19 February 1968
VOLUME XVII pp. 1-576
NATIONS UNIES - UNITED NATIONS
AWARD
States as international persons - State territory - Parts of State territory - The concept of sovereignty, independence and the nature of territorial rights-The question of application of international law between suzerain and vassal States - Proof of established historical boundary lines - Application of custom and usage - The concept of a boundary belt - Evidentiary weight accorded to maps and to acts displaying sovereign functions - Estoppel - Recognition and acquiescence by territorial sovereign or suzerain State - Effects on successor State - Relinquishment of potential sovereign rights - Acts in uninhabited remote region - Relevance of acts of private individuals - Consideration of equity - Relevance of the concept of contiguity in land boundaries - Flexibility in the conduct of arbitral proceedings — New approach to the question of discovery and inspection of evidentiary documents.
Les Etats en tant que personnes internationales - Territoires des Etats - Parties du territoire des Etats - Notions de souveraineté et d'indépendance et nature des droits territoriaux - Question de l'application du droit international entre Etats suzerains et Etats vassaux - Preuve de l'établissement de frontières historiques - Application de la coutume et de l'usage - Nations de ceinture de frontières - Valeur probante reconnue aux cartes et aux actes relevant de fonctions de souveraineté - Forclusion - Reconnaissance et acquiescement de la part de l'Etat exerçant la souveraineté territoriale ou Etat suzerain - Effets sur l'Etat successeur — Abandon de droits souverains potentiels — Actes effectués dans une région lointaine inhabitée - Pertinence d'actes de particuliers - Considération de principes d'équité - Pertinence de la notion de contiguité en matière de frontières terrestres - Souplesse du déroulement des procédures arbitrales - Nouveau mode d'approche à l'égard de la question de la découverte et de l'examen de documents servant de preuve.
A consolidated draft of the Introduction and the nine Chapters of this Award was distributed to the Parties on 20 October 1967. Later, in the autumn of
1967, each of the Parties submitted written comments on this draft to the Tribunal and to each other. Each of the Parties thereafter in like manner submitted counter-comments on the observations made by the opposite Party. The final text of said parts of this Award has been determined by the Tribunal. In this redrafting process, the Tribunal has taken into consideration all the proposals for amendments, additions and exclusions thus made in writing by the Parties. The Tribunal has applied the principle of incorporating to the greatest extent possible the suggestions made by each Party.
The circumstances now referred to, and the paramount interest in speedily obtaining an exhaustive, accurate and fair account of all facts and arguments, have unavoidably resulted in a certain amount of repetition and overlapping in the various Chapters and Sections.
In the case concerning the Gujarat (India)-West Pakistan boundary
between
the Republic of India,
represented by
Mr. B. N. Lokur, Special Secretary to the Government of India in the Ministry of Law, and Member of the Law Commission of India,
as Agent,
and by
Dr. K. Krishna Rao, Joint Secretary and Legal Adviser, Ministry of External Affairs, Government of India,
as Deputy Agent,
assisted by
Mr. C. K. Daphtary, Attorney-General of India,
as Leading Council,
and by
Mr. N. C. Chatterjee, Member of Parliament, and Senior Advocate, Supreme Court of India,
Mr. J. M. Thakore, Advocate General of Gujarat, and
Mr. N. A. Palkhivala, Senior Advocate, Supreme Court of India,
as Counsel,
and by
Colonel S. K. S. Mudaliar, Retired Director, Survey of India,
Mr. R. N. Duggal, Deputy Director, Historical Division, Ministry of External Affairs, Government of India,
Colonel P. Rout, Director, Survey of India,
Mr. P. K. Kartha, Assistant Legal Adviser, Legal and Treaties Division, Ministry of External Affairs, Government of India,
Mr. K. V. Bhatt, Deputy Secretary, Government of Gujarat,
Mr. K. H. Patel, Senior Research Officer, Historical Division, Ministry of External Affairs, Government of India, and
Lieut.-Col. T. S. Bedi, Superintendent of Surveys, Survey of India,
as Experts,
and by
Mr. A. Sankararaman, Private Secretary to Special Secretary to the Government of India in the Ministry of Law, and Member of the Law Commission
of India, and
Mr. B. M. Wanchoo, Personal Assistant to Special Secretary to the Government of India in the Ministry of Law, and Member of the Law Commission
of India,
as Aides,
and
the Islamic Republic of Pakistan,
represented by
Mr. I. U. Khan, Chairman, West Pakistan Public Service Commission,
as Agent,
and by
Mr. Shahid M. Amin, Director, Ministry of Foreign Affairs,
as Deputy Agent,
assisted by
Mr. Manzur Qadir, Senior Advocate, Supreme Court of Pakistan,
as Leading Counsel,
and by
Mr. Asrarul Hossain, Advocate General of East Pakistan, Senior Advocate, Supreme Court of Pakistan,
Mr. Saeed Akhtar, Advocate, Supreme Court of Pakistan,
Mr. Aziz A. Munshi, Advocate, Supreme Court of Pakistan, and
Mr. Farooq A. Hassan, Advocate, High Court of Judicature, West Pakistan,
as Counsel,
and by
Mr. Enver Adil, Commissioner, Family Planning Council, Government of Pakistan,
Mr. A. Ahad, Officer on Special Duty, Ministry of Law and Parliamentary Affairs, former Surveyor General of Pakistan,
Mr. A. M. Y. Channah, Officer on Special Duty, Ministry of Foreign Affairs, formerly in the Provincial Civil Service of Sind, and
Mr. M. Rafique, Deputy Director, Geodesy, Survey of Pakistan,
as Experts,
and by
Mr. Faiz Muhammad, Special Assistant to the Agent of Pakistan, and
Mr. BashiT Ahmad, Boundary Tahsildar, Board of Revenue,
as Aides.
THE TRIBUNAL, composed of
Gunnar Lagergren, Chairman,
NasTollah Entezam, Member,
AleS Bebler, Member,
delivers the following Award:
6The Indian Independence Act of 18 July 1947, enacted by the British Parliament, set up, with effect from 15 August 1947, two independent Dominions,
known as India and Pakistan. The suzerainty of the British Crown over the Indian or Native States (or Estates) of Kutch, Santalpur, Tharad, Suigam, Wav, and Jodhpur lapsed and they eventually acceded to and merged with India.
The territory allotted to Pakistan included the Province of Sind. It had formed part of British India which was under the sovereignty of the British Government.
In the course of time, the two Dominions became the Republic of India and the Islamic Republic of Pakistan.
The mainlands of Sind and of the above-mentioned Indian States all abut upon the Great Rann of Kutch; Sind in the north and west and the States to the south and east.
From July 1948 and onwards, Diplomatic Notes were exchanged between the Governments of India and Pakistan concerning the boundary between the two countries in the Gujarat—West Pakistan region. The dispute led in early 1965 to a tension which ultimately resulted in the outbreak of hostilities in April 1965.
1.
Constitution of the Tribunal. Proceedings
On 30 June 1965, the Government of India and the Government of Pakistan concluded an Agreement, reading as follows:
WHEREAS both the Governments of India and Pakistan have agreed to a cease-fire and to restoration of the status quo as at 1 January 1965, in the area of the Gujarat- West Pakistan border, in the confidence that this will also contribute to a reduction of the present tension along the entire Indo-Pakistan border;
WHEREAS it is necessary that afler the status quo has been established in the aforesaid Gujarat—West Pakistan border area, arrangements should be made for determination and demarcation of the border in that area;
NOW, THEREFORE, the two Governments agree that the following action shall be taken in regard to the said area:
Article 1:
There shall be an immediate cease-fire with effect from 0300 hours GMT, on 1 July 1965.
Article 2:
On the cease-fire:
(i)
All troops on both sides will immediately begin to withdraw;
(ii)
This process will be completed within seven days;
(iii)
Indian police may then reoccupy the post at Chhad Bet in strength no greater than that employed at the post on 31 December 1964;
(iv)
Indian and Pakistan police may patrol on the tracks on which they were patrolling prior to 1 January 1965, provided that their patrolling will not exceed in intensity that which they were doing prior to 1 January 1965 and during the monsoon period will not exceed in intensity that done during the monsoon period of 1964;
(v)
If patrols of Indian and Pakistan police should come into contact they will not interfere with each other, and in particular will act in accordance with West Pakistan-India border ground-rules agreed to in January 1960;
(vi)
Officials of the two Governments will meet immediately after the cease-fire and from time to time thereafter as may prove desirable in order to consider whether any problems arise in the implementation of the provisions of paragraphs (iii) to (v) above and to agree on the settlement of any such problems.
(i)
In view of the fact that:
(a)
India claims that there is no territorial dispute as there is a well-established boundary running roughly along the northern edge of the Rann of Kutch as shown in the pre-partition maps, which needs to be demarcated on the ground.
(b)
Pakistan claims that the border between India and Pakistan in the Rann of Kutch runs roughly along the 24th parallel as is clear from several pre-partition and post-partition documents and therefore the dispute involves some 3,500 square miles of territory.
(c)
At discussions in January 1960, it was agreed by Ministers of the two Governments that they would each collect further data regarding the Kutch-Sind boundary and that further discussions would be held later with a view to arriving at a settlement of this dispute; as soon as officials have finished the task referred to in article 2(vi), which in any case will not be later than one month after the cease-fire, Ministers of the two Governments will meet in order to agree on the determination of the border in the light of their respective claims, and the arrangements for its demarcation. At this meeting and at any proceedings before the Tribunal referred to in article 3(ii) and (iv) below, each Government will be free to present and develop their case in full;
(ii)
In the event of no agreement between the Ministers of the two Governments on the determination of the border being reached within two months of the cease-fire, the two Governments shall, as contemplated in the Joint Communiqué of 24 October 1959, have recourse to the Tribunal referred to in (iii) below for determination of the border in the light of their respective claims and evidence produced before it and the decision of the Tribunal shall be final and binding on both the parties;
(iii)
For this purpose there shall be constituted, within four months of the cease-fire, a Tribunal consisting of three persons, none of whom would be a national of either India or Pakistan. One member shall be nominated by each Government and the third member, who will be the Chairman, shall be jointly selected by the two Governments. In the event of the two Governments failing to agree on the selection of the Chairman within three months of the cease-fire, they shall request the Secretary-General of the United Nations to nominate the Chairman;
(iv)
The decision of the Tribunal referred to in (iii) above shall be binding on both Governments, and shall not be questioned on any ground whatsoever. Both Governments undertake to implement the findings of the Tribunal in full as quickly as possible and shall refer to the Tribunal for decision any difficulties which may arise between them in the implementation of these findings. For that purpose the Tribunal shall remain in being until its findings have been implemented in full.
The cease-fire came into effect as provided in Article 1 of the Agreement.
The Ministerial Conference provided for in sub-paragraph (i) of Article 3 of the Agreement did not take place. The High Contracting Parties decided to have recourse to the Tribunal referred to in sub-paragraph (iii) of that Article.
The Government of India nominated as Member of the Tribunal Ambassador AleS Bebler, Judge of the Constitutional Court of Yugoslavia, and the Government of Pakistan Ambassador Nasrollah Entezam, Iran, former President of the General Assembly of the United Nations. As the two Governments failed to agree on the selection of the Chairman of the Tribunal they did, pursuant to subparagraph (iii) of Article 3 of the Agreement, request the Secretary-General of the United Nations to nominate him. On 15 December 1965 the Secretary-General of the United Nations nominated as Chairman Judge Gunnar Lagergren, now President of the Court of Appeal for Western Sweden.
Dr. J. Gillis Wetter was appointed as Secretary-General and Treasurer of the Tribunal, and Mr. Jan De Geer as Deputy Secretary-General.
The First Meeting of the Tribunal was held on 15 February 1966 in the Alabama Hall in the Hôtel de Ville at Geneva.
In the course of the subsequent four Meetings of the Tribunal held in February 1966 at the Palais des Nations, Geneva, it was decided that the name of the Tribunal should be "The Indo-Pakistan Western Boundary Case Tribunal (Constituted pursuant to the Agreement of 30 June 1965)", and procedural rules were adopted, including the following:
Quorum: The number of Members constituting a quorum for the conduct of the proceedings shall be three.
Vacancies: Should a vacancy occur among the Members of the Tribunal, it shall be filled by the method laid down for the original appointment.
The language of the proceedings will be English.
Minutes of the proceedings of the Tribunal shall be prepared by the Secretary-General and shall be signed by the Chairman and the Secretary-General.
Evidence: The Tribunal will be the judge of the relevance and the weight of the evidence presented to it. If the Tribunal, whether on the request of a Party or otherwise, considers it necessary to inspect the original of any document, which is in the possession or under the control of a Government other than the Parties, or of any person other than a citizen of India or Pakistan residing in India or Pakistan, respectively, the Tribunal may request such Government or person to make the same available to the Tribunal. The Tribunal will direct how and by whom the costs in this connection aie to
be borne.
Cross-examination of Deponent of Affidavit: If a Party submits an affidavit to the Tribunal in support of its case, the other Party shall, on request, be given an opportunity to cross-examine the deponent.
Discovery and Inspection: A Party may, by notice in writing, call upon the other Party to make available to it for inspection any document which is or is likely to be in the possession or under the control of such other Party; and thereupon such other Party shall, if the document is in its possession or under its control, provide adequate and expeditious facilities to the Party to take inspection and copies of the document and, on request of such Party and at its cost shall furnish to it such number of photostat copies as it required and also produce the document before the Tribunal. If the document is not in the possession or under the control of the other Party, an affidavit shall be filed to that effect before the Tribunal.
Supplementary Rules of Procedure: The Tribunal may lay down supplementary rules of procedure after consultation with the Parties.
Costs: Each Party will pay its own costs. The remuneration and expenses of the Members and of the Secretary-General of the Tribunal, and the costs of the Tribunal, will be shared equally between the Parties.
Written Proceedings: The piesentation of Memorials will be simultaneous (it being understood that in this case neither of the Parties is to be considered as either claimant or defendant). Each Party will file a Memorial and a Counter-Memorial, and may also submit a Final Memorial. All Memorials will be printed. The Memorials shall be submitted on 1 June 1966, the Counter-Memorials on 1 August 1966, and the Final Memorials (if any) on 1 September 1966. No extension of these time-limits will be granted. The Memorials should be comprehensive and must be accompanied by all documents relied on. All documentary evidence shall be submitted in the form of photostat copies. However, it will be sufficient for the Parties to submit accurate copies of maps (which need not, therefore, necessarily be photostats), and photostat copies will not be needed of any printed and published books.
Oral Hearings: The oral hearings will take place at Geneva, reserving the right for the Tribunal to meet in London or at any other place, should this be deemed necessary in order to inspect the original of any document which could not conveniently be made available in Geneva. If the Tribunal should decide to meet at a place in either India or Pakistan, it will at each such time for reasons of policy and courtesy visit both Nations. The oral hearings will begin in the Palais des Nations on 15 September 1966. The hearings will take place five days a week. The hearings will consist of an opening statement, an answer, a reply and a rejoinder. (It was decided by the drawing of lots that India would make the opening statement. The Parties would thereafter address the Tribunal alternately.) The Meetings will be held in private. If a Member of the Tribunal should put questions to Agents and Counsel or ask for explanations, Agents and Counsel will always be informed that immediate answers are not required.
Award: The Award shall be signed by all three Members of the Tribunal and will be rendered at a Session which both Parties will be invited to attend.
Memorials, Counter-Memorials and Final Memorials were submitted on the stipulated dates.
In the course of June and July 1966, a delegation from Pakistan visited New Delhi for the purpose of inspecting and obtaining copies of maps and documents in Government archives, and a delegation from India visited Islamabad for the same purpose. Thereafter, during the preparation of the Counter-Memorials and Final Memorials, and throughout the proceedings before the Tribunal, both Parties through direct communications continuously requested the production of maps and other documentary evidence from each other and assisted one another in searching for and producing such evidence.
The oral hearings began on 15 September 1966. They continued with a few interruptions until 14 July 1967. The oral hearings were held at the Palais des Nations in Geneva. In the course thereof, documents, maps and photographs not exhibited with the Memorials were submitted to the Tribunal.
At the Meeting held on 19 October 1966, the Tribunal and the Delegations of the Parties attended the showing of a film of some portions of the Rann of Kutch area produced by Pakistan.
On 13 July 1967 the Parties reached an Agreement on the procedure for the demarcation of the boundary to be determined by the Tribunal. This Agreement is attached as Annex I to this Award.
