Legal net can secure Katchatheevu claim

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