Author: admin@thefirm

In the article by Deepak Raju, published in Op-Ed page of The Hindu on 27 May 2013, the author has argued the futility of the pending litigations on Katchatheevu Island and has described claims to retreive Katchatheevu as weak in international law. In response, I would like to present a counterview to the opinions of the author based on judicial determinations and international legal principles. 

There is no doubt an order issued by the Supreme Court of India is not binding on Sri Lanka, as Raju has said, but it must not be forgotten that the Court’s jurisdiction extends up to the contiguous zone (up to 24 nautical miles) of India. Section 5 of the Maritime Zones Act specifically provides the Indian Courts with powers in the contiguous zone in matters where the “security of India” is involved. Therefore, matters pertaining to Katchatheevu – which is 18 nautical miles off Indian coast, fishing in the waters around it and the safety of fishermen could be argued to be well within the ambit of the Indian courts. Also, the  petition filed recently by M Karunanidhi (former Chief Minister) specifically lists as respondents the Union of India, through its Cabinet Secretary and Foreign Secretary, all of whom are accountable to the Courts of the country. 

As Raju has pointed out, the Government of India has to amend the the First Schedule of the Constitution to confim the cession of territory, in accordance with the judgement in the landmark case In re: Berubari Union. But, the inaction of the Government to table the 1974 and 1976 agreements in Parliament has raised questions about their intention. Also, Raju points out that the treaties state that they are subject to ratification. According to Article 14(1)(b) of the Vienna Convention, ratification of a treaty is necessary when negotiating States have agreed that ratification is required. But there is no indication that the Indo- Sri Lanka agreements have been ratified by the President of India, once again leaving us wondering whether there is a bona fide intention of the Government in giving any legal effect to the agreements. 

Interestingly, Raju raises the question of whether the island was comprised in the Province of Madras as central to the claims on Katchatheevu. Historical evidence abounds that Katchatheevu was the Zamindari of the Raja of Ramnad, and subsequently became a part of the State of Tamil Nadu. The Memoirs of the Governor of Ceylon from 1757 to 1762 clearly establishes the control of the Raja of Ramnad over the island. In 1921, a meeting of the British officials at Colombo to discuss maritime boundary issues has referred to India’s terrtorial claim on Katchatheevu. After independence, the island was listed as part of Ramanathapuram district in the 1972 Gazeteer-Ramanathapuram by the Government of Tamil Nadu. 

Apart from this, Raju has committed two serious omissions in his analysis. Firstly, he has failed to explain the contents of the agreements, which is important to understanding their constitutional maintability. The 1974 agreement between the Prime Ministers of the Indian and Sri Lanka allows the “vessels of India and Sri Lanka to enjoy in each others waters such rights as they have traditionally enjoyed” but that “each country shall have soverignty and jurisdiction and control over the waters”. The words of the agreement sow the seeds of legal confusion. Simply put, as per this agreement, our fishermen can legally fish in Sri Lankan waters but they can be arrested for the same under Sri lankan laws. 

Secondly, Raju has neglected the historical events leading up to the 1976 agreement. In June 1975, state of Emergency was imposed all over India. Consequently, the Tamil Nadu Government was dismissed in January 1976. While there was no Parliamentary or Legislative functioning or civil society activism possible, the Exchage of Letters on 23 March 1976 between the Foreign Secretaries of India and Sri Lanka constituted the 1976 agreement. It was agreed that “fishing vessels and fishermen of India shall not engage in fishing in the Exclusive Economic Zone of Sri Lanka”, but it made no mention of the traditional fishing rights guaranteed in the previous agreement.

The contradictory and conflicting positions espoused by the two agreements, created in the background of political upheaval and uncertainty, have caused immense hardship to Tamil Nadu fishermen. According to reports, an estimated 500 fishermen have been killed in the Indo-Sri Lanka waters over the past 30 years. It is not disputed that India must be bound by her international commitments, but the violations of international maritime and humanitarian laws by Sri Lanka and its Navy have left the Government with no other choice but to review the agreements of 1974 and 1976. If the Government chooses to do so, it would be well within the purview of the Supreme Court to adjudicate the way forward. 

Manuraj Shunmugasundaram

Student of Law at the University of Delhi

Link to the Article: https://www.thehindu.com/opinion/op-ed/legal-net-can-secure-katchatheevu-claim/article4815058.ece

Empowering people … Empowering Tamil Nadu has been the One Agenda that the DMK has worked on and delivered in the last 5 years. 2006 – 2011 has been a period of strategic empowerment and development. Education, Health Care and upliftment of the downtrodden have been, amongst others, the three thrust areas towards realising the dream of Social Justice in Tamil Nadu. However, this has always been tainted with the view that these are “freebies” handed out by our Government  to appease the various vote banks.

The narrowness of this perspective however cannot take away from the value of the investment by the DMK Govt. in the field of Education. This is the basic investment which paves the way for an aware society. The DMK Government has allocated over Rs 40,000 crores towards school education and has been placed among the high performing states in the field of school education. The system of Activity Based Learning followed in the primary schools of Tamil Nadu made the process of learning ‘joyful’, with children looking forward to going to school and thereby significantly reducing dropout rates. This initiative of the DMK Government has been a model for the entire country to follow. When you educate a woman, you educate a family which results in a  literate society. In order to motivate parents to let their girl child study, the  Govt. introduced this scheme of awarding Rs. 25,000 to girls who have studied up to 10^th standard for their marriage. We have now pledged to increase this assistance to Rs 30,000. Computer education with its lure of lucrative jobs was always the bastion of the rich but the DMK government has taken a pioneering step to provide computer education, thus ensuring that government run school students were second to none. Taking this further, the DMK Government promises a laptop to every student in Government and Government-aided colleges to keep up with current advancements in higher education. 