The Minutes of the Proceedings of the Tribunal, containing, i.a., decisions of the Tribunal on procedural matters, and important statements and submissions of the Parties, were all shown to the Parties for comments, before being signed.
In addition to these Minutes, Verbatim Records of the proceedings were made. They cover over 10,000 pages. The number of maps exhibited in the case is about 350.
The Tribunal wishes to pay tribute to the spirit of co-operation and courtesy prevailing between the Parties. They have, in unique measure, assisted the Tribunal and one another in the production and search for the unusually rich and complex documentary evidence.
2.
The Question of ex aequo et bono
During the Meetings of the Tribunal in February 1966, the question arose whether the Tribunal was invested with power to adjudicate ex aequo et bono. On this issue, after hearing the Parties, the Tribunal, on 23 February 1966, rendered the following decision:
The question submitted to the Tribunal is whether or not the Agreement of 30 June 1965 confers upon it the power to decide the case ex aequo et bono.
India moves that this Agreement does not authorise the Tribunal to decide the present case ex aequo et bono, while Pakistan submits that the said Agreement gives the Tribunal such power.
India requests the Tribunal to decide this issue during the present Session. Pakistan moves that the issue should not be decided until after the closure of the written proceedings.
Having regard to the circumstances of the case, the Tribunal deems it appropriate to resolve the issue at this stage of the proceedings.
As both Parties have pointed out, equity forms part of International Law; therefore, the Parties are free to present and develop their cases with reliance on principles of equity.
An international Tribunal will have the wider power to adjudicate a case ex aequo et bono, and thus to go outside the bounds of law, only if such power has been conferred on it by mutual agreement between the Parties.
The Tribunal cannot find that the agreement of 30 June 1965 does authorise it clearly and beyond doubt to adjudicate ex aequo et bono.
Therefore, and as the Parties have not by any subsequent agreement consented to confer the power upon the Tribunal to adjudicate ex aequo et bono, the Tribunal resolves that it has no such power.
The following submissions are made by the Parties. On behalf of the Government of India:
That the Tribunal determine the alignment of the entire boundary between West Pakistan and Gujarat - from the point at which the blue dotted line meets the purple line in Indian Map B-44 in the west io the North-Eastem Tri-junction in the east - as it appears in the Indian Maps B-44, B-37, B-19 and B-20 where the correct alignment is shown by appropriate boundary symbols.
On behalf of the Government of Pakistan:
That the Tribunal determine that the border between India and Pakistan is that which is marked with a green-yellow, thick broken line in the Pakistan Claim Map.
The annexed Map A is a mosaic of the Indian Maps B-44, B-37, B-19 and B-20, and the Pakistan Claim Map is annexed as Map B. In Map A, one of the
component maps does not have a colour riband to show the boundary, while another has only a purple riband and the remaining two have a purple riband and
a yellow riband therein. The alignment of the boundary claimed by India, however, is represented by the symbol ----- in all the component maps.
It is common ground that the Gujarat—West Pakistan boundary stretches from the mouth of the Sir Creek in the west to a point on the Jodhpur boundary in the east. The Parties agree that the Western Terminus of the boundary to be determined by the Tribunal is the point at which the blue dotted Une meets the purple line as depicted in Indian Map B-44 and the Pakistan Resolution Map, and that the Eastern Terminus of the same boundary is a point situated 825.8 metres below pillar 920 on the Jodhpur boundary as depicted in Pakistan Map 137.
This agreement leaves out of the matters submitted to the Tribunal the portion of the boundary along the blue dotted line, as depicted in Indian Map B-44 and the Pakistan Resolution Map, as well as the boundary in the Sir Creek. The blue dotted Une is agreed by both Parties to form the boundary between India and Pakistan. In view of the aforesaid agreement, the question concerning the Sir Creek part of the boundary is left out of consideration.
From the Western Terminus, the boundary claimed by India takes off to the north and that claimed by Pakistan to the south; and from the Eastern Terminus, the boundary claimed by India takes off to the south-west while the boundary claimed by Pakistan turns south-east.
Both Parties agree that before Independence the boundaries between the Province of Sind, on the one hand, and one or more of the Indian States which lay on the opposite side of the Great Rann, on the other hand, were conterminous. Therefore, in the disputed region, apart from India and Pakistan, there is no other State that does or could have sovereignty. There is between India and Pakistan a conterminous boundary today, whether or not there was at all times a conterminous boundary between Sind and the Indian States.
Pakistan contends that, should the Tribunal find that the Province of Sind and the Indian States were not fully conterminous, then the area between Sind and these States would be an "undefined area", falling outside the scope of the Indian Independence Act, 1947. In such an event, the conterminous boundary between India and Pakistan would have to be determined by the Tribunal on the basis of rules and principles appUcable in such circumstances.
Pakistan adds that the evidence produced by it in this case is in support of its principal submission, although some of it could also be used in support of its alternative submission.
Both Parties agree that the Rann was not a "tribal area" as defined in Section 311 of the Government of India Act, 1935.
Each Party states that the boundary claimed by it is the traditional, wellestablished and well-recognised boundary.
For the purposes of this case, India states that the Rann means the Rann lying to the east of the vertical Une and to the south of the horizontal line as
depicted in Map A. Pakistan has another concept of the topographical extent of the Rann. Pakistan maintains that the Rann lay to the east of what was once the Khori River and considers that the area in dark pink to the west of that river and to the east of the vertical Une in Map B was not part of the Rann, but was
part of the land area of Sind; this area is referred to by Pakistan as "the delta lands in dispute" Similarly, according to Pakistan, the area in light pink in Map B lying below the boundary claimed by India, and including Dhara Banni, Chhad Bet, Pirol Valo Kun, Kanjarkot, Vighokot and Sarfbela, is not the Rann but part of the land area of Sind; this area is referred to by Pakistan as "the upper lands in dispute", the north-western part of which is sometimes referred to as the "jutting triangle" Pakistan contends that the Khori River, which has disappeared, once separated the upper lands in dispute from the delta lands in dispute and the latter lands from the Sayra lands which once lay along the eastern bank of that river.
On the basis that the delta lands in dispute and the upper lands in dispute once formed and partly now form the land area of Sind, Pakistan claims this area as a part of Sind and hence of Pakistan.
Accordingly, Pakistan contends that for the purpose of these proceedings, the Rann should be regarded as the area shown in blue in Map B.
Pakistan contends that the boundary runs roughly along the 24th parallel, north latitude, as shown in Map B. This Une passes through certain fixed points that have traditionally been regarded as marking the boundary; otherwise it is a smooth line as nearly as possible in the middle of the Great Rann. Apart from these fixed points, the exact alignment of the boundary has never been settled.
Pakistan produced two tracings prepared for this case, Pakistan Maps 126 and 127, for the purpose of showing the median line, the former on the assumption that Bela, Pachham, Dhara Banni, Sarfbela and Bawarla Bet are part of the mainland, and the latter on the assumption that they are islands. According to the submission of Pakistan, the former is the correct assumption.
Pakistan submits:
(a)
that during and also before the British period, Sind extended to the south into the Great Rann up to its middle and at all relevant times exercised effective and exclusive control over the northern half of the Great Rann;
(b)
that the Rann is a "marine feature" (used for want of a standard term to cover the different aspects of the Rann). It is a separating entity lying between the States abutting upon it. It is governed by the principles of the median line and of equitable distribution, the bets in the Rann being governed by the principle of the "nearness of shores";
(c)
that the whole width of the Rann (without being a condominium) formed a broad belt of boundary between territories on opposite sides; that the question of reducing this wide boundary to a widthless line, though raised, has never been decided; that such widthless line would run through the middle of the Rann and that the Tribunal should determine the said line.
Pakistan adds: Map B represents the situation immediately after the earthquake of 16 June 1819. Before that date there existed an extension of the Kutch mainland to the north, along the eastern bank of the Khori River. This extension is referred to as the district of Sayra. If the Tribunal were to accept the vertical line to the north of the Western Terminus as the boundary between India and Pakistan, this would imply a notional extension along that line of the former Sayra lands. The boundary would then continue to the south from the top of
the said vertical line till it reached the 24th degree of north latitude, and from there roughly along the said latitude to the east, leaving a small strip to India, however narrow, along the vertical line.
India contends that the boundary runs roughly along the northern edge of the Rann as shown in the pre-partition maps. This is the traditional, well-established and well-recognised boundary between Sind, on the one hand, and Kutch and the Indian States of Jodhpur, Wav and Suigam, on the other hand, which, in the course of time, became crystallised and consolidated. This boundary was acknowledged, recognised, admitted and acquiesced in by the Paramount Power. The Paramount Power explicitly settled a part of the Sind-Kutch boundary by a Resolution of the Government of Bombay in 1914. The same Resolution implicitly confirmed the rest of the boundary. The Index Map (Ind. Map B45) used by the Government of India, the Government of Bombay and the Sind authorities for the preparation of the definition of the boundaries of Sind, and the definition of the boundaries of Sind as proposed by the Government of India and slightly modified by the Government of Bombay in consultation with the Sind authorities, have the force of an official description of the territory of Sind and are binding on Pakistan; they show that at the time of the creation of Sind as a Governor's Province, the Rann was not included in the territory of Sind and the southern boundary of Sind lay along the northern edge of the Rann as conceived by India. The alignment of this boundary is shown in Map A, which is composed of the most accurate of available pre-partition maps.
Both Parties agree that, should the Tribunal find that the evidence establishes that the disputed boundary between India and Pakistan lies along a line different from the claim lines of either Party, the Tribunal is free to declare such a line to be the boundary.
Pakistan further states that the intention of the Parties is to end this dispute finally, and it was for that purpose that the Agreement of 30 June 1965 was entered into.
The Joint Communiqué of 24 October 1959, referred to in subparagraph (ii) of Article 3 of the Agreement of 30 June 1965 stipulates:
"It was agreed that all outstanding boundary disputes . . . should be referred to an impartial tribunal . . . for settlement and implementation of that settlement by demarcation on the ground and by exchange of territorial jurisdiction, if any."
Pakistan comments that the emphasis on finaUty and settlement forms the keynote of the Communiqué and the Agreement and, therefore, the Tribunal is under an obligation to find a boundary. Frustration of the reference is not contemplated.
4.
Pillars on the Claimed Boundary Lines
The Tribunal is informed that a boundary pillar exists at the Western Terminus, but that no such pillar has as yet been erected at the Eastern Terminus.
Along the accepted horizontal Une to the west of the Western Terminus, and along the vertical Une as claimed by India to the north thereof, 134 pillars were erected in 1924. Pillars also seem once to have been fixed eastwards from the top of the vertical line along the two loops in Badin Taluka.
As to the boundary claimed by Pakistan, Pakistan takes up the position that in 1924 seven pillars were erected on the vertical boundary south of the Western Terminus. India denies that such pillars were ever erected, and Pakistan has accepted the Indian statement that the seven pillars do not in fact now exist. Pakistan further maintains that to the south-east of the Eastern Terminus, two or more pillars were erected in 1850 on the claimed boundary, the southernmost of them near the edge of the Rann being referred to as Becher's pillar. India, on the other hand, maintains that if there are such pillars along the boundary of Jodhpur they do not necessarily represent the Sind boundary.
5.
The Main Arguments and Evidence of the Parties
India argues that the possessions of the Rao of Kutch in the first half of the eighteenth century extended to the territories beyond the Great Rann and that this necessarily implies that the Great Rann was within his territory. Even though he lost these possessions beyond the Rann, he did not lose his sovereignty over the Rann. India quotes a Diplomatic Note of Pakistan of 1960 in which it is stated that before 1762 the whole of the Rann of Kutch up to its northern extremity and even beyond fell within the jurisdiction of the Kutch State. The crossings of the Rann or invasions of Kutch by the Sind Rulers are no evidence of their control over the Rann as they were by way of military forays without the intention or the result of establishing sovereignty over the Rann. India contends that there is no evidence to establish that at any time after 1762 the Rao of Kutch was deprived of his sovereignty over the Rann of Kutch; on the other hand, there is a body of evidence showing that the Rao of Kutch continued to enjoy sovereignty over the Rann and such sovereignty was recognised by the British Government. India says that the various acts of display of State authority cited by it confirm that the sovereignty of Kutch extended over the whole Rann.
India says that Kutch asserted in Annual Administration Reports for over 75 years that the entire Rann belonged to Kutch and these assertions were
acquiesced in by the Government of Bombay, the Government of India and the Secretary of State who did not contradict the assertions. India further points out that the British Government positively recognised, through Statistical Abstracts relating to British India, Bombay Administration Reports, Gazetteers, Memoranda on Indian States, Notes prepared on important occasions and a number of other official publications and correspondence spread over a like period, that the entire Rann belonged to Kutch. India also points out that ever since 1871 maps based on scientific surveys carried out by the Survey Department of the Government of India have consistently shown the northern edge of the Rann as the conterminous Sind—Kutch boundary; although these maps were distributed to officials from the Secretary of State down to the Collectors of districts and to other persons, no one objected to this depiction of the boundary; in fact, the Secretary of State and the Government of India scrutinised some of these maps and expressly approved them.
The cartographic evidence of India consists of a large number of maps prepared and published by the Survey of India. The "basic maps" comprise maps
published on the basis of ground survey by Macdonald (1855-70), by Pullan
(1879-86), by Erskine (1904-05) and by Osmaston (1937-39). The "compiled maps" were prepared on the basis of basic maps, supplemented by extra-departmental information, and comprise the atlas sheets, the degree sheets, the 32-mile maps of India, and some other maps on different scales made for special purposes. India has also exhibited maps of the talukas of Sind prepared and published by the Sind Survey authorities.
India further attaches great importance to the Resolution of the Government of Bombay passed on 24 February 1914 with the approval of the Government of India rectifying the Kutch—Sind boundary, and the subsequent erection of boundary pillars in 1924 along the vertical line, northwards from what is now referred to as Ihe Western Terminus. India submits that the 1914 Resolution presupposed and was based on the existence of an established boundary running roughly along the northern edge of the Rann. India also places special reliance upon the officially proposed definitions (Ind. Docs. A-35 and A-36) and depiction (Ind. Map B-45) of the boundary of Sind at the time of its creation as a Governor's Province in 1935. India contends that they all confirm the boundary as claimed by it.
Pakistan argues that from about the sixth century onwards a "current of history" had consisted of invasions by the Rulers of Sind of the Kutch mainland. Sind had established a garrison of 5,000 men at Lakhpat (1765 until about 1775). Pakistan also relies on an account given in 1827 to the effect that Sind had actually taken possession of Khadir and levied contributions on Wagur, which were admittedly parts of Kutch, until the advance of the British army in 1816 stopped these actions. Pakistan argues that the Rulers of Sind had manifested effective control and dominion over the Rann by their ability to cross it. The fortifications built by Kutch inside the Sind mainland were maintained only during a temporary interlude of 10 or 20 years.
Pakistan argues further that under the political system of the British in India, Kutch "froze" in 1819, when it entered into treaty relationship with the British, and could not have increased since that time, short of an express act by the King-in-Parliament, or at least the King-in-Council. Therefore the basic issue before this Tribunal is the extent of the sovereignty of Kutch in 1819.
Pakistan refers to statements of officials in the Sind Administration and others to the effect either that the Rann itself is the boundary, or that the boundary lies in the middle of the Rann. Statements of the Rao of Kutch in 1854 and 1866 are also relied upon by Pakistan as containing admissions by him to the same effect. Two maps (Pak. Maps 1 of 1814 and 4 of 1826) have been produced to show that the boundary between Sind and Kutch was situated in the middle of the Rann, and a number of other "pre-survey" maps are said to indicate that the Rann as a "marine feature" is either a "dividing entity" or itself a "belt of boundary", in which the surrounding States at most had established themselves as sovereigns over some bets.
Pakistan cites a Report of Investigation and two Decisions, from which it deduces that the sovereign rights of the coastal States over the bets in the Rann were divided along a line that ran equidistant from the shores on either side of the Rann (the Report of Major Miles in 1823, the Resolution of the Government
of Bombay, dated 6 March 1860, relative to Keswala Bet, and the Resolution of the Government of Bombay of 30 April 1867, agreed to by the Secretary of State for India, relative to Poong Bet). The approach was similar, says Pakistan, in the Resolution of 20 December 1897 of the Government of Bombay, disposing of proprietary rights in the Nara and Parpatana Bets. This series of instances was followed by the Report of R. M. Kennedy in 1898 concerning certain disputes between Kutch and Morvi, where he applied as a general rule for the division of the Rann (or more particularly the Little Rann): "half and half across". Upon this Report, the Secretary of State acted in his Despatch of 8 February 1900.
