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Constant Trespassing of Indian Fishermen in Sri Lankan Waters and Their Continuing Arrest and Detention.

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N Sathiya Moorthy

The recent Indian demarche to Sri Lanka on the continuing arrests and judicial detention of Tamil Nadu fishermen in the island-nation should bring back to memory the October 2008 Joint Statement on the subject. According to this statement, the two countries had “agreed to put in place practical arrangements to deal with bona fide Indian and Sri Lankan fishermen crossing the International Maritime Boundary Line (IMBL)… keeping in mind the humanitarian and livelihood dimensions of the fishermen issue”. However, that is not to be, and today, the Tamil Nadu fishers are threatening to take to the seas as a form of protest.

It should bring to mind the threat from the other side in the reverse, ahead of the annual, 45-day ‘fishing holiday’ in Tamil Nadu last year. A senior Minister in Sri Lanka, Douglas Devananda, had said that he would lead 5000 Sri Lankan Tamil fishers on to the IMBL, so as to bar the south Indian counterparts from ‘violating’ their seas and hitting at their livelihoods. When counter-protests in Tamil Nadu became louder and shriller at the time, it was explained that the threat was aimed at forcing the hands of the Governments in the two countries to urgently negotiate an agreement to the dispute during the ‘fishing holiday’ that would have provided both the time, inclination and opportunity for all stake-holders to sit down and address mutual concerns, meaningfully.


The 2008 Joint Statement had declared that “there will be no firing on Indian fishing vessels”. If one were to go by subsequent charges by Tamil Nadu fishermen, firing, allegedly by Sri Lanka Navy (SLN), had continued. So much so, Tamil Nadu Chief Minister Jayalalithaa in repeated missives to Prime Minister Manmohan Singh drew a parallel between Sri Lanka and Pakistan. Despite being a known adversary, Pakistan Navy had never fired at Indian fishers in its waters, she pointed out. Against this, the Chief Minister said that an acknowledged friend as Sri Lanka was firing at Tamil Nadu fishermen.

Almost since the 2008 Statement, there has been a noticeable fall in the number of firing incidents on Tamil Nadu fishers. However, there has been a steady increase in the number and frequency of arrests of Tamil Nadu fishers by Sri Lankan authorities. Lately, there has also been an increase in the number of Tamil Nadu fishers being sent to judicial custody following their mid-sea arrests. At the height of ‘Eelam War IV’, they used to be left off more often than not, after intervention by the Government of India, at different levels. This apart, at least in one case, the Sri Lanka Navy had arrested five Tamil Nadu fishers mid-sea, charging them with drugs-smuggling.

This apart, the earlier reference to Pakistan came with an unintended caveat, which did not get any mention at the time. While it may be true that Pakistan Navy did not fire upon Indian fishers in their waters, those detained by it ended up spending years in prison, often without trial. In the case of Sri Lanka, there was no evidence that their Navy was involved in mid-sea firing episodes of the kind. Conversely, where the SLN had detained tens of hundreds of Tamil Nadu fishermen over the years, they used to be let off at the intervention of the Indian Government on the one hand, and the Sri Lankan missions in Chennai and Delhi, on the other.

It may be uncharitable to link the earlier Sri Lankan position to their perceived dependence on India at the height of ‘Eelam War IV – just as it is improper to link the recent spate of arrests to perception of hostility in Tamil Nadu, or to India’s vote against Sri Lanka at the UNHRC in Geneva, twice in a row. Sri Lanka has repeatedly indicated that their putting pressure on the Tamil Nadu fishers is a result of their own Tamil fishermen in the North and the East of the country taking to their traditional trade in a big way, in the months and years after the war. Intermittently, there have been suggestions from sections in the Colombo dispensation that spoke about issues of sovereignty, territorial integrity and State security.

