The interim directive of the Madras High Court to various arms of the Centre to ensure the safety and security of Indian fishers practising their livelihood in the Palk Bay neighbourhood of Sri Lanka is fraught with consequences that may be too complicated to comprehend at one go. "It is needless to state that unless the Indian fishermen, particularly Tamil fishermen, were able to exercise their right to fishing, it is inherently impossible for them to survive as they are solely depending only on the avocation of fishing and therefore, any threat to their life and security in exercising their right of fishing would ultimately infringe their fundamental right to livelihood enshrined in the Constitution," Justices K N Basha and M Venugopal said in their order. In the process, they directed the Union Cabinet Secretary, the National Security Advisor (NSA), Defence Secretary, the Deputy Director-General (Operations and Coastal Security) of the Coast Guard, and the External Affairs Secretary, to implement their interim order within 10 days. They also wanted the Indian Navy to supervise the operations of the Coast Guard near the International Maritime Boundary Line (IMBL) between India and Sri Lanka, to ensure that Indian fishers were not subjected to any atrocities by Sri Lanka Navy (SLN). The High Court has posted the main petition, by two lawyers, for further hearing on November 16.
This one being an interim order, a clearer picture may emerge when the Bench first, and possibly higher judicial authorities, take a full and comprehensive view of the matter at appropriate stages in the lifetime of the pending case. True, harassment of Indian fishers in Sri Lanka waters often relate to those from Tamil Nadu, but their 'Tamil' identity per force is not the issue. Occasionally, other Indian fishermen from other States, particularly in the South, have similarly been targeted by elements from within Sri Lanka. As the famous 'Sri Krishna' episode showed, the fishing boat that was hijacked by the LTTE at the height of the 'Eelam War-IV' (2006-09), and destroyed by the Maldivian Coast Guard, came from Kerala. So did many of its crew members.
Though that was a rare but reported incident, taking a narrow view of the origins of the fishers in the Indian context could cause more problems than solving any. This owes to the fact that Sri Lankan fishers crossing into the Indian waters and arrested by the Coast Guard are handed over to the police in different States - Tamil Nadu, Kerala, Andhra Pradesh, Orissa and at times, the Andamans. West Bengal may soon join the list, if it has not done already. The differential treatment being meted out to the arrested Sri Lankan fishers in Indian States is slowly but surely becoming a point of discussion between Colombo and New Delhi. Thanks to the fishing issue involving Sri Lanka and Sri Lankan waters, in Tamil Nadu, there is a joint intelligence mechanism to clear the case of arrested Sri Lankan fishers early on, for the innocent fishers to return home within a month or so. The figure varies from an average six months in Andhra Pradesh, 12 in the case of Orissa and close to 24 months already for the Andamans.
Against this, the Indian fishers caught in Sri Lankan waters are released within days, where it is not hours, at the intervention of the Government of India, particularly the Ministry of External Affairs. The Sri Lankan Deputy High Commission in Chennai is also known to have intervened in the matter, effectively. The fact however remains that the Indian fishers, when they are returned, come back with their boats, just as the Sri Lankan fishers caught in the Indian waters are detained with their boats. Considering the cost of the boats and cost of investment, interest and returns, the pressure on the Sri Lankan Government from the local fishers, for working out an equitable arrangement is also on the high, post-war in particular.
'Aggression' in land and sea
It is the responsibility and duty of the Indian State to ensure the safety and security of the nation's fishers. It is another thing for Tamil Nadu Chief Minister Jayalalithaa, for instance, to tell the Centre that it should treat the alleged attacks on Indian fishers by the Sri Lanka Navy (SLN) as 'aggression' and deal with it the same way it dealt with cross-border firing from Pakistan. According to news reports, the Chief Minister said as much when Foreign Secretary RanjanMathai called on her ahead of his recent visit to Sri Lanka. It is the responsibility of the Centre to take up with the Sri Lankan counterpart not only the situation in the seas but also the concerns of the Tamil Nadu Government, Chief Minister and the larger population in the matter. It is also the duty of the Centre to ensure that no physical harm came in the way of any Indian citizen, whoever they are and whatever the circumstances other than in ways mandated by the laws of the land of the seas. There is an international agreement and obligation in the latter case.