These instances are relied upon by Pakistan both as illustrating the principles applied during British Paramountcy, thus constituting precedents, and as demonstrating a division in fact which is not consonant with India's position that the whole Rann belonged to Kutch or other Indian States.
Pakistan maintains that the question of the boundary between Sind and the Indian States was never solved. The Commissioner in Sind raised the matter of the accurate boundary between Thar Parkar (District in Sind) and Kutch in 1875, but it was postponed on account of the death of the Rao of Kutch. The matter of the boundary in the Great Rann became an issue for the Paramount Power which through the Bombay Government in 1885 and 1905 preferred to leave this question alone, and in 1938, through the Crown Representative to the Western India States, declared that it was "in dispute" (see also the Western India States Agency file of 1934, Pak. Doc. B.325).
Pakistan has introduced much evidence to show that Sind (or British) jurisdiction extended over the disputed territory. Pakistan then also relies upon acts of private individuals, like cultivation, fishing and grazing. Special importance is attached to grazing in Chhad Bet, Dhara Banni and Pirol Valo Kun. It is submitted that this grazing was protected and supported by British authorities and that it is of vital interest for the inhabitants of the Sind coast.
Pakistan contends that in relation to the northern half of the Rann what is conclusively established is the total absence of Kutch before 1926. The question of exercise of jurisdiction by Kutch in that half did not arise before that date, when attempts for the first time were made and proved abortive. As regards the assertions made by Kutch in the Annual Administration Reports, Pakistan argues that the British Government had no obligation to contradict them. Furthermore, with a view to creating confidence in the Indian States, the British policy was not to discuss statistical statements.
In order to meet the Indian reliance on maps, Pakistan submits that many maps relied upon by India were, as far as the relevant political boundary is concerned, incorrect as being based upon misunderstanding or confusion, and that they were never invoked on the several occasions when the boundary between Sind and the Indian States on the opposite side of the Rann was discussed.
India answers that it was not the policy of the British Government either to say something which was not true or 1o refrain from correcting a wrong assertion. India also says that Kennedy misinterpreted some earlier decisions in considering that there was a general rule for dividing the Rann into two equal halves.
The series of instances relied upon by Pakistan in this respect are not based on any principle of equidistance but were entirely passed on facts or as a matter of convenience.
Finally, India argues that a large number of instances relied upon by Pakistan did not amount to acts of exercise of jurisdiction or did not relate to the area in dispute. According to India, in any event, there is no continuous and effective display of authority by Sind over the disputed area and whatever acts were committed by the subordinate officials of Sind, contrary to the attitude of the Government of India and the Government of Bombay, would have no effect. India denies that the grazing was protected and supported by the State authorities; India points out that Sind cattle have not been grazing in Dhara Banni and Chhad Bet since 1956 and argues that grazing in these bets is not of vital interest for the inhabitants of Sind.
The Parties agree that the Tribunal is not bound to appraise the evidence presented to it in accordance with the submissions or propositions made by
them concerning its purport and effect.
With regard to evidence referred to as "instances of exercise of jurisdiction", which in this case includes acts performed by private individuals, Pakistan states that all the instances relied upon by Pakistan which relate to the period before Independence are evidence of territorial rights as they existed in 1819. The instances of exercise of jurisdiction related to the period after Independence are, on the other hand, primarily to be regarded as an independent source of title; they represent at the same time a prolongation of the situation existing during the time of the Amirs (the Rulers of Sind before the British conquest in 1843) and the British era.
While maintaining that the Rann of Kutch does not constitute a "no man's land", Pakistan adds that, if the Tribunal nevertheless were to come to the conclusion that it was an "undefined area" or a "no man's land", then all "instances of exercise of jurisdiction" ought to be treated as independent sources of title.
India submits that little value can be attributed to the instances of exercise of jurisdiction after Independence which are relied upon by either Party since the present dispute was already latent.
It may be noted here that the latest instance of exercise of Jurisdiction referred to by Pakistan relates to 1956, and by India, to 1964.
It was agreed in respect to all the evidence produced in the case that during the British occupation of Sind (1843—1947) no intention ever existed to acquire territories for Sind to the detriment of the neighbouring Indian States.
Both Parties state that the boundary of Kutch (being the boundary which for the whole or the main portion of the distance between the two Termini was conterminous with that of Sind) has remained unchanged since the time when
Kutch became a vassal State under the British by virtue of the Treaty of 13 October 1819 between the Rulers of Kutch and the East India Company.
India adds that the events subsequent to 1819 relied upon by India evidence the boundary existing in or before 1819, or alater consolidation of this boundary. No precise moment can, however, be indicated when the boundary was so consolidated. The boundary claimed by India has been recognised by all parties concerned on several occasions after 1819. Pakistan argues that sovereign rights may have evolved in the course of time, especially in relation to the small bets in the Rann.
Both Parties agree that a relevant date for ascertaining the boundary of Sind would be 18 July 1947, the date of the passing of the Indian Independence Act. As to the boundaries of the former Indian States, both Parties emphasise the date of their accession to India. Pakistan adds that in case the accession is defective, the date of merger would be decisive.
Pakistan, however, also relies upon the accrual of additional sources of title after Independence; viz. first, nine years (1947—56) of continuous and peaceful display of State functions, and second, a binding admission made by India to Pakistan in a communication of 1955 that the border between the two countries was near Karim Shahi.
7.
Applicable Law. Equity
As has been mentioned above, the State of Kutch became a vassal State under British Paramountcy in 1819, and the same status was imposed upon the other States in the Great Rann of Kutch area, all of which after Independence acceded to and merged with India. In 1843, the British conquered Sind and established themselves as sovereign thereof.
The Parties have agreed that for the appraisal of events which occurred after 15 August 1947 (the date of Independence), International Law has to be applied in this case. Similarly, International Law was evidently applicable to the relationship between Kutch and the neighbouring Indian States, on the one side, and Sind, on the other side, up to the conquest of Sind in 1843. But there is controversy about the applicability of International Law to the relations between the Paramount Power and its vassals, such as Kutch. This question has particular importance for the period after the British conquest of Sind because from this event on Britain was, as the sovereign of Sind, the neighbour of its own vassels, Kutch and the other Indian States under its suzerainty.
According to Pakistan, the "relations between the Paramount Power and the Native States are in no way governed by International Law, and . . . any application of it by that Power to those States must proceed from the Paramount Power itself as a matter of grace and concession". (Tupper, Indian Political Practice, Vol. I, 1895, p. 15.) Pakistan develops this theory by pointing out that as between the Paramount Power and the vassal State, there could be no question of acquiescence, nor of any omission to object or contradict, at any rate on the side of the Suzerain Power. The rights of the Paramount Power could not lapse in favour of an Indian State by any supposed neglect, acquiescence or acknowledgement by its officials. Even when an express admission had been made, it
did not bind the Paramount Power vis-à-vis the vassal State, except when contained in a Treaty. Even Treaty engagements were actually unilateral. It was for the British to respect them. They did.
India answers: Even if the application of International Law might have been at the option of the Paramount Power, the proposition that it could at any time go back on its word imputes very serious dishonesty to Great Britain. Pakistan has not, in any event, inherited the powers of Paramountcy and cannot therefore now object to a situation which emerged in due course during the British period. Furthermore, acquiescence and recognition are not matters of International Law exclusively ; they are, in the circumstances of the case, matters of evidence.
Pakistan says that decisions of the Paramount Power, with respect to boundaries, competently made in conformity with the law prevailing at the time, are binding on the Parties to this dispute.
India maintains that decisions of the Paramount Power, functioning through the Secretary of State, the Government of India or the Government of the Province concerned, with respect to boundaries were final and valid and are binding upon the Parties to this dispute. Such decisions were made in the exercise of Paramountcy; there was no custom, nor was there any legislative provision regulating such decisions, nor was there any uniformity in the mode of expression of such decisions.
As regards the authority to settle boundary disputes during the British period, Pakistan submits that the Paramount Power alone was competent to do so.
India considers that, in addition to formal decisions, there are other bases for determining boundaries, as, for example, by way of acquiescence, recognition, acknowledgement or admission on the part of the Paramount Power. Pakistan relies in this respect mainly on local conceptions and acknowledgements.
India comes close to the notion of uti possidetis when stating:
"On principle the proper thing is to say that the frontier was that which at that time (15 August 1947) the father country or the mother country acknowledged to be the frontier and it is right that that frontier should continue, unless there was something very striking at the time of partition or subsequent thereto which requires positively that it should be treated otherwise." (Verbatim Records, p. 12843.)
On the other hand, Pakistan also argues that the rights of the inhabitants of the northern coast of the Rann are rights of the people of the Muslim unit that was taken over by the British as a unit from its Muslim Rulers and later returned to the Muslim State of Pakistan. Those rights are inseparably attached to the coast of that unit.
It may be added that with respect to the relations between the Paramount Power and the subordinate States of India, neither of the Parties made any
distinction between the British supremacy exercised by the East India Company (until 2 September 1858) and the British Crown.
As to equity, the position of India may be summarised as follows: The Tribunal has to ascertain where the boundary has been and is and not to ascertain where a boundary ought to be. This is a question of fact and not a question of law, the hardship of which has to be mitigated by equity. If the Tribunal finds that a particular Une is the boundary, then there is no question of any equity
being applied in order to vary it from where, as a matter of fact, it has been found to be. There is no question of any legal doctrine being applied, it is a
question of fact, pure and simple. Principles of equity can at most be invoked in assessing evidence. Given the conduct of the British Government over a century, by way of its acts of acquiescence, recognition, acknowledgement and admission, Britain or its successor cannot as a matter of equity be allowed to deny what the British Government has maintained all along.
India, after pointing out the element of uncertainty which is implied in the application of equity, adds: If equity had been specifically referred to in the
Agreement of 30 June 1965, and die Tribunal had been asked not to find on a question of fact, but to draw what in its judgment is a proper Une, then the question of equity would enter into the solution of the case, and the Tribunal would be permitted to make a dent or a twist in the border Une, because it thinks it fairer. It is true that the Tribunal has to determine the border "in the light of [the Parties'] respective claims and evidence produced before it" (subparagraph (ii) of Article 3 of the Agreement), but that does not mean that a Party by invoking equity can invest the Tribunal with jurisdiction to vary an established fact. The "claim" is to a particular boundary.
Pakistan states : The Tribunal has ruled that equity forms part of the International Law to be apph'ed in this case. Therefore, the alignment of the boundary must be tested by principles of equity. It would, for instance, be entirely repugnant to equity and good conscience, and create an untenable position, to allow India to encroach upon Pakistan at the inlets of the Thar Parkar sector of the Rann. The many difficulties that would arise if Kutch could erect fortifications and establish customs houses at places situated many miles within the District of Thar Parkar, for instance close to Virawah, or on some of the roads crossing inlets of the Rann, were recognised already in 1885 by the Deputy Commissioner of Thar Parkar (Pak. Doc. B.9).
Pakistan stresses that the distinction sought to be drawn by India between "the boundary where it is" and "the boundary where it should be", is inapplicable to the facts of this case. Pakistan agrees that the task of the Tribunal is to find "the boundary where it is", but argues that a boundary is the limit of the sovereignty of a State, and if a map shows the alignment of the boundary elsewhere, then that map needs to be corrected to show where "the boundary should be".
1.
The Nature of the Rann
The area of the Great Rann, as conceived by India, is about 7,000 square miles. The area of the adjoining Little Rann is about 2,000 square miles.
Pakistan maintains that in the western portion of the Great Rann there is no clear distinction between Rann and not-Rann; the Parties agree that the other contours of the Rann are rather distinct and sharp. On 11 July 1967, near the end of the oral hearings, Pakistan, however produced some tracings (Pak. Maps 148-151) said to have been prepared on a rapid survey which according to Pakistan was made in 1967 to show the alignment of the track following the northern edge of the Rann. These tracings similarly show different lines of the track following that edge, as depicted in the Sind Revenue Survey Maps and as surveyed in 1967, respectively.
One of the issues which initially attracted considerable attention concerned the nature of the Rann as a geographical feature. At the request of the Tribunal the Parties submitted written statements on this point.
The statement of India reads as follows:
"The Rann is a vast expanse of land, mainly consisting of salt waste land. Portions of the Rann are encrusted by a salt layer of varying thickness. There are in the Rann some shallow depressions with water in them all the year. Parts of the Rann rise above the general level and sustain some vegetation; they are called 'bets' or 'dhoois'.
"2. Since the earthquake of 1819, sea water is driven over some parts of the western portion of the Rann from about May. During the monsoon, rivers, in particulai, Saraswati, Banas and Luni (which is brackish), bring down water so as to cover some parts of the eastern portion of the Rann with water. During the period that such parts of the eastern and western portions of the Rann are covered with water, the depth of the water varies from a few inches to a few feet. From about September, the sea water commences to recede and the discharge of the rivers also diminishes, and ultimately these parts dry up by about November and revert to their normal state.
"3. Rain water and water from some small streams of Kutch cover parts of the central portion of the Rann during the monsoon with not more than a few inches of water at any time. This portion of the Rann is free from water from about October.
"4. The bets are not covered by water at any time of the yeai.
"5. The Rann is passable throughout the year on foot or on animals or, except during the monsoon, in vehicles.
"6. The conditions may vary to some extent in any particulai year according to the severity of the season."
The statement of Pakistan reads as follows:
"The Rann is a marine feature. It is connected in the east and the west with the Arabian Sea. Up to the 14th century, it was a navigable sea. Its condition has been changing and during the course of time it has lost some of the characteristics of a sea. For the purposes that aie relèvent to the point at issue in this case, the status of the Rann is that of an inland sea or an inland lake.
"2. The Rann is a great basin or depression with a perfectly plain surface without channel or furrow. It is a level plain, only very slightly above the sea level. It has sharply defined edges which are referred to as 'shores' with elevated tracts not under water, which are referred to as 'islands'. The Rann is completely barren with no vegetation.
"3. The Rann remains under salt water for more than half the year. The source of the water is largely from the sea, and only partially from rain, the rivers Luni and Banas and certain insignificant seasonal streams.
"4. The flooding of the Rann is a verifiable phenomenon. The Rann starts getting flooded two or three months before the rains begin.
"5. The flooding of the Rann varies from place to place and from season to season. All parts of the Rann are covered with water between May and October. No portion of the Rann is completely dry for more than about three months in the year. No part of the Rann is free from water for more than four months or so in the yeai. The water begins coming into it by the middle of March or end of March. The Dewan of Kutch has given the date as the 15 th of March. This water stays till November and sometimes as late as January. The Dewan of Kutch gives the date as the 31st of December.
"6. The depth of this water varies from place to place and is measurable in feet, being as much as seven feet or even more in certain places.
"7. When under water, the appearance of the Rann is that of the sea. When dry, it has the appearance of the sea having shortly withdrawn from it. Whether wet or dry, the crossing of the Rann is attended by hazards and it is passable only at particular places and at particular times.
"8. In the submission of Pakistan, before the 16th June 1819, the western limit of the Rann was the Sayra land and the upper lands in dispute. After the earthquake, the western limit of the Rann became what it is shown as in Pak. Map 25. The Rann is geographically distinct from the delta kinds and the upper lands in dispute. Topographical changes have blurred the shaip differentiations between these three entities, giving rise to erroneous conceptions about the western and north-western limits of the Rann.
"9. There aie various theories as TO the formation of the Rann. Those theories are not strictly relevant for the purposes of this case. The only material consideration is how those who were concerned with it for practical purposes, treated or regarded it.
"10. The Rann still retains all features of a sea that are relevant for the purposes of this case."
With the intention of limiting the scope of this controversy, the Tribunal on 29 November 1966 issued the following statement:
"The Tribunal has considered the arguments of the Parties concerning the nature and characteristics of the Rann of Kutch as presented in the Memorials and during the oral hearings and has reached the unanimous conclusion that the differences between the submissions made by them concerning three aspects of the subject will not be material to the Tribunal in determining the boundary between India and Pakistan in the disputed area, name (i) the periods of inundation in different areas of the Rann, (ii) the source of the water which periodically covers great areas of the Rann, and (iii) the depth of the water at different times and different places on the Rann."
