TEAM CODE 146

___________________________________________________________________________

IN THE HON’BLE
SUPREME COURT OF INDIA
NEW DELHI

___________________________________________________________________________

THE FISHERMEN PROTECTION FORUM (FPF)

Petitioners

V.

UNION OF INDIA

Respondent

___________________________________________________________________________

August, 2014

__________________________________________________________________________

MEMORANDUM FOR THE PETITIONERS

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Table of Contents__________________________________________________________________________i

TABLE OF CONTENTS

________________________________________________________
List of Abbreviations…………………………………………………….…………………....iv

Index of Authorities………………………………………………………………………......vi

Statement of Jurisdiction…………………………………………………………..….….…..xii

Statement of Facts…………………………………………………………………………...xiii

Questions Presented…………………………………………………………………………xiv

Summary of Arguments……………………………………………………………………...xv

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Arguments…..…………………………………………………………………………………1

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[I] THE PETITIONER HAD COMPLETE AND APPROPRIATE LOCUS STANDI IN THE PRESENT

DISPUTE ……………………………….…………………....……………1

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[II] THE AGREEMENT OF 1974, IS CONSTITUTIONALLY INVALID

.………………………………………………………………………………10
[II.A] A CONSTITUTIONAL AMENDMENTS WAS NECESSARY BEFORE SIGNING THE 1974

AMENDMENTS………………………………………………………………………………...11

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[III] INDIA CAN CLAIM ITS SOVEREIGNTY OVER THE KACHCHATIVU ISLAND CEDED TO SRI

LANKA………………...…15

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CONCLUSION AND PRAYER FOR RELIEF…………………………………….……………..24

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PETITIONERS’ BRIEF
List of Abbreviations_______________________________________________________________________iv

LIST OF ABBREVIATIONS
§ Section

§§ Sections

AC Appeal Cases

Co. Company

Ed. Editor

Eds. Editors

ICCPR International Covenant on Civil and Political Rights

IPC Indian Penal Code

Ltd. Limited

p. Page

PIL Public Interest Litigation

pp. pages

Pvt. Private

Rep. Reprint

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

UDHR Universal Declaration on Human Rights

v. Versus

Vol. Volume

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PETITIONERS’ BRIEF
Index of Authorities_______________________________________________________________________vi

INDEX OF AUTHORITIES
NATIONAL CASE LAWS

LIST OF BOOKS AND TREATISES

Basu D.D., Shorter Constitution of India, Prentice Hall of India Pvt. Ltd, Nagpur, 1996

Basu, Durga Das, Shorter Constitution of India (Wadhwa and Company, 2003 Rep.: Nagpur)

Jain, M.P., Indian Constitutional Law, Wadhwa & Company, Nagpur, 2005

Jain, M.P, Jain S.N., Principles of Administrative Law, Fourth Edition (Rep. 2005), Wadhwa

& Co., Nagpur

Shukla V.N., Constitution of India, Tenth Edition (Rep. 2003), Eastern Book Company,

Lucknow, 2004 (Rep.)

DICTIONARIES AND ENCYCLOPAEDIA

Garner, Bryan A. Ed., Black’s Law Dictionary, Seventh Edition (1999), West Group, St. Paul

STATUTORY & OTHER AUTORITIES

Constitution of India, 1950

INTERNATIONAL CONVENTIONS AND TREATIES

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PETITIONERS’ BRIEF
Statement of Jurisdiction____________________________________________________________________xii

STATEMENT OF JURISDICTION
The Fisherman Protection Forum (FPF) have approached the Hon’ble Supreme Court of India

under Article 32 of the Constitution of India.

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PETITIONERS’ BRIEF
Questions Presented_______________________________________________________________________xiv

STATEMENT OF FACTS

 Kachchativu, is a disputed uninhabited island administered by Sri Lanka, lying in Palk

Starit between India and Sri Lanka. The island was originally owned by the erstwhile

Ramanad Kingdom of Ramanathapuram Dist. (Tamil Nadu).

 The ownership claim was never settled even after the independence of both the countries.

There was no convincing evidence to substantiate each other’s historical claims.