A combination of facts and circumstances need to be considered in such cases. The Indian security forces return cross-border firing on the land side in real time. In the case of attacks on Indian fishers in the southern seas, reports of such aggression are fed in post facto, and the 'aggressors' could not be identified subsequently, for retaliatory fire. There are limitations to limited military action, particularly retaliatory fire. Even under real-time circumstances, the chances are that stray-fire from the Indian side could hit Indian fishers in the vicinity than their 'aggressors', whether or not the latter belonged to the Sri Lanka Navy. To alert the Indian fishers to return to safety before the Coast Guard or the Navy initiated retaliatory action would mean that it had turned into a full-fledged naval engagement. That would serve no purpose other than making the waters in those parts hot - for the Indian fishers, to begin with. They might well have to forget those waters for good, even within the Indian side of the Palk Strait -- not because the Sri Lanka Navy would have intruded but because the Indian Coast Guard and Navy might be in active action. It is another matter that the Centre, while declaring the Gulf of Mannar as a 'bio-reserve' and banning fishing in the area, did not seem to have conducted adequate consultations with the State Government, with the result, adequate education may not have been imparted to the fishers (who however seem mostly abiding by the guidelines, still).
In implementing the interim order of the High Court, the authorities, particularly the Coast Guard and the Navy, perforce would also be called upon to ensure that the 'Tamil fishers' from India also do not cross the IMBL, onto Sri Lankan waters. This will be a tricky affair, in more ways than one. For starters, the Indian fishers are in Sri Lankan waters, more often than not. What they demand is freedom to fish in the waters that are now Sri Lanka's by international laws and norms. Those laws also dictate that contemporary political interventions in the form of drawing/re-drawing of the International Maritime Boundary Line (IMBL) between nations did not interfere with the freedom for traditional fishers to practise their vocation where they had done so for generations and centuries. The spirit of such laws is to ensure as humane and as practical an approach to the human element involved in the drawing up of the IMBL afresh. The court order, when enforced in spirit, could put the Indian fishers at a disadvantage, particularly at this crucial point in time.
Parallel with poaching in Pakistani seas
The court's directive comes at a time when the Governments of India and Sri Lanka have been encouraging the fishers from the two countries to continue with the existing dialogue process, to arrive at a mutually-acceptable solution. It has been a trend in recent years for the Tamil Nadu fishers to acknowledge that they had crossed the IMBL on many occasions. In fact, their problem has been with the Sri Lankan Government's insistence that they should not cross into the territorial waters of that country, claiming that they have been at it for generations and centuries before politics and history drew artificial boundaries where none had existed - or acknowledged as such by the communities concerned. Their other problem is about the mid-sea harassment and killing of their brethren.
A parallel is often drawn between Indian fishers who crossed over into Pakistani or Bangladeshi or Myanmarese waters. As is often pointed out, those fishers are arrested and detained for months, not years - not ordinarily harassed, and not certainly beaten up or killed. If harassment is not a solution in the context of the Tamil Nadu fishers, well, they and their boats might be detained in their thousands and hundreds, respectively, if and when the cross over into Sri Lankan waters. Another parallel in the case is that no Indian fisher violating Pakistani or Bangaldeshi territorial waters has claimed a traditional right to fish in the traditional waters that in turn violated the IMBL. The Tamil Nadu fishers, instead, wants to have the cake and eat it too. If anything, the reverse might become effective if the Navy and Coast Guard were to enforce schemes about securing our seas, in the aftermath of the 26/11 experience of the terrorists having arrived by sea, to attack Mumbai.
All along the Indian coast, including that in Tamil Nadu, they may have to enforce stricter controls to prevent cross-border crossing from either side. This could mean that the Tamil Nadu fishers would not be - should not be - crossing into the Sri Lankan seas, and vice versa. This is what the Sri Lankan side is doing, and this is also what the Sri Lankan Government has also been publicly advising its fishers - not to cross into Indian waters and face arrest, and expect Colombo to intercede on their behalf. Considering that their numbers are low, it is not unlikely that in the foreseeable future, the Sri Lankan Government either enforces what it preaches, or gives up on their fishers crossing into Indian waters. A quid pro quo kind of mutual accommodation in the case of returning arrested fishers then would have disappeared.
