This article is written by Ms. Somya Jain, from the Vivekananda Institute of Professional Studies. The article has analysed the case of KK Ramesh v. Government of India and others. It elucidates the prevailing dispute between India and Sri Lanka regarding the protection of fishermen. It also provides for solutions to conclude this everlasting controversy.
Fishing is one of the major livelihoods practised by the residents of southern India. Traditionally speaking, marine culture has been subsumed in the heritage of the South Indians from time immemorial. According to recent statistics, Tamil Nadu’s fishing community is about 7,00,000 strong in 591 fishing villages strung along the coastline of 1,076 km stretching from Pulicat, north of Chennai, down to Kanyakumari. They set out to ply their trade in almost 60,000 craft. This enumerates the extensive dependence of the people on fisheries culture which all the more raises the need to protect fishermen to alleviate the misery suffered by them.
In recent times, certain diplomatic controversies have been augmenting between the Indian territory and the Sri Lankan territory resulting in frequent clashes between the two countries. These unsettling disputes have adversely affected approximately 50,000 fishermen living on both sides of the maritime border. Fishermen from both countries are perennially arrested and their boats are seized for straying in the neighbourhood territory without prior permission. Such incidents impact the entire fisheries community leaving a long-lasting fear of injury. The failure of the governments to establish a well-articulated agreement while demarcating the maritime borders has resulted in a considerable amount of distress within the community. The case of KK Ramesh v. Government of India and others (2021) has come as a relief being ordered by the court in view of the recent affliction of the fishermen.
The dispute has been festering with political ramifications for a very long time now. It dates back to the time when India and Sri Lanka fostered the creation of maritime boundary agreements in the years 1974 and 1976 demarcating the International Maritime Boundary Line (IMBL hereinafter). The agreement was facilitated between the then Prime Ministers of the two nations – India’s Indira Gandhi and Sri Lanka’s Sirimavo Bandaranaike. However, the agreement failed to consider the plight of thousands of fishermen, without treating them as a stakeholder while entering into the agreement, restricting them to a meagre area for conducting their livelihood chores. Largely, the dispute was related to a ceding of a small island of Kachchatheevu in the Palk Bay by India. The debate over the sovereignty of the island of Kachchatheevu has been going on since then. The fishermen community of India tended to cross over the IMBL as major marine life lay beyond the boundary, endangering their lives at the hands of the Sri Lankan navy.
After several years of unwarranted treading into the territory of another country, a civil war between the rebel group of Liberation Tigers of Tamil Eelam (LTTE hereinafter) and the government broke out in Sri Lanka in 1983, mainly known as the “Eelam War IV”. While the ethnic war was ongoing, both countries curtailed the practice of the fishermen in the Palk Bay as agreed in the agreement of 1974 and 1976. For security purposes, the community was disallowed to carry out fishing for a certain period. But after the war ended, due to the gradual depletion of fishing resources on the continental shelf of the Indian continent, the Sri Lankan fishermen found several Indian boats plying on their side of the IMBL. The effect of luring of fishermen in Sri Lanka’s territory was harsh as many Indian fishermen died and several lost their only source of livelihood and were put into detention in Sri Lanka. Since the signing of the agreements, the government did no such actions. No such actions were taken up by the government to protect the fishermen from this predicament.
The everlasting dispute between the two countries is an intricate mix of several factors. The first and foremost factor which affected the dispute was the depletion of fisheries from the Indian side of the sea. Due to overfishing, the marine resources remained shallow ultimately resulting in a dwindling marine population. This forced the Indian fishermen to explore that side of the sea which is occupied by the territory of Sri Lanka thereby, preventing the Sri Lankan fishermen to enjoy the privilege of fishing uninterruptedly. In this process, the Indian fishermen got arrested and were shot by the security forces of Sri Lanka.
Secondly, the reason for the continuous diminishing of fisheries is due to the heavy use of trawlers on the sea bed. With the advancement in time, new methods were developed to undertake fishing activities like the usage of gill nets, modern trawlers. Indian fishermen, for a long time now, have been using bottom trawlers which are banned as per the international fishing regime as it destructs the seafloor and the natural habitat of marine life. Continuous usage of trawlers has stymied the natural resources found in the sea and has damaged the aquatic culture as well. In 2006, the UN Secretary-General reported that 95 percent of the damage to seamount ecosystems worldwide was due to ‘bottom trawling’.
Tamil Nadu enacted Tamil Nadu Marine Fisheries Regulation Act in 1983, under which it was established that bottom trawling operations shall not be conducted within 3 nautical miles from the coast. This area would be reserved for artisanal fishermen who use non-mechanised techniques for fishing. But it was claimed by the artisanal fishermen that no such actions in furtherance of the Act were taken by the government. This has led the traditional fishermen to work as labourers from owners thereby increasing the usage of mechanised techniques. The trawler sector in Tamil Nadu is also politically influential and financially sound making it more obdurate to solutions that could cut down its profit margins.