Nevertheless, one essential point remained open. While India's view is that "the true nature of the Rann is land", Pakistan defines the issue by stating:
"The relevanl point is whether this tract, taken all in all, is or is not sufficiently akin to a sea or an inland lake, dividing territories abutting on it, as to be treated like a sea or an inland lake, and whether it has or has not been so treated by those concerned with it in the past." (Pakistan Counter-Memorial, para. 101.)
Pakistan further argues that if juridicial rights have been derived from a certain view of natural facts and on that view of natural facts people have been conducting their relations, then it is not at all relevant at a subsequent stage to
enquire whether the view of the natural facts that was taken is in accordance with the scientific theories of a particular era.
The Tribunal has examined the aspect of the case most carefully in the light of the evidence submitted by the parties and notes:
1. Travellers, geographers, administrators and other authors of descriptions of the Rann as a physical feature do not differ essentially in enumerating the main characteristics of the Rann. They emphasise its similarity to a desert in the dry season and its similarity to a lake in the wet season. (Mr. Fielding wrote towards the end of the last century: "The Rann, which in the dry season is a sandy desert without a scrap of vegetation with here and there dangerous bogs and extensive tracts of salt, is, during the south-west monsoon, an immense shallow inland sea".) They stress that it is mostly covered with a layer of salt when it is dry, and that the layer of water that covers it in the wet season is shallow. They mention that the Rann can be crossed, along the determined tracks, at all seasons but with a varying amount of difficulty. They mention the existence of portions never dry and portions never covered with water.
2. Authors of descriptions differ, on the other hand, in their use of terms employed to sum up their description of the Rann. Those terms go from such emphasising its dry ness, such as barren waste, sandy desert, vast salt plain, salt desert, salt waste, salt impregnated alluvial tract, to such emphasising its resemblance to an inland sea or lake when covered with water. Yet terms which attempt to express both wetness and dryness of the Rann appear to be the most frequent. They are: swamp, marsh, morass, salt marsh, salt water waste, mud and sand, marsh of alluvium.
3. The dividing line between the land surrounding the Rann and the Rann is at times called the shore coast or edge of the Rann, while the dry, grass-covered portions in the Rann, usually called bets, dhoois, chans or beers, are sometimes called islands.
4. Some authors stress the uniqueness of the Rann, thus explaining why it is called by its peculiar name, the Rann of Kutch (and only exceptionally the Desert of Kutch, and never the Lake of Kutch). The word Rann, according to Pakistan, in Hindi language means a battlefield, but there is no historical record of any battle ever having been fought on this field, which is "almost absolutely level". Sometimes the Rann is said to be a corruption of "Aranya", or waste; or it is equated with "Irina" in Sanskrit, meaning a salt ground, saline soil. It appears from a few maps that the Luni River once might have passed through the Rann from east to west (see, for instance, Pak. Maps 2, 4 and 15). One of the earlier European travellers, Captain G. L. Jacob, wrote in 1844 in the 'Transactions of the Bombay Geographical Society" as follows: "I do not know any English word exactly corresponding to Rann. It is neither exclusively a swamp, nor a fen, nor a desert, nor a salt marsh, but a compound of all."
5. The Rann was, as a rule, treated by the British Administration as a swamp or marshland, as appears from maps of late British times, the overwhelming majority of which used the marsh-symbol in showing the Rann. This symbol appears in the maps superimposed on washes or tints used for water-covered surfaces or for dry land. On two occasions, the British Administration even
took the decision to assimilate the Rann to a swamp or marshland and it took it at a high level. The cases were as follows:
In 1906, proofs of the Fourth Edition of the 32-mile map of India were under consideration. The Government of India observed: "It does not appear to be correct to show the Ran of Cutch as though it were all water. The symbol for a swamp might be used." The second case occurred in 1913, when the Fifth Edition of the same map was under preparation. The previous edition, dated 1908, was then subject to renewed examination. Among the decisions of the Government of India on various remarks was the decision that the bluish tint with which the Rann of Kutch was coloured should be replaced with yellow as "[it] appears more correct to colour the Dry Rann as a marsh than as a lake . . ." (Ind. Doc. A-30, p. 196.) The Fifth Edition consequently has a yellow tint colouring for the Rann, using the bluish tint only for five limited portions of it, viz. those which were normally wet also in the dry season.
Both editions, the Fourth with the bluish tint for swamp over the whole Rann and the Fifth with the yellow tint over most of the Rann, have over the whole surface of the Rann the usual marsh symbol (with the exception of the surface of two out of the five wet portions of the Rann on the Fifth Edition).
The Tribunal has also listened with interest to descriptions of the Rann which emphasise the bunding glare from the salt which covers its surface. Thus, one author states: "Nowhere is that singular phenomenon, the mirage of the desert... seen with greater advantage, than in the Rann." The Rann as terra hospitibus farox is said to be the habitat merely of great numbers of wild asses, found nowhere else in India. Captain MacMurdo, who a year later became the first British Resident in Kutch, wrote in 1815 also that "the Rann, when full, abounds in fish of various kinds, some of which are peculiar to it, I believe, and are exceedingly delicious".
Having in mind all that has been said about the Rann, and remembering the film and photographs which have been shown to it, the Tribunal has acquired a vivid impression of the "strong geographical personality" of the Rann - this Rann which is "without a counterpart in the globe". This impression has guided the Tribunal in its appreciation of the evidence in determining the issues involved.
2.
The "Median Line"Concept
The question of the nature of the Rann took the proportions of an essential issue because the thesis of Pakistan was that the Rann is a "marine feature", i.e. akin to an inland sea or lake, is for Pakistan the point of departure for a reasoning and an argument that lead, finally, to Pakistan's position that its claim Une is well founded in law and geography.
The fundamental thesis of Pakistan on this point was formulated at the very outset of the case, in the Pakistan Memorial, paragraphs 40 and 41, which read:
"The Rann has been, and is governed by the well established principles of the median line, and of equitable distribution. The islands in the Rann and the portions of the Rann between its shores and those islands, have been and are governed by the principle of the 'nearness of shores'."
The Indian position is diametrically opposed. In the Indian Counter-Memorial, paragraph 52, it is said:
"The Rann has not been and is not governed by any alleged principle of the median line or of equitable distribution or of 'half and half as alleged by Pakistan. It is also not true that the 'islands' in the Rann and the portions of the Rann between its 'shores' and those 'islands' have been and are governed by any alleged principle of 'nearness of shores'."
The case of Pakistan is argued essentially along the following lines.
Contemporary International Law is in favour of the principle of the median Une as a boundary in cases such as that of the Rann of Kutch. The Rann, being a marine feature, can best be assimilated to an inland sea or lake; such surfaces, when surrounded by territories of two States, are most usually divided along a median line. Also, admittedly the Rann was at one time sea; the whole of its surface did not then belong to any of the coastal States. When the nature of that sea underwent certain changes, that by itself could not convert the whole of its surface into a territorial extension of only one of those coastal States ; on the other hand, it could be regarded as a process of accretion. If accretion takes place at both banks, then the accretion nearest to each bank would belong to that bank until the two accretions meet; for this reason the surface of the Rann should be treated as an accretion to neighbouring States; in this case, again, it should be allotted to them in equal shares divided by a median line. And if the Rann were to be treated as a marsh or swamp - which would be wrong — or as a desert — which would be equally wrong — it would have to be considered as a wide natural barrier that separates two States; such a barrier also would normally and should equitably be divided into two halves along a median line.
In support of this argument, Pakistan relies upon three writers on International Law, viz. Colombos, Oppenheim and Ch. Hyde.
The relevant passages from Colombos read:
"Land-locked seas, lying entirely within the boundaries of one State, form part of the territory of that State. On the other hand, when the shores of a land-locked sea belong to two or more countries, and there is no agreement to the contrary among them fixing the limits of their respective boundaries, the sovereignty of each must be respected in the zone of its territorial waters, and the legal régime in the central part is then similar to that on the high seas. As there is usually no necessary trade or navigation in inland seas, the Une of demarcation is drawn in the middle." (Colombos, International Law of the Sea, 4th Ed., 1959, p. 164.)
"Lakes similarly form part of the territory of the State whose land entirely surrounds them, as, for instance, in the case of Lake Windermere. Where such lakes are bordered by land belonging to different Powers, such as Lake Constance which is bounded by German and Swiss territory, Lake of Geneva (French and Swiss territory) and Erie, Huron, Superior and Ontario (Canada and the United States), the practice is that, by treaties between the bordering States, arrangements are made as to the waters belonging to each State and as to the rights of navigation in the lakes. Where no such agreement is in force, a reasonable solution appears to be that the boundary should be fixed by the middle Une, unless there exists a thalweg' or mid-channel in the lake, in which case the same principles are to be followed as in the case of rivers." (Colombos, op. cit., pp. 167-8.)
In this context reference might be made to one of the maps relied upon by Pakistan, namely, Pakistan Map 4 of 1826, where the boundary between Sind and the Indian States to the south seems to follow what might have been the Luni River in the middle of the Rann.
The passage from Oppenheim reads:
"Boundary lakes and land-locked seas are such as separate the lands of two or more different States from each other. The boundary line runs through the middle of these lakes and seas, but as a rule special treaties portion off such lakes and seas between riparian States." (Oppenheim, International Law, Vol. I, 8th Ed., 1966, p. 533.)
And the passage from Hyde reads:
'When a lake or interior sea is surrounded by the territories of two or more States, such as Lake Constance, although not constituting a part of the inland waters of any one of them, it may, nevertheless, be regarded as belonging to them in proportional parts, if those States are so agreed, and provided no well-defined and grave international interest supervenes. The Great Lakes of Ontario, Erie, Huron and Superior, and their water communications constituting the boundary between the United States and Canada are wholly territorial. The line of demarcation passes through the middle of the area." (Hyde, International Law, Vol. I, 2nd Ed., 1947, p. 483.)
Pakistan asserts that the principle of a boundary along the median line is generally accepted for other kinds of water boundaries such as rivers which form the boundary between two States. Pakistan adds that this principle was applied in India under British Paramountcy;
In this respect Pakistan relies on the publication, Tupper, Indian Political Practice, 1895. From this publication the following quotation is cited:
"It is interesting to note that in dealing with river boundaries as between British Indian and State territory, the Government of India have, to a great extent, followed International Law; and that International Law, so far as it relates to this subject, is derived directly from Roman Law. The rules of International Law upon which we have largely acted were very clearly and correctly stated by Mr. Aitchison in a note of October 17, 1871, recorded in connection with certain questions relating to the boundary of Oudh and Nepal. 'If the opposite banks of a river', he said, 'are in the possession of two nations, neither of which as in the present case, has dominion over the entire river, the rule of boundary is that of the Thalweg, or a line drawn along the greatest depth of the stream. Grotius and Vattel speak of the middle of the river as the line of jurisdiction, but Twiss (I, 287) says modern publicists and statesmen prefer the more accurate and equitable boundary of the mid-channel. If there be more than one channel the deepest channel is the mid-channel and the boundary Une will be the Une drawn along the surface of the stream corresponding to the line of deepest depression of the bed." (Tupper, op. cit., Vol. II, p. 22.)
If the Rann is to be considered an accretion, then Pakistan relies on the following passages in Oppenheim:
"Accretion is the name for the increase of land through new formations. Such new formations may be only a modification of the existing State territory, as, for instance, where an island rises within a river, or part of a river, which is totally within the territory of one and the same State; and in such case there is no increase of territory to correspond with the increase of land. On the other hand, many new formations occur which really do enlarge the territory of the State to which they accrue, as, for instance, where an island rises within the maritime belt. And it is a customary rule of the Law of Nations that enlargement of territory, if any, created through new formations, takes place ipso facto by the accretion, without the State concerned taking any special step for the purpose of extending its sovereignty. Accretion must, therefore, be considered as a mode of acquiring territory." (Oppenheim, op. cit., p. 563.)
"The natural processes which créaie alluvions on the shore and banks, and deltas at the mouths of rivers, together with other processes, may lead to the birth of new islands. If they rise on the high seas outside the territorial maritime belt, they belong to no State, and may be acquired through occupation on the part of any State. But if they rise in rivers, lakes, or within the maritime belt, they are, according to the Law of Nations,
considered accretions to the neighbouring land. New islands in boundary rivers which rise within the boundary line of one of the riparian States accrue to the land of such State, and islands which rise upon the boundary line are divided by it into parts which accrue to the land of the riparian States concerned. If an island rises within the territorial maritime belt, it accrues to the land of the littoral State, and the extent of the maritime belt is now to be measured from the shore of the new-born island." (Oppenheim, op. cit., p. 565.)
Pakistan points out that this principle also was applicable in India under British rule. Tupper quotes the following passage of Aitchison:
"Accretion by alluvion belongs to the nation possessing the bank on which the gradual increment takes place, but no change of jurisdiction takes place when land is suddenly cut off by a change in the course of a river and the land cut off is capable of identification." (Tupper, op. cit., p. 23.)
According to Pakistan, even if the Rann is a marsh, a swamp, or a desert and not an inland sea or a lake, as contended by India, it will still constitute a barrier to be divided along the median Une. In support of this argument Pakistan relies on Jones, Boundary-Making, 1945. Dealing with the question of boundaries in marshes and deserts, this author considers such natural features as barriers that separate neighbouring States and can therefore be divided. The line of division can be, in the case of swamps and marshes, an artificial line based on convenience for demarcation and administration and, in the case of deserts, geometrical Unes, i.e. straight Unes to be modified if either side of the feature is sinuous. Pakistan refers to Boggs, International Boundaries, 1940, which gives four concepts of a median Une and argues that the concept relating to the horizontal plane can alone be relevant for an entity like the Rann. Pakistan argues therefrom that in the case of a marsh, the rule is the same but modified with reference to special features; there being no special features in the Rann, the rule is the same both in the case of a marsh and the case of an inland lake, so far as the Rann is concerned. If it were to be regarded as a desert, the rule would still remain the same because it has sharp edges, and it is uniform between those edges.
In connection with the question of a median line, Pakistan asserts that application of such a principle accords not only with International Law but also with "Dictates of natural law" ; this assertion is evidently to be understood as a way of introducing the principle of equity as a part of International Law. The same principle is relied upon by Pakistan also when it stresses the necessity or advisability of delimiting the boundary of the Rann in the spirit of the formula of "equitable distribution".
In this connection Pakistan refers to the opinion of Tupper, viz. that International Law was applied in resolving matters between British India and the Indian States and among the Indian States inter se only at the option of the Paramount Power. Pakistan also refers to the Kennedy Valuation Judgment of 1898, dealing with certain disputes between Kutch and Morvi, where it is said: " . . . international law and EngUsh law are alike inappUcable to the case of two States like Cutch and Morvi except so far as they embody precepts of natural law". (Kennedy Valuation Judgment, p. 27.)
Pakistan points out that during the British period, the rights over "bets" or over portions of the Rann were investigated several times and each time the
result of the investigation or enquiry showed that these rights, as a matter of fact, stood divided along the middle, showing the existence of a regional custom.
The Indian answer to these arguments of Pakistan is essentially the following:
(a)
The Tribunal is to ascertain where the boundary was and is and not where it ought to be according to abstract principles; the object is not to choose or design a new boundary with a freedom of allotting this or that portion of the Rann to one or the other of the two neighbours.
(b)
If the other evidence shows that the Rann was not a part of Sind but a part of Kutch, no question of median line arises.
(c)
The Rann is to be treated as land and not as a feature which partakes so much of the qualities of the sea, a lake or a river that one can apply to it any principle which may be applicable to those particular features. None of the principles which are said to attach to those features can apply to the Rann at all.
(d)
There is no general rule in International Law that a water boundary has to run along a median line that would divide the body of water into two halves. It can and does run across or along bodies of water or at the border in the most different ways.
(e)
The choice of a boundary in or along a body of water is subject to the same general rule of International Law as any other choice of boundary, this general rule being that it is the consequence of an agreement, a treaty or any other recognised legal source.
India says that the writers relied upon by Pakistan — Jones, Colombos, Boggs, Oppenheim - use a phraseology which has at the back of it the notion that a tribunal or an authority is going to divide and make a boundary ; but the function of this Tribunal is to ascertain where the boundary has been and is and not to ascertain where the boundary ought to be.
India cites, i.a., the following passages:
(i)
"Sometimes a boundary line lies along one bank of the River, while the whole bed is under the sovereignty of the other riparian State." (Starke, An Introduction to International Law, 1963, p. 174.)
