Throwback Thursday

Throwback Thursday: The Indo-Bangladesh Enclaves and the Indian Constitution, Reprise

By Cody M. Poplin
Thursday, June 4, 2015, 6:15 PM

Back in January, Sebastian Brady and I wrote a piece on the history and legal issues surrounding the border enclaves divided between India and Bangladesh. Believe it or not, there’s recently been movement on this most intractable of issues, and it suddenly looks like the enclaves, after 68 years, may finally be exchanged by the two countries, leaving an actual  border between them.

For those who may be unaware of this little-known human tragedy that arose out of the partition of the Indian subcontinent, the enclaves are small and separate administrative districts that are located on the wrong side of the Indo-Bangladesh—stranding populations in tiny districts away from their home country. The Vatican may be the world’s most famous enclave, but the most numerous are the 162 districts spread out along the Indo-Bangladesh border.

They exist because remnants of fallen princely states were unevenly absorbed by the British Raj. Some outside of India recognized Indian sovereignty, and some outside of what was then East Pakistan recognized Pakistani (and later Bangladeshi) sovereignty. The enclaves have thus stood as chunks of ungoverned territory, physically divorced from their homelands and beyond the reach of governmental services since 1947. More than 50,000 residents are currently caught up in this long-term governance failure, and the dispute has been a major obstacle to development and security along the border regions of India and Bangladesh. The result has meant that the areas are ripe for smuggling, violence, and even terrorism.

Last month, however, the Indian parliament cleared one of the final hurdles to resolving the impasse, asboth houses of parliament unanimously passed the long-pending Land Boundary Agreement, an agreement necessary to initiate the process of swapping the border enclaves with Bangladesh. The bill, is the 100th amendment to the Indian constitution. Foreign Minister Sushma Swaraj heralded the bill as a “historic” moment. That’s not much of an overstatement; the passage of the amendment came after 41 years diplomatic, political, and legal battles. The move reflects Prime Minister Narendra Modi’s “neighborhood first policy,” a reinvigorated plan for engaging with India’s partners in constructive ways that resolves longstanding issues.

Sebastian and my earlier piece outlined in some detail the history of the enclaves, a cautionary tale of the after-effects of colonialism on the subcontinent. But the saga of the enclaves is also intimately connected to the history of key doctrines in the Indian Constitution, doctrines that have played a big role in controlling abuse of security authories in that country. One of these doctrines, at least, has no developed foreign equivalent.

The agreement raised a great many questions under the Indian Constitution, the world’s longest. In particular, the debate required addressing three key questions and giving affirmative answers to them all.

The Legal Dispute

For all the thought that went into its writing, the Indian constitution left the government of India without explicit authority to cede its own territory or to make land agreements with other countries. When India first agreed to swap its remaining enclaves with what was then East Pakistan (and became Bangladesh in 1971), it quickly found that it did not have the constitutional authority to make such an agreement. Indeed, both countries were required to change their respective constitutions in order to change their borders. The Pakistani and Bangladeshi parliaments passed the 1958, and later the 1974, agreements in short order along with the proper amendments. But, with sustained opposition from local and national parties, the companion bills on the Indian side failed to muster enough votes to pass.

The case of Berubari Union (1960) highlights the difficulties of arranging the border. When dividing the border for the British Raj during Partition, Sir Cyril Radcliffe omitted to allocate the Berubari Union—a small enclave on the Indo-Bangladesh border—leading both parties to lay claim to the territory (This may have been because Cyril Radcliffe, who was given five weeks to divide the countries, had never set foot in India before the border demarcation). Instead of determining who held a valid claim to the land, the initial 1958 land boundary agreement divided the union in half, splitting it between India and Bangladesh. As the enclave was majority Hindu, and the agreement would have transferred half of the territory to Muslim-majority Bangladesh, the decision sparked mass protests, and as in any good democracy, lawsuits.

The Berubari Union case raised profound questions of democracy and citizenship: can a country, once incorporated, trade away a possession of land, especially if that land contains citizens whose rights may also be traded away in the process? It’s a question that for most people exists more in theory than in practice. A Bharat-Bangladesh Enclave Exchange Coordination Committee survey found that no one from the Bangladesh enclaves wanted to remain part of Bangladesh, while only 734 people in Indian enclaves hope to remain part of India. But, for those 734, the question is very real.

