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One up-man ship in Tamil Nadu Assembly on Kachchatheevu.

Paper No. 6138         Dated 25-June-2016

By V. Suryanarayan

The debate on the Governor’s address in the Tamil Nadu Legislative Assembly was characterized by sharp exchanges between Chief Minister Jayalalitha and leaders of the Dravida Munnetra Kazhagam (DMK). There was mutual mud-slinging and accusations as to who is at fault on the issue of ceding of Kachchatheevu to Sri Lanka. The debate was an attempt to demonstrate one up-man ship over the opponent.

To put the problem in proper perspective it is necessary to recapitulate what happened in 1974, when the India-Sri Lanka Maritime Boundary Agreement, which ceded the island of Kachchatheevu to Sri Lanka, was signed. The Agreement is an illustration of personal friendship transforming itself into a bilateral agreement. Smt. Indira Gandhi and Mrs. Sirimavo Bandaranaike were good friends. Mrs. Bandaranaike was facing severe criticism from the Federal Party on the ethnic issue and from the left parties on mounting cost of living and labour unrest. A diplomatic victory, Mrs. Bandaranaike felt, would enable her to tide over the opposition parties. She explained her predicament to Smt. Indira Gandhi and the Indian Prime Minister was more than willing to come to the rescue of her good friend. This is the political background to the Agreement and the ceding of Kachchatheevu to Sri Lanka. Few officials in the Indian team were unhappy, but they were faced with a fait accompli. They had no other option but to abide by the decision of the Prime Minister

Smt. Indira Gandhi’s accommodative attitude towards Sri Lanka was appreciated by Mrs. Sirimavo Bandaranaike. In a tribute to Smt. Indira Gandhi, Mrs. Sirimavo Bandaranaike wrote: “I must say with the highest regard and affection that whenever there were outstanding issues between our two countries they were directly taken up with her and she was extremely understanding, appreciating and accommodating to Sri Lanka’s point of view. She always displayed an attitude of great statesmanship in resolving whatever problems, big or small, that we had with India. She never tried to adopt a big brother attitude”.

M. Karunanidhi, then Chief Minister of Tamil Nadu, has maintained that the Government of India did not have the courtesy to discuss the provisions of the agreement with the Government of Tamil Nadu, though it adversely affected the interests of the State. Even then, he called on the Prime Minister and senior officials of the Ministry of External Affairs. He reiterated that the island belonged to India and should not be ceded to Sri Lanka. An All Party Meeting was convened on 29 June 1974 to express the anguish and indignation of the people of Tamil Nadu. The matter was debated in the Tamil Nadu Legislative Assembly on 21 August 1974. The Chief Minister requested the Central Government to reconsider the provisions of the Agreement.

The best possible course of action for Karunaniidhi was to approach the Supreme Court for judicial remedy. The Beru Bari case becomes very relevant. Prime Minister Jawaharlal Nehru wanted to transfer Beru Bari to East Pakistan. B C Roy, then Chief Minister of West Bengal, maintained that Beru Bari was an integral part of West Bengal and if Indian territory is to be ceded to Pakistan then a constitutional amendment was essential. The West Bengal Government filed a case in the Supreme Court and the Supreme Court upheld West Bengal claim. The transfer of Beru Bari did not take place because of judicial intervention. In the case of Kachchatheevu also, New Delhi maintained that it was a disputed territory and in the process of delimitation it became a part of Sri Lanka. 

The question naturally arises – Why Karunanidhi did not file a case in the Supreme Court to prevent ceding of Indian territory to Sri Lanka?  The Author had the opportunity to discuss the subject with S Madhavan, then Minister for Law in the DMK Government. Madhavan recalled his visit to New Delhi along with Chief Minister Karunanidhi. They called on the Minister for Foreign Affairs, Swaran Singh and insisted that the traditional fishing rights enjoyed by the Tamil Nadu fishermen should continue. Swaran Singh agreed to incorporate these rights in the Agreement. Though Article 5 does not spell out these rights specifically, it mentions “Indian fishermen and pilgrims will enjoy access to visit Kachchatheevu as hitherto, and will not be required by Sri Lanka to obtain travel documents or visas for these purposes”. In a subsequent statement in Lok Sabha, Swaran Singh further clarified, “I wish to remind the honourable members that in concluding this agreement, the rights of fishing, pilgrimage and navigation, which both sides enjoyed in the past, have been fully safeguarded for the future”.

