressed their untold stories. They said that Bangladeshi nationals living in the two enclaves do not have 24 hours access through the corridor. They are dependent upon the mercy of the Indian government. New Delhi does not allow access to them beyond 12 hours through the corridor even if any medical emergency arises. India denies unfittered access to the enclaves as in the original accord.
Reza, a local leader, said that, "The corridor should remain open for 24 hours. It will help us access medical facilities and other services at all the hours. It's a question of life and death." The others in the enclaves also expressed the same view.
Reza said that under the Mujib-Indira Treaty of 1974 Bangladesh handed over the sovereignty of South Barubari to India to help Indian nationals to reach their Indian enclaves adjacent to South Barubari, but India didn't agree to hand over the sovereignty of Teen Bigha corridor to Bangladesh to help Bangladeshi nationals to reach Dahgram-Angorpota. India agreed to lease in perpetuity hand over Teen Bigha corridor to Bangladesh on lease in perpetuity. After delaying the handover India handed over the corridor to Bangladesh in 1992 but without the round the clock access.
Over 20,000 Bangladeshis living in the two enclaves have to cross the corridor to come to mainland in Bangladesh but not during dawn to dusk restriction. So the Indian government keeps the corridor open from 6.00 AM to 6.00 PM. Bangladesh, virtually having no administrative control over the enclaves, cannot undertake development activities there.
Bangladesh should be able to negotiate with India either to remove these restrictions from the corridor or get sovereignty over the corridor as before 1971. If Bangladesh could hand over the sovereignty of Barubari to India in 1974 allowing the Indian nationals to move freely and independently into the Indian enclaves, why Bangladesh failed to get the sovereignty over Teen Bigha Corridor in exchange. It would allow Bangladeshi nationals to move freely and independently into the Bangladeshi enclaves of Dahgram-Angorpota?
The Tin Bigha Corridor, "no larger than a football field," is the name of a strip of land measuring 178 mtrs x 85 mtrs in the district of Cooch-Behar in West Bengal, which connects northern Dahagram and Angorpota enclaves with the mainland of Bangladesh.
The corridor 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 followed. The then East Pakistan 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."
"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 until 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.
The Berubari dispute was one such. Radcliffe 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 awarded Berubari Union No. 12 which lied within Jalpaiguri thana to India. He also awarded another part of Berubari to the then Pakistan.
Within a year of Partition of Bengal (1947), the issue began to surface and posed potential political and communal tensions between India and Pakistan. To tackle the situation, Prime Minister Jawaharlal Nehru of India, and Prime Minister Firoz Khan Noon of Pakistan entered upon an agreement in 1952 aiming to 'exchange the enclaves between the two countries'. But when a part of southern Berubari (7.39 sq km), an East Bengal enclave adjacent to the Boda thana of Panchagarh district, was about to be handed over to East Bengal, opposition in India against the decision was so strong that it was decided 'to retain the piece of land by India, but in exchange for a stretch of an acre of land called 'Tin Bigha' to link Angarpota-Dahagram enclave under Patgram thana of the Nilphamari district with mainland East Bengal'. This decision was not implemented for more than two decades because of legal wrangles on the Indian side.
Emergence of independent Bangladesh in 1971 created some optimism about resolution of issues relating to the enclaves and other outstanding boundary disputes. In the agreement signed on 16 May 1974 by Indira Gandhi and Sheikh Mujibur Rahman, Prime Ministers of India and Bangladesh, it was decided to put into effect the demarcation of boundaries at selected stretches. Section 14 of the agreement was about handing over of the southern part of South Berubari to India in exchange of a passage in perpetuity linking Angarpota-Dahagram with Patgram in Bangladesh. 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 the 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."
