Published in The Indian Express

Introduction

A little over twenty miles north of Dhanushkodi lies the disputed territory of Kachchativu (Katchatheevu, meaning ‘barren island’ in Tamil), a 285-acre uninhabited isle that was caused by a fourteenth-century volcanic eruption. Engulfed in the womb of oblivion, Kachchativu has found ways of sporadically leaping back to attention, most recently when Prime Minister Narendra Modi obliquely mentioned it in Lok Sabha. The island was island ceded by the Indian administration under Prime Minister Indira Gandhi to Sri Lanka under the Sirimavo Bandaranaike administration in 1974 in an act of bilateral largesse, preceding the 1976 exchange of letters that divided the maritime boundary line in the Sethusamudram littoral region between the two neighbors.

Since the outbreak of the Lankan civil war, in 1983, the island became the crownless battleground combats between Indian Tamil fishers and a Sinhala-dominated Lankan navy, leading to loss of livelihoods, properties, and lives of Indians owing to accidental crossings of the international maritime boundary line. Of late, Sinhalese fishermen have begun raising apprehensions that the Sri Lankan administration might be persuaded to lease the island to India. However, the Kachchativu dispute is far too complex to be distilled to jingoistic discourses or parochial anxieties, being a relic in a legacy of geopolitical conundrums from colonial South Asia.

A Colonial Indian Island

Kachchativu was once part of the Ramnad Zamindari. The Ramanathapuram principality (or Ramnad) was established in 1605 by the Nayak dynasty of Madurai. It consisted of 69 coastal villages and 11 islets, including Kachchativu. A copper plaque issued by Koothan Sethupathi, sovereign of Ramanathapuram between 1622 and 1635, testifies to the ownership of the territory extending up to Thalaimannar, including Kachchativu, which was a source of regular revenues for the Sethupathi dynasty. In 1767, the Dutch East India Company signed an agreement with Muthuramalinga Sethupathi to lease the island, and, later, in 1822, the British East India Company leased the island from Ramaswami Sethupathi. As pointed out by W.T. Jayasinghe, the former Sri Lankan Secretary of Foreign Affairs, back in 1845, three proclamations issued by the Governor of Ceylon, Colin Campbell, that outlined the limits of Jaffnapatnam, made no mention of Kachchativu. This fact tilts the island’s historical ownership in India’s favor. In July 1880, Muhammad Abdul Kader Maraickar and Muthuswamy Pillai executed a registered lease deed in favour of Edward Turner, the Special Assistant Collector of Ramnad—the Zamin being then under the Court of Wards—for a period of five years for collecting roots for dyeing purposes from 70 villages and 11 islands belonging to the Ramnad estate, of which Kachchativu was one island. Again, in 1885, there was a lease drawn up for a similar purpose and period by Ramaswamy Pillai in favour of T. Rajarama Rayar, Manager of the Ramnad Estate. Kachchativu featured in this deed.

In 1913, a lease was signed by the Raja of Ramnad and the Secretary of State for India in Council for the full exploitation of the chank shells lying within the limits described in the schedule thereto; the said schedule mentioned Kachchativu to lie in the Palk Bay. This was in accordance with the legal understanding during British times that Kachchativu was in India and not Ceylon. The judgment in Annakumaru Pillai V. Muthupayal case (1904) on the question of dividing the jurisdictions of chank beds reinforced this point of view where the prevailing interpretations of the Madras High Court’s ruling implied that that Kachchativu was ‘an integral part of His Majesty’s dominions’ and the chank beds ‘are part of the territories of British India.’ A 1922 report from the Imperial Records Department on the question of the ‘Ownership of the Island of Kachitivu [sic]’ also supports India’s historic claim to the island by virtue of the island’s the ownership by the Raja of Ramnad. The British government’s lease was extended up to 1936, obviating Sri Lanka’s possession of the island almost any time until 1947-48 when both India and Ceylon became independent. Then, in 1947-48, there was a lease in favour of the Dewan of Ramanathapuram, V. Ponnuswamy Pillai, by Mohammed Meerasa Maraickar in respect of Kachchativu alone.