Madhavan also recalled that in his conversations with the officials of the Central Government and Congress leaders in New Delhi, they put forward two reasons for the Government of India’s stand on the issue. First, Kachchatheevu is nearer to Sri Lanka than to India. This statement is not true. If the principle of median line was strictly applied Kachchatheevu would have fallen on the Indian side. S  P Jagota, Director, Legal and Treaties Division, has written that a deviation from the principle of median line was made so that the island of Kachchatheevu would fall on the Sri Lankan side. Second, Kachchathhevu has no economic or strategic value. This also is not a sound argument. The surrounding seas are rich in prawns and the area became a bone of contention between Indian fishermen and the Sri Lankan Navy. Second, if Kachchatheevu continued to be a part of India, New Delhi could have stationed a small naval and air force contingent there to protect India’s strategic interests.

Prime Minister Indira Gandhi wanted to neutralize the opposition in Tamil Nadu before the maritime boundary agreement was signed. Kewal Singh, Secretary in the Ministry of External Affairs, came to Madras and met Chief Minister Karunanidhi and few of his colleagues and explained the background to the signing of the Agreement. According to informed sources Indira Gandhi requested Karunanidhi to appreciate New Delhi’s position and support her stance. Karunanidhi was not happy with New Delhi’s position; however, he did not want to confront the centre on this issue. According to perceptive observers of the Tamil Nadu scene, it is very likely that Chief Minister Karunanidhi, in turn, hoped to get Indira Gandhi’s critical support in his efforts to consolidate power in Tamil Nadu, which had come under increasing threat from the AIADMK and its charismatic leader M G Ramachandran. If the State Government had resorted to legal remedies in the Supreme Court against the Centre on the ceding of Kachchatheevu to Sri Lanka, or if it had insisted on a reference by the President to the Supreme Court on the ownership claims, it is likely that India-Sri Lanka relations might have taken a different turn. It should be highlighted that legal luminaries like MC Setalvad had upheld India’s ownership claims to the island. What is more, senior officials in the Ministry of External Affairs also subscribed to the same view; but Indira Gandhi unfortunately overruled them.

In an interview with the author Jana Krishnamurthy, the well known BJP leader, provided additional information. When it was known that the Government of India had decided to relinquish the ownership claims to Kachchatheevu, A B Vajpayee, who was at that time in Bombay, telephonically asked Jana Krishnamurthy to seek legal remedy. A petition was accordingly filed in the Madras High Court, which was admitted by Justice Ismail. But when the hearing took place, Jana Krishnamurthy could not produce any documentary evidence to substantiate the Zamindari claims of the Raja of Ramnad; because all documents pertaining to Kachchatheevu had been taken away by the Central Government and kept behind the stone walls of official secrecy. Sadly, the Madras High Court did not deem it proper to direct the Government of India to produce all documentary evidence relating to the case, so that the Court could take a just decision. The appeal was, therefore, dismissed.

It should be pointed out that Jayalalitha had filed a case in her individual capacity in 2008 in the Supreme Court challenging the ceding of Kachchatheevu to Sri Lanka. After becoming Chief Minister steps were taken to implead the Government of Tamil Nadu also in the case. Few months later, in May 2011,  Karunanidhi also submitted a petition in the Supreme Court. The judgment in these petitions is awaited.

·      Dr. V. Suryanaryan is the founding Director and former Senior Professor, Centre for South and Southeast Asian Studies, University of Madras. His e mail id:suryageeth@gmail.com

            

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