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Saturday, August 30, 2014 - 09.00 GMT

By Lucien Rajakarunanayake


There is reason for hope that the Indian Supreme Court's ruling earlier this week that the Kachchatheevu issue requires a political and diplomatic solution, and not a legal ruling, would put an end to the constant claims being made and related bickering, over this island that lies between Sri Lanka and India by politicians in Tamil Nadu, led by its Chief Minister Jayalalithaa Jayaram.

But this can only be hope. The politics of Tamil Nadu is not the stuff that gives much respect to the best of legal thinking or the realities of politics and diplomacy. It is an obstinate approach that seeks to make much of its support for the Tamils of India, who are largely in Tamil Nadu, as well as the Tamils of Sri Lanka's northern region, but with the least concern for the fishing rights and livelihoods of the same Tamil fishermen in the same part of Sri Lanka.

Yet there is good cause for satisfaction in the clear position taken up by the Indian Supreme Court (ISC) in writ petitions filed by a AKS Vijayan, a former MP of the Dravida Munnetra Kazhagam (DMK) that is led by former Tamil Nadu Chief Minister Karunanidhi, and the current Deputy Speaker of the Lok Sabha, M. Thambidurai of the Jayalalithaa's AIADMK and the leader of its group in the Lok Sabha, who were united in the call for a directive to the central government in New Delhi to secure the release of TN fishermen from Sri Lankan jails and to "prevent attacks on the sea".

Clear thinking

The three-judge bench of the of the ISC, comprising Chief Justice R.M. Lodha and Justices Kurian Joseph and Rohinton Nariman, was very clear in its thinking on the issue that only a political and diplomatic solution can end the frequent arrests of Tamil Nadu fishermen by the Sri Lankan Navy.

The Indian Chief Justice made the issue very clear when he told counsel for the petitioners: "These are matters in which the court cannot intervene. Can we ask the Sri Lankan Navy not to arrest Indian fishermen who stray into their waters? These are all political issues and you raise them in Parliament. We can't give a mandamus to resolve the issue as it falls within the domain of the government."

India's Attorney-General Mukul Rohatgi told the Court that: "One petitioner is a Deputy Speaker, the other is a former MP. These arrests happen everyday and are matters to be sorted out by Parliament," underscoring the Courts thinking that what is needed is a political solution.

The issue became clearer, when Additional Advocate-General Subramanium Prasad, appearing for Tamil Nadu, submitted that the majority of such incidents occurred when Tamil Nadu fishermen went near Kachchatheevu area for fishing. The prompt response of Attorney General Rohatgi was: "Kachchatheevu became part of Sri Lanka in 1974. We have to go to war with Sri Lanka if we want to retrieve this island. Raising the issue in Parliament will be far more effective."

The Bench also made an important response to the AG's reference to war, stating:, "In the Supreme Court, we talk of peace and not war," which again underlined the clear position of the Supreme Court that this is not a matter that has to be, or could be canvassed in the Courts of Law.

With due consideration of the new political situation in India, the Chief Justice told the Tamil Nadu counsel: "Since there is a new dispensation at the Centre, you make a representation to the government with all the issues you have raised in these petitions."

In disposing of the two petitions the Bench also said the petitioners could make fresh representation to the NDA government raising issues of fishermen's arrest, compensation to families and more vigilant patrolling by Coast Guard to prevent straying of fishermen into Lankan waters.

Centre stands firm

This firm response of the Indian Judiciary on the issue of Kachchatheevu followed an earlier case that came up in the ISC in August 2013, when Tamil Nadu Chief Minister Jayalalithaa sought retrieval of Kachchatheevu from Sri Lanka. She had filed a petition in December 2008, as the AIADMK General Secretary, seeking as unconstitutional the 1974 and 1976 agreements between New Delhi and Colombo on the "ceding of Kachchatheevu" to Sri Lanka.

Her position was that the island was historically part of the Ramnad Raja's zamindari, and later it became part of the Madras Presidency. The island was always of strategic importance and special significance for fishing operations in the area. In or around 1921, Sri Lanka started claiming territorial rights over the island without any justification and notwithstanding such claims it continued to be part of India. She highlighted the sufferings of fishermen from Tamil Nadu who inadvertently strayed into the island. Because of the hostile attitude of the Sri Lankan navy, fishermen feared to go fishing as they were either killed or taken into custody if they entered Kachchatheevu.

In its response then, the Centre said the island was a matter of dispute between British India and Ceylon (now Sri Lanka) and there was no agreed boundary. The dispute relating to the status of this island was settled in 1974 by an agreement and both countries examined the entire question from all angles and took into account historical evidence and legal aspects. This position was reiterated in the 1976 agreement.

It said: "no territory belonging to India was ceded nor sovereignty relinquished since the area in question was in dispute and had never been demarcated." Therefore, the contention of Ms. Jayalalithaa that Kachchatheevu was ceded to Sri Lanka was not correct and contrary to official records."

No fishing rights

The Centre also said as per the two agreements, no fishing rights in Sri Lankan waters were bestowed to Indian fishermen. Under the agreements "Indian fishermen and pilgrims will enjoy access to visit Kachchatheevu and will not be required by Sri Lanka to obtain travel documents or visas for these purposes. The right of access is not to be understood to cover fishing rights around the island to Indian fishermen."

On the frequent incidents of firing against Indian fishermen by the Sri Lankan Navy and their arrest, the Centre said "the government has always taken up on a priority basis with Sri Lanka, including at the highest levels, any incident involving safety and security of Indian fishermen in the waters between two countries. Whenever Indian fishermen were arrested, the government of India intervened and got them released," it said, and sought dismissal of the petition as not maintainable.

With the Indian Attorney General's clear position in this instance that this is a matter for political and diplomatic resolution, as the ISC had clearly observed, and the earlier position taken up by the Centre on Jayalalithaa's own petition in August last year, there is a good indication that the thinking on Kachchatheevu has not changed in New Delhi, although there has been a change of government there.

The reality today is that Jayalalithaa does not have the capability to pose a major threat to the BJP's Narendra Modi and the NDA Government, as it is not a coalition as the previous UPA Government of Manmohan Singh was, having to give in to 'coalition compulsions" as he said it.

This makes Jayalalithaa and her Tamil extremist supporters in Tamil Nadu much weaker in pushing its unrealistic demands on Kachchatheevu. Yet, the very nature of Tamil Nadu politics, with its known commitment to a Tamil separatist position, that it supported in Sri Lanka, and may try to encourage in Tamil Nadu, the India Supreme Court's rejection of the petitions on Kachchatheevu, and its clear thinking to the matter is the opportunity for hope to remain, and grow even stronger, that Kachchatheevu will not continue to be used as a pawn to sour Indo-Sri Lanka relations.

We must hope that the pilgrims from both India and Sri Lanka will continue to come to the shine of St. Anthony that is situated there for the annual feast, sharing their prayers and friendship, especially as those who harvest the ocean; that Tamil Nadu fishermen will also continue to dry their nets at Kachchatheevu, and that the incursions of TN fishermen into Sri Lankan waters will cease, helping to protect the livelihood of Tamil fishermen in Sri Lanka.





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Last modified: August 30, 2014.

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