The Common Entrance Test (CET), introduced by the ADMK Government, for admission to professional colleges had put the rural students on the back foot as students in urban areas had the benefit of coaching classes. Despite strong opposition from city students, the DMK Government abolished CET and helped many students from the rural areas to realize their dreams of becoming an engineer or a doctor. To facilitate this further, the DMK promises that every District in Tamilnadu will get a Medical and Engineering college, and Universities will be set up all over Tamilnadu.

Kalaignar Kaappeedu Thittam (Health Insurance Scheme) has been attacked by the opponents of the DMK Govt. on the ground that it is a vote garnering ploy failing to see or more pointedly refusing to see that for the poor, the area of Health Care is the least on their scale of priorities. Labourers and daily wage workers have always overlooked their health as lack of money and access has prohibited the poor from approaching private hospitals for specialized treatment for several life threatening diseases. The insurance premium for this scheme has been fully borne by the Government. The scheme was introduced by the DMK Government in order to reinforce our commitment to the welfare and the wellbeing of the poor, thereby providing Quality Health Care services over 3 lakh people so far. 

Among the Welfare Schemes, the first and foremost of these was the eradication of starvation.  Towards this end, families in the lowest section of society were ensured up to 20 Kgs of rice @ 1 Re./Kg per month which has been increased to 35 kgs of free rice, thereby ensuring that even the poorest of poor were shielded from starvation. Empowerment schemes have not only been for the masses, but even for marginalized groups like the transgenders. A separate welfare board and also Aravani Self Help Groups along the lines of Women Self Help Groups were constituted.  

Differently-abled citizens, once again a small percentage of population in Tamil Nadu, were also given their due recognition in society by constituting a separate department under the Chief Minister. The DMK has started with distribution of pension for the differently-abled and continued with various other welfare schemes including the provision of ramps in all Govt. offices. In a society that is struggling to rise above its circumstances, the plight of Senior Citizens has been neglected and keeping their situation in mind, the DMK has promised to increase the Old Age Pension to Rs 750 per month as well as free bus passes. 

The Industrialisation seen across verticals which has led to the creation of jobs, accelerated development in backward areas, raised the standard of living and brought with it prosperity to the State. This has been possible only because of the foresight of the DMK Govt. to provide an ambient climate to investors. During the last 5 years, there has been an investment of over Rs 60,000 crores. 

The five years of DMK regime has unquestionably been golden years of Empowerment in Tamil Nadu. 

Link to the Article: https://www.newindianexpress.com/thesundaystandard/2011/Apr/10/dmk-has-given-golden-years-to-tamil-nadu-243111.html

Though recent discourse in federalism has been around devolution of legislative and executive powers, decentralization of judicial powers is equally important. If federalism is part of the basic structure of the Constitution, then it must naturally follow that every Constitutional institution must be federal in character. Any failure to dissipate the judicial powers in a meaningful and structured manner could potentially endanger our democratic foundations. 

The High Courts of Calcutta, Madras and Bombay were established in 1861. These High Courts served as the highest courts in the land until 1937, when the predecessor of the Supreme Court – the Federal Court  – was set up under the Government of India Act 1935. The Federal Court,  

which functioned as the highest court of the land between 1937 and 1949, decided disputes between provinces and exercised appellate jurisdiction over criminal and civil matters. In 1950, the Supreme Court of India was set up by the Constitution as the apex court and in turn absorbed the powers of the Federal Court and effectively replaced the Privy Council. The process of centralization of judicial system, Granville Austin argues, was thus carried out not just by “the single hierarchy of courts” but by the “uniformity of law provided for by the Legislative Lists”. Austin feels that the Parliamentary control of “constitution and organisation of the High Courts” as with the “qualifications of persons entitled to practice before High Courts” concentrates the powers with the Union Legislature. 

The primary focus of the Constituent Assembly Debates surrounding the judiciary was to ensure and safeguard it’s independence. The independence of judiciary was reiterated by the Sapru Committee as well as the Ad Hoc Committee of the Supreme Court in their reports to the Constituent Assembly. The Draft Constitution, especially the provisions relating to judicial appointments, was discussed by the justices of the erstwhile Federal Court and Chief Justices of the High Courts. Austin says that the sense of the meeting was that the “fearless functioning of an independent, incorruptible and efficient Judiciary” must be preserved. This found expression in the Constitution vide appointments to High Court and Supreme Court being made by the President. However, in a truly federal set-up, the process of appointing Judges of the High Court should have been similar to the Supreme Court but left entirely to the respective Governors and the Chief Justices of the High Courts. Equally importantly, the process of removal of High Court Judges is currently bestowed with the President and the Parliament. As the salaries and emoluments for the High Court Judges are drawn form the Consolidated Fund of the State, there is no doubt that the States are heavily invested in the well being of the High Courts. Therefore, it would be fair for the State Legislatures and the State Executive to don the roles of the Parliament and the Union Executive with regard to appointment and removal of High Court Judges. 