A silver-lining yet

Bleak as the present prospects may seem across the Palk Strait, there is a silver-lining yet. The 2008 Statement was issued after a visit to Delhi by Basil Rajapaksa, at the time Senior Advisor to Sri Lankan President Mahinda Rajapaksa. During a more recent visit to New Delhi, Basil R, at present Economic Development Minister in his country, discussed the issue with Indian officials. More importantly, he met with a group of Tamil Nadu fishermen, and discussed their problems. Though both sides reiterated their known positions, the visitor did extend an invitation for the Tamil Nadu fishers to Sri Lanka, for discussing the issues with their Tamil counterparts in the North, President Rajapaksa and other Government officials. As may be recalled, earlier this year, Minister Rajapaksa had met with a visiting team of Tamil Nadu fishers in Colombo.

Hopes, if any, on a negotiated settlement to the fishers’ issue flows from an earlier agreement signed by fishers’ representatives from Tamil Nadu and Sri Lanka in Chennai after the visitors had met with their counterparts all across the coast of the south Indian State. The agreement provided for a specific number of days in the year for the Tamil Nadu fishers to fish in the adjoining Sri Lankan waters. As if in return, the Tamil Nadu fishers promised not to employ trawlers and purse-seine nets, which their counterparts claimed destroys their craft and gear, and is also banned in Sri Lanka. Sri Lankan Fisheries officials were a part of this team. A follow-up meeting of the kind in Colombo, in March 2011, witnessed participation by Sri Lankan Ministers and Indian High Commission officials, who remained as observers. If the talks did not produce the desired result, it owed mainly to the failure of the Tamil Nadu signatories to enforce their part of the deal, relating to trawlers and purse-seine nets.

In more recent times, other fishers’ representatives from the affected districts in southern Tamil Nadu, who were not necessarily a part of the earlier process, too seem to be veering round to the view that they wanted to settle the issue through negotiations with their Sri Lankan Tamil counterparts. As coincidence would have it, the Tamil Nadu fishers’ representatives met with the State Fisheries Minister K A Jayapal and Chief Secretary Sheela Balakrishnan in Chennai on the very day New Delhi summoned Sri Lankan High Commissioner Prasad Kariyawasam for issuing the demarche’.

Both episodes occurred even as Indian Parliament had commenced its monsoon session a day earlier. Needless to say, the fishermen’s issue would be high on the agenda of Tamil Nadu political parties in particular in both Houses of Parliament, as has been over the past several sessions and years. It is another coincidence of sorts that the demarche followed Chief Minister Jayalalithaa firing off yet another missive to Prime Minister Singh, demanding that India deployed ‘coercive diplomacy’ against Sri Lanka in the matter. However, the immediate provocation for the demarche was a series of arrest of Tamil Nadu fishers by Sri Lanka Navy, before and after the Chief Minister’s missive.

At their meeting in Chennai, the fishers’ representatives reportedly sought the State Government’s initiative for facilitating their visit across the Palk Strait for the reviving the process of a negotiated settlement. They had reportedly mentioned Minister Basil’s invitation for them, and said that both State and Central Government officials should accompany them during such a visit. Incidentally, it was possibly for the first time that a fishers’ collective of the kind with wide-ranging representation, in terms of geographical, community and political identities from the southern districts involved in mid-sea episodes in Sri Lankan waters, had got together and come up with a proposal for negotiations with their counterparts on the other side. According to media reports, the Chief Secretary “assured the fishers that she would take up the matter with the Chief Minister and do the needful”.

Part of the solution, no more of the problem

Clearly, the Tamil Nadu fishers seem wanting to be part of the solution, and no more of the problem that has affected their lives, limbs and livelihood for long. As news reports mentioned, their suggestions to the State Government now thus included alternatives even while pursuing their demands with their counterparts and also the Colombo dispensation. Acknowledging, for instance, the over-crowding of the Rameswaram seas by the presence of 700 mechanised boats, they wanted facilitation for some of their men to undertake deep-sea fishing by cutting a channel near Dhanushkodi, and possible diversion of others to take up tuna fishing. To this end, they wanted the monthly quota of 1500 litres of subsidised diesel doubled, and also 100 per cent funding for tuna vessels in the first phase.