(ii)
"Water boundaries in lakes, straits, and rivers are of several distinct types; generally they follow: (1) the shore, (2) the median line, (3) the navigable channel or Thalweg, or (4) an arbitrary geometrical line such as a parallel of latitude or an azimuth line. Of these four types the median line is least clearly defined at present." (Boggs, op. cit., pp. 177-8.)
(iii)
"There is no general rule on the suitability of lakes as boundaries or on the most suitable line for a boundary within a lake." (Jones, op. cit., p. 136.)
(f)
As regards the alleged principle of nearness of shores, which in Pakistan's submission applies for sovereignty over the bets in the Rann, India argues that International Law knows of no such principle. In this connection, Judge Huber's Award in the Island of Palmas Case was quoted : "In the last place there remains to be considered title arising out of contiguity. Although States have in certain circumstances maintained that islands relatively close to their shores belonged to them in virtue of their geographical situation, it is impossible to show the existence of a rule of positive international law to the effect that islands situated outside territorial waters should belong to a State from the mere fact that its territory forms the terra firma (nearest continent or island of considerable size). Not only would it seem that there are no precedents sufficiently frequent and sufficiently
precise in their bearing to establish such a iule of international law, but the alleged principle itself is by its veiy nature so uncertain and contested that even Governments of the same State have on different occasions maintained contradictory opinions as to its soundness. The principle of contiguity, in regard to islands, may not be out of place when it is a question of allotting them to one State rather than another, either by agreement between the Parties, or by a decision not necessarily based on law, but as a rule establishing ipso jure the presumption of sovereignty in favour of a particular State, this principle would be in conflict with what has been said as to territorial sovereignty and as to the necessary relation between the right to exclude other States from a region and the duty to display therein the activities of a State. Nor is this principle of contiguity admissible as a legal method of deciding questions of territorial sovereignty; for it is wholly lacking in precision and would in its application lead to arbitrary results. This would be especially true in a case such as that of the island in question, which is not relatively close to one single continent, but forms part of a large archipelago in which strict delimitations between the different parts are not naturally obvious." (Island of Palm as Case, United Nations Reports of International Arbitral Awards, Vol. II, p. 831, at pp. 854-5.)
In conclusion, the Indian case runs, there is no principle that can be applied in defining the sovereignty over the bets in the Rann. The nearness of shores could only be an argument for the allottment of bets if they had to be freely allotted. But this case is not of such a character. The object is to ascertain to whom the bets belong and not to whom they ought to belong according to this or that principle.
As regards accretion, India argues that the sea dried up centuries ago and that at that time the principle of accretion did not exist. But supposing that such a principle did exist in those remote times it is evident that the neighbours did not even think of it, did not apply it and did not treat the Rann as governed by this principle subsequently; therefore, this principle cannot be applied now.
(g)
In the same spirit India deals with Pakistan's submission on "equitable distribution" as being an application of "natural law" and of the principle of equity as a part of International Law. India argues that the terms of reference of the Tribunal do not make it competent to distribute territory but only to find a boundary, to ascertain a fact. Therefore there is no room for applying general principles of equity.
The history of Kutch and Sind and the history of British rule in India were dealt with on many occasions by both Parties for three main reasons:
(a)
to put elements of the case in proper historical perspective;
(b)
to attempt to establish historical titles to the whole or to part of the disputed area or to contest such attempts;
(c)
to ascertain the role or competence of authorities involved in the past in settling questions of territory or boundaries in the area.
1.
Kutch and Sind until the Advent of the British
The essential information contained in the Indian Memorial may be summarised as follows:
The ancient history of Kutch is not relevant. The modern history of Kutch dates from the ninth century when some members of a tribe called Sammas, who ruled in lower Sind; migrated to Kutch, gradually gained control over the local races and assumed sovereignty over Kutch. In the twelfth century, Laka, the son of Jada became the ruler. His dynasty came to be known as the Jadejas. In 1548 a ruler of this dynasty, called Khengarjee, assumed sovereignty over the whole of Kutch under the title of Rao. He was a tributary of the Kings of Ahmadabad, the rulers of Gujarat. During the reign of his son, Bharmuljee, the Government of Gujarat passed from the Ahmadabad Kings to the Moghul Emperors, who were ruling at Delhi. Bharmuljee tried to make himself independent of the Moghuls but, after suffering two defeats, he agreed to the supremacy of the Moghul Emperors, who confirmed him in his position as the ruler of Kutch but required him to pay tribute.
The reign of Rao Daisuljee in the early eighteenth century (he ascended the throne in 1718) was a period of troubles. The country was first threatened by invasions from Ahmadabad and a Iribe from Sind, the Sodas, made incursions into Kutch. With the help of a talented Minister, Devkaran Seth, the Rao succeeded, later, in establishing military posts across the frontier, in Sind and Kathiawar. A military outpost was established at Virawah in Parkar and a fort was built at Rahim ki Bazar in Sind. According to evidence submitted by India, the extent of the foothold of Kutch beyond the northern edge of the Rann in that period was as follows:
(a) According to Lieut. Alexander Bumes' Memoirs (1830), when the author served in Kutch as Deputy Assistant Quartermaster General: "The Raos of Cutch had at no distant period three tannas in the dominions of Sind, viz. Ballyaree, Raoma Ka Bazar and Budeena their right to which was undisputed ...";
(b) According to a letter of Iieut.-Col. Roberts, Political Agent, Kutch, to the Government of Sind, dated 1844:
"His Highness formerly, possessed Raoma Ka Bazar and 3 or 4 small villages dependent on it from which he derived an income averaging for the last 20 years that it belonged to the Kutch State 39,000 Correes. The deserted village called 'Wustee Bunder' nearly opposite to Luckput, was also formerly a possession of the Bhooj State.... Raoma Ka Bazar was lost to the Cutch Durbar in 1741, and Wustee Bunder about 50 years since..." (Ind. Doc. A-27);
(c) According to Captain Charles Walter's Brief Sketch of the History of Kutch, prepared in 1827 when the author served as Assistant Political, Kutch, the Kutch Minister.
"Deokaran Sett... carried an army into Parkur and established a Thanna at Veeravow, to punish the Sodas, who made incursions into Kutch... In Sind he was called in by the Rymas, who, though converted Musulmans, had sprung from the same sources as the Jharejas (Sammatree), and, to secure his acquisition, built a fort at the town now called Rymaka Bazar and extended the Rao's influence in that quarter."
Similar statements were made by Captain MacMurdo (1819), Mountstuart Elphinstone, the Governor of Bombay (1821), and the Bombay Gazetteer (1880).
India concludes by saying that since the Rao's possessions extended to the territories beyond the Great Rann it necessarily follows that the Great Rann was also within his territory. Even though he lost these possessions beyond the Rann he did not lose his sovereignty over the Rann.
Under Rao Daisuljee's son, Rao Laka, the outposts of Kutch beyond the northern edge of the Rann were abandoned. This occurred in the middle of the eighteenth century.
A reign of great disturbances was the next reign, that of Rao Godjee, who ascended the throne in 1760. During this region, Kutch was invaded four times by armed forces of Sind. Two invasions were commanded by a Sind ruler called Ghulam Shah, of the Kalhora dynasty, the third by his son, Sarafraz, and the fourth by their successor, Abdul Nabbi. The respective dates of these invasions were 1762, 1764, 1775 and 1777.
The most devastating invasion was the first one, in 1762. The Sind army amounted to 80,000 men and the decisive battle, the battle of Jhara, was a heavy defeat for Kutch. Ghulam Shah asked, in consequence, the Rao's sister in marriage. Failing to obtain satisfaction, he threw up an embankment on the Puran River at Mora in Sind and shut out its waters which irrigated a fertile district of Kutch in the Great Rann area known as Sayra.
The invasion of 1764 ended with the withdrawal of Ghulam Shah to Sind after leaving a garrison of 5,000 men at Lakhpat in Kutch. This garrison was withdrawn by Sarafraz.
India mentions that each ruler of Kutch used to assign certain lands to his younger sons who came to be called chiefs. On the death of a chief, the lands were divided amongst his sons, and the eldest son, who got a larger share, became the chief. Thus, in course of time, a number of chiefs and estate holders came into existence. Though they owed allegiance to the Rao, they exercised unlimited authority within their own lands. They were the Rao's hereditary
advisers, and the Rao could call on them to serve him in the event of war. They were not, however, always loyal to the Rao, and some of them often rebelled against the Rao. Because of their number and authority, they were in a position to exercise a powerful influence in the affairs of Kutch.
The existence of this peculiar aristocracy, called the Jadeja Bhayad (meaning the Jadeja dynasty's brotherhood), was largely responsible for the most disturbed state prevailing at the end of the eighteenth and the beginning of the nineteenth century. Kutch then came to be divided into two separate entities. In its traditional capital, Bhuj, the administration came to be conducted by an energetic and able soldier, Jamadar Fateh Mohammed, who became the de facto ruler, while a chief called Hansraj ruled independently over the southern district of Mandvi, in which the main harbour of Kutch is situated.
Such was the situation when the British appeared in the neighbourhood of Kutch, between 1804 and 1809.
Pakistan's account of the relevant history of Kutch proceeds in a different manner. Pakistan relies, firstly, on the following passages from Rushbrooke Williams:
"It would hardly be an exaggeration, indeed, to say that during most of the age of pre-history, throughout the dawn of history, and right into mediaeval times, Kutch had no separate existence; it was regarded as part of the dominions of whatever dynasty or race chanced to rule over the lands now known as Sind and Gujarat and proved itself powerful enough from one base or the other to control the island state lying between them." (The Black Hills; Kutch in History and Legend, 1958, p. 59.)
Hiuen-Tsang, the Chinese traveller of the seventh century, reported that towards the end of the sixth century Kutch was conquered by a Sind ruler (op. cit., p. 66), though towards the end of the seventh century the authority of Sind was weakening (op. cit., p. 68), and was lost altogether after the Arab conquest of Sind in A.D. 712. Although the Arabs defeated the chief of Kutch in expeditions between A.D. 724 and 738, they do not appear to have settled seriously in Kutch until the ninth century (op. cit., p. 69). The Kathi tribesman of Sind captured Kutch for a period, till in the eleventh century some rulers of Gujarat divided it among themselves (op. cit., pp. 68, 70). The Gazetteer of the Province of Sind by A. W. Hughes, of 1874, was quoted to the effect that around the year A.D. 1000, Kutch was included in the dominions of the Ghaznivide dynasty.
About 1520, a Sind ruler defeated Kutch in the first battle of Jhara, a town in south Kutch. According to Walter the position in 1716 was:
"The possessions of the Raos of Kutch were extremely limited; the trifling trade of the Bunders, the town of Anjar..., the Korah Purgumma, and likewise some villages in Meeanee, and Rapoor in Wagur, were the only sources from which a revenue had been derived." (Walter, Brief Sketch of the History of Kutch, 1855, p. 103.)
According to Pakistan this passage suggests that not even the whole of Kutch was under the Rao at that time.
Pakistan has produced Pakistan Document B.302 (1865) to show that the ruler of Kutch had little control over Wagur on the mainland of Kutch, and was in no position to control the Rann against the dominant position of Sind. Pakistan Document B.303 (1821) also indicates that the State of Radhanpur had acquired a foothold in Wagur, across the Rann, and had received tribute from it.
Pakistan adds that still another invasion of Kutch from Sind was made in 1781 by Fateh Ali Khan of the Talpur Dynasty. Pakistan further states that Sind had taken possession of the island of Khadir and levied contributions upon the tributaries in Wagur. With the advance of a British force, Sind evacuated Khadir, probably in 1816. However, a new attack was launched against Luna in 1826.
Pakistan points out that according to Walter the outposts of Kutch beyond the Rann were not abandoned but expelled (op. cit., p. 112).
The essential information contained in the Indian Memorial is as follows:
The early history of Sind is fragmentary and obscure and is also not relevant.
Sind passed through several vicissitudes, being ruled by a number of foreign conquerors time and again. Sind emerged as a distinct political entity when the Kalhoras rose to power in the eighteenth century and extended their authority over a large part of the country, although it was not wholly independent. It was dominated by the Durani rulers of Kandahar.
It was Ghulam Shah Kalhora who became independent of Kandahar and boldly seized the reins of government after a long struggle for supremacy.
The violence and tyranny of Sarafraz Khan and of his successors led to the overthrow of the Kalhora dynasty. Sarafraz Khan, out of spite or jealousy, got the chiefs of the Baluch tribe of Talpurs (who had been serving under him) treacherously murdered. His death was followed by a period of unrest during which the Talpurs tried to avenge the death of their chiefs, while the successors of Sarafraz tried to suppress them. Finally, the Talpurs emerged victorious and Mir Fateh Ali Khan Talpur seized power in 1783.
Alarmed at the measures which Fateh Ali Khan took to establish his authority, his relatives, Sohrab Khan and Thora Khan, fled, seized Khairpur and Shah Bander (parts of Sind) and repudiated the authority of Fateh Ali Khan. Thus, the province remained divided into three separate principalities, namely, Hyderabad or Lower Sind under Fateh Ali, Khairpur or Upper Sind under Sohrab, and Mirpoor under Thora.
In Hyderabad, Fateh Ali shared his power with his three brothers, Ghulam Ali, Karam Ali and Murad Ali; and due to their real or apparent unanimity, the brothers were called the "Char Yars" or Four Friends. They came to be referred to as the Mirs or Amirs of Sind.
In 1758, the British appeared in Sind for the first time and established factories which, however, had to be withdrawn in 1775. The commercial intercourse between the British and Sind was revived in 1799 during the reign of Fateh Ali.
Parkar was nominally under the Amirs of Sind.
On this presentation by India of the history of Sind before the advent of the British, Pakistan had several remarks to make.
Pakistan places reliance on a statement made by Mr. Butler, the Undersecretary of State for India, to the British Parliament in 1936: " . . . Sind, which earlier than any part of Moslem India was established as a separate unit..." (Ind.
Doc. TC-46, p. 513). Pakistan comments that from the conquest of Sind in A.D. 712 by Mahommed Ben Kassim, through the centuries, Sind had remained distinct as a integrated and ethnic unit. It was this unit, in its entirety, which was returned to the Moslem Dominion of Pakistan in 1947 when the British withdrew from the sub-continent.
The Arab rulers in Sind had been replaced by the Sumra dynasty in the eleventh century and the rule of Dodo in that country was of great vigour and his authority was acknowledged from Kutch to Nasarpur. The Sumras were followed by the Arghun dynasty in the sixteenth century. Kutch attempts to help the last Sumra ruler, named Firoz, led to the first battle of Jhara. For the next two centuries, Sind became a province of the kingdom of Delhi till the Kalhoras, who were the viceroys under the Moghuls, asserted their Independence in the early eighteenth century (Lambrick, Sir Charles Napier and Sind, 1952, p. 11). The Kalhoras, however, found themselves obliged to pay tribute to the Durani rulers of Afghanistan.
The East India Company had maintained factories in Sind from 1635 to 1662 and from 1758 to 1775. However, political envoys came to Sind first in 1751, during the reign of Ghulam Shah Kalhora, and for the second time in 1799 during the reign of Fateh Ali Khan (Huttenback, British Relations with Sind 1799-1843, 1962 Ed, p. VII, 2).
It was not correct that the victorious ruler of Sind threw up an embankment at Mora to punish the Rao of Kutch. The waters of the Puran River could be more profitably used further in the north and it was apparently for that reason that they were diverted and not out of malice.
Pakistan further objects to the Indian statement that the district of Parkar was "nominally" under the Talpur Amirs when the British dealt with these rulers in 1819. It said that Parkar was at that time under the control of Sind, as is clear, i.a., from Indian Documents A-90 to A-93 wherein the British authorities asked the Amirs of Sind to suppress the banditti in Parkar.
Pakistan further cites a Memorandum of the Political Agent, Kutch, of 9 November 1864 in which it was stated that the conquest of Kutch was undertaken and effected in alliance with the chiefs of the province, that before the British connections with Kutch the District of Wagur was practically independent, and that all the Kutch Darbar could do was to establish a nominal show of authority over it.
Several other remarks of Pakistan relate to an issue that was later often mentioned and debated in the oral hearings. It is the issue of the interpretation and appraisal of the Kutch-Sind wars in the eighteenth century with relation to the question of the possession of or dominion over the Rann by one or the other of the two belligerents.