 In 1974, India and Sri Lanka signed the Historic Waters agreement clearly demarcating

the international boundary between India and Sri Lanka in the Palk Strait region. The

demarcation of the boundary between India and Sri Lanka under article 1 of the 1974

agreement, resulted in the Kachchativu island falling within the Sri Lankan boundary.

 The island is culturally and economically significant for fishermen from Tamil Nadu and

they have been enjoying fishing and ancillary rights in the island since time immemorial.

 The island is also significant for Sri Lanka due to the presence of St. Geoge’s Church,

declared as a religious establishment by the Lankan government apart from Kachchativu

being rich in minerals and other natural resources necessary for the Sri Lankan economy.

 In the wake of the Sri Lankan civil war way back in 2009, Sri Lankan naval forces started

attacking Tamil Nadu fishermen who were exercising their ancestral rights over the

disputed island. And by the end of 2013, the killing of Tamilian fishermen from Tamil

Nadu had become so rampant and this has led the petitioner, THE FISHERMEN

PROTECTION FORUM, a non-profit NGO working on the cause of the fishermen to

approach the Hon’ble Supreme Court of India under article 32 by virtue of a writ petition

challenging the Constitutional validity of the 1974 Indo-Sri Lanka agreement.

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PETITIONERS’ BRIEF
Questions Presented_______________________________________________________________________xv

QUESTIONS PRESENTED

I. WHETHER THE PETITIONER HAD THE LOCUS STANDI WITH RESPECT TO THE PRESENT

DISPUTE?

II. WHETHER THE 1974 AGREEMENT IS CONSTITUTIONALLY VALID? OR WAS A

CONSTITUTIONAL AMENDMENT NECESSARY BEFORE SIGNING THE 1974 AGREEMENT?

III. HAVING ASSERTED THAT KACHCHATIVU WAS CEDED TO SRI LANKA, CAN INDIA

RECLAIM ITS SOVEREIGNTY OVER KACHCHATIVU WHICH MAY BE IN CONTRAVENTION

TO THE 1974 AGREEMENT?

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PETITIONERS’ BRIEF
Summary of Arguments____________________________________________________________________xv

SUMMARY OF ARGUMENTS
I. R

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PETITIONERS’ BRIEF
Conclusion and Prayer for Relief_____________________________________________________________24

ARGUMENTS
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[I] THE PETITIONER HAVE COMPLETE AND APPROPRIATE LOCUS STANDI IN THE PRESENT

DISPUTE

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[1A] THE PETITIONER HAS MOVED THE HON’BLE SUPREME COURT OF INDIA UNDER

ARTICLE 32 OF THE CONSTITUTION OF INDIA.

The petitioner on behalf of the poor and vulnerable fishermen has filed this writ petition in

public interest as public interest litigation, challenging the agreement of 1974 between India

and Srilanka before this hon’ble court.

The petitioner most respectfully submits that the Article 32(2) of the Indian constitution says

that, “the supreme court shall have power to issue direction or order or writs including writs

in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever

may be appropriate for the enforcement of any of the rights conferred by this part.”

Under article 32 the Supreme Court enjoys a broad discretion in matter of framing the writs

to suit the exigency of the particular case and it would not throw the application of the

petitioner simply on the ground that the proper writ and direction has not been prayed for1.

In the case of Daryao v. State of Uttar Pradesh 2 the court held that, the Fundamental Rights

are intended not only to protect indivisual’s right but they are based on the high public policy.

Thus the Hob’ble court was considered to be the protector and guarantor of the Fundamental

Right.3

1
Chiranjiti lal vs. Union of India. AIR 1951 SC 241
2
AIR 1961SC1457
3
Romesh Thappar v. State of Madras AIR,1950SC124

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Conclusion and Prayer for Relief_____________________________________________________________24

[2A]THE FUNDAMENTAL RIGHTS OF THE FISHERMEN ARE VIOLATED BY THE AGREEMENT

OF 1974 SIGNED BETWEEN INDIA AND SRILANKA

In the present case, due to Idian Srilankan agreement the Indian fishermen are restricted to go

to the kacchativu island for fishing which is the violation of article 19(1)(g) of the Indian

constitution which says, "all citizens shall have right- to practise any proffesion, or to carry

on any occupation, trade, or business." This right has been a historical and traditional right

which is also a economic necessity for them as they have been going to this island for fishing

from time immemorial.

