Essay

SC and boundary disputes

Print edition : June 13, 2014

Catholic devotees attend the annual pilgrimage at Saint Anthony's Church on Katchchativu Island on March 16, 2014. Roman Catholic pilgrims from India also joined in the service to celebrate the shrine's annual church feast, which was suspended for much of the three-decade conflict. Photo: Ishara S. KODIKARA/AFP

Indian soldiers patrol the border with China in Bumla at an altitude of 4,700 meters above sea level in Arunachal Pradesh, a file photograph. Photo: Anupam Nath/AP

Siliguri An enclave within an enclave about 3 acre land inside a Bangladesh enclave which is Indian territory. Photo: Sushanta Patronobish. 12.04.2014. ( (Report: Shiv Sahay Singh) Photo: SUSHANTA PATRONOBISH

The Rann of Kutch. The nature of the terrain makes the border hard to define. Photo: sdfsd gfdh fdgr

President of International Rann of Kutch Tribunal, Judge Gunnar Lagergren of Sweden (centre), giving the verdict, assisted by Judge Nasrollah Entezam of Iran (left), and Judge Ales Bebler of Yugoslavia (right), in Geneva on February 19, 1968. The Tribunal awarded to Pakistan about one-tenth of the territory of the Rann of Kutch it had claimed from India. Photo: AP/THE HINDU ARCHIVES

THE affidavit filed by the Government of India in reply to the petition filed by M. Karunanidhi in the Supreme Court challenging the cession of the Katchativu Island to Sri Lanka should prod some quiet homework on the stand it would take if and when India settles the boundary dispute with China. Somebody or the other is certain to challenge the agreement in the Supreme Court. The Rann of Kutch Award and the Berubari Agreement were challenged in the Supreme Court, the latter, twice over. What will be the government’s stand on the accord with China?

It is unthinkable that China will agree to a treaty of cession of territory. That would imply that the territory, being ceded to China, was part of India, belying the stand which China has taken in the last 55 years. Neither can India reverse its stand that the territory belonged to it. The dilemma can be resolved by simply defining the entire northern boundary with China in the treaty itself and on the map attached. Involved in this would be four trijunctions—the Sino-Afghan-Indian trijunction in the west; the two Sino-Indian-Nepali trijunctions; and the Sino-Indian-Burmese trijunction.

Even if the tangle is resolved at the international level, the one at the domestic level will cause a severe headache. In reply to a challenge in the Supreme Court, will the government contend that it implied resolution of a dispute? This will be contrary to its repeated assertions every year that China is in occupation of precisely named square miles of Indian territory. Or will it contend that the terms of the agreement reflected cession of Indian territory? In this case, a constitutional amendment, based on all-party support, will be necessary.

The affidavit in the Katchativu case accepts that the agreement with Sri Lanka reflected a settlement of a long-standing dispute. It was drafted clearly in the light of the rulings of the Supreme Court on this point and these rulings do not suffer from excess of brevity or clarity. There are three such rulings.

Berubari enclaves

1. Reference by the President of India under Article 143(1) of the Constitution of India on the implementation of the Indo-Pakistan Agreement relating to Berubari Enclaves and exchange of enclaves ((1960) 3 Supreme Court Reports 250; AIR 1960 S.C. 845).

India and Pakistan entered into an agreement on the border areas in the east. There were in question two items of the agreement. Item 3 in paragraph 2 of the agreement read as follows: (3) Berubari Union No. 12. This will be so divided as to give half the area to Pakistan, the other half adjacent to India being retained by India. The Division of Berubari Union No. 12 will be horizontal, starting from the north-east corner of Debiganj Thana. The division should be made in such a manner that the Cooch-Behar enclaves between Pachagar Thana of East Pakistan and Berubari Union No. 12 of Jalpaiguri Thana of West Bengal will remain connected as at present with Indian territory and will remain with India. The Cooch-Behar Enclaves lower down between Boda Thana of East Pakistan and Berubari Union No. 12 will be exchanged along with the general exchange of enclaves and will go to Pakistan.”