But the seeds of the Kachchativu dispute seem to lie in incidents from October 24, 1921, when delegations from colonial India and Ceylon tried negotiating on a ‘Fisheries Line’ to curb overexploitation of marine resources and find a suitable solution to Kachchativu. The Ceylonese, headed by the Principal Collector of Customs, B. Horsburgh, strongly opposed the Indian view that Kachchativu was part of Indian marine territory given that it belonged to the Zamindari of the Raja of Ramnad—a claim based on which Tamil Nadu stakes its right to Kachchativu until today. Horsburgh demonstrated evidence to show that Kachchativu, including the St. Antony’s Church on the island, was the property of the Jaffna Diocese.

The two sides eventually agreed on a border that passed three miles west of Kachchativu, ensuring that the island was well within Ceylonese territory. Although delegates of neither side ratified the agreement, nor was it officially approved by the Secretary of State, an ad hoc imagined maritime boundary came into existence. The British-Indian delegation cautioned, however, that the ‘Fisheries Line’ could not be considered a territorial boundary ‘so as not to prejudice any territorial claim which the Government of Madras or the Government of India may wish to prefer in respect of the island of Kachchativu.’ Nevertheless, until postcolonial times, the Kachchativu affair was far from resolved.

The Neighbour Doth Protest Too Much?

Since 1956, when India and Ceylon recognized the need to divide their international maritime boundary, the issue of the ‘Kachcha Thivu [sic] Island Dispute’ had been raised in the Lok Sabha, each time to be overruled by Prime Minister Jawaharlal Nehru (then also the Minister of External Affairs) since he believed it to be no matter of ‘national prestige’ and, hence, too flimsy a ground to enter into a conflict with Ceylon. For the latter, nonetheless, Kachchativu would continue as a potential military base, qualifying it as a ground to enforce uti possidetis juris—the principle of retaining boundaries of colonial dominions as postcolonial nation-state boundaries.

Described in a 1969 issue of the International Review of History and Political Science as a ‘square-shaped island’ that was ‘one-fifth as large as New York City’s Central Park … one-half mile long and barely one-half mile wide.’ Back then it served ‘mostly as a fishermen’s stopover and a smugglers’ base.’ Once a year, even today, pilgrims from Sri Lanka and India visit the island in spring to pay homage to its patron saint, St. Antony, in a church (spanning 12 ft by 14 ft) built by in 1905, by the Ramnad merchant Seenikuppan Padayachi, who meant for it to be a layover for Indo-Ceylonese fishermen seeking to dry their nets or take refuge during tempests.

Kachchativu’s geopolitical dividends swelled around February 1968 when Prime Minister Gandhi ceded 250 miles of arid land in the Rann of Kutch region to Pakistan. Sensing a parallel prospect in the Sethusamudram region, Ceylon began staking claims to Kachchativu on grounds that the St. Antony’s Church lay in the diocese of the Roman Catholic Bishop of northern Jaffna. Despite being too inconsequential to appear on most postcolonial maps, it raised a great consternation in the Indian parliament as the Colombo-based Sun newspaper issued a hoax newsflash, that year, headlined ‘Ceylon Government takes over Kachcha Thivu [sic].’

Legend has that upon hearing Lankan demands, mandarins in New Delhi were bewildered as to which among the flock of Gulf of Mannar islands their neighbors had in mind, and why indeed Ceylon wished to incorporate an atoll of cacti sans drinking water while a much bigger problem, that of stateless Tamil refugees, confronted both nations. Sri Lanka, however, believed Kachchativu to contain petroleum deposits (recently, the Lankan government reportedly leased land around Delft Island and Kachchativu to Chinese power companies).

Far from a Small Price

Nehru’s policy of strategic ambivalence over Kachchativu was abjured by Gandhi, whose munificent cession of the island was celebrated in India as a destruction of ‘the canard that India behaves overbearingly towards its small neighbours’ even though her administration possessed ‘an unassailable case’ which it forfeited to secure ‘harmonious relations with Sri Lanka.’ Although the Lankan administration would maintain that the 1974-76 agreements followed a ‘spirit of compromise’ and ‘give and take,’ the Indian decision was founded on principles of ‘fair, just and equitable’ transfer emanating from ‘mature statesmanship … in the cause of friendship and cooperation in the area.’

