"Why did Indian fishermen not seek judicial remedy in 1976? Many of them were ardent followers of DMK and the legal pundits of the party should have advised them to go to the Supreme Court. The answer perhaps lies in the fact that the 1976 agreement did not alter ground realities."
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By V Suryanarayan
(July 02, Chennai, Sri Lanka Guardian) The ceding of the island of Kachchativu to Sri Lanka, consequent to the signing of the India-Sri Lanka Maritime Boundary Agreement in 1974 and the travails undergone by the Tamil Nadu fishermen in the Palk Bay region were media headlines recently. The reported construction of a watchtower and a military base in Kachchativu by Sri Lankan government naturally prompted the Tamil Nadu chief minister to write to the prime minister to immediately investigate the veracity of the report. The subject figured in the legislative assembly, where M Karunanidhi made an impassioned plea for unity among various political forces in the state.
The Sri Lankan deputy high commission in Chennai issued a press statement ‘categorically’ denying the installation of watchtower and construction of military base. There is a credible Indian coast guard presence in Mandapam and a small naval contingent stationed in Rameshwaram. They undertake patrolling of the IMBL on a daily basis and any detrimental activities would not have escaped their attention. It is unfortunate that the media indulged in sensationalism creating unnecessary panic. By the end of the week, it turned out to be a ‘storm in the teacup’.
Karunanidhi made use of the speech in the assembly to clarify his party’s stance on the issue. He asserted that the DMK was opposed to the ceding of the island to Sri Lanka and had made its position clear on several occasions. When the matter was brought before the Lok Sabha, the party members staged a walkout in protest.
There is considerable historical evidence to prove that Kachchativu was part of the zamindari of the Raja of Ramnad and when the system was abolished, it became a part of Madras Presidency. New Delhi did not question the zamindari claims, but it was not sure whether zamindari meant sovereignty. And, therefore, New Delhi maintained that it was a disputed territory and ceded the island to Sri Lanka when the maritime boundary was delimited. As students of constitutional law know if an Indian territory is to be ceded to another country, the constitution requires to be amended, but if it is a disputed territory such a course of action is not necessary. In a similar situation in the ’50s, when New Delhi wanted to cede Berubari to East Pakistan, the then West Bengal Chief Minister B C Roy not only vehemently opposed it, but also went on appeal to the Supreme Court. The court upheld West Bengal’s claim and Berubari remained an integral part of India. The question naturally arises, why an astute political leader like Karunanidhi did not resort to legal remedies when he came to know that New Delhi was determined to cede Kachchativu?
In the last stages of negotiations the efforts of the Tamil Nadu government were directed in safeguarding the traditional fishing rights of Indian fishermen in and around Kachchativu. Karunanidhi and the then law minister S Madhavan called on Indira Gandhi and had detailed discussions with then foreign minister Swaran Singh. A careful reading of Article 5 of the agreement, in conjunction with Swaran Singh’s clarification, clearly reveals that these fishing rights were protected. Sri Lanka does not subscribe to this point of view. The senior officials of the ministry of foreign affairs in Colombo told this author that the agreement provided only for drying of nets and visit by pilgrims to St Anthony’s Church without obtaining Sri Lankan visa. I asked them, “How will the nets become wet unless our fishermen fish in and around Kachchativu?” There was no satisfactory answer.
As Karunanidhi rightly explained, the Maritime Boundary Agreement of 1976, which delimited the boundaries in the Gulf of Mannar and the Bay of Bengal gave away the traditional fishing rights of our fishermen. The agreement included an exchange of letters between Kewal Singh, Indian foreign secretary and W T Jayasinghe, Sri Lankan foreign secretary. Paragraph one clearly stated that after the delimitation of maritime boundaries in all sectors, Indian fishermen would confine their fishing activities to Indian territory and the Lankans vice versa. If they have to fish in another country’s waters ‘express permission of Sri Lanka or India, as the case may be’, will be necessary. In other words, traditional fishing rights guaranteed in the 1974 agreement were bartered away by the 1976 agreement.
Why did Indian fishermen not seek judicial remedy in 1976? Many of them were ardent followers of DMK and the legal pundits of the party should have advised them to go to the Supreme Court. The answer perhaps lies in the fact that the 1976 agreement did not alter ground realities. Indian fishermen continued to get into Lankan waters, which were rich in prawns; what is more, there was no strong Lankan naval presence to enforce the provisions of the agreement.
The situation in the Palk Bay is likely to deteriorate further. With the annihilation of the LTTE, the fishing restrictions imposed by the government will be removed and Lankan Tamil fishermen will resume fishing. They are bound to come into conflict with Indian fishermen. It is inhuman to deprive Lankan fishermen of their livelihood. The political leadership in Tamil Nadu should impress upon fishermen not to go deep into the Lankan territory. If the present situation is allowed to drift, the strong anti-Indian elements in Lankan government may even clamour for naval protection to Lankan fishermen. Intoxicated with recent military victory there are elements who are itching to use force to prevent Indian fishermen from entering Lankan waters.
A breakthrough in the problems of Indian fishermen entering Lankan waters was arrived at in October 2008 following discussions between M K Narayanan and the Lankan defence secretary. The joint communiqué issued on October 26, 2008 included Colombo’s solemn assurance that there will be ‘no firing on Indian fishing vessels’. New Delhi should immediately open a dialogue with Colombo and carry forward the earlier proposal for permitting licensed Indian fishermen to fish in Sri Lankan waters with reciprocal facilities for Sri Lankan fishermen in Indian waters. Simultaneously the fishermen on both sides should be encouraged to open a dialogue in order to arrive at an amicable solution. A solution arrived at by fishermen on both sides is preferable to a solution imposed by Colombo and New Delhi.
In the long run, a solution to the problems can be found only if there is a paradigm shift in our thinking. Instead of looking at the Palk Bay as contested territory we must view it as common heritage. We must enrich the Palk Bay jointly and exploit the marine resources jointly on an equitable and sustainable basis. We must undertake joint projects for deepsea fishing. After all, Palk Bay was not a barrier, it was a bridge between India and Sri Lanka.
About the author: V Suryanarayan is senior research fellow, Centre for Asia Studies, Chennai
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We would be grateful if the author also addresses the problem of illegal migration to Lanka via the fishermen and also trafficking of drugs. If these two problems can be sorted out, to treat the Palk Straits as common ground would be a great idea.
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