Item 10 of the Agreement was as follows: “(10) Exchange of Old Cooch-Behar Enclaves in Pakistan and Pakistan Enclaves in India without claim to compensation for extra area going to Pakistan, is agreed to.” The President referred the following three questions to the Court for its consideration and advice: “(1) Is any legislative action necessary for the implementation of the agreement relating to Berubari Union? (2) If so, is a law of Parliament relatable to Article 3 of the Constitution sufficient for the purpose or is an amendment of the Constitution, in accordance with Article 368 of the Constitution, necessary in addition or in the alternative? (3) Is a law of Parliament relatable to Article 3 of the Constitution sufficient for implementation of the agreement relating to the exchange of Enclaves or is an amendment of the Constitution in accordance with Article 368 of the Constitution necessary for the purpose in addition or in the alternative?”

The Supreme Court held: “The Agreement amounts to a cession of a part of the territory of India in favour of Pakistan; and so its implementation would naturally involve the alteration of the content of and the consequent amendment of Article 1 and of the relevant part of the First Schedule to the Constitution, because such implementation would necessarily lead to the diminution of the territory of the Union of India. Such an amendment can be made under Article 368. This position is not in dispute and has not been challenged before us; so it follows that acting under Article 368 Parliament may make a law to give effect to, and implement, the Agreement in question covering the cession of a part of Berubari Union No. 12 as well as some of the Cooch-Behar Enclaves which, by exchange, are given to Pakistan. Parliament may, however, if it so chooses, pass a law amending Article 3 of the Constitution so as to cover cases of cession of the territory of India in favour of a foreign state. If such a law is passed then Parliament may be competent to make a law under the amended Article 3 to implement the agreement in question. On the other hand, if the necessary law is passed under Article 368 itself that alone would be sufficient to implement the Agreement …

“In this connection it may incidentally be pointed out that the amendment of Article 1 of the Constitution, consequent upon the cession of any part of the territory of India in favour of a foreign state, does not attract the safeguard prescribed by the proviso to Article 368 because neither Article 1 nor Article 3 is included in the list of entrenched provisions of the Constitution enumerated in the proviso. It is not for us to enquire or consider whether it would not be appropriate to include the said two Articles under the proviso. That is a matter for Parliament to consider and decide.

“We would accordingly answer the three questions referred to us as follows: Q. 1.2. (a) A law of Parliament relatable to Article 3 of the Constitution would be incompetent; (b) A law of Parliament relatable to Article 368 of the Constitution is competent and necessary; (c) A law of Parliament relatable to both Article 3 and Article 368 would be necessary only if Parliament chooses first to pass a law amending Article 3 as indicated above; in that case Parliament may have to pass a law on those lines under Article 368 and then follow it up with a law relatable to the amended Article 3 to implement the agreement. Q. 3. same as answers (a) (b) and (c) to Question 2.”

There was, however, a clear error on the part of Justice Gajendragadkar when he observed that the boundaries of Union Territories could not be effected by a law under Article 3 because “State” in this Article did not include Union Territories. It does. The General Clauses Act, 1897, applies to the interpretation of the Constitution and Section 58(b) of the Act says that the word “State” included the Union Territories.

Justice Gajendragadkar was also wrong in holding that the agreement went beyond the Bagge Award on Indo-Pak disputes and did not reflect a resolution of a dispute since “it had been reached independently of the award and for reasons and considerations which appeared to the parties to be wise and expedient” (paragraph 22). The crucial test is the existence and resolution of a pending dispute, not the terms on which it is resolved. It matters not if it entails exchange of enclaves also. H.M. Seervai held that the court’s opinion “is wrong” ( Constitutional Law of India, 4th Edition, Volume 1, page 309).

The error triggered off two constitutional amendments; the 9th Amendment and the 18th amendment to add two Explanations to Article 3 to make it clear that “State” includes Union Territories. (In Ram Kishore Singh vs Union Bank of India (1966) SCR 430; AIR 1966 SC 644, the court admitted its error).