The Government of Tamil Nadu, under the Dravida Munnetra Kazhagam, set up a three-member Inquiry Committee under Justice Dr. P.V. Rajamannar to consider the Centre-State relations in general, but  also to suggest measures necessary for securing autonomy of the State in the judicial branch. The Rajamannar Committee submitted its report to the Government of Tamil Nadu on 27 May 1971 and recommended certain germane changes to the functioning of the judiciary. The Rajamannar Committee suggested that Supreme Court must not be burdened with the task of interpreting State enactments” and the ruling of the High Court in such matters should be final. This suggestion finds basis from the fact that State legislations, Ordinances and Government Orders are limited to the territory of the State and, by extension, fall within the jurisdiction of the respective High Courts. Therefore, the judicial work of interpreting the State laws should be vested finally with the jurisdictional High Courts. It was further recommended that the Supreme Court should not be conferred with appellate jurisdiction in civil and criminal case unless where it involves a question of constitutional interpretation. This would enable a more devolved and decentralised set-up and more importantly, ensure that the workload of the Supreme Court in dealing with regular appeals is considerably reduced. The Rajamannar Committee Report also recommended that the High Courts also be empowered to provide necessary opinion by way of a Gubernatorial Reference, similar to that conferred to the Supreme Court by Article 143(1) of the Constitution whereby the President is empowered to consult the Supreme Court by way of a Reference. 

Independent research work led by Nick Robinson on the origin of appeals to the Supreme Court in the years between 2006 and 2011 show that more than 50% of the cases come from the High Courts of Punjab and Haryana, Delhi, Bombay and Uttar Pradesh. Only around 5 % of cases in the Supreme Court originate from the Madras High Court and the corresponding number for Calcutta High Court is around 2.5%. The same research also shows that ordinary criminal and civil appeals clog the Supreme Court at the stage of admission. Perhaps, it is with the benefit of such knowledge, the Law Commission of India, in its 229th Report recommended that a Constitution Bench be set up at Delhi to deal with Constitutional and other allied issues and four Cassation Benches be set up in the Northern region at Delhi, the Southern region at Chennai/Hyderabad, the Eastern region at Kolkata and the Western region at Mumbai to deal with all appellate work arising out of the orders/judgments of the High Courts of the particular region. While the Full Bench of the Supreme Court rejected the recommendation of the Law Commission, the issue continues to be alive due to a recent Writ Petition (WP (C) No. 36 of 2016) filed before the Supreme Court. In this Writ Petition, it was argued that, “on account of the distance at which the Supreme Court is located from other parts of the country, access to justice had been adversely affected” and that setting up regional benches of the Supreme Court was the way forward. Taking in to account these matters of constitutional importance, the matter has now been referred to a Constitution Bench for authoritative pronouncement. 

While the issues of political federalism are more or less settled in favour of greater decentralization, the questions surrounding judicial federalism and devolution of powers among the courts have not been considered sufficiently. For the court and its processes to be more meaningful, effective and credible, all relevant questions must be settled, without compromising the independence of the institution, at the earliest. 

Manuraj Shunmugasundaram

Advocate, Madras High Court

Spokesperson, Dravida Munnetra Kazhagam

Link to the Article: https://theleaflet.in/specialissues/a-more-meaningful-court-why-decentralisation-of-judicial-powers-is-the-way-forward/

There is no shortage of election strategists – often portrayed as Chanakyas – within the upper echelons of the Bharatriya Janata Party. Yet, the BJP seems to have resorted to the oldest trick in the election playbook: misuse of Executive powers to shock political opponents. Whether these tactics that are, collectively, intended to ‘awe and shock’ political opponents will reap rewards shall determine the outcome of the upcoming elections and, perhaps, the future of free and fair elections.

In the ongoing elections, the BJP has been accused of manipulating Central agencies such as Income Tax Department to cripple the electioneering of opponents. Such allegations are substantiated by the spate of high profile raids by the IT department. In Tamil Nadu, premises of at least two former State Ministers belonging to the Dravida Munnetra Kazhaham as well as that Member of Parliament and candidate for Thoothukudi constituency Kanimozhi. 

In the case of IT raids at Thoothukdi last evening, the officials entered the premises around 8:30 PM. As such , it is unusual for raids conducted under Section 131 of Income Tax Act to be conducted after sunset, unless there is specific permissions obtained for the same. Moreover, it has been alleged by Kanimozhi that when she enquired who was the subject matter of enquiry, the officials referred to her as the “candidate”, a term which finds no mention under the Income Tax Act, the governing legislation. Such conduct smacks of unmistakable bias and, not to mention, patent illegality.  

In 2016, elections to the Tamil Nadu Legislative Assembly constituencies in Aravakurichi and Thanjavur were cancelled. The following year, in 2017, the by-election to R.K. Nagar was also cancelled. Yesterday, the election notification for Vellore Parliamentary constituency has been rescinded. There is no doubt that this pattern invites our immediate attention to the myriad problems in conduct of elections. But, these issues are not limited to any one state. In fact, during the ongoing elections, Gujarat tops the list of states in terms of goods and money seizures, while Tamil Nadu comes in second place. Andhra Pradesh has recorded the second-most cash seizures. Being so, it is strange that there has been no punitive action or cancellation in Gujarat or Andhra Pradesh. 

