After less than a week of avoidable tensions, doubts and suspicions, Kachchatheevu remains – the tiny islet with Sri Lanka, and the controversy as a domestic issue in Indian politics. There is nothing on record to show that Indian Prime Minister Narendra Modi had mentioned it in his delegation-level discussions with the Sri Lankan team, headed by President Anura Kumara Dissanayake during his three-day visit to the island-nation. This was so despite their multi-sector talks touching upon the larger fishers’ dispute, where both sides seem to have reiterated only their known positions from the past.
Incidentally, Modi did not touch Kachchatheevu in his public rally on way back home in the southern temple town of Rameswaram, which is at the centre of the fishermen’s dispute between the two countries. Not that it was expected, given the complexities and legalities involved. It’s unlike the accompanying, larger fishermen dispute, which too has remained in the news in both nations, with the Sri Lanka Navy (SLN) continuing to arrest Indian fishers ‘illegally’ crossing the IMBL and ‘poaching’ in Sri Lankan territorial waters, closer to the northern Jaffna coastline.
Modi touched only upon the latter issue in his Rameswaram speech and recalled how his Government had obtained the release of over 3,000 Tamil Nadu fishers, arrested by the SLN, over the past ten years (of his rule, which began in 2014). Incidentally, the Sri Lankan Government had freed 11 Indian fishers as ‘goodwill gesture’ on the eve of Modi’s visit. In his interactions with the Sri Lankan leadership, the Prime Minister urged them to adopt a ‘humane’ approach in the matter.
‘Unanimous’ passage
The ‘Kachchatheevu issue’ became a political controversy in India for Sri Lanka and Sri Lankans to sit up and take notice after the State Assembly of the South Indian State of Tamil Nadu passed a ‘unanimous resolution’ calling for India’s federal government to take initiatives for the ‘retrieval’ of Kachchatheevu. The resolution itself was short, just two-paragraphs long. The second and concluding paragraph urged Modi to obtain freedom for Tamil Nadu fishers arrested by the Sri Lanka Navy (SLN) and also their high-cost bottom-trawlers that were being impounded – as a ‘goodwill gesture’. Nothing more, nothing less.
The resolution was moved by Chief Minister and ruling DMK head M K Stalin. It was in Tamil and there was no English translation either. By restricting it all to the present, the Chief Minister wanted to ensure a unanimous passage, including traditional rival, AIADMK – which obliged. Only the ruling BJP at the Centre, of Prime Minister Modi, opposed it, but even its members staged a walk-out, thus ensuring technical ‘unanimity’. They had the option of demanding a vote, but given the local mood, they chose not to.
This is not the first or the only resolution that the Tamil Nadu Assembly has passed on the subject. As Chief Minister Stalin said in a letter to the Prime Minister a day later, the State Assembly had passed similar resolutions at least four times in the past – in 1974, 1991, 2013 and 2014. Whenever the issue props up, there has been contestation between the DMK and its political rivals – namely, the AIADMK and the BJP – if Stalin’s late father M Karunanidhi endorsed the 1974 IMBL Agreement between New Delhi and Colombo.
Cede, Annex and what
By mentioning the 1974 resolution in his letter to the Prime Minister, Stalin was throwing up evidence that his late father and then DMK Chief Minister M Karunanidhi had indeed opposed the Agreement, which ‘placed’ Kachchatheevu on the Sri Lankan side of the International Maritime Boundary Line (IMBL). It was basically a ‘territorial issue’ if it was one, at the time, and there was no anticipation of a fishers’ dispute flowing out of it in such proportions as has been witnessed since.
The prevailing belief was that under the Indian Constitution, the federal government alone had the power to ‘cede’ or ‘annexe’ territories from other countries. The then federal government under Prime Minister Indira Gandhi concluded that it was for the first time that the two nations were marking the IMBL (under UNCLOS that was set to come into force) and hence there was no territory to be ‘ceded’ or ‘annexed’.
It meant there was no constitutional provision to deal with such a situation. The Indian federal government, in its wisdom, hence concluded that it was only an official acknowledgement of the Ocean territory that fell under the two nations. Accordingly, the letters exchanged by Indian Foreign Secretary Kewal Singh and his Sri Lankan counterpart W T Jayasinghe, were found to be sufficient. It was the case when the Agreement was modified in 1976.
Wadge Bank exchange
However, in the years that followed, Jayalalithaa Jayaram, the late AIADMK Chief Minister of Tamil Nadu, took a position, based on documents available in the Tamil Nadu Archives (then or earlier) that Kachchatheevu belonged to Tamil Nadu, and for the Centre to give it away to Sri Lanka, cannot be done through a mere exchange of letters. Instead, it could be done only through an official resolution passed in both Houses of Parliament, by a simple majority – or, so went the argument.