Thirdly, the upsurge of the Sri Lankan Navy in the Palk Strait has made it difficult for the Indian fishermen to access the resources. During the Eelam War IV, when orders were passed by the Sri Lankan government to halt the fishermen to conduct their chores in the northern waters, Indian fishermen continued to enjoy free access to the Sri Lankan waters as no authority was contemplating their actions. They exploited the fisheries from the waters of the other country through the usage of bottom trawlers. Later, when the restrictions for Sri Lankan fishermen were removed and it was noticed that Indian boats have been luring in their waters, stricter rules thereby banning bottom trawlers and imposing heavy fines for trespassing of foreign vehicles.
The failure to demarcate the IMBL and making the fishermen aware of the same has further added to the conflict. Most of the time, the fishermen remain unaware of the borders and cross over, straying from their path. Many a time it has resulted in devastation for the Indian fishermen as Sri Lanka resorts to harsher punishments as compared to India.
Recently, the High Court of Madras, in observance of the plight of the Indian fishermen, asked the Centre to take relevant steps to protect the fishermen and educate them regarding the borders. In the present case, a PIL was filed by KK Ramesh under Article 226 of the Indian Constitution to issue a writ of mandamus. On 18th January 2021, four Indian fishermen were killed by the Sri Lankan navy who had strayed into Sri Lankan waters or, at any rate, had crossed the international maritime boundary line. In furtherance of this incident, the present matter was filed before the Madurai bench of the Madras High Court.
The PIL sought to demand certain claims from the court. These are:
- To arrest and cease the accused Sri Lankan naval personnel and their naval boat who killed 4 Indian fishermen on 18.01.2021.
- To get compensation from the Sri Lankan Government to the families of 4 murdered Indian fishermen.
- To take adequate steps to protect the Tamil Nadu fishermen and their properties from the Sri Lankan Navy (such as boats and nets).
Before the said PIL was filed in the Madras High Court, a separate plea was also brought before the Supreme Court regarding the matter. In February, advocate Narender Kumar Verma and CR Jaya Sukin filed a plea before the Supreme Court demanding the arrest of the Sri Lankan naval personnel who allegedly killed four Indian fishermen in January 2021 and further compensation of Rs. 5 crores each from the Sri Lankan Government to the family of the victims. The plea also prayed for steps to be taken to protect the Indian fishermen from a constant fear of injury from the Sri Lankan navy. Further, a uniform Act to ensure the protection of the rights of the traditional fishermen and to regulate marine fishing was also demanded. The Supreme Court ordered that the plea should be presented before the Madras High Court and the representation should be made to the government in respect of the same.
The bench of Madurai headed by Justice Sanjib Bannerjee and Justice R Hemalatha acknowledged the predicament of the Indian fishermen and advised the government to undertake measures to protect them. The Court, without being jingoistic, ordered the Indian government to make efforts to persuade the Sri Lankan authorities to abstain from using extreme punishments against the Indian fishermen who accidentally overstep the boundaries of the maritime divide. A common consensus should be reached between the countries so that the fishermen do not suffer because of the conflict. Further, the Court also ordered the Indian government that while exercising the authority to punish Sri Lankan fishermen who cross over the IMBL without being aware of the same, severe measures should not be taken against them.
The Court recognised the need to educate the fishermen regarding the maritime borders. In addition to this, the Court observed that, if required, gadgets should be installed in the boats to enable the fishermen to trace the borders and avoid accidental overstepping. Since the IMBL is geo-tagged it will empower the fishermen to locate the exact position of the borders with the correct tools.
In response, the central government remarked that various efforts have been attempted to improve diplomatic relations between both countries. Further, it was stated that a joint working party on fisheries from both India and Sri Lanka met on 30th December 2020 where the issue was discussed. The Court, at last, dismissed the PIL without any interference with the working of the Sri Lankan government or any order as such.
In September 2020, the Fisheries Department drafted the National Fisheries Policy by integrating the three existing policies related to fisheries in India namely, the National Policy on Marine Fisheries, 2017 (NPMF), the Draft National Inland Fisheries and Aquaculture Policy (NIFAP) 2019, and the Draft National Mariculture Policy (NMP) 2019. The policy aims to create an inclusive fisheries sector encapsulating all the essentials in a single document and establishing an environment for sector investment, double exports and income of fishermen. The policy tries to fulfil the sustainable development goals along with the objectives of the Agriculture Export Policy 2018 and to attain the elements of the “Blue Growth initiative”. It aims to uplift the socio-economic stability of the fishermen, especially traditional and small-scale fishermen.
Some of the main strategies under the scheme are:
- Fisheries Management Plans (FMPs) will be formulated by the Government of India for the scientific regulation & management of marine fisheries resources.
- Fisheries development and spatial plans will be initiated to improve their share in the economy and to keep a check on the data and analysis.
- A state-level Inter-departmental Coordination Committee for Fisheries will be formed.
- A framework will be established to rebuild the marine stocks without changing the natural diversity.
- Public-private partnerships will be encouraged to bring in investments in the fisheries sector.
- Cluster-based will be implemented to develop aquaculture.
There are concerns that are raised by the fishermen community as the policy neglects the rights of the fishermen. Some of the important questions and grievances raised on the draft are:
- The scheme is largely export-oriented, production-driven, and based on capital investments. This led to the denial of the rights of the fishermen and the protection of the environment in the long run.