Yet, the problem of Tamil Nadu fishers involved in Sri Lanka-related incidents is not uniform. There are sub-regional variations, owing to the catch, in terms of species and quantity. For permanent peace in the seas on the fishing front, all these fishers need to engage their counterparts in Sri Lanka, even while involving the Governments in New Delhi and Colombo, and those in Tamil Nadu and in Sri Lanka’s Northern Province (when elected in the first-ever Provincial Council polls, scheduled for 21 September). While the Rameswaram fishermen need to talk to their counterparts in Jaffna in the Northern Province, the Nagappatinam fishers are often found in the seas off Trincomallee in the Eastern Province. In recent times, fishers from the Karaikal conclave in the Union Territory of Puducherry embedded in southern Tamil Nadu’s coastal region are also getting frequently arrested in Sri Lankan waters. Yet, a solution to the common issue has to be comprehensive and complete.

Even while hitting out hard at the Sri Lankan Government on allegations of mid-sea firing earlier, and continuing arrests, the Jayalalithaa administration in Tamil Nadu has taken specific initiatives to facilitate diversion of the kind that has since been proposed by the fishers’ representative. The maiden Budget of the third Jayalalithaa Government in the first year, 2011, proposed 25 per cent subsidy for conversion of existing mechanised vessels for deep-sea fishing. Two years later the 2013 Budget has since has doubled the subsidy to 50 per cent, heeding the requests from the fishing community.

However, re-training, which includes a cultural component, needs to be taken up seriously. The Rameswaram fishers, for instance, are not used to be at the sea for more than a night at a time. Deep-sea fishing on the other hand involves days, if not weeks, of the fishers spending their days and nights at sea – and far away from their homes and coast. The State Government also needs to follow up on the 2011 Budget proposal for setting up a chain of cold storage for the State’s fishers, and helping and educating them in marketing their catch overseas, at a time and price that is more advantageous to them. In the absence of any exposure or experience in the matter, they continue to be pawns at the hands of private sector export agencies from neighbouring States – despite their claiming to be in the business for generations and centuries together.

Collateral concerns

Linked to the fishing-related livelihood issue on either side of the Palk Strait is also Sri Lanka’s off-again-on-again reference to concerns about sovereignty and territorial integrity. Not very long ago, the Madurai Bench of the Madras High Court ruled that the Indian Navy and Coast Guard should take steps to try and ensure that Indian fishers did not cross the IMBL, into Sri Lankan waters. Possibly taking its cue from the court order, the Union Territory administration of Puducherry has cautioned fishers that their vessels crossing the IMBL would be fined ` 10,000. Tamil Nadu has no such rule, for now.

Another unmentioned issue, but always linked to the fishers’ problem relates to ‘Katchchativu’. As the General Secretary of the AIADMK party, now ruling Tamil Nadu, Jayalalithaa had challenged the Centre conceding Katchchativu as Sri Lankan territory under twin agreements in 1974 and 1976. Jayalalithaa moved the Supreme Court in 2008, when she was in the Opposition. Earlier this year, the DMK, which has alternated in power in the State and now in the Opposition, too has moved the Supreme Court on the same issue, as the head of the TESO organisation – which is otherwise engaged in promoting the cause of ‘Sri Lankan Tamils’, nearer home. The Government of India has consistently held that Katchchativu, which became part of Sri Lanka after the two nations drew the IMBL for the first and only time, cannot be reopened as an issue. The case is still pending before the Supreme Court.

Yet, given the complexities of the ‘ethnic issue’ in Sri Lanka, and the recurring temptation of political parties and groups in Tamil Nadu to wily-nily end up linking the fishers’ livelihood issue on the one hand and the ‘Katchchativu issue’ on the other, the livelihood angle of the fishers from the two countries has only snowballed into a complicated process. It can become even more difficult if at the end of the September 21 elections in Sri Lanka’s Northern Province, ‘competitive politics’ of the Tamil Nadu kind dictates the local mood and methods on the fishers’ issue out there.