During the Pakistani period, under the 1952 agreement, India agreed to hand over 'Tin Bigha' to Pakistan in perpetuity to link Angarpota-Dahagram in exchange of the southern half of South Berubari Union No. 12 and the adjacent enclaves. Whereas, in 1974 agreement, India instead of handing over 'Tin Bigha' to Bangladesh in perpetuity, only agreed to grant a lease in perpetuity of Tin Bigha to Bangladesh despite the fact that Bangladesh agreed and handed over the sovereignty of half of South Berubari union No. 12 to India in perpetuity. The Bangladeshi draftsmen of the agreement completely ignored this due to which by handing over the sovereignty of South Berubari Union No. 12 to India, Bangladesh in exchange received nothing except a lease in perpetuity of the Tin Bigha from India.
Ignoring this issue of grave national importance, the Bangladesh government ratified the agreement forthwith and handed over the relevant part of South Berubari to India in 1974. But the handing over of the lease of Tin-Bigha corridor to Bangladesh was again delayed due to long constitutional and legal wranglings in India. This continued until 7 October 1982, when another agreement was signed. In the new agreement the exchange status in perpetuity in handing over Tin-Bigha was compromised with residual jurisdiction vested upon India, resulting in an unclear arrangement of limited access to the corridor by citizens of Bangladesh for movement between the mainland and the enclave.
However, India took another decade to implement the agreement with deteriorated terms. In India, 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 filed three writ petitions challenging the 1982 Lease Agreement on various constitutional grounds in the Calcutta High Court. Among them, persons including the owner of a plot of land which would have to be acquired for being leased to Bangladesh. The court in delivering the judgement declared that, "…(e)Since Dahagram and Angorpota would remain as parts of the Bangladesh territory, the Agreements were necessary to enable Bangladesh to exercise its sovereignty in full over the said enclaves. (f) Inspite of the said Agreements India would retain its sovereignty, ownership and control over Tin Bigha…".
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. 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 Bench maintained that as a result of 1974 and 1982 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.
On 18 December 1986, upon a Special Leave Petition filed by the government of India, the Supreme Court of India delivered its judgment in May 1990 certifying 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.
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. The Supreme Court of India concluded that the Agreements did not amount to the lease or surrender of sovereignty as understood in international law.
Once these hurdles were settled, the governments of two countries signed another protocol on 26 March 1992 relating to security, control, and use of the corridor for movement of people and vehicular traffic between the enclave and the mainland of Bangladesh. The control of the passage rested almost fully with Indian authorities.
During my visit, I saw the Indian flags flying on the four corners of the corridor. As regards the movement of Bangladeshi traffic, a process of regulation worked out by the Indian Government allowing access of Bangladeshi nationals through the corridor at alternate hours during the daylight period. The modalities imply that Indian check posts on either of the corridor will always remain informed of Bangladesh traffic including movement of military personnel.
The foregoing discussion shows that the agreements of 1974 and 1982 gave Bangladesh only specific and limited rights on the Tin Bigha Corridor. In contradiction, India gained full sovereignty upon South Barubari. The Indian authorities took a number of measures to enhance security in the Tin Bigha corridor. The government of India also took a number of development schemes in Kuchlibari, including the construction of a pucca bridge, roads, primary health centre and other infrastructure. The Indian government also introduced a system of identity cards for Indian nationals in Kuchlibari and adjoining areas and finally strengthened security arrangements where necessary. In contrast, the government of Bangladesh remains unable to take any security measures in Dahagram and Angorpota. Bangladesh cannot even failed bridges, roads, primary health centres and other needed infrastructure.
By handing over the sovereignty of South Berubari to India, what has Bangladesh achieved out of the treaty of 1974 and the agreement of 1982 from India?
Therefore, the present government should take the initiative so that India implements the 1974 treaty in the light of 1952 agreement for solving the problems, the citizens of Bangladesh face in the two enclaves, as historical legacy. If India hands over the sovereignty of Tin Bigha corridor to Bangladesh, it would help solve their problems.
The writer, a Barrister of the Honourable Society of Lincoln's Inn, a Legal Consultant at Carr-Gomm and Appeal Consultant at a London Law firm and an advocate of the Supreme Court of Bangladesh,
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