India’s constitution sets out the boundaries and size of each province and state in a section of the document called the “First Schedule.” As a practical matter, this means that whenever the Indian government wants to adjust the boundaries of a state, it must ratify a constitutional amendment. In addition, the state that is subject to the change must also ratify the new boundaries. According to Article 3 of the Constitution, it was clear that the central government held the power to restructure the administrative boundaries of an individual state—the government has now done so several times, most recently in 2000 with the creation of Uttarakhand, Chhattisgarh, and Jharkhand—but it was far less clear that the central government could trade away sovereign Indian land to another country, even with the consent of the state in question.

Appellants in Berubari Union argued that the case actually turned on the document’s Preamble, which they contended made the entire territory of India inviolable and sacred. But that raised the question of whether the Preamble to the Constitution of India was even part of the Constitution at all.

The Indian Supreme Court determined that the Preamble was not part of the Constitution, and as such, did not impose the “very serious limitation” on the “essential attributes of sovereignty” that appellants suggested. This holding will ring familiar to Americans, who also have a constitutional preamble that does not operate as law—though as we will see, it didn’t last long in the Indian context.

The holding, in theory, meant that the government could now cede land to a foreign power.  The Courtdetermined, however, that Parliament would have to pass a constitutional amendment granting itself the authority to cede territory to another country, since that authority was not included in any existing provision. And Article 3, which set out the process by which Parliament can alter the boundaries of a state, has a amendment procedure different from the typical one.

So after this decision, the road looked clear, if cumbersome: To do the land swaps, Parliament would need to amend the Constitution to change the powers granted under Article 3 to include foreign land swaps. It would then need to pass another bill approving the cessation of the specific territories and an amendment adjusting the legal boundaries of those territories as set out in the First Schedule. Finally, the state legislature of the state wherein the land is located would then have to approve the agreement. Should be easy, right?

However, having won this initial legal battle, the ruling Congress Party didn’t follow the Supreme Court’s roadmap. Instead, the Indian government determined that since nothing expressly required that they abide by the Article 3 amendment process (remember, the Supreme Court had just determined the Constitution was silent on the matter), they didn’t have to. Instead, they passed the Ninth Amendment Act of 1960, which would have effectively adjusted the First Schedule, the part of the Constitution that outlines the borders of each state, to reflect the new boundaries of West Bengal and Assam, the two states wherein the enclaves existed. Prime Minster Jawaharlal Nehru claimed to have chosen this route in order to avoid amending Article 3 of the Indian Constitution to give Parliament the power to cede territory directly through a simple majority vote, which in his view would have made cessation too easy. Instead, Parliament would have to pass an amendment by a two-thirds vote to modify future borders.

But Nehru failed at that. Opposition from key states ended up derailing the agreement. Extended delays in land surveys and border demarcations, as well as protracted legal battles, would prevent the implementation of the agreement. And finally, another big case arose in 1963, filed only one month after India and Pakistan began demarcating the Berubari enclave, with Ram Kishore Sen and five others filing suit against the Government of India. Although the judges ultimately dismissed the petitioners’ claim that the agreement required that a “horizontal line” separate Berubari and thereby bypass their property, they acknowledged the plight of the petitioners:

I might add that I have come to this result without any enthusiasm. To uproot one human being from his hearth and home without his consent is bad enough, but to do so in regard to thousands of people borders on the tragic. Some day the united conscience of the civilised world might evolve a better way of solving human problems like these.

On February 2, 1965, the Supreme Court of India issued an order preventing the government from passing any final accord on the transfer of the enclaves. By then, violent border clashes had become regular occurrences in both East Pakistan and Kashmir, reaching a peak in March and April. The last appeal was heard on July 29, 1965. One week later, on August 5th, India and Pakistan went to war, killing any chance of the agreement coming to fruition. Instead, the enclaves issue would remain frozen until three years after Bangladesh separated from Pakistan.

To summarize briefly, the lawsuits dragged things out long enough for a war come along and kill the plan entirely—a good example of lawfare.

But at last, the long stalemate appears to have ended. As the dispute over the enclaves comes to an end, they will now be divided along the Land Boundary Agreement (LBA) according to the 100th Amendment. That bill, like the 9th Amendment before it, amends the First Schedule, but it gives immediate effect to the LBA. The governments of the affected states have all consented. And, perhaps most importantly, the people living in the enclaves will be compensated for any loss of land. In what was a very long slog—politically, diplomatically, and legally—something like justice has ultimately been served.