Suffice to point out that the Tamil Nadu Assembly resolutions of 1993, 2011 and 2014 on Kachchatheevu were piloted by the Jayalalithaa Government. The immediate purpose was to blame rival DMK and also the Congress ally-turned-opponent from 1991. Incidentally, in 1991, her first year as Chief Minister, Jayalalithaa broke tradition, when in her Independence Day speech at Chennai’s Fort St George, called upon New Delhi to ‘retrieve’ Kachchatheevu.
The immediate provocation for the Tamil Nadu Assembly passing the new resolution at present flows from State BJP leaders constantly accusing the DMK in particular, and also the latter’s Congress ally at present, of letting down local interests over the 1974 Agreement. The State BJP leaders, including party chief, K Annamalai, had taken their cue from Prime Minister Narendra Modi and External Affairs Minister (EAM) S Jaishankar, who had levelled similar charges during the Lok Sabha poll campaign last year.
Tamil Nadu had already voted in the multi-phase elections to Parliament’s Lower House when Modi levelled that accusations, hence it did not have any impact where it could have mattered. Even without it, successive election results in the Rameswaram area where the issue mattered, the local people seemed to be voting in terms of political loyalty rather than on either the Kachchatheevu issue or the larger fishermen’s dispute.
However, the issue died a momentary death for the n-th time after veteran diplomats familiar with the subject too joined the media discourse of the time. They too lent their support to the point that technically India did not ‘give away’ Kachchatheevu. They also recalled, joined the handful – or, less – of knowledgeable academics and observers that at best, it was a ‘territorial exchange’ of a kind.
In ‘return’ for Kachchatheevu, India got Wadge Bank, a ‘continental shelf’ south of the land’s end at Kanyakumari – again under the said Agreements. At the time, it was incidental that Wadge Bank is now believed to be mineral rich. Instead, in the aftermath of the victorious 1971 war with Pakistan, when their naval vessels could move closer to the peninsular shores and also wreak damage, India needed to secure its Ocean territory, where all it mattered the most.
In Sri Lanka, the issue did not flare up after then Foreign Minister Ali Sabry told newsmen that New Delhi had not informed the Government about any change in the approach of the former. He claimed that it was only an internal election-time affair in India. The same may apply to the situation even at present, what with the long run-up to the Tamil Nadu Assembly election being here, already.
Will not solve…
In their time, both Jayalalithaa and Karunanidhi filed separate petitions in the nation’s Supreme Court, and in their respective names, to declare the ‘transfer’ of Kachchatheevu to Sri Lanka, as unconstitutional. The two cases did not see much action until their death, respectively, in 2016 and 2018. Recently, DMK Treasurer and octogenarian-parliamentarian, T R Baalu, moved a petition in the Supreme Court to implead himself in the case, in the place of late Karunanidhi. The court is set to hear the petition later this year.
That having been said, there is realisation that the ‘retrieval’ of Kachchatheevu, even if it were to happen, would not solve the fishers’ dispute. Leave aside the monumental task of re-drawing the IMBL, which is just not going to happen, the very fact that even with Kachchatheevu on India’s side of the IMBL, the fishers’ dispute cannot end, is a reality. That is because there are too many trawlers operating from the Rameswaram region and they all would be fighting over too little a catch, which alone is available, in the Kachchatheevu waters.
Exclusive water body
Incidentally, the two IMBL Agreements do not mention Kachchatheevu by name. Instead, they refer only to latitudes and longitudes. India and Sri Lanka also promptly notified their IMBL Agreements under UNCLOS. This only strengthens any case against re-opening a settled maritime border dispute between two neighbours. The matter thus rests there – for now and for the future.
Then, there is a question about the IMBL in this sector being skewed and not following the median-line principle set out for the UNCLOS. When India began working on the ‘Sethusamudram Canal’ in these waters three decades back, the US, in particular, publicly claimed that if those waters were to be opened for transport, then, they too would have the right to the use of the same.
As is known, vessels transhipping from the eastern and western shores of India to the other now circumnavigate Sri Lanka. It’s because the Sethu waters are too shallow for ships of any kind. The Indian effort was to cut down on costs and time by creating a sea-canal in these parts, as visualised by a British engineer a century and more back.
However, the work on the canal project stalled after the Indian Supreme Court intervened on faith-based petitions, calling it the sacred ‘Ram Sethu’. As may be recalled, Prime Minister Modi, while flying from Anuradhapura in Sri Lanka to Rameswaram, over the weekend, mentioned how he could have ‘darshan’ of ‘Ram Sethu’ from his chopper.
Having said that, by taking a collective position in the matter when it mattered for the purpose of UNCLOS notification, India and Sri Lanka together ensured that the Palk Strait remained an ‘exclusive water body’ between the countries, with no room or space for any third nation to meddle with it, then, now or ever. Any reopening of the issue, now or ever, whatever the reason and methodology, could only open a Pandora’s Box, and both nations seem to be well aware of it!
(The writer is a Chennai-based Policy Analyst & Political Commentator. Email: sathiyam54@nsathiyamoorthy.com)