Rann of Kutch dispute

2. Maganbhai Ishwarbhai Patel vs Union of India ((1969) 3 SCR 260; (1970) Supreme Court Cases 400).

Writ petitions were filed to restrain the Government of India from ceding to Pakistan the areas in the Rann of Kutch awarded to it by the Indo-Pakistan Western Boundary Tribunal. The Tribunal was set up by an agreement between India and Pakistan on June 30, 1965. India won over 90 per cent of its claim under the Tribunal’s Award on February 19, 1968.

The court held that “a settlement of a boundary dispute cannot be held to be a cession of territory… such a case is plainly distinguishable from a case of cession of territory known to be home territory” (paragraph 44, emphasis added, throughout).

The court’s observations in this case and the next would be very relevant to any legal challenge to an agreement with China. But is it open to the court to go into the history of the dispute in order to ascertain whether it was a case of a boundary settlement or one of cession of territory? If it did, would it confine itself to the bogus Report of Indian Officials (1960) which, one of its authors admitted to this writer, was intended to buttress India’s case against China and was not an objective statement and analysis of the historical evidence.

This is what the court said: “There was a genuine dispute regarding the title to the inlets whatever India may have thought about them. The decision of the Tribunal is a decision on a disputed boundary and does not attract a constitutional amendment. The only evidence was this area (which is otherwise uninhabited) was in parts occupied by an Indian Security Force. The existence of these Watch and Ward Officers or the establishment of a polling booth for them at election time cannot connote administration such as would make them territory of India. The Diplomatic Notes began soon after the establishment of the two Dominions and the occupation may have meant de facto control but there was no proof of de jure occupation or any other administration.

“Sovereignty over an area is always a matter of inference. As Judge Huber puts it in the Island of Palma’s case: ‘Manifestations of territorial sovereignty assume, it is true, different forms, according to time and space. Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of a territory. The intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved…’ (Award, dated April 4, 1928, 2 Int. Arb Award 867. This applies to the Aksai Chin).

“Garrisoning of an area [a point noted in the International Court of Justice in 1953 in the Minquiers and Ecrehos case, ICJ Reports, page 78] may be one kind of evidence. But this applied to both sides. Unless they displayed real existence of sovereignty over the area, none could be said to be in occupation de jure. Hence, the propounding of so many maps and documents. If we were sitting in appeal on the award of the Tribunal, we might have formed a different opinion on the material but we are not. The fact remains that India undertook to be bound by the award, pledging the national honour and we must implement the award. The only question is as to the steps to be taken.

“On the whole, therefore, we are of opinion that this reference began in a boundary dispute after open hostilities and was decided as such. In which case it cannot be said that there will be a cession of Indian territory and the rule earlier laid down by us applies. If no constitutional amendment is required, the power of the Executive, which extends to matters with respect to which Parliament has power to make laws, can be exercised to correct boundaries now that they have been settled. The decision to implement the Award by exchange of letters, treating the Award as an operative treaty after the boundary has been marked in this area, is within the competence of the executive wing of government and no constitutional amendment is necessary.”

A concurring judgment was delivered by Justice J.C. Shah: “I agree with the learned Chief Justice.” He went into the evidence adduced before the Tribunal and said: “The alignment of the boundary under the award deviates from the alignment claimed by the Government of India before the Tribunal in three important respects which have already been set out. The Tribunal was of the view, on a consideration of the maps produced, that there did not exist at any time relevant to the proceedings a historically recognised and well-established boundary in the three sectors. About the Kanjarkot Sector the Chairman observed: ‘The evidence shows that Kutch did not make any appearance in this area until 1946, and then only abortive attempts were made by the sons of the lessee, Node Sadi Rau, to go there in order to collect Panchari. They reported that they did not even dare to stay overnight in the place. While no specific evidence has been submitted which proves any activities undertaken by Sind subjects in Pirol Valo Kun, the reports of the Kutch lessees establish that Sind inhabitants engaged in grazing there.’