Pakistan states that so far as the Rann was concerned, each time it was the rulers of Sind who crossed it and manifested effective control and dominion over it.
With reference to the Kutch outposts beyond the northern edge of the Rann, Pakistan submits that if any inference that the Rann was controlled by the rulers of Kutch is drawn from the alleged establishment of posts by Kutch in
Sind, posts which were later abandoned, an inference that it was controlled by Sind would follow a fortiori in respect of the establishment of the garrison of 5,000 men by the rulers of Sind at Lakhpat in Kutch and, being later in point of time, would remain as the latest position till the contrary is shown.
Even if it be assumed that the loss of the possessions beyond the Rann did not automatically imply the loss of the alleged sovereignty of the Rao of Kutch over the Rann, the subsequent victorious attack on the mainland of Kutch by Ghulam Shah Kalhora of Sind would necessarily mean that any vestige of the alleged "sovereignty of the Rao" over the Rann was thereby completely obliterated. It is not denied by India that Ghulam Shah Kalhora did attack Kutch. Nor is it denied that he established a garrison of 5,000 men at Lakhpat.
It is also clear that the garrison so established remained on the mainland of Kutch on the opposite side of the Rann for nearly ten years until Sarafraz Khan Kalhora voluntarily withdrew it because it was needed elsewhere. Even after the withdrawal of the garrison the rulers of Sind continuously crossed over to Kutch and, in all the engagements that took place, it was invariably on the mainland of Kutch that the fighting took place. As a matter of fact, the control of the rulers of Sind over the Rann is demonstrated by the inability of Kutch to control the raids that were made upon it across the Rann.
India takes a different view. It states that while it is true that the former rulers of Sind crossed the Rann at least four times between 1762 and 1781 it is not true that they manifested effective control and dominion over the Rann.
As stated by Dr. James Bumes in his book Narrative of a Visit to the Court of Sinde, with a Sketch of the History of Cutch (1829), Sind did not succeed in forming a permanent settlement on any of the four occasions when Kutch was invaded. Hence, in India's submission, it is clear that the crossings of the Rann were by way of military forays without the intention or the result of occupation of the Rann.
In oral argument, Pakistan placed the eighteenth century wars in the context of a much longer past and elaborated the thesis of the 'main current of history".
Pakistan stated that, as can be seen from the history of Sind, there is a kind of main current of history, beginning with the seventh century and continuing thereafter, of which the orientation each time is: Sind is dominant over Kutch.
At one time Kutch is a part of Sind. It is dominated by Sind, it is ruled by Sind, it is attacked by Sind. Sind may not be able to hold it or may decide not to hold it. Sind may go away. But time and again this keeps happening. That constitutes amain current.
Then comes the period of Devkaran Seth who established Kutch outposts beyond the northern edge of the Rann. On this period Pakistan states that, beginning about 1730 and ending 1741 or soon afterwards, a matter of about eleven or twelve years, a man called Devkaran Seth swam against the main current of history and established some thanas at Virawah and Rahim ki Bazar, but, as the historians testify, those thanas were expelled from Sind. This is an interlude which, far from establishing a current, on the contrary merely emphasises and underscores the main current.
After this interlude, the main current begins to flow again in the same direction.
There is an attack by the Sind ruler followed by another attack, followed
by a third attack. Each time Kutch is the suffeser, the Rann is crossed again and the current continues to flow. Except for this little interlude, there is no change at any time in its direction.
On the invasions of Kutch by Ghulam Shah Kalhora and his successors, Pakistan adds that crossings of the Rann occurred from different directions.
While Ghulam Shah crossed the Rann via the Nara route, Sarafraz took the route of Sumrasir and Mir Fateh Ali the route to Chowbari in Wagur. So at any place the Rann could be crossed by the Amirs, when they chose to, demonstrating the control that they had.
In response to India's argument that the crossings were by way of military forays without the intention or the result of occupying the Rann, Pakistan points out that the Rann proper is not an area which is capable of occupation.
Effective and full control of such an area cannot be achieved unless both shores are controlled. Hence it is only the ability to cross it, and the ability to prevent others from crossing it, that will show who is controlling it.
Pakistan concludes that while Sind had on several occasions in the past a full control over the Rann by way of controlling both shores and for the rest of the time an incomplete control by way of its ability to cross the Rann and to prevent Kutch from crossing it, Kutch never had any degree of control. While India states that the Rann belongs to Kutch and has always belonged to Kutch, and that there has never been a time when it did not belong to Kutch, India does not offer any proof of its belonging to Kutch and does not indicate the source of its title. India merely asserts, and the demonstration that is made by history contradicts that assertion.
India's reply to the above points may be summarised as follows:
(i) The distant history is irrelevant. If one goes so far back as is done by Pakistan, one might say that the Italians own France because Julius Caesar crossed it 1900 years or more ago. However, we are concerned by and large with the period of the nineteenth century. One reason why it is not possible to go much farther back is that up to comparatively recent times the whole state of affairs was a shifting one, with no crystallised States on either side. At the most, Kutch certainly achieved stability about the beginning of the eighteenth century, and Sind perhaps even later.
(ii) As for the direction of the so-called current of history, it was in no event a one-way current. One could say that it was an alternating current in the sense that some people kept on one side for some time, then some others came across at other times and yet others had the strength to cross a third time.
In this connection India points out that before being defeated in 1520, Rao Khengar established posts across the Rann at Rahim ki Bazar and Virawah to protect himself from possible attacks from Sind and also intervened in the politics of Sind.
At the beginning of the nineteenth century, the Rann was crossed again from the Kutch side, when Fateh Mohammed dispatched troops to Parkar and Sind to pursue and intercept bandits or robbers.
(iii) The invasions of Kutch by Ghulam Shah and his successors in the years
1762-81 did not have the purpose of controlling Kutch. They were undertaken as a precaution, as stated by Rushbrooke Williams. He writes:
"A hostile Kutch was always a potential peril: on the other hand, theie was no hope of embodying Kutch permanently in the Kingdom of Sind. For one thing, Kutch was too strong to be held down: even if the Maharo's forces could be defeated, the bhayyad and the great Rajput feudatories, secure in theii strongholds, could never be effectively reduced to permanent submission. Further, the Rann, although it could be crossed by a properly equipped expedition, was too formidable an obstacle to ordinary communications to permit Kutch to be administered from Sind." (Op. cit., p. 150.)
India concludes that consequently the Amirs had no intention of settling down in Kutch or making it part of their dominion or annexing any part.
(iv) Sind never controlled both sides of the Rann. With reference to the Sind garrison once established at Lakhpat, India states that in terrain of this kind, the establishment of a garrison is not enought to show control over the Rann.
(v) The ability to cross the Rann does not by itself amount to control. It might equally be said that Kutch could have crossed the Rann if it had wanted to. The mere fact that the Rann is a territory where no one stays permanently, no troops are established, no posts or force can be established, means that either party could cross over uninterruptedly.
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To corroborate the submission that the whole Rann and territories beyond it belonged to Kutch in olden times India quoted in her Memorial a Note of Pakistan presented during the Indo-Pakistan Minister Level Conference on the Western Border Issues held in January 1960 where it was stated:
"Before 1762 the whole of the Rann of Kutch up to its northern extremity, and even beyond including Rahimki Bazar and Verawow fell within the jurisdiction of the Kutch State." (Indian Memorial, para. 112.)
The Pakistan Counter-Memorial denied this statement by saying:
"It is denied that there is no evidence to establish that at any time after 1762 the Rao was deprived of such authority as he might have had over the Rann, though it is submitted that he had no such authority." (Pakistan Counter-Memorial, para. 212.)
In its Memorial India concluded from the above that "Pakistan conceded that the territory of Sind did not include any part of the Rann of Kutch before 1762, which means that the southern border of Sind lay along the northern edge of the Rann".
The Pakistan Counter-Memorial answered:
"The statement contained in the 'brief presented at the Indo-Pakistan Ministerial Conference on the Western Borders, held in January 1960, to which reference has been made in paragraph 212 of the Indian Memorial, was in fact no more than an inference raised from the allegation contained in the accounts given by some writers that the Maharao had established some posts on the mainland of Sind before 1762. If such an inference does arise establishing posts on the opposite shore, then by the same token a converse inference would arise when the rulers of Sind at a subsequent date established posts on the mainland of Kutch. On a matter of history, or regarding an inference raised from a statement in some accounts, there is no question of 'admission' by a party.
It Is the statement of a position baaed on certain premises, which in the context, goes no further than an argument, It is denied that the whole of the Rann of Kutch up to its
northern extremity ever fell within the jurisdiction of the Kutch State. In any case, the alleged posts of the Rao are stated by those very writers to have been irretrievably lost in 1741, or thereabouts. When the rulers of Sind established a garrison of 5,000 men at Lakhpat, the Rann was demonstrated to be under their control, and since nothing happened thereafter to indicate that the rulers of Sind lost jurisdiction over the Rann that vested in them in 1762, that position was the existing position on the date of the Treaty between Kutch and the British in 1819." (Pakistan Counter-Memorial, para. 212.)
The Final Memorial of India answered to this:
"The statement of Pakistan in Indian Document A-24 that 'before 1762 the whole of the Rann of Kutch up to its northern extremity, and even beyond Rahim-ki-Bazar and Verravow fell within the jurisdiction of the Kutch State' is the admission of a historical fact, and not an inference drawn from the statements made by certain writers on Kutch as alleged by Pakistan. Pakistan has produced no evidence in support of their contention that the territory of Sind included any part of the Rann before 1762 or that the Sind Rulers remained in control of the Rann after that year until the British conquered Sind in 1843. They have also produced no evidence to show that the Mahaiao of Kutch ceded the fort of Lakhpat to Ghulam Shah Kalhora in 1765." (Indian Final Memorial, para. 112.)
The significance of the statement in the Pakistan Note was mentioned three times during the oral hearings.
Counsel for Pakistan said:
"It was pointed out that this is after all no more than a statement as to history, and history cannot be changed by statements of parties. This statement of history can be checked with the historical accounts themselves. It is accurate enough as far as it goes, but an inference is drawn which is not warranted. The reply was that this is not an interpretation, this is an admission. I have been careful to point out in the course of my submissions that if one were to pounce upon statements like that, there have been many things in the course of the oral submissions which could be treated as admissions." (Verbatim Records, p. 5157.)
"I have already explained, when dealing with that statement, that on a matter of history the way in which a particular writer of a note or a letter formulates the point is not something which is to be construed like the words of a Statute." (Verbatim Records, p. 8287.)
Counsel for India said :
"It is true it is a matter of history and it was said, 'well you cannot have an admission on a matter of history'. I do not take it to that extent, but as a statement made, I support it and I say that the statement is correct. We know that there were possessions of the Rao of Kutch beyond the Rann. May I recall to you what I said in my opening address? I said that he gave up, or was compelled to give up, those possessions on the other side. Did it mean, therefore, that he gave up the Rann, which was undoubtedly until then a part of his territory?" (Verbatim Records, p. 9552.)
2.
The Advent of the British
The British appeared in the area of Kutch and Sind in the second half of the eighteenth century and achieved full control by 1843. They came as agents of the East India Company, a trading company with attributes of a political power - army, navy and administrative apparatus for territories taken under control.
According to the Memorial of India, which gives details on history, the chronology of the main events was as follows :
1758. Factories (settlements) of the East India Company are established in the mouth of the Indus River at Tatta and Shah Bandar in Sind.
1775. These factories are withdrawn.
1799. Commercial intercourse between the East India Company and Sind is revived when Amir Fateh Ali grants certain privileges in favour of British trade.
A representative of the Company resides for some time in Sind but is later compelled to withdraw.
1803. Amir Ghulam Ali of Sind deputes an agent to Bombay, the seat of the British Governor, to apologise for the expulsion of the British agent.
1804—09. Pirates from Kutch harass British Shipping, interefere with their trade and cause losses to the allies and subjects of the Company.
1809. British-Sind Treaty providing for exclusion of the French from Sind and for an exchange of agents.
1809. Two separate British-Kutch Treaties of identical purport, one with Fateh Mohammed, the de facto ruler of Kutch, residing in the capital, and one with Hansraj, the ruler of Mandvi, both on behalf of Rao Roydhunjee. Under those Treaties, friendship between the Company and the Rao was affirmed and the Rao agreed that his troops should not "cross the country on the opposite side of the Gulf and Runn (lying between Kutch and Guzerat), nor shall any claim or interference be maintained therein", that he would eradicate piracy throughout Kutch and that he would not permit any establishment to be made in Kutch by any European or American power. Under a further Treaty with Hansraj the Company guaranteed his possessions of Mandvi on behalf of the Rao, to whom it was to be restored after he assumed sovereignty over the country. To give effect to this guarantee, it was agreed that the Company would maintain an agent at Mandvi.
1813—15. Incursions of inhabitants of Wagur into Gujarat and Kathiawar, allied to the Company.
1815. British expedition into Kutch under the command of Colonel East.
Their troops take the town and Fort of Anjar and advance towards Bhuj. They finally negotiate with Rao Bharmuljee.
1816. Negotiations terminate in a Treaty of Alliance between the Company and the Rao. Under this Treaty the Parties stipulate that their subjects shall not cross the Rann for hostile purposes against the subjects of another. The Rao is required to reimburse the losses caused by Wagur banditti and to suppress effectively the practice of piracy; he has to agree that no foreign, European or American force of any description, or agent of any of those powers, would be permitted to pass through or reside in Kutch; and he has to cede to the Company in perpetuity the Fort of Anjar, as well as Toorea Bandar and other villages and, in addition, to pay in perpetuity an annual sum of two lakhs of koris. It is decided that a representative of the Company's Government in India should reside with the Rao in the capital. At the request of the Rao, the Company's Government is to afford him "its best advice". In a supplementary Treaty between the Company and the Rao, the British remit the debt that the Rao had agreed to make in the previous Treaty. Article 7 of this Treaty described the situation of Lakhpat as being on the borders of Sind.
1819. After the Rao's preparations to overthrow British interference, a British force marches into Kutch; Rao Bharmuljee gives himself up and, on the advice of the Bhayad, his son is raised to the Gaddi [throne] under the title of
Rao Daisuljee. As he is a minor, a Council of Regency is formed with the British Resident at the head. Subsequent to the above events, a Treaty formally deposes Rao Bharmuljee and acknowledges Daisuljee as his successor; the power of Rao Daisuljee, his heirs and successors, and the integrity of his dominions from foreign or domestic enemies are guaranteed. It is agree that a British force be left in the service of Kutch for the security of the Government of Kutch; a British resident or his assistant is to reside in Bhuj and to be treated with appropriate respect; the Jhareja Bhayad are guaranteed "full enjoyment of their possessions".
1820. A British punitive expedition is sent from Palanpur across the Rann into Parkar, a province "nominally under the Amirs of Sind", against a plundering tribe called Khosas. The Amirs also send a force to Parkar to co-operate with the British force. Subsequently an agreement is made whereby the Amirs undertake to restrain the depredations of the Khosas and all other tribes within their limits and to prevent recurrence of any inroads into British dominions; the agreement also obliges the Amirs to exclude all Europeans and Americans from Sind.
1822. The British transfer the town and district of Anjar to the Kutch Government and in return the Kutch Government agrees to pay 88,000 rupees a year to the Company.
1833. The Kutch Government is relieved of the obligations deriving from the above agreement.
1834. End of the Regency in Kutch; Rao Daisuljee comes of age and takes over the administration of the State. His reign is successful. However, in the following years, the British hold over Kutch becomes more pronounced and the administration of Kutch is virtually controlled by the representative of the British Government, called the Political Agent, and functions under the direction, control and supervision of the Government of Bombay.
1836. Maharaja Ranjit Singh, a Sikh ruler, invades Sind from the north. The Amirs, unable to resist him by force, seek British mediation. The British seize the opportunity to establish their influence in Sind on a solid basis as it is felt that Sind is a country of great importance to them, both because it commands the entrance to the Indus River, and because of its position in reference to the Punjab and Afghanistan. The British promise protection to the Amirs on condition that they receive a British agent in Hyderabad and allow a British force to be stationed in the same city. The Amirs are unwilling to accept these terms but finally agree that a British agent might be stationed at Hyderabad.
1842. Sir Charles Napier, who is in command of British troops in the Campaign of Afghanistan, reports that the Amirs have breached the agreements with the British. Negotiations on the terms of a new Treaty fail to yield results.