Over the past years, particularly with the commencement of what is commonly known as 'Eelam War-IV' in Sri Lanka, and the consequential activities on the seas on either side of the IMBL, the Coast Guard in particular, and the Indian Navy, too, had increased their presence and patrolling. The situation remains unchanged, going by media reports. Their efforts to ensure the physical safety of Indian fishers, on the lines indicated by the interim order of the High Court, would imply one or more of the three following situations. One, the Navy and Coast Guard would have to locate their Sri Lanka counterparts in Indian waters. Whether or not the latter were harassing or endangering Indian lives, fishers or otherwise, they would then be duty-bound to intervene. Two, the Indian Navy and Coast Guard should be entering the Sri Lankan waters for the purpose. In this case, even 'hot pursuit' could be justified, but in international forums in particular. Three, the Indian security forces would have to be called upon to protect the Indian fishers poaching in the Sri Lankan waters, an illegal act, both. Traditionally, Indian security forces are trained, mandated and expected not to cross the
Lakshmanrekha in such matters. India has not resorted to 'gun-boat diplomacy' of the kind, nor would be in the country's medium and long-term strategic interests to keep the neighbourhood waters with Sri Lanka, hot.
Keeping up the commitments
Pending a negotiated settlement to the fishers' issue between the two communities, encouraged in turn by the governmental stakeholders on both sides, for which right conditions have to be created on either side, the maritime agreements between the two countries, dated 1974 and 1976, should hold. In the case of India, where the ground realities in Tamil Nadu could not be over-looked, mid-sea attacks on and/or harassment of fishers would have to stop, forthwith. A Supreme Court case, initiated by Chief Minister Jayalalithaa before returning to power in May 2011, questions the Centre's decision to pass on Kachchativu to Sri Lanka. The petition has cited historic documents to show that the islet was part of the Ramanathapuram
zamindari, and that after the abolition of the
zamindarisystem, post-Independence, and that it should have reverted to the Union of India.
In her petition, filed in her capacity as AIADMK General Secretary, Jayalalithaa had also asked why parliamentary approval was not sought for the 'transfer' of the islet to Sri Lanka. As is known, the agreements did not focus on the alienation of ownership or possession of individual islands/islets on either side of the IMBL as finalised. Instead, they concluded that the Wadge Bank, south of the land's end in Kanyakumari would fall within Indian territorial waters. Likewise, Kachchativu would be with Sri Lanka. The legality of the issues flagged by the petitioner would amount an internal matter of India, and would not, under the ordinary circumstances, impact on bilateral agreements of the kind. In theoretical terms, it needs to be noted that even India getting possession of Kachchativu, either through mutual agreement or leasehold (as is often suggested) would not resolve the current issue. Indian fishers are sighted often nautical miles away from Kachchativu, and at times closer to the Sri Lankan mainland.
At their commencement, the bilateral agreements provided a three-year grace period for the Sri Lankans to fish in the Wadge Bank without Indian permits or permission. Though that period lapsed years ago, the practice has continued. The Indian Coast Guard intervenes, nonetheless, from time to time. At the same time, traditional fishers in Kanyakumari district too have developed multi-day fishing skills over the past decades to exploit the abundant catch available in those seas. The Centre and the State Government should encourage and equip the Palk Bay fishers to adopt such methods, which alone would lead to sustain their livelihood over the medium and long-terms, and also sustain fish and fishing, otherwise, too. Considering that fishing also translates into forex earnings, where abundant and unexploited scope remains for increasing the wealth of the nation and the earnings of individual fishers, the Government should address physical and institutional barriers that come in the way.
In Tamil Nadu in particular, the State Government, with adequate inputs and resources from the Centre, could consider developing Palk Bay-Gulf of Mannar as a pilot project. As is known, the Palk Bay-Gulf of Mannar region has the single largest contingent of fishing vessels in the State, accounting for a third to a half of the total fleet. Having over-exploited the fishing resources in the narrow stretches inside the Indian side of the IMBL in some parts, their venturing out onto the Sri Lankan side has become an inevitable yet unacceptable consequence. The fact also remains that the Tamil Nadu fishers have been deploying trawlers and employing fishing nets that are not only banned in that country but are also known to clean-sweep the bottom of the seas of fishlings and eggs, as well. If the negotiations between the fishing communities of the two countries - Tamil-speaking on both sides - have not fructified, it is also because the Indian side has not been able to keep up the written commitment to discontinue the banned, bad practices, and the inability of the Governments concerned, particularly of Tamil Nadu, to facilitate such implementation.
