“Karunanidhi has maintained that the Government of India did not have the courtesy to discuss the provisions of the Agreement with the State Government. He could have taken the issue to the Supreme Court in 1974, but did not do so. His efforts were directed to safeguard the traditional rights of Indian fishermen. And a careful reading of Articles 5 and 6 of the 1974 Agreement, in conjunction with Swaran Singh’s clarification in Lok Sabha, clearly reveal that Indian fishermen continued to enjoy these rights in and around Kachchativu. But unfortunately these rights were bartered away by the 1976 Agreement."
by V. Suryanarayan and P. B. Venkatasubramanian
(September 11, Chennai, Sri Lanka Guardian) In her Public Interest Litigation Writ Petition, under Article 32 of the Constitution, Ms. Jayalalitha has appealed to the Supreme Court for an appropriate writ order or directive for declaring as unconstitutional the two agreements signed between India and Sri Lanka in 1974 and in 1976, under which the island of Kachchativu was ceded to Sri Lanka and the traditional fishing rights of Indian fishermen were given up. She has appealed for a directive to the Union of India to take appropriate steps for retrieving the island or alternately to take steps to obtain or regain the right of access to Kachchativu and right to engage in fishing around the island. She has also appealed for a directive to the Union of India to protect the lives and livelihood of Indian fishermen who regularly fish around the island.
While Jayalalitha was the Chief Minister she had been severely critical of New Delhi for “gifting away” Kachchativu to Sri Lanka. On August 15, 1991 she called upon the people of the State to take a pledge to retrieve the island. She added that her Government was willing to argue the case with the Centre and, if necessary, even prepared to fight on the issue. The present posture represents a welcome change, for it marks a departure from confrontational politics to seeking judicial remedies.
While researching on the subject, the Authors had to face severe limitations. All documents relating to the Zamindari rights of the Raja of Ramand have been taken away to New Delhi and are kept behind the stonewalls of secrecy. However, there are number of secondary sources to prove, without an iota of doubt, that the island was a part of the Zamindari of the Raja of Ramand. The East India Company and the British Government upheld these claims. And when Zamindari was abolished after independence, the revenue jurisdiction came to Madras province. Unfortunately the DMK Government did not succeed in convincing New Delhi about the justness of this claim.
New Delhi did not dispute the Zamindari rights of the Raja of Ramand, but it was not certain that the Zamindari rights conferred sovereignty. No one claimed that Zamindar was sovereign, but what must be highlighted is the fact that the sovereign had delegated the powers of collecting the revenue to the Zamindar. Once the Zamindari was abolished, all rights reverted to the Government. New Delhi’s argument is tantamount to questioning Indian unity. It must be remembered that on the eve of independence, large parts of India were under Zamindari system. In the nine provinces of British India, the Zamindari system covered 57 per cent of the area, the Ryotwari system covered 37 per cent and the Mahalwari system 5 per cent. If New Delhi’s (and Colombo’s) argument is accepted, the very existence of India as a united country will be at stake.
A few other relevant points must be highlighted. If any Indian territory is to be ceded to a foreign power, the Constitution needs to be amended. In order to avoid such a contingency, New Delhi adopted the stance that Kachchativu was a “disputed territory”. Indira Gandhi sought legal opinion whether India had historical claims on the island, but the opinion was not unanimous. While Niren De, then Attorney General was of the view that “on balance, the sovereignty over Kachchativu was and is with Sri Lanka”, MC Setalvad, former Attorney General, upheld India’s claims. Adding insult to injury, the principles of equi-distance and median line, the fundamental principles of delimitation of maritime boundaries, was not adhered to in the case of Kachchativu. According to SP Jagota, then Director of the Legal and Treaties Division, “the boundary line between India and Sri Lanka followed the median line except as adjusted in the Palk Bay in relation to the settlement on the question of the Island of Kachchativu” (Emphasis added).
Karunanidhi has maintained that the Government of India did not have the courtesy to discuss the provisions of the Agreement with the State Government. He could have taken the issue to the Supreme Court in 1974, but did not do so. His efforts were directed to safeguard the traditional rights of Indian fishermen. And a careful reading of Articles 5 and 6 of the 1974 Agreement, in conjunction with Swaran Singh’s clarification in Lok Sabha, clearly reveal that Indian fishermen continued to enjoy these rights in and around Kachchativu. But unfortunately these rights were bartered away by the 1976 Agreement.
It is surprising that no Government in Tamil Nadu have thought it fit to challenge the cession in the Supreme Court as the Government of West Bengal did at the time of the proposed transfer of Berubari to East Pakistan. Can they do so now after the lapse of 34 years? It is possible that they may apprehend the law of limitation, but the time limit of 30 years, prescribed by Article 112 of the Limitation Act, 1963 does not apply to a suit in the Supreme Court in the exercise of its original jurisdiction. The matter can be argued whether Kachchativu had always been a disputed territory or it was a part of India or a no man’s island.
If the State Government is unable or unwilling to move the Supreme Court, it is open for a concerned citizen to seek judicial remedy through public interest litigation. The question will also arise whether the two international agreements, a matter relating to Public International Law, can be questioned in a Municipal Court. The answer is clear. No treaty can override the Constitution of India, which is the supreme law of the land. Take a hypothetical case. Surely it is preposterous to suggest that a Treaty, ceding Amritsar to Pakistan, cannot be challenged in the Supreme Court.
(Dr. V. Suryanarayan is Senior Professor (Retd), Centre for South and Southeast Asian Studies, University of Madras. P B Venkatasubramanian is Former Law Secretary, Government of India) - Sri Lanka Guardian
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