Its benevolence aside, the cession of Kachchativu was also meant to eradicate the three-pronged danger that the Sethusamudram region of the Indian Ocean was then plagued by. The first was Ceylon’s Sinhalese-Tamil conflict, which peaked in the 1970s, with the establishment of formation of the radical Sinhalese communist group, Janata Vimukti Peramuna (JVP). The second was the alleged support provided to the JVP by North Korean influence and hints of emerging Southeast Asian and Chinese influences in Sri Lanka. The third was the increasing Soviet and American competitive naval deployments in the Indian Ocean, since 1968, demanding the need for bilateral rallying to have the maritime region declared as a zone of peace.

Touted back then as a ‘small price’ for bilateral peace, Kachchativu would go on to alienate Tamil parliamentarians and fisherfolk for the perceived erasure of their participation in the negotiations that led to the cession. This was especially true in the light of the precedent established in the Berubari Union case (1960), wherein the Supreme Court of India directed the requirement of a constitutional amendment for cessions of Indian territories. Inflamed by the peripheralization of Tamil identities, on July 23, 1974, Era Sezhian, a DMK Lok Sabha member, labelled Kachchativu’s cession as an ‘unholy and disgraceful act of statesmanship, unworthy of any government.’

This was the beginning of Kachchativu’s entanglement with questions feasibility surrounding the Sethusamudram project (once planned as a canal across Adam’s Bridge or Ram Setu) and the Palk Bay fisheries dispute. The demarcation of the fisheries line attempted in the 1974-76 agreements—motivated by India’s urge to befriend have Sri Lanka in the emerging global power structures—nevertheless failed to correctly implement the rights of Tamil fishermen. In theory, Tamil fishers retained their historic rights to fish around Kachchativu—a region fertile with shrimp resources—though in practice they were turned into criminal transgressors of the new territorial boundaries. During and after the Lankan civil war, the Lankan navy saw Tamil fisherfolk as complicit with the cause of the Liberation Tigers of Tamil Eelam, thus maintaining their policy of shooting first and asking questions later.

A Much-Needed Denouement

Following the termination of the Lankan civil war, in 2008, Tamil Nadu Chief Minister J. Jayalalithaa filed a writ petition in the Supreme Court of India, arguing that that the 1974 and 1976 agreements had affected Indian fishermen’s livelihoods, four years before moving the Court again on the expediting the hearing on the rights of Tamil fishermen. Later, she approached the newly elected prime minister, Narendra Modi, in this regard. In 2014, Mukul Rohatagi, former attorney-general for India, cautioned the Supreme Court of India that, since the bilateral agreements were not disputed between the two nations (but subject to an internal federal dispute between the centre and Tamil Nadu), India would need to resort to war to reclaim Kachchativu. Unlike politicians from Tamil Nadu, the Indian government has been restrained on the matter of Kachchativu since it is ‘sub-judice in the Hon’ble Supreme Court of India.’

In early 2022, Sri Lanka set INR 10 million as the bail amount for arrested Indian fishermen. By April 1, Kachchativu was back on the burner with Tamil Nadu Chief Minister, M.K. Stalin, submitting a memorandum to Prime Minister Modi. Both nations are bound by the Vienna Convention on the Law of Treaties, 1969, to honor the Agreements of 1974/76. According to article 56 of the Convention, neither country can unilaterally retract the agreements and, under article 65(1), withdrawal from the agreement by either nation will require ratification by the other. If one nation agrees with the other’s withdrawal, the two will have to seek a settlement under the UN Charter’s article 33 (on peaceful settlement of disputes) with third party intervention or be referred to the International Court of Justice in accordance with article 37. The Indian state’s resistance altering the status quo in its littoral neighbourhood is a reaffirmation of its ‘Neighbourhood First’ policy, which mandates peaceful relations with Sri Lanka.

Other than preserving the status quo, the only resolution that seems to offer itself is a bilateral rebuilding of consensuses around the narratives of Kachchativu. As Ashis Nandy once drolly observed, Lankans ‘may not always live happily with the Indian state, but they seem to live happily with India’s national poet,’ Rabindranath Tagore, who arguably composed the musical symphonies of the national anthems of India and Sri Lanka. It is unlikely that the Indian state would demand for Sri Lanka to return Kachchativu. But given its persistent unconditional economic aid to the Lankan administration both in its dire need and otherwise, India possibly finds itself at a unique position to persuade Sri Lanka for a joint administration of Kachchativu. Such an eventuality, however, would contain almost no economic merit, although the extraordinary symbolic benefits accruing to both nation states are inestimable at this stage.