Prashant Mathur asked : Why does India need a constitutional amendment in respect of exchange of enclaves with Bangladesh?

Pushpita Das replies: India has 111 enclaves measuring 17,158.13 acres in Bangladesh and Bangladesh has 51 enclaves measuring 7,110.2 acres in India. An estimated 34,000 persons live in the Indian enclaves and 17,000 people in the Bangladeshi enclaves. While the Indian enclaves in Bangladesh are spread over four districts - Panchagarh, Lalmonirhat, Kurigram and Nilphamari, all the Bangladeshi enclaves in India are in the Cooch Behar District of West Bengal. In addition to these enclaves, there are 38 patches of Indian land measuring about 3000 acres and 50 patches of Bangladeshi land measuring 3345 acres in adverse possession of both the countries.

Efforts for exchange of enclaves began in late 1950s. The first attempt was made in 1958, when India and Pakistan agreed to mutually exchange the enclaves ‘without any consideration of territorial loss or gain.’ Accordingly, the ninth amendment to the Indian Constitution was introduced to facilitate the implementation of the agreement. The amendment did not come into force as serious objections were raised by political parties to the transfer of southern Berubari to Pakistan. The Land Boundary Agreement signed between India and Bangladesh in 1974 provides for the ‘expeditious exchange’ of enclaves. Similarly, the additional protocol to the Land Boundary Agreement signed between the two countries in September 2011 also stipulates the exchange of the enclaves and surrender of adverse possessions. While Bangladesh had ratified the 1974 Land Boundary Agreement, India is yet to ratify it in the parliament.

When the issue of exchange of enclaves came up in 1958, the President of India requested the Supreme Court of India for its opinion on whether a legislative action is necessary for the implementation of the India-Pakistan (Nehru-Noon) Agreement. The Supreme Court opined that implementation of the agreement requires an amendment to the constitution because the exchange of enclaves involves cessation of some territory to Bangladesh. Since the implementation of the agreement would result in the reduction in the total area of India, Article 1 as well as relevant portions of the First Schedule of the Constitution would have to be amended. The Supreme Court further stated that if the parliament makes a law under Article 3 (pertaining to creation of a new state or alteration of areas, boundaries or name of an existing state), as exchange of enclaves would involve changes in the total area of the state of West Bengal, it could do so under Article 368.

Hence, a constitutional amendment has to be introduced and passed in the parliament to enable India to acquire as well as transfer territories to Bangladesh. Accordingly, the Minister of External Affairs Salman Khurshid had moved the 119th Constitutional Amendment Bill on May 7, 2013. The amendment was opposed by members of the Asom Gana Parishad and Trinamool Congress.