Third Amendment to Constitution Kazi Mukhlesur Rahman
Third Amendment to Constitution
In pursuance of the Indo-Bangladesh Friendship Treaty, 1972 Bangladesh Prime Minister Sheikh Mujibur
Rahman and Indian Prime Minister Indra Gandhi signed an agreement on May 16, 1974 in Delhi concerning
border demarcation between two neighbours.67 According to the agreement Bangladesh agreed to transfer South
Berubari Union amounting to 2.64 square miles approximately to India and get back Dahagram Angarpota,
Lathitila, and Pathuria forest from India in return.68 It is said Bangladesh only wanted free access to these areas.
These areas are part of Bangladesh but Indian central authority put a bar on Bangladeshi citizens to enter these
areas.
Bangladesh government exhibited very much enthusiasm about the transfer of South Berubari to India
immediately after the signature of the agreement without protecting the interest of Bangladesh under the treaty.
Since the territory of Bangladesh was defined in Article 2 of the Constitution of the People’s Republic of
Bangladesh 69 the Appellate Division in the case of Mr. Kazi Mukhlesur Rahman v. the State, (1974) imposed
restriction upon government’s enthusiasm. The petitioner challenged the Delhi Treaty signed on May 16, 1974 on
the ground that Prime Minister had no right to transfer Southern half of Berubari Union No-12 which was an
integral part of Bangladesh. Accepting the petition Court gave following observations:- 70
1) Executive has power to make treaty under article 55(2).
2) Prime Minister alone by using his executive power under article 55(2) can’t transfer any territory of
Bangladesh by making any treaty with foreign territory.
3) The power of determining the boundary of the territory of Bangladesh resided with the Parliament under
article 143(2).
4) Treaty involving the determination of boundary and more so involving cession of territory can only be
concluded with the concurrence of Parliament by necessary enactment; in case of determination of
boundary by an enactment under article 143(2) and in case of cession of territory by amending article 2(a)
of the Constitution by taking recourse to article 142.
In order to give effect the Bangladesh India Border Demarcation Agreement signed on May 16, 1974
Law and Parliamentary Affairs Minister Mr. Monoranjan Dhar introduced the Constitution (Third Amendment)
Bill to the House on 21st November, 1974.71 The Law and Parliamentary Affairs Minister Mr Dhar said this bill
would enable the country to transfer an area of 2.64 square miles approximately of Berubari union to India and
bring in Dahagram and Angarpota enclaves from territory of India in exchange. Mr Dhar said this bill would give
effect to the historic agreement signed between Bangladesh and India on May 16, 1974. He observed this bill
would help strengthening further friendly relations between the two countries.72
Mr. Dhar argued that empowered by the Constitution the Prime Minister had the authority to sign an
agreement ceding a part of the country’s territory to a foreign country. The Prime Minister was within his right to
do it, he added.73
Opposition demanded a referendum over the bill.74 Refuting the opposition demand for referendum Mr.
Dhar said that the Sangsad had the mandate to pass the bill to amend the constitution for the ratification of the
agreement. He denied unequivocally that Bangladesh had surrendered any part of her territory under any threat.
He said Prime Minister had signed the agreement in the best interest of the country.75
Dr. Kamal, Foreign Minister, said that since Bangladesh had no control over the Southern half of the
Berubari we should cede this to India in exchange of Angarpota and Dagagram enclaves.76 He noted with
satisfaction that India as per agreement had agreed to give a corridor for passage of the people of the two enclaves.77
Dr Kamal ridiculed the opposition demand for a referendum on the amendment bill and said the government party had gone in for referendum number of times and won them.78
On the bill opposition member Mr. Ataur Rahman Khan contended that Dahagram and Angarpota were
very much within former East Pakistan, now Bangladesh. Bangladesh wanted free access to these areas. These
areas are part of Bangladesh but Indian Central Authority put a ban on Bangladeshi citizens to enter these areas.
Therefore it was not correct to say that Dahagram and Angarpota had been exchanged for Berubari. He said under
the agreement signed by the Prime Ministers of Bangladesh and India a part of the territory of Bangladesh had
been ceded to India.79 He further said Prime Minister had no right to do that. He, therefore, demanded a referendum
over it to ascertain the wishes of the people. He argued sovereignty vests in the people and on nobody else.80
Other opposition members Barrister Mohammad Kamrul Islam and Mohamed Salehuddin submitted this
constitution amendment seeking to negate the sovereignty over a part of the country’s territory.81 Barrister argued
that Parliament, therefore, could not ratify this amending bill.82
The House rejecting the motion of opposition passed the Constitution (Third Amendment) Bill, 1974 with
261 in favour of the bill and seven against, to give effect to the agreement between Bangladesh and India providing
for delineating their undemarcated border on November 23, 1974.83 The President assented to the bill on 28th day
of November, 1974.
4.1 Transfer of South Berubari to India
By third amendment Awami League government ratified the Bangladesh-India Border Demarcation Agreement
1974 surrendering sovereignty of Bangladesh over the territory of South Berubari to India. As a result of which
article 2 of the Constitution was rewritten in the following sentences-84
“2. The territory of the Republic shall comprise-
(a) the territories which immediately before the proclamation of independence on the 26th day
of March, 1971 constituted East Pakistan and the territories referred to as included territories
in the Constitution (Third Amendment) Act, 1974, but excluding the territories referred to
as excluded territories in that Act; and
(b) Such other territories as may become included in Bangladesh.”
By this change the trustee had tried to legalise its illegal transaction of trust property. Because it did not get back
transit to Dahagram Angarpota, Lathitila, and Pathuria forest from India under the Delhi Treaty. It appears that on
this particular issue the motive of the concerned authority can be questioned by the nation.