“And further observed at Page 151: ‘In a sector bounded to the south by the southern limit of Pirol Valo Kun, not only is there a total absence of effective Kutch activity, but there is a consistent exercise of sovereign rights and duties by Sind authorities, and activities of residents of Sind, in one instance, taking the form of a permanent settlement at Shakur.’

“The territory in this sector is contiguous to and in fact is an extension of the mainland of Sind and apart from the survey maps there is no evidence that it is part of the great Rann of Kutch. No serious argument was advanced to establish that on Kanjarkot, the Kutch State at any time exercised sovereign authority.”

Justice Shah added: “ Unless there is evidence to show that the inlets were territory over which the Maharao of Kutch had sovereign rights, acceptance of the award is not required to be implemented by the constitutional amendment. The total area of the inlets, we are informed by Counsel on both sides, does not exceed 25 square miles. In the turbulent times which preceded the occupation of Sind by the East India Company in 1843 or even thereafter it is unlikely that authority was exercised by the Maharao of Kutch over these inlets. It appears from some of the maps that at the extremities the inlets are very narrow; and roads cross these inlets from Nagar Parkar, which is of the shape of peninsula into the mainland of Sind. It is difficult to accept that at any time effective sovereign authority could have been exercised over these inlets by the Maharao of Kutch. There is no evidence of exercise of any such right, before or after the occupation of Sind. There being no evidence of exercise of sovereign authority by the Maharao of Kutch, this court cannot treat it as part of Indian territory.

“On that view the claim made by the claimants that in implementing the award of the International Tribunal an attempt is made to cede any part of the territory which formed part of the State of Kutch before 1948, or was in de facto occupation and in respect of which sovereign authority was exercised by the Maharao of Kutch is wrong. The award does no more than define on the surface of the earth a boundary which has at all material times remained indefinite, because of the nature of the terrain, the shifting nature of the border of what was called Rann, the highly discrepant and conflicting claims made from time to time by the British authorities as well as the Kutch State authorities before the State merged with the Dominion of India in 1948, and the persistent refusal of the British authorities, though there were several occasions to demarcate the boundary between Sind and the Rann of Kutch.”

H.M. Seervai questioned the judgment. “Since both judgments held that the dispute about the Rann of Kutch involved no cession of Indian territory, the question whether cession of territory could be effected only by a constitutional amendment did not arise and, very rightly, Shah J. did not express any opinion on the correctness of the Berubari Opinion. However, Hidayatullah C.J. said: ‘The precedents of this court are clear only on one point, namely, that no cession of Indian territory can take place without a constitutional amendment. Must a boundary dispute and its settlement by an arbitral tribunal be put on the same footing?’ If these observations treat it as settled law that a cession of territory requires a constitutional amendment, they are obiter, and for the reasons already given (in paragraphs 6.12 and 6.13) they are clearly wrong.” However, in 1990, the Berubari Opinion was reaffirmed by the Supreme Court. Note that Justice Shah left an opening—if the territory was unquestionably Indian.

The 1974 agreement

3. Union of India & Ors. vs Sukumar Sengupta & Ors. ((1990) (Sapp) S.C.C. 545).

The Supreme Court recalled the history of the dispute concerning the enclaves in the territories of India and Bangladesh belonging, in each case, to the neighbouring country. An agreement of May 16, 1974, provided for their exchange. Neither the 1958 Agreement nor the 9th Amendment had been implemented by India, thanks to the uproar in West Bengal. Berubari is about the size of a football field. Imagine the fury that would be whipped up if larger areas are written off, if they are under the occupation of another country, or given up to it if they are in India’s occupation.

