Before Katchatheevu, there was Bengal's Berubari: How a CM took on PM Nehru

The Berubari case went on to affect the Katchatheevu matter decades later, with opponents of the island's transfer to Sri Lanka citing it as a reason to reclaim the territory

Before Katchatheevu was recognised by India as Sri Lankan territory in the 70s during the rule of Indira Gandhi, there was another boundary agreement that almost went through, this time to transfer territory to Pakistan, under the then Prime Minister, Jawaharlal Nehru.    

CM vs PM

In the late fifties, PM Nehru wanted to transfer Berubari, in West Bengal, to erstwhile East Pakistan, now Bangladesh. While PM Nehru viewed Berubari as a disputed territory, the then chief minister of West Bengal, Bidhan Chandra Roy, opposed such a move, arguing that Berubari was an integral part of West Bengal.

Berubari, occupying a small portion of West Bengal's northern district of Jalpaiguri, comprised an area of about 9 square miles and had 12,000 residents in the 50s.

The stand taken by Roy and his government was reflected in the following remarks: "So far as this (West Bengal) government is concerned, we have spent money in that area for construction of roads, bridges, etc. And, (we) also have settled some refugees, for which money has been spent by the Government of India. We are, therefore, very keen that the Berubari union should remain with West Bengal, which has been controlling and administering this union."

Bidhan Chandra Roy was the second Premier and first chief minister of West Bengal, from January 23, 1948, to January 25, 1950, and from January 26, 1950, until his death on July 1, 1962, respectively. Roy was also a Bharat Ratna awardee.
 

In a 1959 speech on the Berubari Union matter, Bidhan Chandra Roy had said, "The question that has arisen is whether the Prime Minister has a right to adjust the boundaries without reference to the West Bengal Government; that is the first question; secondly, whether they have the right to adjust the boundaries at all." 

The legal case

Saumya Brajmohan, Partner, Solomon & Co, explains: "After Partition, Berubari became a point of contention between India and Pakistan. Pakistan contested India's claim to Berubari, arguing that it belonged to their territory of East Bengal. The disagreement continued until 1958, when the then Prime Ministers of both nations -- Jawaharlal Nehru in India and Feroze Khan Noon in Pakistan -- entered into an agreement, popularly known as the Nehru-Noon Agreement, to resolve these boundary disputes." 

The Nehru-Noon Agreement proposed to divide Berubari into two equal halves between India and Pakistan and the division was given effect by promulgating the Constitution (Ninth Amendment) Act, 1960. 

Brajmohan says, "This division under the Nehru-Noon Agreement, and the consequential Ninth Amendment to implement this division, was referred by the President of India to an eight-judge Bench of the Supreme Court. The principal contention raised was that while Article 1(3)(c) provides India with authority to acquire territories, it makes no provisions for ceding any of the existing territories."

She adds, "The Government argued that the land given to Pakistan was not given in cession, but as a mode to simply settle a boundary dispute. The Supreme Court affirmed that the Nehru-Noon Agreement amounted to cession and recognised the power of the Parliament to amend the Constitution under Article 368 which validated the Ninth Amendment. The judgment is also a landmark for its recognition of the preamble not being part of the Constitution." 

The Supreme Court's ruling meant that a constitutional amendment would be needed to transfer Indian territory to another country. And, while the Constitution was amended in 1960, Berubari still remained a part of India. 

"New Delhi considered it to be a disputed territory and wanted to transfer it to East Pakistan. B C Roy produced evidence that Berubari was a part of West Bengal," explains V Suryanarayan, founding director and senior professor (Retd.), Centre for South and Southeast Asian Studies, University of Madras.

Suryanarayan adds, "West Bengal argued that if an Indian territory was to be ceded to another country, the Constitution had to be amended. The Supreme Court upheld the claim. Berubari still remains a part of West Bengal."  

What was the 1958 Nehru-Noon Agreement all about?

The 1958 Nehru-Noon Agreement, between then Indian Prime Minister Jawaharlal Nehru and then Pakistan Prime Minister Feroze Khan Noon, had sought to resolve the matter of Union No. 12 of Southern Berubari.