The present circumstances have also called into question the role of the Election Commission of India in ensuring free and fair elections. While the Model Code of Conduct is in force, the entire responsibility for conduct of free and fair elections falls on the ECI. The ECI has been shy in decisively dealing with electoral malpractices. It took a strong nudge from the Supreme Court of India before gag orders were passed in the cases of Mayawati and Yogi Adityanath. Nevertheless, it is apparent that there is a strong perception that the ECI is working in a biased manner. Under these circumstances, there is a quiet wave of sympathy that is building out of the actions conducted by the Income Tax Departmet and other agencies. The Chanakyas of elections, in their enthusiasm to bull-doze their opponents, may have just missed this. 

Manuraj Shunmugasundaram

Advocate and Spokesperson – DMK 

Link to the Article: https://www.firstpost.com/politics/lok-sabha-polls-bjp-attempting-to-shock-opposition-into-submission-with-it-raids-but-tactic-may-boomerang-6467331.html

In more ways than one, J. Sai Deepak takes the reader backwards in time as his book ‘India that is Bharat’ unfolds. Navigating through the three sections on Coloniality, Civilisation and Constitution, requires patience and indulgence as new theories and undefined concepts are introduced at frequent intervals. The book seeks to establish the foundational facts for recasting the Constitution of India from a new decolonial perspective and Deepak advances his case drawing upon selected views and cherry-picked theories to suit his narrative. While the book references various sources of literature, there has been no attempt to deal with alternative theories which have been scientifically and empirically established. When questions start to build up in a reader’s mind, Deepak suggests – rather helpfully – that this is ‘Book 1 of the Bharat Trilogy’. To commit to writing two more books that require significant historical research around the impact and influence of “European colonial consciousness” on India is commendable. But this cannot be done without dealing with the shortcomings of the present book in review. 

Overview of the Book

India, that is Bharat, shall be a Union of States 

The first Article of the Constitution of India instructs ‘we the people’ to pay attention to the composition and constitution of India, which is made up of several States and territories. In this book, Deepak has used the first four words of the Article without referring to the six that follow. In my opinion, the import of the Article is to establish the territorial jurisdiction of India. However, Deepak maneuvers, rather smartly, the Article to suit his narrative to distinguish “India”, which is influenced by European coloniality from “Bharat” which represents “Indic consciousness”. By using words from the first Article, the reader is also immediately drawn to compare the present book with another book written by eminent lawyer and jurist Nani Palkhiwala titled ‘We, the People’. But, the real intent of the title lies perhaps in the ‘civilisational imperative’ of the author to rewrite the Constitution of India from a decolonial perspective and the use of the four words is an ironic tribute to the present-day document which is vitiated by the influence of European / Christian influences. 

It is imminently apparent that Deepak’s strengths, obviously, lie in interpreting legal nuances surrounding the tension between The State and Temple through the conceptual lens of secularism. Deepak comes into his own in Chapter 4 of the book, where he takes the reader through various historical documents to strongly state the case against the present-day understanding of the word ‘secular’. Deepak argues what we currently believe to be ‘secular’ is actually ‘Christian secular’. He proceeds to set up a case that the values of religious toleration and secularism were built based on theological framework that was conceptually conceived of during Protestant reformation movement. At the close of this Chapter, the book expects the reader to wonder if liberalism and equality can be built on ‘non-Christian foundation’ and attempts to convince us that the Constitution should be the primary subject of decolonial scholarship. 

As the book sets the reader up to anticipate what a decolonized Constitutional text would look like, Deepak fails to shift gears and instead labours on Christian Colonial Consciousness. This leads to much meandering around the concepts of Indic Consciousness, some vague attempts to explain the role of proselytization in shaping Indian education systems and culminates in an incoherent attempt to showcase India (‘Bharat’) as a civilization state. In all, the Section on Civilization ends with a failed attempt to portray Bharat civilizational glory and instead ends up as little more than a futile initiative to advance an oft repeated and poorly substantiated myth that the caste system was a British Raj creation. 

In the final Section of the book on Constitutionalism, a significant portion deals with the events in the British Parliament leading up to the passage of the Government of India Act 1919, which served as a foundational document to the Government of India Act 1935 and ultimately the Constitution of India. Deepak rejects the notions of civilization prevalent during the British Raj for having been vitiated by having emanated from “Christian European coloniality”. It is here that Deepak lays down his most far-reaching premise: that the reforms undertaken under colonial rule are wrong and the reforms that need to be undertaken must be carried out with decoloniality being the basis. Deepak further suggests that “Bharat’s institutions, whether executive, legislative or judicial, too would wear decolonial hats each time they preside over Indic traditions, faith systems and institutions”. 

Critique of the Central Ideas

Deepak fails to provide a definition of Indic Consciousness, nor does he come close to describing the concepts that are central to his book. In today’s India, where there is a substantial intermixing of cultures, belief systems, ethnicities, and languages, how can there be a common consciousness? The central premise of the book – i.e., the existence of a common Indic Consciousness at pre-colonial time is also wholly unsubstantiated and relies wholly on Vedic beliefs. As such, Deepak has not considered and, much less, not dealt with various traditions including “Lokayata tradition, a materialist school of thought” which refutes Vedic theories of knowledge and conduct [Periyar, A study in political atheism by Karthick Ram Manoharan, Orient BlackSwan 2022]. Tamil literature, including Silapathikaram and Tirukural, going back to 5^th century CE provide rich historical context for the evolution of Tamil consciousness culminating in Tamil cultural assertion in the 19^th century. 

