During the recent visit of Prime Minister Narendra Modi, Chief Minister MK Stalin raised the issue of the retrieval of the island of Kachchatheevu, ceded to Sri Lanka in 1974 by then Prime Minister Indira Gandhi.
To quote Stalin, "I am duty bound to remind the Prime Minister that this is a right time to retrieve Kachchatheevu to ensure the traditional fishing zone and rights of the Tamil Nadu fishing community." As was expected, the prime minister remained completely silent on the thorny issue.
This is not the first time the demand was raised. On 15 August 1991, the then Chief Minister J Jayalalithaa called upon the people of the state to take a pledge to retrieve the island, "gifted away" to Sri Lanka. I was associated with the University of Madras at that time and decided to work on the subject. I had two objectives.
International agreements have a sanctity of their own and if India decides to abrogate them unilaterally, New Delhi's global image would take a nosedive. Secondly, can the interests of Tamil Nadu fishermen be protected without abrogating the two agreements of 1974 and 1976, which delimited the maritime boundaries in the Palk Strait, Gulf of Mannar and the Indian Ocean?
The first major problem that I faced was - all documents relating to the Zamindari rights of the Raja of Ramnad were taken away and kept behind the stone walls of official secrecy. It may be recalled that A B Vajpayee, then leader of Jan Sangh who characterised the gifting away of Kachchatheevu as bhoodan in Parliament, instructed Jana Krishnamurthi to file a case in the Madras High Court.
Krishnamurthi could not produce any documentary evidence (because all of them were taken away by New Delhi) to prove that the island was part of India and the case was dismissed. Can the DMK/AIADMK MPs demand access to these documents under the Right to Information Act and make them public?
The island of Kachchatheevu is located in the Palk Strait, 10.5 miles south of the Delft Island and 12 miles from the nearest point in Ramanathapuram district. It does not have even a drop of drinking water. Tamil Nadu fishermen used the island to dry their nets and take rest. Today, nylon nets are used and they do not require drying.
There is a church dedicated to St. Anthony, considered to be the guardian of fishermen; in April, priests from India and Sri Lanka preside over the festivals. Indian fishermen are allowed to visit the island without obtaining a visa. During the ethnic conflict, festivals were not held, but they have resumed now. The number of visiting pilgrims is determined by the Sri Lankan government.
The barren island by itself should not have become a source of conflict. What made the island lucrative were the surrounding seas full of prawns. The chank shells, pearl oysters and corals from the seabed are also rich sources of income. In the 1970s, scientists also felt that the area should be explored for oil. Historically, the island belonged to the Zamindari of Raja of Ramnad; once the Zamindari was abolished, it became a part of Madurai district.
Judicial pronouncements of the Madras High Court gave further credence to its Indianness. In the famous case of Anna Kumaru Pillai, the Madras High Court held that these areas are “an integral part of His Majesty's areas and that the chank beds are part of the territories of British India”. According to the Gazetteer of Ramanathapuram, published by the Tamil Nadu government, the survey number of Kachchatheevu is 1250.
After Independence, Kachchatheevu occasionally figured in Parliament. Cutting across political differences, members from Madras Presidency argued that the island belonged to India. Nehru adopted a policy of "calculated indifference". After Indira Gandhi became prime minister, a marked shift began to take place.
The island was considered not Indian territory but disputed territory. Second, Sirimavo Bandaranaike was her personal friend and Indira wanted to buttress her regime in all possible ways.
The result was Indira's decision to cede the island to Sri Lanka. According to SP Jagota, Director of the Legal and Treaties Division, if the principle of median line - a universally accepted practice - was adopted, the island would have fallen on the Indian side.
Therefore, a "deviation" was made so that the island could be a part of Lanka. Prof. Partha Ghosh said: "Mrs Bandaranaike made a personal appeal to Indira Gandhi to come to her rescue. India Gandhi appreciated her predicament and manipulated the situation in such a way that it became a fait accompli even before the Indian delegation could react."
M Karunanidhi was then the chief minister of Tamil Nadu. It would be worthwhile to compare the policies of Bidhan Chandra Roy, the chief minister of West Bengal, and M Karunanidhi on the issue. In the late 1950s, Jawaharlal Nehru wanted to transfer Berubari to East Pakistan. He considered Berubari a disputed territory.
B C Roy filed an appeal in the apex court that Berubari was part of India and argued that if Indian territory is to be given to a neighbouring country, a constitutional amendment was essential. The Supreme Court upheld his claim and Berubari still remains a part of India. Why did Karunanidhi not resort to judicial remedy in the case of Kachchatheevu? I interviewed S Madhavan, then law minister and asked him repeatedly why Karunanidhi did not file an appeal in the Supreme Court. There was no convincing answer.
Instead, the then CM took the issue to the Legislative Assembly and passed a resolution against the ceding of Kachchatheevu. A resolution by the Legislative Assembly on a subject pertaining to the exclusive jurisdiction of the Centre could be ignored by New Delhi. But a judicial decision is binding both on the Centre and the states.
The explanation perhaps lies elsewhere. MG Ramachandran had already parted company and he was becoming more and more popular. Perhaps Karunanidhi was counting on Indira's support to remain in power. Equally important, Indira was aware of the many acts of omission and commission of the DMK leaders. Years later, Jayalalithaa filed an appeal in the Supreme Court; so also did Karunanidhi a few months later. I do not know whether the cases filed by the two politicians would ever come up for hearing.
In order to resolve the dispute, I came up with two suggestions. First, get the island of Kachchatheevu and surrounding sea on a "lease in perpetuity from Sri Lanka". In other words, Teen Bigha in reverse.
In Teen Bigha, sovereignty is with India, but we have given the area to Bangladesh on lease in perpetuity. Second, request the Lankan Government to permit licensed Indian fishermen to fish in upto five nautical miles in Lankan waters.
In return, permit Lankan fishermen to fish in our Exclusive Economic Zone on the same terms and conditions. There is a precedent. In the 1976 Agreement, Lankan fishermen were permitted to fish near Kanniyakumari. I was happy that my suggestions were accepted both by the DMK and the AIADMK governments.
"The Sea", as TS Eliot wrote in The Dry Salvages, "has many voices". Unfortunately, the agony and suffering of the Lankan Tamil fishermen, who have ventured into the sea after years of deprivation, is not appreciated by the TN politicians.
The Tamil Nadu fishermen, on the three days that they are allowed to fish, go deep into the Lankan waters; they use bottom trawlers, which are banned by the Lankan government and play havoc with marine ecology.
If the Sri Lankan government approaches the International Court, as the Philippines did against China for fishing in the South China Sea, what defence can India, especially Tamil Nadu, submit before the court? Our fame and name as a law-abiding country would suffer irreparable damage. Instead of raising the issue of Kachchatheevu, our politicians should ponder over the present-day realities of the Palk Bay.
(The writer is a Senior Professor (Retd), Centre for South and Southeast Asian Studies, University of Madras and can be reached at suryageeth@gmail.com)