The Effects of the Enclave Legal Battle

Peculiarities of countries’s circumstances often have outsized influence on those countries’ constitutional law. Slavery in the United States, for example, dramatically conditioned both the text and case law of our Constitution. And similarly, the legal battle over the enclaves sparked one of India’s more peculiar constitutional arrangements: the determination that while Parliament can easily amend most of the Constitution, it cannot amend certain others.

Supporters contend that this interpretation shields India’s constitutional enterprise from becoming politics all the way down; critics say it only empowers the judiciary to play politics of its own. The merits of the controversy aside, it undeniably has its roots in the legal battle over the enclaves.

The reason is that the legal impact of the Berubari Union ruling that the Preamble was not part of the Constitution did not, so to speak, remain in Vegas. The relationship between the Preamble and the larger document, rather, took on a life—several lives, really—of its own. In Golaknath v. State of Punjab(1967), the court held that Parliament could not pass any constitutional amendment that curtailed the Fundamental Rights of the Constitution listed in Part III of the Constitution. In doing so, it took a different approach to the Preamble than did the court in Berubari Union. The Preamble, it held, set up “the objective sought” by the Constitution. It was “not a platitude” but the very “ideals” and “aspirations” which are realized in the document’s details. Those aspirations were the the Preamble’s broad ideals of “equality,” “liberty,” “justice” and “fraternity,” later laid out as individual fundamental rights in Part III. As such, “no authority created under the Constitution is supreme”; instead, “the Constitution [itself] is supreme.” And the authority for that supremacy is the very Preamble that a few years earlier the court considered not part of the law.

Parliament would hit back, this time passing the 24th amendment in 1971, and exempting constitutional amendments from the restrictions and rights set out in Part III.

The Indian Supreme Court would therefore be forced to go even further in Kesavananda Bharti v. State of Kerala (1973), wherein it ruled that the Preamble was as much part of the Constitution as any other provision. The Court ruled that the words “this Constitution” in the Preamble presumed the existence of a constitutional identity, larger and more abstract than the rights laid out in Part III. As such, no change could be severe enough to damage or destroy that identity. Even so, the Court’s ruling was still far more limited than the one at which it would eventually arrive. It found that the Preamble does not serve as a source of power nor as a source of limitations on what Parliament can enact. Instead, the Preamble plays a “significant role” in the interpretation of the meaning of statutes and of provisions of the Constitution.

Later, in S.R. Bommani v. Union of India (1994), the Court went still further and ruled that the Preamble serves to indicate the “basic Structure of the Constitution.” According to the basic structure doctrine, the amendment power contains inherent limitations and Parliament, no matter how large a majority, does not hold absolute power. No amendment can stand that would destroy the basic fabric of Indian constitutional rights.

In a strange twist, the Preamble had come full circle, from not being part of the Constitution at all, to being part of the Constitution and serving as a rule for interpreting statutes, to serving as a guide to the basic structure of the Constitution itself. The Preamble had become a “key to the minds of the framers,” setting out the “goal” of the Union of India, while the rest of the Constitution explained the “methodology for reaching that goal.”

The idea of an unconstitutional constitutional amendment may sound like a tautology to Americans, but it was been a meaningful part of Indian constitutional law—and has actually been used to curb the worst abuses of the executive in the national security context. During the Emergency of 1975-77, Prime Minister Indira Gandhi unilaterally declared a state of emergency across all of India and granted herself as prime minister the authority to rule by decree, suspend elections, and curb civil liberties. In response, in Indira Nehru Gandhi v. Raj Narain, the court struck down the 39th Amendment, which attempted to legitimize the reelection of Gandhi—who had by then been found guilty of electoral practices and had her election declared “null and void”—by putting the elections of the Prime Minister and the lower house speaker beyond judicial review. Judicial review had other ideas.

Similarly, in Minerva Mills v. Union of India, the court struck down provisions of the 42nd Amendment, sometimes called the “Constitution of Indira,” which sought to put certain sections of the Constitution beyond judicial review while granting sweeping new powers to the Prime Minister and amending the Preamble to reflect Ms. Gandhi’s own endorsement of socialism.

While still not universally accepted, even among major political parties in the country, the basic structure doctrine has acquired a certain grudging legitimacy—partially because it has proven effective at stopping some of the country’s worst abuses of power, and partly because it has been invoked sparingly and judiciously. In that way, the balance that the Court has maintained has served to legitimize its newly claimed prerogative in a way that abuse would have undermined.

This doctrine will likely survive the long-standing conflict from which it was born.