While Deepak draws strength from writers such as Anibal Quijano that concepts such as ‘modernity’ and ‘rationality’ were introduced by the colonizer for their own gain and were weaponized against the colonized. This view, in the Indian context and especially that of the development of the Dravidian Movement and the Self-Respect ideology, fails to appreciate the extent of influence of leading thinkers such as Socrates, Rousseau and Voltaire. Karthick Ram Manoharan, in his book, explains how Socrates emphasized that “the ability to reason was the key feature of humanity” and “helps us to be moral”. Building on these thinkers, Periyar “considered Pagutharivu, reason, to be the attribute that separated humankind from animals”. Periyar’s pagutharivu was “empiricism, the view that a concept is true only if it can be verified by experience or experiment, and historicism, the view that values suited for one age will not be suited for another” [Periyar, A study in political atheism by Karthick Ram Manoharan, Orient BlackSwan 2022].

India that is Bharat is engages selectively in scholarship and, consequently, is replete with citations from hand-picked authors who support the propositions laid out in the book. Given how the book is positioned as a seminal contribution to decolonial thinking, it does little assess and examine the entire length and breadth of literature. Even the references taken from leading works such as Castes of Mind by Nicholas B. Dirks or the pamphlet published by Lala Lajpat Rai are selectively interpreted so long as it suits the narrative advanced by the book. Any school of thought which may be considered inconvenient or undesirable to the cause of ‘decoloniality in action’ has been neglected or by-passed. 

Decoloniality just a pretext for creation of a Hindu State / Secular vs Christian Secular – Sabarimala review and HR&CE cases – ERP is for all religions

Conclusion of Critique

Manuraj Shunmugasundaram is an advocate practicing, predominantly, before the High Court of Madras. He is also a spokesperson for the Dravida Munnetra Kazhagam.

Link to the Article: https://www.theindiaforum.in/article/india-not-hindu-rashtra

At the event to unveil the statue of Kalaignar Karunanidhi on Sunday, there sat on the dais, his oldest friend and political partner Perasiriyar Anabazhagan. The association and partnership between the two leaders had moulded the DMK ideologically into what it is today. No review of the history of Dravidian politics can be complete without acknowledging the role of Perasiriyar, who turns 97 years today. 

Though Perasiriyar’s formative days were shaped by his father’s involvement with Periyar E.V. Ramasamy’s Self-Respect Movement, his passion for political involvement evolved under the tutelage of C.N. Annadurai (Anna). When Anna parted ways with his mentor, Perasiriyar was one of the founder members of the DMK in 1949. In 1957, when the DMK contested its first elections, Perasiriyar was among the 15 elected. He served his first term as the Deputy Leader of the Party in the Legislative Assembly, under Anna’s leadership. In 1967, he was elected to Parliament but returned in 1971 to the State to become a Cabinet Minister under Kalaignar. 

Dravidian Repository 

Though Dravidian leaders are known for their oratory, Perasiriyar always stood out for his ability to deliver commentary on contemporary socio-political issues. A repository of Dravidian history, his speeches and writings have provided valuable insight into and set the course for the century-old movement. One of the best examples of this is his book ‘Tamilar Thirumanamum, Ina Maanamum’, which categorically dismantles the various rituals associated with Brahmin-officiated weddings. The book, based on rationalist thinking, is a stinging attack on the perpetuation of caste and patriarchal prejudices through the institution of marriage.  

One of the reasons for the survival of the DMK – as a political party and as vehicle for Dravidian ideology – was the long, resilient partnership of Kalaignar and Perasiriyar at the helm of affairs. In a recent interview, Perasiriyar explained his association with Kalaignar as a bond created out of the mutual love for Tamil. He says, in the book Therkilirinthu Oru Suriyan, that this love for Tamil – language as well as identity – was not just rhetorical: they both viewed it as an indispensable unifier of the Tamil-speaking population, who were previously divided along caste and communal lines.  

Anna’s Student, Kalaignar’s Friend

Perasiriyar was a student of Annamalai University when he shared a stage his mentor, Anna, at a public meeting. Now part of Dravidian folklore, the meeting brought together Perasiriyar and Kalaignar. Kalaignar had come to watch Anna speak. But, when it was Anna’s turn to speak, he instead announced that a student would address the gathering. Most of the crowd present there heard Perasiriyar speak for the first time. All of them left impressed with the young man’s oratory. Kalaignar went up to him afterwards and invited him to address the Tamil Maanavar Mandram, which he had set up in Tiruvarur. 

Thus, began the 75-year association between the two stalwarts of the DMK. Both of them learnt Dravidian ideology from Periyar and grass-roots organisation building from Anna.  Though from diverse educational backgrounds, they thought, spoke and wrote alike. Much of the present-day Dravidian legacy inherited by the party is largely due to the political heights scaled by these two men and their unbroken ideological leadership over the greater part of the last half-century.  

Manuraj Shunmugasundaram

Advocate and DMK Spokesperson

Link to the Article: https://timesofindia.indiatimes.com/blogs/tracking-indian-communities/ally-of-karuna-bedrock-of-the-dmk-turns-97/

Besides its bilateral obligations and international humanitarian principles and conventions, there are recent judgments to guide India in having an expanded and liberal interpretation of the Citizenship (Amendment) Act. 