1843. British troops enter Sind and conquer the country which is annexed as a province under Sir Charles Napier as its Governor. A part of Sind — the State of Khairpur - is excepted. It remains faithful to the British.
1847. Sir Charles Napier retires and Sind is constituted a Division of the Presidency of Bombay. It is from this time administered by a Commissioner subordinate to the Government of Bombay.
According to India, after the conquest of Sind, Thar and Parkar were combined into a district which was administered until 1856 by the Political Agent, Kutch, through the Assistant Political Agent, Kutch, who was also Deputy Collector of that district.
Pakistan presents the situation in this area in the following way: After the conquest of Sind, Thai Parkar was managed by a Deputy Collector and Magistrate, who also held the rank of Assistant Political Agent, Kutch, in subordination to the Commissioner in Sind. During this period, the Political Agent, Kutch, was himself responsible to the Sind administration. He was not in direct relations with the Government of Bombay.
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Thus, the whole area of Kutch and Sind came under the control of the British.
But the legal form of their control was different in each case. Kutch remained a State, sometimes called an Indian State, or a part of India of the Princes. It was a British vassal State under British suzerainty. Sind, on the contrary, was made part of what came to be called British India and thus under direct British Administration.
This difference had many political and legal consequences and is an essential element in the present case.
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During the oral hearings the Parties often referred in a non-controversial way to the advent of the British and the establishment of their control. However the Parties differ in their interpretation of the three Treaties between Kutch and the British.
The relevant articles on these Treaties are as follows :
ARTICLES OF AGREEMENT between the Honourable East India Company, entered into by CAPTAIN SAMUEL ADAM GREENWOOD, under the orders of LIEUTENANT-COLONEL WALKER, RESIDENT, with the VIZARUT JEMADAR FUTTEH MAHOMED and his son NOTIAR HUSSAIN MEEJA, on behalf of the MAHARAO SHREE ROYDHUNJEE, viz. (26 October 1809);
Article 1
As friendship exists between the government of the Honourable Company and the government of the Maharaja Anund Rao Guikwai Sena Khas Kheyl on the one part and the government of the Maha Rao Shree Roydhun on the othei, it is'agreed that no troops shall cross to the country to the east or opposite side of the Gulf and Runn lying between Kutch and Guzerat, nor shall any claim or interference be therein maintained.
ENGAGEMENT WITH DEWAN HUNSRAJ SAMEDASS, OF MANDAVEE (KUTCH) DATED THE 28TH OCTOBER, 1809
Articles of Engagement entered into by Dewan Hunsiaj Samedass, of Mandavee Bunder, with Captain Samuel A. Greenwood, on behalf of the Honourable Company.
Article 1
As friendship exists between the government of the Honourable Company and the government of the Maharaja Sena Khas Kheye Shumsher Bahadoor on the one part, and
the government of Maha Rao Shiee Roydhun on the other, I do hereby agree that no tioops shall cross to the country on the opposite side of the Gulf and Runn (lying (between Kutch and Guzerat), nor shall any claim or interference be maintained therein; should any claim or dispute arise, the same shall be settled by arbitration, under the mediation of the Company.
ARTICLES of a TREATY of ALLIANCE between the HONOURABLE ENGLISH EAST INDIA COMPANY and HIS HIGHNESS MAHARAJA MIRZA RAO BHARMULJEE of Kutch, agreed to by both GOVERNMENTS, 1816.
Article 4
The subjects of the Kutch State shall on no account cross the Gulf or Runn for hostile purposes, neither shall they cross to act against the subjects of the Honourable Company or those of Sreemunt Peishwa or the Guikwar. The subjects of the aforesaid three governments shall (in like manner) not cross the Gulf or Runn for hostile purposes against the Rao's subjects. The fort of Anjar, etc., having been ceded to the Honourable Company, no objections exist to troops and stores crossing the Gulf or Runn for that place.
TREATY of ALLIANCE between the HONOURABLE EAST INDIA COMPANY and HIS HIGHNESS MAHARAJA MIRZA RAO SHREE DESSULJEE, his heirs and successors, concluded by CAPTAIN JAMES MACMURDO, on the part of the HONOURABLE COMPANY and by JHAREJAS PRUTHERAJEE, VIJERAJJEE, MERAMUNJEE, PRAGJEE, PRAGJEE MOKAJEE, ALLYAJEE. NONGHUNJEE, BHANJEE and JEYMULJEE, by virtue of full powers from their respective GOVERNMENTS, 1819.
Article 5
The Honourable Company engages to guarantee the power of His Highness the Rao Dessul, his heirs and successors, and the integrity of his dominions, from foreign or domestic enemies.
Article 13
The Rao, his heirs and successors, engage not to commit aggressions on any Chief or State, and if any disputes with such Chief or State accidentally arise, they are to be submitted for adjustment to the arbitration of the Honourable Company.
According to Pakistan the Treaties of 1809 and 1816 clearly indicate that the Rann was not a part of the Kutch and, therefore, the Rann was not included in the territory guaranteed by the British in the Treaty of 1819. Pakistan places particular reliance on a statement made in 1866 by the ruler of Kutch (Pak. Doc. B.305, pp. 21, 22, 28) that by the Treaties of 1809 Kutch had agreed that the Rann was its boundary. The Treaties of 1809 describe the Rann as "lying between Kutch and Kathiawar". Kutch was prohibited from crossing the Rann.
The Treaty of 1816 places Kutch, Kathiawar and Gujarat at par in relation to the Rann. Captain MacMurdo, the author of the 1816 Treaty, also stated, while forwarding this Treaty for ratification by the British Government, that he had no hesitation to consider the Gulf and the Rann as the boundary of the British Protectorates in Kathiawar and Gujarat (Pak. Doc. B.272, para. 11).
In 1843 the Government of Bombay held that the language of MacMurdo was binding for the interpretation of this Treaty (Pak. Doc. B.300, p. 3). The Treaty of 1816 also positively identifies Lakhpat as being on the borders of Sind, thereby confirming Khori River as the historic border between Sind and Kutch.
India argues that the stipulation in the Treaties of 1809 that no troops shall cross to the country to the east and on the opposite side of the Gulf of Rann lying between Kutch and Gujarat nor shall any claim or interference be maintained therein has a history behind it. Quoting from Rushbrooke Williams and Lieut. Raikes, India says that Fateh Mohamed was a very enterprising man who had asserted the claim of Kutch to certain territory in Nawanagar on the other side of the Little Rann and had insisted that tribute should be regularly paid for it; he launched expeditions year after year to ensure that his demands were complied with. The British were at that time friendly with the States on that side and the object of the relevant clause in the Treaties of 1809 was that there should be no question of Kutch trying to levy tribute on the other side on anyone or establishing any post or staging an invasion. Rather than implying any negation of ownership or sovereignty over the Little Rann, the stipulation really justifies and supports it because otherwise, there was no point in the Rao stipulating what he did. Notwithstanding the Treaties, Fateh Mohammed continued his expeditions across the Rann and a fresh Treaty was entered into in 1816.
This Treaty prohibited crossing of the Little Rann "for hostile purposes":
ordinary traffic went on, there was intercourse, and the Rann was crossed by the traffic. Kutch was then an independent sovereign State and could say that as a matter of agreement it would not exercise certain rights. The prohibition of crossing by either Party for hostile purposes had nothing to do with ownership or sovereignty over the Rann. As a matter of friendship and policy and by way of peace treaty, Kutch qualified its dominion over the Rann by agreeing that, although its subjects might cross for civil and peaceful purposes, they would not go over to the other side for hostile purposes. The clauses in the two Treaties must be limited to what they say in the light of the incidents that happened :
they are in the nature of a non-aggression pact, a non-invasion pact. Under these clauses the Rann did not present itself as a barrier between one side and the other, except that a limit was laid down beyond which neither side's troops could cross and neither side could cross for hostile purposes. The engagement not to do a particular thing of a very limited kind cannot be stretched as denoting not only that the Rann was made a barrier but that the Rann had always been a barrier as an independent area not belonging to one side or the other. The Treaty of 1819 guaranteed the territories of Kutch but did not define those territories. India's case is that territory of Kutch included the Great and Little Rann and what the British guaranteed was that territory which included the entire Rann of Kutch as part of the Kingdom of Kutch.
As regards MacMurdo (Pak. Doc. B.272), India says that he refers to Articles 3 and 4 and he states that he had persuaded Kutch to treat the Rann as a barrier which they were not to cross for hostile purposes but which otherwise they were at liberty to cross. These two Articles have nothing to do with the extent of Kutch; there is merely an engagement that there shall be no crossings for particular purposes. The Report of Major Short (Pak. Doc. B.300) states that the area of Kutch "exclusive of the Rann" is estimated at 6,500 square miles.
One issue related particularly to the places called Sayra and Sindri.
Sayra was an area on the eastern or on both banks of the Kliori River, extending well to the north of the 24th parallel. It was a fertile, rice-growing, well
inhabited area belonging to Kutch. Soon after 1762 the water dried up and Sayra was deserted and gradually disappeared and became indistinguishable from the Rann. According to Bumes, Sayra did not cross the river in any place.
Sindri was a place on the eastern bank of the Khori River in the Sayra, about 30 miles upstream from Lakhpat and 20 miles downstream from Ali Bandar, at approximately 24° 5' of north latitude; it was a port for river boats, a village and a frontier post with a customs house of Kutch State. The Kutch garrison was stationed in a fort which consisted of a single tower 50—60 feet high and of a pittah (elevated tract) of 150 square yards, the whole surrounded by a 20 feet high wail.
Sindri was destroyed in a severe earthquake which shook the region in 1819 and was abandoned. It remained known as a ruin of an old fort, under the name of Juna Kotri till late in the nineteenth century. A picture of the Fort of Sindri before it was submerged by the earthquake is reproduced by Lyell, Principles of Geology (Vol. II, 1868), and in Alexander Bumes, Travels into Bokhara (Vol. I, 1839), and a picture of that fort as in 1869 appears in Memoir on the Geology of Kutch, published in Memoirs of the Geological Survey of India (Vol. IX, 1872). Finally all traces of it disappeared.
India maintains that there existed, before 1819, besides Sindri, one more Kutch outpost in the same area. It was situated at a place called Kaeera Nulla (nulla meaning a small canal), to the north of Sindri and almost at the northern edge of the Rann. Lieut. Bumes' Memoir of 1830 was quoted to prove this point.
"The Ameers of Sind acknowledge the right of the Cutch Government to a nulla, called 'Kaeera', which is above Ullah Bund, and a place where they collected taxes to the very day of the earthquake in 1819 . . . A short distance above the bund is Kaeera Nulla, a position where the Cutch Government collected taxes before the earthquake and the extremity of their territory on the North." (Ind. Book A-5, pp. 1, 8.)
Pakistan submits that it does not deny that until 16 June 1819 Kutch exercised control over the Sayra tract, the reconstructed contours of which appeared in yellow on Pakistan Map 105, up to and including Sindri. Pakistan does, however, deny that the Kutch control extended to Kaeera Nulla which was situated approximately 5 miles north of Sindri. On 16 June 1819 (the date of the earthquake), the port of Sindri was destroyed and the Sayra tract definitely disappeared and the jurisdiction of Kutch over them lapsed. Hence, Sayra, including Sindri, was not a possession of Kutch at the time when Kutch became a "vassal" State under British Paramountcy by virtue of the Treaty executed on 13 October 1819 between the East India Company and the rulers of Kutch, which was ratified and became operative on 4 December 1819.
Therefore, Sayra, including Sindri, was not covered by the guarantee extended to Kutch by the Treaty. Moreover, by virtue of the same Treaty, the possibility for Kutch of re-acquiring territory that it might have lost before the Treaty or of acquiring any new territory, was excluded.
India denies that Kutch lost sovereignty over Sayra after the earthquake and refers to two letters of the Political Agent, Kutch, to the Secretary to the Government of Sind which state in 1844 that Sindri was then within the dominions of the Rao of Kutch.
India disputes the correctness of the extent of Sayra as shown in the sketch prepared by Pakistan (Pak. Map 105) and of the statement that Sayra did not cross the river in any place. India also points out that Lieut. Burnes, on whom Pakistan relies, stated in his Travels into Bokhara and in his Memoir that Sayra was on the banks of the river. India says that Sayra was situated on both sides of the Khori River and extended up to the eastern side of the canal called Ghari Wah or Ghari Mandar. In support of this statment, India relies upon the observation of the Political Agent, Kutch, in his letter to the Government of Sind (1844) describing Sayra as being "on the opposite side on western banks of Koree bounded to the westward by a canal called the Garee Whah".
Pakistan, when comparing the Treaty of 1819 with the Treaties of 1809 and 1816, states that:
"...the earlier treaties, which do bring the State into subordination, do not bring the State into the zone of the territory freezing, whereas this one does... 'What you have today, we guarantee, but what you do not have today you cannot increase, because of the operation of other clauses. If there is any different [dispute] it will go to the British.
You will not settle any dispute by yourself. You will not wage war.' All the modes by which further territory may be acquired are eliminated. The result is, once this clause is put in, that Kutch will at all times be what it was on 13 October 1819, except to the extent to which the British agree to the expansion, whether by giant, cession, or arbitration of a dispute. Otherwise Kutch territory is what it was on 13 October 1819."
(Verbatim Records, pp. 4127-8.)
A fundamental point in Pakistan's case is that the Treaty of 1819 brought Kutch into the political system of the British in India. The relationship between Kutch and the British Government was thereafter that of vassal and suzerain.
Under this system the territories of Kutch could neither increase nor decrease without the intervention of and except through the medium of the British. Thus, Kutch "froze" in 1819. In support of these assertions, Pakistan relies on the following passages from Tupper:
"The relations between the British Government and the subordinate States of India cannot be governed by the International Law of Europe, but must be determined by the positive engagements subsisting between them, by the principles which have regulated the actual practice and usage of the British Government as the Paramount Power in India, and by the requirements of the general interests of the Empire with which the interests of the Native States are both by treaty and by circumstances identified."
(Despatch of the Government of India to the Secretary of State for India, cited by Tupper, Vol. I, p. 4.)
"The principles of International Law have no bearing upon the relations between the Government of India as representing the Queen-Empress on the one hand, and the Native States under the suzerainty of Her Majesty on the other. The paramount supremacy of the former presupposes and implies the subordination of the latter." (Op. cit., p. 11.)
"... Native States cannot cede territory to each other, but that if they have occasion to effect a territorial exchange, this must be done with the consent and through the medium of the British Government." (Op. cit., p. 22.)
After a recital of the above, Pakistan concludes that the approach in the present case has to be to determine what Kutch was in 1819, because after 1819 it could not grow.
India says that as regards the relationship between the suzerain and the vassals, one cannot take the matter beyond what is contained in the Treaty and all that can be said is that to the extent that anything was given up or subordi-
nated under the Treaty, some of the authority of the vassal was diminished vis-à-vis the suzerain, and possibly some freedom of action vis-à-vis other States; except for such limitations as appear in the Treaties, the vassals were entirely masters within their own territories. It did not or could not mean that the territory which the vassal ruled was subject to being taken away or being reduced or diminished at the will of the Suzerain Power. As between the suzerain and the vassal State the extent of territory was not a matter in respect of which suzerainty prevailed. The statement that International Law has no application between the suzerain and the vassal is not an absolute one; it may not be applicable in certain matters concerning the administration of the State but no such principle would be relevant to a question of territory. In fact, the question of International Law not being applicable has no relevance at all in the case of boundaries of territories.
In Pakistan's submission the Treaty of 1819 prevented Kutch from aggression not only on territories controlled by the British but also on independent States, like Sind prior to 1843. This was confirmed by Articles 13 and 5 of the Treaty.
Had a dispute arisen in the years 1819-43 between Sind and Kutch, the Honourable Company would have had to arrange for arbitration as best they could. Aggression by Kutch on any Chief or State, as stated in article 13, would also be prevented since the guarantee in Article 5 must be deemed imperative in such a case.
Counsel for India continues:
"This Treaty [i.e. of 1819] guarantees the territories of Kutch. It does not, of course, define those territories. An argument was advanced to the Tribunal that at this stage the territory of Kutch was frozen and that it could not be increased except with the cognizance and sanction of the British Government. But what has to be borne in mind is that my case is that at that stage, in 1819, the territory of Kutch extended up to the northern edge of the Rann. I am not claiming that the territory of Kutch was restricted to the mainland and that some part or the whole of the Rann was a subsequent increase; my case is that assuming for a moment ... that the effect of the treaty is as contended for, that the territory was frozen and therefore crystallized and defined as at that stage - that territory included the Rann of Kutch ... that what the British guaranteed was that territory which included the Rann of Kutch as part of the Kingdom of Kutch." (Verbatim Records, p. 9532.)