- Integrating the entire fisheries sector is not appreciable as inland fishing is very different from marine fishing and inclusion of both in a single draft is not viable.
- According to the National Fishworkers Forum (NFF), the policy remains silent on the protection of the fishermen and is more focused on the economy. It deals with resource exploitation rather than management of the same.
- Further, there is no scope of gender neutrality as the policy has not addressed the aspect of women, classes and castes being associated with the fisheries sector in India.
- The policy calls for heavy economic investments and capital-intensive technologies which will be harmful to the environment as well as the society.
- It would adversely impact the traditional and small fishermen, in addition, to be hazardous to the marine habitat as it would cause a lot of pollution due to eutrophication of the water bodies.
The Tamil Nadu government through an order dated February 17, 2020, banned the usage of purse seine nets as it was destroying the ecosystem and the livelihoods of the traditional fishermen. The order amended Rule 17 sub-rule 7 of the Tamil Nadu Marine Fishing Regulation Rules 1983. The was further upheld by the Madras High Court in a plea to uplift the ban on purse seine nets as it has adversely affected the livelihoods of fishermen using mechanised techniques to carry out their businesses.
As far as the discrepancies of Indian fishermen are concerned, one of the major demands of the fishermen is the provision of marine resources and fisheries on which their livelihoods are based. Thereby, the Central government along with the State government should initiate comprehensive and effective measures to boost their daily chores. Further, the government should also explore alternative means of livelihood for the fishermen. The Department of Ocean Development and Ministry of Earth Sciences, which are responsible for providing technical support to the states for the development of fisheries, should establish an integrated plan for creating new opportunities for Indian fishermen so that they do not become overly dependent on fishing. An outline, formulating the method to conduct fishing in an organised and institutional manner, should be framed.
Registered cooperatives or government-regulated institutions can be established for undertaking responsible marine culture. This will depreciate the dependence of fishermen on fishing activities thereby curbing the straying into Sri Lankan territory. The Indian government should also take measures to curb the usage of bottom trawlers or it should be used in a regulated manner. Many countries, to diminish the destruction of marine life, have banned the use of trawlers. Like the EU which developed the Common Fisheries Policy in 1970 which regulates and restricts the usage of bottom trawlers along with the preservation of marine culture.
While entering into an agreement, neither India nor Sri Lanka established common grounds for punishment and peaceful resolution. As a result of which, Sri Lanka has resorted to extreme measures. It is suggested that the governments in New Delhi and Colombo should agree to “coordinated patrolling” by naval forces of both countries. It should be practised to the extent of apprehending and handing over the accused to their respective countries where they will be tried for the same as opposed to the harsh and inhumane conditions of the other country.
In accordance with the decision of the Madras High Court, the central, as well as state government, should arrange awareness programs for the fishermen. It is the duty of the government to spread awareness among the fishermen community regarding the maritime borders to prevent treading over Sri Lanka’s territory. Operation Tasha has been instituted to prevent illegal activity in the Palk Strait thereby protecting the fishermen from shooting incidents due to “mistaken identity”. Further, a modern Global Positioning System (GPS hereinafter) like “Garmin 585” GPS should be installed in the mechanised boats of the fishermen which would enable them to navigate through the international borders.
The South Asian Association for Regional Cooperation (SAARC hereinafter) is one such organisation that is empowered to take decisions in these evolving disputes. The Charter of the organisation clearly specifies that it aims to promote the welfare and development of mutual relations among the countries and improve the quality of life of the people with active assistance. Therefore, a regional dispute over illegal fishing across the borders of the country can be dealt with by the SAARC. There are various ways by which SAARC can assist the member states. It can organise Action Committees to initiate awareness programs. Schemes such as Foreign Fishing Licensing scheme can be established which would help conduct the fishing activities in a regularise manner. It can also frame guidelines for illegal activities and unregulated activities by the bordering states.
Another organisation that can address the issue of illegal fishing is the Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation (BIMSTEC hereinafter). An enhanced system of fishery management protecting the ecosystem should be undertaken by the member states. Also, in 2016, the leaders of all the member countries reaffirmed their commitment to “cooperation in the sustainable development of fisheries in this region” at a retreat in Goa. Therefore, there is potential that the underlying dispute between Sri Lanka and India can be resolved by these organisations.
The role of the Indian government is crucial to desist from further aggravating the dispute. Keeping in view the countries’ sentiments and their respective fishermen communities, an amicable settlement should be observed. In addition to securing the rights of the fishermen, preserving the natural habitat of the marine culture is prominent. Without violating the laws and the rights of the fishermen, a common ground for failure to perform the agreement should be established. Rather than viewing the offenders with hatred, more humane measures should be adopted.
Further, the government and the concerned ministries should continuously explore different fields of expansion of the scope of livelihoods for the fishermen. Evolving different eco-friendly techniques for exploiting the fisheries is the need of the hour along with reducing the dependency on fishing altogether. No doubt, the turmoil and diplomatic disturbances between countries destroy the prevailing peace in the society. Therefore, it is recommended to proactively adopt solutions to foster long-term cooperation and peace bilaterally.
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