The Supreme Court of India has now posted the 232 petitions challenging the Citizenship (Amendment) Act (CAA) to be heard on December 6, 2022. However, there is another issue linked to the subject, i.e., the unresolved status of Indian-origin Tamils who repatriated from Sri Lanka. For over four decades, nearly 30,000 Indian-origin Tamils have been classified as stateless persons based on technicalities. Given their genealogical link to India, the Government of India needs to consider extending citizenship benefits to them in accordance with Indian bilateral obligations and international humanitarian principles and international conventions.

Plight of Indian-origin Tamils

Under the British colonial government, Indian-origin Tamils were brought in as indentured labourers to work in plantations. They remained mostly legally undocumented and socially isolated from the native Sri Lankan Tamil and Sinhalese communities due to the policies of the British. After 1947, Sri Lanka witnessed rising Sinhalese nationalism, leaving no room for their political and civil participation. They were denied citizenship rights and existed as a ‘stateless’ population, numbering close to ten lakh by 1960. As an ethno-linguistic minority without voting rights, this resulted in a double disadvantage till the two national governments addressed this issue.

Subsequently, under the bilateral Sirimavo-Shastri Pact (1964) and the Sirimavo-Gandhi Pact (1974), six lakh people along with their natural increase would be granted Indian citizenship upon their repatriation. Thus, the process of granting Indian-origin Tamils (who returned to India till around 1982) began. However, the Sri Lankan civil war resulted in a spike in Sri Lankan Tamils and Indian-origin Tamils together seeking asylum in India. This resulted in a Union Ministry of Home Affairs directive to stop the grant of citizenship to those who arrived in India after July 1983.

Furthermore, the focus of the Indian and Tamil Nadu governments shifted to refugee welfare and rehabilitation. Over the next 40 years, the legal destiny of Indian-origin Tamils has been largely intertwined with that of Sri Lankan Tamil refugees, and both cohorts have been relegated to ‘refugee’ status. This is because Indian-origin Tamils who arrived after 1983 came through unauthorised channels or without proper documentation, and came to be classified as ‘illegal migrants’ as per the CAA 2003. This classification has resulted in their statelessness and blocking of potential legal pathways to citizenship.

Overcoming statelessness

While constitutional courts have not had an occasion to deal with the question of statelessness, there have been two recent judgments (Madurai Bench of the Madras High Court, Justice G.R. Swaminathan), taking these issues head on. In P. Ulaganathan vs Government of India (2019), the status of citizenship of Indian-origin Tamils at the Kottapattu and Mandapam camps came up for consideration.

The court recognised the distinction between Indian-origin Tamils and Sri Lankan Tamils and held that a continuous period of statelessness of the Indian-origin Tamils offends their fundamental right under Article 21 of the Constitution of India. The court further held that the Union Government has implied powers to grant relaxation in conferring citizenship and prescribed that a humanitarian approach, shorn of the rigours of law, should be adopted.

On October 11, the court held in Abirami S vs The Union of India 2022, that statelessness is something to be avoided. The court further held that the principles of the CAA, 2019, which relaxes the conditions for citizenship for Hindus from Afghanistan, Pakistan and Bangladesh, would also apply to Sri Lankan Tamil refugees. As such, these judgments have provided categorial judicial guidance to the Union of India on how to utilise an expanded and liberal interpretation of the CAA, 2019 to overcome statelessness.

The situation of statelessness of Indian-origin Tamils is ‘de jure’, created from the failure in implementing the 1964 and 1974 pacts. De jure statelessness is recognised in international customary law. Therefore, India has an obligation to remedy the situation. In the case of the Chakma refugees, the Supreme Court (Committee for C.R of C.A.P and Ors. vs State of Arunachal Pradesh 2015) held that an undertaking made by the Government of India with respect to grant of citizenship inheres a right in the stateless or refugee population. As such, India has made repeated undertakings, through the 1964 and 1974 pacts, which have created a legitimate expectation among Indian-origin Tamils and would entitle them to be granted citizenship.

Remedying statelessness is not a novel process in law. While dealing with a similar situation, in 1994, the United States enacted the Immigration and the Nationality Technical Corrections Act to retroactively grant citizenship to all children born to an alien father and citizen mother. Similarly, Brazil, through the Constitutional Amendment No. 54 of 2007 retroactively granted citizenship to children under jus sanguinis, which was earlier stripped by an earlier amendment, i.e., Constitutional Amendment No. 3 of 1994. Therefore, any corrective legislative action by the Government of India to eliminate statelessness should necessarily include retroactive citizenship for Indian-origin Tamils.

According to a recent report by the United Nations High Commission for Refugees, “Comprehensive Solutions Strategy for Sri Lankan Refugees”, there are around 29,500 Indian-origin Tamils currently living in India. As such, when the Union Government makes its case before the Supreme Court to extend citizenship to Indian-origin persons from Pakistan, Afghanistan and Bangladesh seeking asylum in India, it cannot deny Indian-origin Tamils their rightful pathway to citizenship.