As may be recalled, a section of the Tamil fishers’ in Sri Lanka’s North have become more vociferous in recent months, than in the post-war past, attacking and ‘arresting’ their Tamil Nadu counterparts. How, both during the Northern PC polls and afterwards, the Tamil political leaderships in the Province address the local concerns, and weigh it against the independent, yet much larger aspects of the ‘ethnic issue’ remains to be seen.

Though the Tamil Nadu Government and the political parties in the State ended up playing down the episodes, the Centre had to intervene, particularly through the High Commission in Colombo and the Consulate-General’s office in Jaffna in Sri Lanka’s North, to have them freed and their boats returned. In doing so, the Centre acted just as it had done in the case of the arrests by the Sri Lanka Navy, and worked through the Colombo dispensation. It used to be the way New Delhi handled similar issues in the past, when the LTTE had ‘arrested’ Tamil Nadu fishers, in the name of protecting the interests of their own fishers, during the ‘ceasefire period’, post-2002.

The Sri Lankan initiative now taken by Minister Basil R and the favourable response from the Tamil Nadu fishers’ representatives need to be read in this overall context and background. It also needs recalling that in between, the State Government had reportedly been slow in responding to the Centre’s efforts, too, for the Tamil Nadu fishers’ representatives to visit Sri Lanka to revive the negotiations process with their Sri Lankan counterparts. The initiative flowed from understanding at the highest levels of the Governments in the two countries, and also on the agreements reached and reiterated at the meeting of the Joint Working Group (JWG) on fishing issue between them – in which a senior official from Tamil Nadu was invited, and participated in the last two rounds.

As the State fishers have reiterated since, the participation of the State Government is as much critical and crucial for the implementation and/or enforcement of any solution worked out by the two community representatives across the Palk Strait – as that of the Governments in New Delhi and Colombo, and from now on, possibly in Jaffna, too. The right environment for the purpose could however be created only by de-politicising the issue on either side of the Palk Strait, and delinking the same from collateral issues of the ‘ethnic’ kind. It is possibly the message that is now slowly but surely emanating from the otherwise reluctant fishers’ representatives in Tamil Nadu, who want their lives and livelihood protected through whatever feasible means as possible – and not getting them increasingly entangled in what essentially or un-related or quasi-related issues, and not otherwise.

Though they may not have said as much, may be the Tamil Nadu fishers have put their politicos on notice – to sympathise and empathise with them on their cause but not to politicise it too much, as it may have become a hurdle and a hitch, not amounting to support and solutions. This, even as they strive harder, to send out a notice to the Sri Lankan State that their livelihood problems are as real as those of their counterparts across the Palk Strait.
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Prisoner-swap deserves better attention

Media reports about the transfer of nine Indian prisoners serving terms in Sri Lankan jails to those in native Tamil Nadu could not have come at a more appropriate time for bilateral relations, particularly in the context of the strained perceptions in the south Indian State. Many, if not all of them, have been sentenced to long years in prison, including life-term, for drug-offences. Under the India-Sri Lanka Bilateral Agreement on the Transfer of Sentenced Persons signed in June 2010, they will serve the remaining portion of their prison terms nearer home, where their dear and near could visit them.

This is not the first time such prisoner-transfer has taken place. Earlier, 14 others, all from Tamil Nadu, had been transferred from Sri Lankan prisons to those in their native State. More may be transferred likewise in the coming weeks, months and years. If there are procedural delays in the process, it also owes to the Indian system, where Law & Order is a State subject, and paper-work takes a lot more time, unintentionally though.

Almost around the same time as the nine prisoners were now transferred to Tamil Nadu jails, the Sri Lankan media reported the arrest of another native of the south Indian State in that country, for travelling on a tourist visa and indulging in informal trade of essentials. A Jaffna court has since remanded him to 14-day custody, pending possible trial. It is a recurring occurrence, like the arrest of Tamil Nadu fishers in the Sri Lankan waters, but little or no interest is evinced by the political parties in the State, whatever the reason or motivation.