In this context, even while urging the Centre and the security forces to ensure the safety and security of the Tamil Nadu fishers, the State Government should consider the wisdom of enforcing the commitments already made by the fishers to counterparts in Sri Lanka, by reviewing the licensing process and by deploying the Coastal Police and the Fisheries/Revenue Department officials to dissuade them from violating the scheme. It is not unlikely that the community leaders may coopt themselves in enforcing discipline, particularly if the initiative comes from the State Government. As is often pointed out, the fishers across the State have respected the annual 45-day ban, for facilitating reproduction of fish, once they were convinced that it was in their long-term interest, as well.
Since returning to power in May 2011 for a third term, the Jayalalithaa Government has begun well by proposing a fihseries university in Nagapattinam on the coast, like the one in Kochi, Kerala. Needless to say, the fishing community, whose younger generation is slowly but not-that-surely taking to higher education in other sectors should stand to benefit. Again with the medium and the long-term in mind, the Government has proposed cold-storage chains across the State, for the fishers to ensure that the catch does not decay and their export quality is not compromised. Like in the case of the farm and the food sectors, better storage facilities (which are mostly unavailable in the State) would help the fishers obtain a good price for their catch - both in the overseas and domestic markets. It the latter, for instance, traditionally good-catch days like the New Moon day are no-non-veg days for most families in the South. There are such other taboos throughout the year, when the fishers have to dispose of their catch at throw-away prices. The Government should follow it up by facilitating higher hygienic standards in post-catch transhipment, storage and processing of fish, which would go a long way is reducing wastage and increasing exports.
Larger issues remain...
The problems pertaining to the fishers from across the Palk Bay and the Gulf of Mannar in India is only one side of the larger issues affecting the vocation and community in the State and rest of the country. If harassment is the cause of concern for the fishers in the region, elsewhere in Tamil Nadu their brethren are now on the war-path, citing possible loss of catch to the discharge from the Koodamkulam nuclear power-project, down south. Elsewhere in the State in this era of economic liberalisation and development-driven governmental agenda, the inevitable need for constructing more ports along the coast, and the consequent facilitation offered for setting up larger-scale manufacturing units in the immediate neighbourhood, could cause effluents to choke the fish population in those beds. It is no different in places such as Chennai city, where large-scale desalination plants are bound to disturb the temperature levels in the sea, to a greater or lesser degree. Or, at least there is an argument thus, as is the case with Koodamkulam.
Again in Tamil Nadu's context, it is not only that the Palk Bay region faces shortage of fish-yields. It has been so across the State's coastline, with the result fishers from the State capital of Chennai and suburbs in the north often 'poach' into the fishing fields in Andhra Pradesh. From time to time, Chennai fishers are held hostage by their Andhra Pradesh counterparts, and are released only against the payment of 'ransom'. Down South in Kanyakumari, the local fishers, owing also to the shortage of catch, have taken to deep-sea fishing in a big way. In both cases the extensive presence of traditional fishermen from acknowledged fishing communities may have helped. In the Palk Bay region, most boat owners are not from the traditional fishing community. At the same time, the increasing shortage of fishermen across the State have forced boat-owners to hire those from Andhra Pradesh and at times Orissa in the Chennai belt, and from neighbouring Kerala, deep South. In the Palk Bay region, non-fishers have taken to fishing in a big way - both as boat owners and fishing labour working in the boats.
Gate to growth and development
What is true of Tamil Nadu is true of the rest of the country, particularly along the coastline. It is a historic fact that civilisation the world over has evolved on river-banks. In subsequent generations and centuries, industrial and economic development has flourished along the coastline. It is no different in the case of India. The 'India Gate' in Mumbai is thus symbolic. One issue that is already agitating the Indian planners is the huge gap between coastal States and interior States in terms of development, even though some in the latter are bestowed with natural wealth and minerals in abundance. In this context, Governments, both at the Centre and in the States, would have to take a more serious view of developmental agendas infringing upon livelihood concerns of a substantial section of the nation's population.