Manuraj Shunmugasundaram is an Advocate practising before the Madras High Court and Spokesperson, Dravida Munnetra Kazhagam

Inputs from Sheeba Devi L., Advocate

Link to the Article: https://www.thehindu.com/opinion/op-ed/a-pathway-to-citizenship-for-indian-origin-tamils/article66078717.ece

Recently, comments made by Tamil Nadu governor RN Ravi have invited attention to the 18^th century writer and philologist, Robert Caldwell. An Irish missionary who belonged to the Society for the Propagation of the Gospel, Caldwell spent over five decades in Tiruneveli and authored a number of books on South India. He was largely forgotten in Tamil Nadu except for the perfunctory snippet in secondary school textbooks. However, this controversy has resurrected considerable interest in understanding the seminal Caldwell thesis and its importance in shaping the ethno-linguistic architecture of this region. Fort its impact on the history, literature and grammar of the Dravidian language tree, Caldwell’s work in this area is as important as any other; and the Government of Tamil Nadu would be well served by recognising the legacy of this pioneering linguist.

The Dravidian Nomenclature

Governor Ravi, while speaking at an event commemorating the birth of social reformer Ayya Vaikundar, had alleged that Caldwell was recruited by the then British Government to evangelise India and further claimed that his seminal book – A Comparative Grammar of the Dravidian or South Indian Family of Languages – was “fake”. These remarks are at best ill-informed and at worst, carefully orchestrated attempt to manipulate empirically established basis for the Dravidian Movement. 

The book was originally published in 1856 and has since been considered an extraordinary and original research work in the study of philology. Such was the impact of this book that Historian M.S.S. Pandian hailed its contribution to the “cultural awakening of the region” as “unmatched”. While Caldwell is credited with studying and identifying the Dravidian Family of Languages, it is perhaps less known that it was him who first socialised the term ‘Dravidian’ to classify this linguistic group. In his book, Caldwell justifies the use of the word ‘Dravidian’, the adjectival form of Dravida, a word which was first used by Sanskrit philologists and even found in the Laws of Manu. Though, European writers preferred using the word ‘Tamulian’ or ‘Tamulic’ to classify this family of South Indian languages, Caldwell chose Dravidian to include languages other than Tamil and to mitigate any ambiguity. Caldwell explains that by adoption of the term Dravidian to denote this family of languages, “the word Tamilian has been left free to signify that which is distinctively Tamil”.

Linguistic Analysis

Early works on linguistic analysis by philologists in the Indian subcontinent during the 18th and 19th century led to a paradigm shift in how the majority of its inhabitants came to visualize their linguistic and ethnic history. For long, it was believed that all the languages in the Indian subcontinent drew sustenance from Sanskrit, even leading some to argue that the language had a  divine status. Such beliefs first came to be empirically challenged by the works of Francis Whyte Ellis in his “Note to the Introduction” to Alexander Duncan Campbell’s Grammar of the Teloogoo Language (1816), where the seed for the idea that south Indian languages were unrelated to the Indo-Aryan language family was first sowed. 

The foundational thesis of the Caldwell book rests on the enumeration of Dravidian Languages. Caldwell classifies six languages – Tamil, Malayalam, Telugu, Canarese (Kannada), Tulu and Kudagu (Coorg) – as cultivated dialects of this Dravidian Language family. Caldwell also cautions the reader that though he uses the term dialects, he does not infer that these languages are variations of one another. He is quick to point out that no two of these languages are similar and moreover, Tamil, Malayalam, Telugu and Kannada have distinct and independent literary culture; whereas, Tamil, Malayalam and Telugu have a system of written characters which are peculiar to each language. 

Tellingly, by undertaking a comprehensive analysis of comparative syntax, pronouns, numerals and verbal inflexions, Caldwell was able to establish that the Dravidian Languages were “originally and radically different from Sanskrit”. Additionally, his works enthused the speakers of Dravidian languages to recover their culture bereft of Sanskritic influences. In the recently published book ‘The Indians: Histories of a Civilization’, the article on Dravidian Language Family authored by K. Rangan reiterates the distinct features of Dravidian Languages. Rangan postulates, that among the Dravidian languages, Tamil, “could dispense with Sanskrit words altogether from its lexicon and, if need be, it could not only stand alone but flourish without its aid”. 

The Caldwell Effect

The post-Caldwell period witnessed generations of philologists and researchers unearth authenticated pieces of evidence to confirm the Dravidian language theory. Thomas Burrow and Murray B. Emeneau put together The Dravidian Etymological Dictionary (1961) which, Rangan regards to be a monumental work in this field. Together, these works and many others, have established the unique Dravidian language family through a meticulous study of comparative linguistics, but the impact of Caldwell turns out to be much more. 

As M.S.S. Pandian mentioned, the Caldwell thesis unleashed a socio-political awakening. Building on the uniqueness of the Dravidian language family, many social reformers including Athipakkam Venkatachala Nayagar, Ayotheethasar Pandithar and Manonmaniam Sundaram Pillai articulated early Dravidian ideology from the perspectives of race theory and cultural imperialism. These theses, evolved from careful observation of the languages, culture, folklore, alongside deeper study of the incomplete canon of works from the past available to them, helped develop the early Dravidian Movement which was infused with a high degree of caste-critique and increased self-awareness of the history of Tamil.    

Socio-Political Movement

The diffusion of these views onto the socio-political arena led to a cultural and political renaissance in the popular imagination of the past, which was well reflected in the historic Spur Tank Speech delivered by Dr. T. M. Nair, one of the pioneers of the Dravidian Movement and leaders of the ‘Justice Party’ in October 1917. In this speech, Dr. Nair visualized a Dravidian past of Indian subcontinent, which was not restricted to lands which are in south of Vindhyas, but which includes the populations with Dravidian past in Gangetic plains, like that of Rajputs, Kurmis, Bhumihars.   