Items 12 and 14 of Article 1 of the 1974 Agreement were as follows : “Item No.12: The Indian enclaves in Bangladesh and the Bangladesh enclaves in India should be exchanged expeditiously, excepting the enclaves mentioned in paragraph 14 without claim to compensation for the additional area going to Bangladesh. Item No.14: India will retain the southern half of south Berubari Union No.12 and the adjacent enclaves, measuring an area 2.64 square miles approximately, and in exchange Bangladesh will retain the Dahagram and Angarpota enclave. India will lease in perpetuity to Bangladesh an area of approximately 178 metres x 85 metres near ‘Teen Bigha’ to connect Dahagram with Panbari Mouza (P.S. Patgram) of Bangladesh.” This agreement was also not carried out by India. Two agreements were thus broken by India; with Pakistan in 1958 and with Bangladesh in 1974.

In letters exchanged between the Ministry of Foreign Affairs, Government of Bangladesh, and the Ministry of External Affairs, Government of India, both dated October 7, 1982, it was recorded that with reference to the earlier agreement between the Government of Bangladesh and the Government of India concerning the demarcation of land boundary between the two countries, signed on May 16, 1974, an understanding was reached between the two governments in respect of lease in perpetuity by India of the said area of 178 metres x 85 metres near ‘Teen Bigha’ to connect Dahagram with mouza Punbari in Bangladesh. The understanding recorded was as follows.

“Clause 1: The lease in perpetuity of the aforementioned area shall be for the purpose of connecting Dahagram and Angarpota with Panbari Mouza (P.S. Patgram) of Bangladesh to enable the Bangladesh Government to exercise her sovereignty over Dahagram and Angarpota. Clause 2: Sovereignty over the leased area shall continue to vest in India. The rent for the lease area shall be Bangladesh re 1 (Bangladesh Taka one) only per annum. Bangladesh shall not however be required to pay the said rent and Government of India hereby waives its right to charge such rent in respect of the leased area. Clause 3: For the purposes stated in para 1, Bangladesh shall have undisturbed possession and use of the area leased to her in perpetuity.”

The Supreme Court held: “The decision to allow Bangladesh to retain Dahagram and Angarpota under the agreements of 1974 and 1982 would not amount to cession of any part of the territory of India in favour of a foreign state. The Division Bench [of the Calcutta High Court] after examining the record came to the conclusion that both de facto and de jure Dahagram and Angarpota remained part of East Pakistan and subsequently Bangladesh. If that is the position, then undisputedly there was no question of cession of any part or any territory by the agreements of 1974 and 1982. This is a finding which is factually concluded.

“The major right which had been conferred on Bangladesh was the right of free movement over the area. The right of undisturbed possession and use of the area under the agreement of 1982 has to be understood in the context of the right of free movement. It appears to us that it is not possible to hold that Bangladesh would have a right to occupy permanently the area or to construct buildings and fortification therein or to lay railway lines through the area…. A fortiori, the said transaction did not amount to cession of the said area of Teen Bigha in favour of Bangladesh. Cession as understood in International Law would result in an actual and physical transfer of the said area to Bangladesh following which Bangladesh would have the exclusive right to treat the said transferred territory as part of its own territory and exercise full control, dominion and right over the same. This is not the same position or the situation which is contemplated under the agreements. The rights intended to be conferred on Bangladesh under the said agreements would amount to what is known as ‘servitude’ in International law…. even without the said agreements of 1974 and 1982, so long as Dahagram and Angarpota remain part of Bangladesh, the latter under the general International Law and customs would have a right to access to the said enclave through the territory of India. It is this international practice and custom which has been recognised in the said agreements except that the military, paramilitary and police of Bangladesh with arms, ammunitions and equipments have also been given a right to passage through the area.”

The Katchativu case

The affidavit filed by the Government of India in reply to M. Karunanidhi’s petition challenging the cession of the Katchativu Island to Sri Lanka was drafted in the light of these rulings of the Supreme Court.

Except in regard to the size, what the affidavit said of the island can fairly be said of the Aksai Chin. It bears quotation in extenso. “The Katchchativu Island has always been a small, barren and uninhabited island. Historically, neither India nor Sri Lanka has had any permanent presence there. The status of Katchchativu Island was a matter of dispute between British India and Ceylon (now Sri Lanka) and there was no agreed boundary.