In the Palk Bay-Gulf of Mannar region, the ethnic issue in Sri Lanka and the bilateral dimension of the fishermen's issue have added new elements. The issue could get even more complicated as and when an elected government assumes office in the Tamil-majority Northern Province in Sri Lanka. The competitive nature of the Tamil-speaking sections of the fishing communities in the two countries could add to the current complications. In recent weeks, Tamil Nadu fishers harassed in the seas have begun blaming counterparts from Sri Lanka for their travails. For a time, they claimed that the attackers were Sri Lanka Navy personnel in civvies. For a short period, they said that their tormentors were para-militaries encouraged by the Sri Lanka Navy. Before such a trend surfaced, Tamil-speaking fishers in Sri Lanka encircled boats from Tamil Nadu in the first quarter of 2011, and handed them over to their authorities. Further action was averted at the instance of New Delhi.
It is not just about the likelihood loss of fish availability and catch across the Tamil Nadu coastline and across the country's 7500-km coastline. It is also about the extended Exclusive Economic Zone (EEZ) promised to the country under UN Conference on the Law of the Seas (UNCLOS-II), now under negotiation. This would mean that there would be more than fish in the Indian seas for the Governments to be concerned about. Questions would first revolve around the availability of sea-bed minerals on the one hand, and the royalty that some States might expect demanding for the extraction of offshore oil, for instance, from the seas extending out of their coastline. At present, the Centre or Central PSUs are paying royalty to interior States where oil is being stuck. In a federal polity, where States are increasingly asserting their rights, particularly in a coalition set-up, the nation should be prepared for such a turn of events.
Need for 'fisheries ministry' at the Centre
At present, the Ministry of External Affairs (MEA) is the nodal agency for addressing bilateral fishers' issues with neighbouring countries. This has invested the process with a certain amount of sobriety and greater understanding. It has also helped to fast-track follow-up action in the host country. Suffice is to point out that in the case of Sri Lanka, effective intervention by the MEA, and the rest of the Government of India, starting with the Prime Minister and the National Security Advisor, has been able to bring down the number of mid-sea incidents involving Tamil Nadu fishers, over the past years. Mutual agreements seem to be mostly effective, though a lot more needs to be done, particularly on the Indian side, too.
However, in the absence of adequate mechanisms for follow-up action to address the issues that are often flagged before the MEA, the ground situation has remained near-constant in most cases. It is so in the case of the Tamil Nadu fishers. The MEA has not been able to impress upon the Sri Lankan counterpart on the need for mechanisms to ensure that the Tamil Nadu fishers are not attacked, mid-sea, also owing to the fact that over the past decades, the regulatory and restraining mechanisms that should have been in place are neither there, nor have they worked. Successive Governments in the State have been on fire-fighting missions time and again, re-directing the fishers' anxieties to the Centre whenever there is a flare-up in the coastal villages. With the result, every incident involving Tamil Nadu fishermen in Sri Lankan waters have acquired diplomatic overtones without anyone addressing various elements of the core issues in their totality.
The Centre could start well with the creation of an independent 'fisheries ministry', which at present is an adjunct department of the Agriculture Ministry. Experience has been that no Agriculture Minister or senior official of the Ministry has taken any serious and continuing interest in the affairs of the Fisheries Department, or hastened the process of consultations and decision-making. In the emerging situation, such a ministry may have to comprehensively address all issues of maritime concerns and interests - even if it mean that it would still have to collaborate with the Petroleum and Environment Ministries at the Centre, and also with relevant ministries and departments of the State Governments concerned. At some stage in the future, if and when other minerals are extracted from the sea-bed, there would have to be greater coordination among the various ministries of the Centre, and possibly with their counterparts, if any, in the States, too. A complicated process, thus requiring greater ministerial attention than at present - though for now, much of the focus would have to be mainly on fish, fisheries and fishermen welfare.
(The writer is a Senior Fellow at Observer Research Foundation)
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