Political leaders celebrated Sangam literature and particularly Thirukkural, which spoke of a casteless society and started to reclaim an egalitarian past, devoid of societal divisions. This narrative and the concomitant assertive tone of “Tamil” found its audience in written and musical performances, championed by Maraimalai Adigal’s “Thanith Tamil Iyakkam” (Pure Tamil Movement), Raja Annamalai Chettiar’s “Tamizhisai Iyakkam” (Tamil Music Movement). When the iconic movie “Parasakthi” was released in 1952, the protagonist spoke chaste Tamil, bereft of Sanskritic influence and triggered a revolution in Tamil cinema. These movements cumulatively formed the basis for the Dravidian Ideology. Building on the growing popularity of the Dravidar Kazhagam and the Dravida Munnetra Kazhagam, Dravidian Ideology – which was comprised of pride in Tamil antiquity, denouncement of caste discrimination, rationalist thinking, and the philosophy of self-respect – took shape across Tamil Nadu. Over the years, this ideology has served as a counter-force to hegemonic tendencies, authoritarian regimes and cultural imperialism. 

Underscoring the importance of Caldwell, within a year of DMK forming government in the state of Tamil Nadu in 1967, a bronze statue of Bishop Robert Caldwell was erected on the Marina Beach. Under the statue, the words inscribed read “the pioneer Dravidian linguist”. But, today we are able to recognize that Caldwell’s contribution to the state of Tamil Nadu and defining Tamil consciousness is much more. A fitting tribute to the legacy of Caldwell would be to make substantive investments into the study of Dravidian languages, its unique cultural history and the consequent socio-political movement that has emerged in the state. 

Manuraj Shunmugasundaram and Jeyannathann Karunanithi

(Manuraj is a Media Spokesperson for Dravida Munnetra Kazhagam and Advocate, Madras High Court)

Link to the Article: https://epaper.indiatimes.com/timesepaper/publication-the-times-of-india,city-delhi.cms

Before she became a Union Minister, Maneka Gandhi said that “being vegetarian is the only way to save the world” (http://timesofindia.indiatimes.com/home/environment/developmental-issues/Being-vegetarian-is-the-only-way-to-save-the-planet-Maneka-Gandhi/articleshow/19650129.cms). One may dispute whether there is only one way or more to save the world but we can take Maneka Gandhi’s statement with a dollop of salt. In the same interview, she admires the “way of life which involves least harm to a living being”.

So, it is entirely self-contradictory when Maneka Gandhi informed Parliament on Thursday (10 March 2016) that ‘marital rape’ cannot be criminalized in India (http://www.huffingtonpost.in/2016/03/10/india-marital-rape_n_9435470.html). Perhaps, she doesn’t think that sexual violence within marriage involves harm or that wives come under the definition of “living being”.  

On a show aired on NDTV on 3 May 2015, a rape survivor had this to say: “My husband raped me daily. He forced himself on me, every single day, even on the days I bled. He forced a torch inside my private parts.” Does this not seem like involving “least harm to a living being”, Madam Minister?

But, let us look further in to the statement made by the Minister in response to a question on marital rape to read what is in the Government’s thinking on this issue:

Firstly, she says that “the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context”

So, the Minister believes that ‘marital rape’ is an international concept. Perhaps, she is referring to The UN Committee on Elimination of Discrimination of Women which had recommended that India should remove the exception of marital rape from the definition of rape. But, let me remind her that the very Indian Justice JS Verma Committee had recommended that a marital relationship between the perpetrator and the victim should not be considered as a valid defence against the crime of rape and sexual assault. 

Secondly, the Minister lists a number of factors why marital rape cannot be applied, such as illiteracy, poverty, social customs and values, religious beliefs, treatment of marriage as a sacrament, etc. 

This list of factors is the most novel part of her fictitious argument. In essence, what she is saying is that marital rape cannot be applied to a country which is poor, illiterate and holds religious beliefs. On the one hand, white collar corporate crimes and large scale bank frauds can be counted as financial crimes in this third-world nation; but, marital rape fails the test of criminality that the Minister seems to have conjured up. 

Finally, the Minister identifies the real culprit: “the mindset of society to treat the marriage as a sacrament”. 

By placing the blame on the ‘mindset of society’, the Minister has smartly deflected any responsibility on her behalf. This is a complete misunderstanding of society. Marriage may be an important ceremony for many people but does that mean one must silently tolerate violence within that relationship framework? Wasn’t the mindset of society to treat the marriage as a sacrament also the justification for another practice called ‘Sati’? 

It is beyond belief that the Minister has failed to appreciate universal humanitarian principles in dealing with this issue. Even within the Parliament, two Private Membrs Bills – introduced by Avinash Pande of Indian National Congress and Kanimozhi of the Dravida Munnetra Kazhagam – have been admitted. The bill by Avinash Pande was also discussed and found support from large sections of the House. Yet, the Minister is taking refuge behind the mindset of society. So, tell me Madam Minister, if the mindset of society is to eat non-vegetarian food, then how will we save the planet?

Manuraj Shunmugasundaram, Contributor

Spokesperson of the Dravida Munnetra Kazhagam

Link to the Article: https://www.huffpost.com/archive/in/entry/meat-marital-rape-and-the-mindset-of-society_b_9438162