There is also little or no appreciation of the Sri Lankan Government’s efforts and cooperation in the matter of prisoner-swap in Tamil Nadu when compared to the high-decibel political criticism and public protests on the fishers’ issue. It is another matter that ‘tourists’ indulging in ‘informal trade’ in Sri Lanka are detained by the local police at times and allowed to go off without much noise or protests.

Like the Tamil Nadu fishers, these traders too return to Sri Lanka without much loss of time, to indulge in what essentially can be described only as illegal trade, violating stringent visa rules. They face similar prospects and problems as the fishers. But unlike the fishers, these traders are fewer in numbers, are not organised, and are also not concentrated in huge numbers in specific localities and locations along the State’s long coastline. Their movement within Sri Lanka too is restricted to smaller packets, within the well-defined land borders. Against this, their fisher brethren have the vast seas at their command – creating a source of tension, both for the Sri Lankan (Tamil fishers) and security agencies.

The parallel

The ‘informal traders’ from Tamil Nadu have been hitting at the livelihood of their Tamil trader-brethren, particularly in the Tamil-majority North, and also in the East, where too they have customers. There is a parallel here again. It is akin to the way the Sri Lankan Tamil fishers have been protesting the continued presence and exploitation of their marine resources and daily catch by the Indian fishers with better yet banned equipment. Again, owing to numbers, concentration and consequent visibility, the Sri Lankan Tamil fishers are heard by their political and administrative leadership in Colombo, Jaffna and Trincomallee. The local traders do not have that advantage, either. Yet, the Sri Lankan Tamil traders in the Northern Province, particularly Jaffna town, are known to be ‘tipping off’ and/or pressuring the their law-enforcement agencies against the encroachment by the Tamil Nadu groups, arriving at times in droves are in singles and two’s, cutting into their sales, profit-margins and incomes. Having borrowed heavily, in cash and/or stocks, post-war, thanks to the munificence of banks and wholesalers in distant Colombo, they cannot but take care of their immediate livelihood interests – just as their fisher brethren have become asserting themselves in the seas.

The Tamil Nadu polity needs to acknowledge that when it came to protecting their turf and trades-interest, the Sri Lankan Tamil fishers and traders alike do not stand on the ubiquitous ‘ethnic divide’ to argue their case with Sinhala-dominated local authorities. To them, in practice, the ‘ethnic issue’, thus is an internal affair. Like their politicos, they would want their Tamil Nadu brethren to stand up for them – but, again on their terms, and without any reference to trades-intrusion from across the sea. The local traders, in the post-war era, have borrowed heavily at high interest rates – at times, mindlessly — to re-launch their dwindling businesses. Intrusion by the Indian traders, who do not have to suffer spending on establishment expenses, like rent, electricity and salaries that are any way high, means that the latter could sell at a much cheaper price than one could sell goods, particularly textiles, in shops, for which often rents have to be paid – or, provided for.

It is another matter some of the Sri Lankans — Tamils, Muslims and Sinhalas, alike – are dealing in ‘informal trade’ of the kind, stocking their shops and homes with goodies brought by couriers by flight from India, for selling at high margins. If in the post-war era, the two Governments had revived the forgotten passenger shipping between the two shores, it was based on the belief that the traders – informal or otherwise – in the two countries would be able to carry more goods than they can do by flight and at lower cost. If the attempt failed, it owed mainly to the lack of ‘staying capacity’ of the chosen liner until the passenger flow picked up enough.