Counsel for India adds:
"The Treaties have been read to you and I have already said that any suggestion that Kutch territory was in any way delimited by the Treaties themselves is not correct. The Treaties are no more than such engagements as would be entered into between any two sovereign Powers, except that so far as any claim against any other Native State was concerned or against the British themselves the matters would have to be dealt with in a particular way subject to the British Government. So far as freezing territory was concerned, I told you that it is patent from the Treaties that there was no freezing of any territory and certainly not so far as Sind or the Rann or that side of Kutch was concerned." (Verbatim Records, p. 10006.)
This last point is further elaborated by India in stating that Kutch was a sovereign State, an independent State. By the Treaty, certain limitations were put. One cannot stretch these limitations ; they are explicit in the Treaties themselves.
The only limitation so far as any claim to territory is concerned, is against another Indian State or as against the British, in which case it would have been determined in a particular manner. The clause by which the Rao engaged himself
not to commit aggression "on any Chief or State" and to submit "for adjustment to the arbitration of the Honourable Company" any dispute "with such Chief or State" could not cover Chiefs or States outside British control.
"Supposing", said Counsel for India, "that in 1820 Kutch had a dispute or — there was nothing to prevent it — supposing that the Sind Amirs had an invasion of Kutch... could it have been said that this dispute must be referred to the arbitration of the honourable Company? Sind would have said: 'This is nonsense.
I do not recognise any honourable Company'. ...If Kutch said immediately afterwards, 'I am going to occupy a part of Sind' the British would have said to Kutch, 'Yes, good luck to you; go and do it'. They would not have said, 'No, no: I am going to arbitrate between you and the Amirs of Sind.' The Amirs would not have had it, and it does not fall within the Treaty" (Verbatim Records, p. 10402.)
In other words: such an act of Kutch would have been in keeping with what was then and up to 1858 British policy, namely a policy of annexation of territory belonging to hostile States. In the light of this, the sense of the Treaty was to protect from possible and probable Kutch ambitions those neighbouring States where the British had prior to 1819 established their influence and which they protected, namely, the Gaekwai and Poshwa, rulers of Gujarat and Kathiawar, respectively.
Counsel for India concluded:
"... when you come to a treaty of this kind, you must read it narrowly in the sense that when a sovereign state gives up some right, agrees to something, then it must be construed as against the person who takes away the right, not against the person who is giving up a right, because he is presumed to have given up the minimum. Therefore there is no question of freezing. All it means is that certain kinds of territory can be acquired only in a particular manner. As to the other territory, there is no limit, there is no restraint; you can do what you like. The only question is, therefore, what was the territory of Kutch at that time? My submission to you has been that this whole question of freezing is irrelevant. Assume that not an inch was subsequently added to what existed as Kutch territory in 1819. That does not affect my case because my case is that the territory of Kutch at all times, all times within a reasonable period, included the Rann." (Verbatim Records, p. 10407.)
The position of India was summarised by its Counsel as follows. The terms of Article 13 of the Treaty of 1819 would not have prevented the Rao of Kutch, during the period 1819—43, from making acquisition of territories belonging to the Amirs of Sind. He added, however, that it was India's case that, in fact, no territories were added to Kutch subsequent to the Treaty of 1819, apart from the acquisition which was the outcome of the rectification of the boundary through the Resolution of 24 February 1914.
With respect to the question whether the territory of Kutch was defined in the Treaties with the British, Pakistan states that the Rao of Kutch had himself admitted that by the Treaty of 1809 the Gulf and Rann were laid down as the boundaries of Kutch. Such an admission was made repeatedly in a letter from the Rao to the Governor and President in Council, Bombay, of 25 August 1866, La., in the following words:
" . . . trusting to the morals and engagements of the British sirkar, I declare that by the Treaty of A.D. 1809 contracted between the three governments, and which lays the Gulf and Rann to be the boundaries..." (Pak. Doc. B.305).
Pakistan also states in the view of the Indian case that Kutch did not, in fact, increase after 1819, it has become a purely academic question whether Kutch was frozen in all directions or whether it was not frozen towards Sind. Pakistan states that freezing is complete with reference to all States, and Article 5 of the 1819 Treaty, read with Article 13, makes that clear. Pakistan denies that Kutch, or any other Indian State, was an independent State. Pakistan also states that the guarantee given by the British for the integrity of the dominions of Kutch would have become invalid if Kutch were the Aggressor against Sind. As to the arguments of India that Kutch was under no restraint by the British from occupying a part of Sind, Pakistan's reply is covered by a statement by Ilbert, given below in this Chapter, to the effect that an Indian State could not make war. However, this question is also academic since nothing of the kind happened between 1819 and 1843.
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For the period between the Treaty with Kutch of 1819 and the conquest of Sind in 1843, one aspect of the situation was dealt with by the Parties at some length.
India states that at the time of the Treaty, Kutch was threatened both by marauders of Nagar Parkar, who were frequently committing depredations in Kutch, and by the Amirs of Sind who were repeatedly on the point of invading Kutch. In fulfilment of their obligations to maintain the integrity of the dominions of the Rao, the Government of the East India Company felt that the Rann should be strictly guarded so as to prevent the marauders of Nagar Parkar or the armies of Amirs of Sind from crossing it. The British regarded the Rann within the sphere of their control.
India refers to several documents (Ind. Docs. A-90, A-91, A-92, A-93 and A-94), being letters related to troubles of the British with banditti from Thar Parkar and measures taken against them. India quotes a letter of the Governor of Bombay, Mountstuart Elphinstone, dated 3 January 1820, and addressed to the Amirs of Sind where he informed Ihe Amirs that a punitive expedition was to start shortly with the intention of punishing the marauders of the Khosa tribe.
The force entrusted with the expedition would assemble at Palanpur. The letter stated :
"The officer commanding it will receive orders to expel the Khosas from their present seats, to drive them across the desert and to prevent their returning to these countries, which we are bound to defend. It is not the intention of the British Government to occupy any part of the territories to which the Khosas resort, nor on any consideration to extend its connections beyond the Runn ..."
Another letter, written on the same day by the Chief Secretary to the Government of Bombay to the Acting Resident at Baroda, is to the same effect.
A third letter, written by the Resident at Bhuj, the well-known Captain MacMurdo, to the Amirs of Sind on 21 January 1820 also assured them that the British Government, in deciding to enter Thar Parkar to punish the Khosas, had "no design of extending its frontier beyond the natural limits of the Rann".
Renewed assurances of the same kind were contained in another letter of Mountstuart Elphinstone to the Amirs, dated 4 October 1820, in which he wrote :
"As I distinctly stated ...the British Government entertained no wish whatever of extending its connections beyond the Runn and sought only the establishment of such a state of things on our frontier, as would secure the territories of our allies from the irruptions of the banditti, who had been so long in the habit of committing depredations in our districts in the remote parts of Guzerat..."
The conclusion drawn by India from this correspondence is that Sind is treated as ending at the northern edge of the Rann. Counsel for India added as to effect of these letters: "I shall not, for the moment, go to the extreme of saying that it [the Rann] is treated as a part of Kutch, but certainly it is not treated as a part of Sind" (Verbatim Records, p. 76).
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The reply of Pakistan can be summarised as follows:
(i) These documents (Ind. Docs. A-90 to A-94) clearly indicate that the Rann, in its whole breadth, was conceived to be the boundary, and Pakistan relies on the following passages:
"On the termination of these operations... the British troops... will retire within the Cutch or Kattywai frontier." (Ind. Doc. A-90, p. 238);
"...it is desirable to avoid all further connections [with Sind] by studiously considering the Runn as the barrier between us and Sind ..." (Ind. Doc. A-91, p. 239);
"I am directed to assure you, that the Honourable Company's Government, in adopting the resolution of entering that district [Parkar] has no design of extending its frontier beyond the natural limits of the Runn, which bounds Guzerat and Cutch ..." (Ind. Doc. A-92,pp. 194-5.)
(ii) The events demonstrate that the Rann cannot be controlled unless the same power controls both shores;
(iii) British control over the Rann does not mean control by Kutch;
(iv) Still less can British control over the Rann mean that the Rann became, by that token, converted into Kutch territory;
(v) In the military operations of 1820, which are said to be in defence of Kutch, no Kutch force co-operated, while forces of Radhanpur and Jodhpur co-operated with the British;
(vi) It is said in the letters that after having achieved their purposes, the punitive forces "will retire within the Cutch or Kattywar frontier" which evidently implies that the Rann was considered to be beyond the Kutch frontier.
Returning once more to the same events, India points out that the important thing was that the British, while assuring the Amirs that they did not intend to "extend" their "connections beyond the Rann", did not request the permission of the Amirs to cross the Rann, thereby "implying clearly that the Rann was an area over which the Amirs themselves had no sovereignty or dominion at all".
India says that the absence of Kutch in the employment of the force is of no moment for the reason that Kutch is expressly stated to be one of those allies
whose territories are to be saved from the depredations of the banditti; it does not matter who fought. The reference to the "Cutch or Kattywar frontier" is to the firm land which is within Kutch or Kathiawar where alone the army could retire. To construe the word "barrier" as meaning a dividing entity between States on either side is stretching it beyond what was intended in the context of what was under consideration; what the British said was that it was difficult to put themselves on the other side of the Rann and decided to treat the Rann as a sufficient barrier once the bandits had been driven away. Because of the nature of the Rann communications will be too long, the further the British got away from the mainland, the more difficult it became and hence the Rann was to be treated as a physical impediment.
3.
The Shape of British Rule in India
British control over India evolved along two lines, in two distinguishable but parallel processes. One was its gradual perfection as a system of administration, with the rights and duties of all its component elements well defined, and the second was the gradual withering away of the power of the East India Company and its substitution by the power of the British Crown.
The main milestones of these processes were, according to the Memorial of India, as follows:
1600. Establishment of the East India Company under the style of "The Governor and Company of Merchants of London Trading into the East Indies" (later modified to "The United Company of Merchants of England Trading to the East Indies").
1661. The Company is given power to seize and send home interlopers, to wage war and conclude peace with non-Christian princes and to appoint Governors to exercise civil and criminal jurisdiction over British settlements in India. Under this authority, Governors are appointed at Fort St. George (Madras) and Bombay, and later at Fort William (Calcutta).
1756. The Court of Directors of the Company sets up a Select (Secret) Committee to deal with political and military matters of the Company.
1773. Regulating Act of the British Parliament constituting a Supreme Government for India with the Governor-General and four Councillors at Fort William, having controlling authority over the Governors of the Presidencies of Fort St. George and Bombay also. This act is the first landmark in the transformation of the Company's Commercial Council into a political apparatus of Government. It lays the foundation of a central administration and institutes a system of parliamentary control. It marks the beginning of the Company's metamorphosis from a trading corporation into a corporation of a new kind, entirely administrative in its object and subordinate to the British Parliament.
The private interests of the Company are drastically curtailed.
1784. Pitt's India Act establishing the Board of Control consisting of six Commissioners, one of whom is a Secretary of State; the Commissioners are empowered to superintend, direct and control all acts, operations and concerns which in any way relate to the civil or military government or revenues of the British territorial possessions in the East Indies.
1833. The Government of India Act, under which the Company surrenders all its real and personal property in India (henceforth to be held in trust for the British Crown) and surrenders its commercial privileges as a trading company.
The Act reconstitutes the Government of India on a new model which vests the whole civil and military government of the Company's territory in the Governor-General and Councillors, to be styled as "The Governor-General of India-in-Council", with full power and authority to superintend and control the civil and military administration of subordinate Governments.
1858. The Government of India Act completes the process of the transfer of control of the Indian Government from the Company to the Crown. All territory and all powers of the East India Company are vested in the Crown; the Crown and the British Parliament are to exercise their control over Indian affairs through a Secretary of State who is to be a Minister of Cabinet rank and is assisted by a Council. The appointment of the Governor-General of India and the Governors of the Presidencies is to be made by the Crown. Thus ends the career of the East India Company and commences the Government of India by the British Crown directly. The Crown accepts all the Treaties made by the Company with the States and undertakes to maintain them scrupulously.
The Government of India Act, 1935, la., creates a separate Province of Sind under a governor and Sind ceases to be a Division of the Bombay Presidency.
1947. British rule comes to an end in August of this year when the Indian Independence Act comes into force. With that Act the British Government relinquishes its sovereignty over all the Indian States. It relieves itself of all obligations under the various Treaties with those States. The States thus reacquire their absolute sovereignty but in course of time they accede to and merge with India or Pakistan.
One aspect of the above outlined evolution was of paramount importance for the present case. It was the relationship between the British and the Indian States.
India, in its Memorial, states, i.a.,, that even during the times of the East India Company, the Indian sub-continent was studied with a large number of independent sovereign States, big and small; initially the Company adopted a policy of non-involvement and non-intervention in respect of these States; that policy was marked by the desire to confine British interests to trading in and around the territory in which the British possessed settlements; the treaties which the Company then concluded with the States recognised the sovereignty of the rulers and were intended to maintain friendly relations with the States or to obtain privileges from the States. When, however, larger schemes of Empire dawned upon its horizon, the Company commenced involving itself in the internal affairs of the States and sought alliance with them, offering to protect them from external and internal enemies. At this stage, the principle of suzerainty or paramountcy was applied and the Company projected itself as the guardian of the various States. The relations between the Company and the States were regulated by the terms of treaties, which varied almost from State to State; during the later period of the treaty-making activities, the Company insisted that a State should receive its representative and at times also its troops. The more important of the political treaties related to mutual amity and defensive alliance,
providing for territorial integrity, internal sovereignty and protection of States, prohibition of external intercourse and the right of the British Government to advise in certain circumstances. The functions of the representative of the Company were principally to maintain good relations between the State and the Company but he also used to advise and guide the rulers of the States and, under this guise, to control the affairs of the State. The representative of the Company was designated either as the Resident or the Political Agent. The office of the Political Agent in Kutch was abolished only in 1924 in connection with the creation of the Western India States Agency. As from that year, the Agent to the Governor-Genera] governed all the States forming part of this Agency and was the representative of the Government of India in relation to them.
The Government of India Act of 1858 was put into focus by Pakistan in oral argument.
Pakistan started by referring to Dbert, The Government of India, for a detailed chronology of events in India and pointed out that the details given in these tables illustrate the policy of conquest and annexation of the East India Company up to 1858. It was pointed out that Governor-General Lord Dalhousie was the Governor-General of annexations par excellence. He was in office from 1848 to 1856. In this last year one of the most venerable States of India, Oudh, was annexed. In the next year, 1857, the armed uprising started which was called by the British the Indian Mutiny but is also referred to as the first war of independence. The end of this uprising, in 1858, was followed by the Government of India Act of the same year, which abolished the East India Company's rule in India. The taking over by the Crown was followed by a Proclamation of Queen Victoria on 1 November 1858. In this Proclamation it was said, i.a.:
"We hereby announce to the Native Princes of India that all Treaties and Engagements made with them by or under the authority of the Honourable East India Company are by Us accepted, and will be scrupulously maintained; and We look for the like observance on their part.
"We desire no extension of Our present territorial Possessions; and while We will permit no aggression upon Our Dominions or Our Rights, to be attempted with impunity, We shall sanction no encroachment on those of others. We shall respect the Rights, Dignity and Honour of Native Princes as Our own; and We desire that they, as well as our Own Subjects should enjoy that Prosperity and that social Advancement which can only be secured by internal Peace and good Government.
"We held Ourselves bound to the Natives of Our Indian Territories by the same obligations of duty which bind Us to all Our other Subjects; and those Obligations, by the Blessing of Almighty God, We shall faithfully and conscientiously fulfil."
Pakistan termed this Proclamation "an historic proclamation" which "announced a new policy, a policy calculated to inspire confidence and under which it was expected that British rule in an acceptable form would remain for some time, or perhaps indefintely..." (Verbatim Records, p. 2508).
The new policy, thus shortly defined, was viewed by Pakistan from three angles:
(i) The new policy was one of a clearer distinction between two parts of India.
Up to this stage there has been no difference of compartment, it is still the same function of administration. You administer one territory or one area directly; you administer another area through a person who has been allowed to retain
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