In pursuance of the Indo-Bangladesh Friendship Treaty, 1972 Bangladesh Prime Minister Sheikh Mujibur
Rahman and Indian Prime Minister Indra Gandhi signed an agreement on May 16, 1974 in Delhi concerning
border demarcation between two neighbours.67 According to the agreement Bangladesh agreed to transfer South
Berubari Union amounting to 2.64 square miles approximately to India and get back Dahagram Angarpota,
Lathitila, and Pathuria forest from India in return.68 It is said Bangladesh only wanted free access to these areas.
These areas are part of Bangladesh but Indian central authority put a bar on Bangladeshi citizens to enter these
areas.
Bangladesh government exhibited very much enthusiasm about the transfer of South Berubari to India
immediately after the signature of the agreement without protecting the interest of Bangladesh under the treaty.
Since the territory of Bangladesh was defined in Article 2 of the Constitution of the People’s Republic of
Bangladesh 69 the Appellate Division in the case of Mr. Kazi Mukhlesur Rahman v. the State, (1974) imposed
restriction upon government’s enthusiasm. The petitioner challenged the Delhi Treaty signed on May 16, 1974 on
the ground that Prime Minister had no right to transfer Southern half of Berubari Union No-12 which was an
integral part of Bangladesh. Accepting the petition Court gave following observations:- 70
1) Executive has power to make treaty under article 55(2).
2) Prime Minister alone by using his executive power under article 55(2) can’t transfer any territory of
Bangladesh by making any treaty with foreign territory.
3) The power of determining the boundary of the territory of Bangladesh resided with the Parliament under
article 143(2).
4) Treaty involving the determination of boundary and more so involving cession of territory can only be
concluded with the concurrence of Parliament by necessary enactment; in case of determination of
boundary by an enactment under article 143(2) and in case of cession of territory by amending article 2(a)
of the Constitution by taking recourse to article 142.
In order to give effect the Bangladesh India Border Demarcation Agreement signed on May 16, 1974
Law and Parliamentary Affairs Minister Mr. Monoranjan Dhar introduced the Constitution (Third Amendment)
Bill to the House on 21st November, 1974.71 The Law and Parliamentary Affairs Minister Mr Dhar said this bill
would enable the country to transfer an area of 2.64 square miles approximately of Berubari union to India and
bring in Dahagram and Angarpota enclaves from territory of India in exchange. Mr Dhar said this bill would give
effect to the historic agreement signed between Bangladesh and India on May 16, 1974. He observed this bill
would help strengthening further friendly relations between the two countries.72
Mr. Dhar argued that empowered by the Constitution the Prime Minister had the authority to sign an
agreement ceding a part of the country’s territory to a foreign country. The Prime Minister was within his right to
do it, he added.73
Opposition demanded a referendum over the bill.74 Refuting the opposition demand for referendum Mr.
Dhar said that the Sangsad had the mandate to pass the bill to amend the constitution for the ratification of the
agreement. He denied unequivocally that Bangladesh had surrendered any part of her territory under any threat.
He said Prime Minister had signed the agreement in the best interest of the country.75
Dr. Kamal, Foreign Minister, said that since Bangladesh had no control over the Southern half of the
Berubari we should cede this to India in exchange of Angarpota and Dagagram enclaves.76 He noted with
satisfaction that India as per agreement had agreed to give a corridor for passage of the people of the two enclaves.77
Dr Kamal ridiculed the opposition demand for a referendum on the amendment bill and said the government party had gone in for referendum number of times and won them.78
On the bill opposition member Mr. Ataur Rahman Khan contended that Dahagram and Angarpota were
very much within former East Pakistan, now Bangladesh. Bangladesh wanted free access to these areas. These
areas are part of Bangladesh but Indian Central Authority put a ban on Bangladeshi citizens to enter these areas.
Therefore it was not correct to say that Dahagram and Angarpota had been exchanged for Berubari. He said under
the agreement signed by the Prime Ministers of Bangladesh and India a part of the territory of Bangladesh had
been ceded to India.79 He further said Prime Minister had no right to do that. He, therefore, demanded a referendum
over it to ascertain the wishes of the people. He argued sovereignty vests in the people and on nobody else.80
Other opposition members Barrister Mohammad Kamrul Islam and Mohamed Salehuddin submitted this
constitution amendment seeking to negate the sovereignty over a part of the country’s territory.81 Barrister argued
that Parliament, therefore, could not ratify this amending bill.82
The House rejecting the motion of opposition passed the Constitution (Third Amendment) Bill, 1974 with
261 in favour of the bill and seven against, to give effect to the agreement between Bangladesh and India providing
for delineating their undemarcated border on November 23, 1974.83 The President assented to the bill on 28th day
of November, 1974.
4.1 Transfer of South Berubari to India
By third amendment Awami League government ratified the Bangladesh-India Border Demarcation Agreement
1974 surrendering sovereignty of Bangladesh over the territory of South Berubari to India. As a result of which
article 2 of the Constitution was rewritten in the following sentences-84
“2. The territory of the Republic shall comprise-
(a) the territories which immediately before the proclamation of independence on the 26th day
of March, 1971 constituted East Pakistan and the territories referred to as included territories
in the Constitution (Third Amendment) Act, 1974, but excluding the territories referred to
as excluded territories in that Act; and
(b) Such other territories as may become included in Bangladesh.”
By this change the trustee had tried to legalise its illegal transaction of trust property. Because it did not get back
transit to Dahagram Angarpota, Lathitila, and Pathuria forest from India under the Delhi Treaty. It appears that on
this particular issue the motive of the concerned authority can be questioned by the nation.
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