“That on the basis of historical and legal evidence collected from various record offices in India and abroad, the legal aspects of the matter were examined exhaustively by the Attorney General of India in August 1970. After evaluating the relevant facts in relation to the manifestation of the sovereignty by the Government of India on the one hand and the Government of Sri Lanka on the other and also the nature and extent of competing claims, the Attorney General concluded that, on balance, the sovereignty of Katchchativu was and is with Ceylon and not India.

“The dispute relating to the status of Katchchathivu Island was settled by the ‘Agreement on the boundary in historic waters between the two countries and related matters’ of 1974, wherein the two countries [had] ‘examined the entire question from all angles and taken into account the historical and other evidence and legal aspects thereof’, and thus, determined ‘the boundary line in the historic waters between India and Sri Lanka and to settle the related matters in a manner which is fair and equitable to both sides’ (1974 Agreement). Accordingly, the island of Katchchativu fell on the Sri Lankan side of the International Maritime Boundary Line (IMBL).

“That in 1976 India and Sri Lanka signed another ‘Agreement on the Maritime boundary between the two countries in the Gulf of Mannar and the Bay of Bengal and related matters’ that extended determination of India’s maritime boundary with Sri Lanka into the Gulf of Mannar and the Bay of Bengal.

“Both these agreements were subsequently laid before Parliament. The 1974 Agreement was ratified and came into operation on 8 July 1974. The 1976 Agreement was ratified by the Government of India on 6 July 1976 and the Government of Sri Lanka on 8 July 1976. The exchange of letters between Shri Kewal Singh, Foreign Secretary to Government of India, and Shri W.T. Jayasinghe, Secretary of Ministry of Defence and Foreign Affairs of the Government of Sri Lanka, are merely meant to facilitate and regulate fishing activities following the bilateral boundary Agreements of 1974 and 1976. These were executive instructions and are not instructions of sovereign control. They do not indicate either exercise of sovereign control or its loss.…

“In the light of these facts and Union Government records, the reference to Katchchativu being part of Raja of Ramnad Zamindari, that it subsequently became part of Madras Presidency and the reference to various articles, books, map (Annexure I) and lease deeds as claimed by the Petitioner do not reflect the correct and true position of the legal status of Katchchativu. In fact, the various lease deeds referred to by the Petitioner in his writ petition do not establish and cannot be interpreted as exercise of sovereign control over the island. The same is therefore specifically denied. It is reiterated that the status of the island was examined exhaustively by the then Attorney General of India in August 1970.

“The issue of ownership of the Katchchativu was first discussed in a Conference between the two countries in October 1921 in Colombo, which met to discuss the maritime boundary in the Palk Bay and the Gulf of Mannar. The median line so drawn placed Katchchathivu island in the Sri Lanka side, but the representative of the Madras Government signed the delimitation line with the proviso that ‘The above is signed by us, representatives of the Government of Madras, without prejudice to any territorial claim which may be made by the Government of India to the island of Katchchathivu.’ The matter was deliberated upon in the Government of India subsequently and a clear verdict in favour of Sri Lanka was handed down to the Government of Madras in letter of 8 March 1923 which after examining the relevant evidence concluded that Government of India propose unless the Government of Madras have further evidence to the contrary to recognise that the island of Kachachthivu is part of Ceylon.” However in 1924 the Secretary of State for India in London questioned the validity of this decision. It may, however be added that technically the Secretary of State for India’s order was not binding on the Government of Ceylon since the latter came under the jurisdiction of the Colonial Secretary. Therefore when the two countries attained independence from the British the position of the island with regard to its ownership remained nebulous.

“It is submitted that the 1974 and 1976 agreements determined the international maritime boundary line between India and Sri Lanka. This did not involve either acquiring or ceding of territory belonging to India since the area in question had never been demarcated. Thus, they did not require a Constitutional Amendment to be enacted through Parliament. These agreements were, nonetheless, placed before Parliament and came into effect following the due process of ratification and exchange of instruments of ratification between the two countries. Thus, as far as the Government of India is concerned, the issue of the maritime boundary between India and Sri Lanka and, consequently, that of sovereignty over Kachachthivu Island, is a settled matter.