Misusing the facility

With the prisoner-swap agreement now becoming a reality, the Tamil Nadu Government in particular, and the State’s polity otherwise may have to look at the possibilities, and ensure that the facility is not misused, either by design or otherwise. It applies as much to fishers as traders, and others – who have taken comfort in the near-sure release after detention, at the instance of the Indian Government, for which the political parties and the Government in Tamil Nadu take due or undue credit, from time to time. Among the numerous fishers from the State that are now in Sri Lankan prisons, at least five have been charged with drug offences. Others may be let off after a time, as broadly indicated by Sri Lankan Foreign Secretary Karunatilaka Amunagama, but that does not necessarily mean that the Colombo dispensation and the Jaffna-based Northern Provincial administration would take it easy any more. With Northern Provincial Council polls due on 21 September, any elected administration there would be voicing its concerns about the livelihood issues of its people – just as their Tamil Nadu counterparts are doing – and, not otherwise.

The possibility of their transfer to prisons in Tamil Nadu, if such detainees were to be sentenced by Sri Lankan courts, should not be seen as an encouragement to wrong-doing. Instead, they should be educated to acknowledge that they cannot escape penalty, whatever the circumstances and whatever the understanding between the Governments. Better still, education and consequent facilitation should aim at their not resorting to illegal trade or other illegal activity of any kind – with a clear message that the Governments would not be there to back them. The reverse should be truer, still.

Two-way street

It is not as if Indians alone are offenders, and are detained in Sri Lankan prisons. Sri Lankan fishers, particularly from the Sinhala South, are also caught in Indian waters, often on the tuna-trail. Like the Nagapattinam fishers who are reportedly caught at times off the eastern Trincomallee coast in Sri Lanka, the Sri Lankan fishers are also detained by the Indian Coast Guard deep inside Indian territorial waters, off Andhra Pradesh and Orissa coasts, not to mention the Andaman Seas and the Tamil Nadu coast. The ‘security concerns’ that Sri Lankan officials are at times talking about in the case of Tamil Nadu fishers is also a two-way street, given the strategic Indian installations en route of the Sri Lankan fishers.

For the record, the Sri Lankan Government in general and Fisheries Minister Rajitha Senaratne in particular have been seen as publicly discouraging their fishers from crossing the International Maritime Boundary Line (IMBL). The Minister, more often than not, is on record that Sri Lankan (read: Sinhala) fishers violating the IMBL would be doing so at their risk, and could not expect their Government to bat for them. Political parties in the country have maintained a stoic silence on the issue, throughout, without interfering with what is essentially a governmental process. It contradicts the Tamil Nadu position, where the Government and the political parties in Tamil Nadu are heard loud and clear, every time their fishers cross over in to Sri Lankan waters, and are attacked/arrested there.

Maybe owing to the constant and continuing arrest of Tamil Nadu fishers in Sri Lankan waters, the Indian State has looked at reciprocity of early release without trial as a possible way to ease tensions. Tamil Nadu thus has a well-placed mechanism involving various security agencies from the Centre and the State well in place, to dispose of the case of ‘innocent fishers’ from Sri Lanka, arrested by the Coast Guard in the nation’s territorial waters.

The same cannot be said about other Indian States, where again the detained Sri Lankan fishers are handed over to the local police by the Coast Guard. That includes Andhra Pradesh, Orissa and the Andamans. However, the situation seems to be improving, there, too, in early disposal of pending cases, release of Sri Lankan fishers and boats, where a fit case had been made out. Hiccups remain, however, and need to be addressed early on.

Needless to say, grey areas too will remain, on the prisoner-swap, that is. There used to be a tendency, particularly in Indian States like Tamil Nadu, for the State Government to announce term-relaxation for prisoners under certain categories, on occasions like the birth anniversary of one leader or the other. A royal hang-over from a very, very distant past in the Tamil Nadu context – where the last of the empowered royals date back to centuries – the practice has occasionally caught on in Sri Lanka, too, from time to time.

For now, pending Supreme Court case(s) in India may have come in the way of State Governments in the country taking bold to announce such concessions, at least until the law and procedure had been clearly laid down. Sure enough, the intention of the two Governments in signing the prisoner-transfer agreement too has not been to facilitate such relaxation, and convert a serious offence and consequent punishment into relative easy-going prison-term, if not a ‘holiday’ of some kind.

(The writer is a Senior Fellow at Observer Research Foundation)

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