The broader objective of the 1958 agreement was to resolve differences between India and Pakistan that were impeding the demarcation of the boundary between the two and to exchange territories as a consequence of such a demarcation. 

How a small error led to the dispute

The boundary between India and Pakistan was fixed by Britain's Cyril Radcliffe, with the boundary line being known as the Radcliffe Line.  

Radcliffe had divided the district of Jalpaiguri between India and Pakistan by awarding some 'thanas' (police stations) to each country. 

Berubari Union No. 12, which was within the jurisdiction of Jalpaiguri district's police station, was awarded to India. 

Pakistan raised a dispute in 1952, claiming that a part of Berubari belonged to it. 

Pakistan took this step because while Berubari was described as being part of West Bengal and allotted to India under the Radcliffe Award, the map annexed to the Award showed this area as part of East Pakistan.   

Katchatheevu takes centre stage

Coming back to the present, Prime Minister Narendra Modi on Monday accused the Dravida Munnetra Kazhagam (DMK) of having "done nothing" to safeguard the interests of Tamil Nadu's fishermen.

The PM's post on microblogging platform X contained a link to a newspaper report that said that then prime minister Indira Gandhi had taken the DMK leadership into confidence on the Katchatheevu deal.

PM Modi's attack on Tamil Nadu-based DMK came a day after he targeted the Congress for weakening the unity and integrity of India by allegedly ceding the Katchatheevu island to Sri Lanka in 1974.

Katchatheevu is a 285-acre uninhabited island in the Palk Bay.  

At a press conference that same day, External Affairs Minister S Jaishankar claimed that prime ministers Jawaharlal Nehru and Indira Gandhi had dubbed Katchatheevu as a "little island" and "little rock".

Jaishankar added that DMK's leader and then chief minister M Karunanidhi was kept fully informed about the 1974 pact. However, on whether India would take steps to reclaim the island, Jaishankar said it was a sub-judice matter and nobody should speculate.

How Katchatheevu's case differs from Berubari's

Suryanarayan says, "Karunanidhi should have followed B C Roy's precedent. He should have taken the Katchatheevu issue to the Supreme Court. Instead he got a resolution passed by the Tamil Nadu Legislative Assembly that Katchatheevu should not be ceded to Sri Lanka."

He adds, "A resolution by the Legislative Assembly on a subject that falls under the domain of the Centre is not binding, whereas a judicial decision is binding on all concerned."

However, Berubari's case differs from that of Katchatheevu, given that the latter might have never officially been part of any Indian map.

Responding to a January 2015 RTI application, the Ministry of External Affairs had said that the Katchatheevu island lies on the Sri Lankan side of the India-Sri Lanka international maritime boundary line (IMBL).

Informing that the IMBL was delineated by a 1974 agreement demarcating it in the Palk Strait and another 1976 agreement demarcating it in the Gulf of Mannar and Bay of Bengal, the ministry had said, "This did not involve either acquiring or ceding territory belonging to India since the area in question had never been demarcated."

The ministry had added that under the 1974 and 1976 agreements, the Katchatheevu island "lies on the Sri Lankan side of the India-Sri Lanka IMBL".

Berubari case still had an impact on Katchatheevu matter

The matter did in fact reach the Supreme Court.

In 2008, J Jayalalithaa, in her capacity as the then general secretary of the All India Anna Dravida Munnetra Kazhagam (AIADMK), moved the Supreme Court to declare the 1974 and 1976 India-Sri Lanka pacts on Katchatheevu null and void.

In 2011, Tamil Nadu's Department of Revenue impleaded itself in the case filed by Jayalalithaa.

In 2013, Karunanidhi filed a separate petition in the apex court, seeking to annul the accord on Katchatheevu.

In fact, in 2014, Jayalalithaa, who was then Tamil Nadu's chief minister, brought up the the Supreme Court's order in the Berubari case, where the apex court had said any territory owned by India could be ceded to another country only through a constitutional amendment.

Jayalalithaa had claimed that since Katchatheevu was "ceded" to Sri Lanka without a constitutional amendment, the action was "unlawful and not valid".