“The reference to Berubari is untenable as that dealt with cession of territory held by India. Since no ceding of territory took place through the India-Sri Lanka Agreement of 1974, consequently, the need to pass a constitutional amendment to give effect to the Agreement in India does not arise. More relevant to Katchchativu is the Supreme Court judgment in Maganbhai Ishwarbhai Patel vs Union of India (AIR 1969 SC 783) wherein the Supreme Court, in the course of its judgment, distinguished this case from Berubari Union as it was concerned with disputed boundaries whereas Berubari Union dealt with transfer of de facto and de jure Indian territory. The Supreme Court observed that ‘the settlement of disputed boundary is quite distinguishable from a case of cession of territory known to be home territory, that a settlement of a disputed boundary could not be held to be a cession of territory so as to attract a constitutional amendment, and that such a settlement could be effected by the executive whose powers extended to matters with respect to which Parliament had power to make laws’.”

India-China boundary questions

There are four sectors in the boundary dispute with China. The one from the Sino-Afghan-Pakistan trijunction eastward towards the Karakoram Pass is the subject of the Agreement of March 3, 1963, defining the boundary in this region. It is based on the proposal by Britain to China in 1899 (the Macartney-MacDonald line) which China ignored. Exasperated, the Viceroy, Lord Curzon, unilaterally modified it in 1905 in favour of India, a deviation affirmed in the 1963 agreement. Contrary to the myth spread by Jawaharlal Nehru and his successors, Pakistan ceded no territory to China. It acquired, instead, 750 square miles of administered territory. The Shaksgam valley was not ceded as a journalist who advised the Bharatiya Janata Party (BJP) government in 2001 enthusiastically alleged. According to India’s official map of 1950, the entire northern boundary, from the trijunction with Afghanistan to the trijunction with Nepal, was “undefined”. Nehru had it altered unilaterally in 1954 to show a clear line. That is how the Aksai Chin became “Indian territory”. He refused to discuss the alteration.

Since 1960 China has flatly refused to discuss this sector with India. It returned India’s map which included this sector for discussion. No Chinese government will relent on this point. No accord is possible if India insists on its line here or, for that matter, in the Aksai Chin.

Given New Delhi’s annual ritual of claiming that x square miles of Indian territory are under China’s occupation it would be a problem for it to tell the Supreme Court that waiving India’s claims here will not amount to cession of territory.

It is a much simpler matter in the middle sector. The area in dispute is small. Existence of a boundary dispute can be claimed with some justification. No Indian government can possibly abandon its stand on the McMahon Line and survive. All that is possible here is a realignment of the Line which Nehru unilaterally altered, as he admitted on September 12, 1959. The Line was not defined in words in the Indo-Tibetan exchange of Notes on March 24-25, 1914, a century ago. It was defined by a line on a map attached to the Notes, a line drawn by a thick nib dipped in red ink. Modern aerial cartography can help. If an agreement is reached on this basis, it can be convincingly proved to be a resolution of a boundary dispute rather than a cession of territory.

There are two problems of a fundamental nature which must be confronted. At his press conference in New Delhi on April 26, 1960, Zhou Enlai formulated six points. The first asserted: ‘There exist disputes with regard to the boundary between the two sides.” Nehru demurred to this fundamental at the very outset—there was no dispute about India’s territories.

The second problem is that there is a world of difference about a dispute as to the alignment of a boundary, and a claim to territory; between a boundary dispute and a territorial claim. Given the political will to settle, none of the legal problems poses a hurdle. The boundary treaty will simply define a line. A constitutional amendment will remove all doubt. A national consensus is needed anyway. But the legal problems must be faced realistically and boldly. Exercises in the Law Ministry and the Legal & Treaties Division of the Ministry of External Affairs will not be wasted.

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