Article 54 clearly specifies that, Indian fishermen and pilgrims will enjoy access to visit

Kachchativu as hitherto, and will not be required by Sri Lanka to obtain travel documents or

visas for these purposes. But the recent activities of killing of the Indian fishermen in the

Kachchativu Island by the Srilankan Naval forces has restricted the Indian fishermen from

going to the island and fishing, thus violating the fundamental right of trade and profession

and also violating their right to life guaranteed under article 21 of the Indian constitution.

In Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors5., the SC held that the sweep

of the right to life conferred by Art. 21 is wide and far reaching. An important facet of this

right is the right to livelihood because no person can live without the means of living. If the

right to livelihood is not treated as part of the constitutional right to live, the easiest way of

depriving a person of his right to life would be to deprive him of his means of livelihood to

the point of abrogation. Such deprivation would not only denude the life of its effective

content and meaningfulness but it would make life impossible to live.

4
1974 agreement between India and Sri Lanka
5
AIR 1986 SC 180 at p. 192

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PETITIONERS’ BRIEF
Conclusion and Prayer for Relief_____________________________________________________________24

[3A] THE PETITIONER HAS THE LOCUS STANDI TO FILE A WRIT ON BEHALF OF THE

FISHERMEN

Locus Standi means, “a place of standing in a court. It is used in legal parlance, to means a

right of appearance in a court of justice or before a legislative body on a given question.”6

In the case of Vinoy Kumar vs. State of U.P 7, the Hon'ble Supreme Court held that a person

shall have locus standi to file a writ petition if he it is shown that the legal wrong or legal

injury or illegal burden is threatened and such person or determined class of person is, by

reason or poverty, helplessness or disability or socially or economically disadvantage

position, unable to approch the court for the relief."

The Hon’ble Supreme Court of India in the case of Hussainara Khatoon (I) v. Sate of Bihar8

accepted the writ petition filed by an advocate on behalf of the various undertrial prisoners in

the state of Bihar. Similarly is the present case the petitioner i.e. the Fishermen Protection

Forum (FPF), has moved this court on behalf of the poor and vulnerable fishermen who could

not seek fair justice on their own.

In another celebrated case of S.P. Gupta v. Union of India9, the 7-judge bench, recognizing

the locus standi of the bar association to file writ by way of public interest litigation, held that

any member of the public having “sufficient interest” can approach the court for enforcing

the Constitutional or legal rights of those, who cannot go to the court because of their poverty

or other disabilities. On the same issue, Justice Bhagawati emphasized and said that,

“It must now be regarded as well-settled law where a person who has suffered a legal wrong

or a legal injury or whose legal right or legally protected interest is violated, is unable to

approach the court on account of some disability or it is not practicable for him to move the

6
Black's Law dictionary, (1990), page 941.
7
AIR 2001, SC 1739
8
(1980) 1 SCC 81
9
(1981) Supp. SCC 87

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PETITIONERS’ BRIEF
Conclusion and Prayer for Relief_____________________________________________________________24

court for some other sufficient reasons, such as his socially or economically disadvantaged

position, some other person can invoke the assistance of the court for the purpose of

providing judicial redress to the person wronged or injured, so that the legal wrong or injury

caused to such person does not go unredressed and justice is done to him.”

Thus relying on the above based case laws and the principle laid down in Vinoy Kumar vs.

State of U.P10, this Hon’ble court should appreciate the fact and consider a liberal view for

deciding the locus standi of the FPF, with the status of an NGO, litigating bona fide for the

welfare of the poor and illiterate fishermen who could not fight for their right themselves.

Hence the writ petition filed by the petitioner has locus standi in the present case, as there is

violation of the fundamental rights of the fishermen, who have moved this court under writ

petition in respect of public interest by a bona fide third person, i.e. FPF.

___________________________________________________________________________

[II] THE AGREEMENT OF 1974, BETWEEN INDIA AND SRILANKA IS CONSTITUTIONALLY

INVALID

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[II.A] A CONSTITUTIONAL AMENDMENTS WAS NECESSARY BEFORE SIGNING THE 1974

AMENDMENTS

The petitioner most humbly submits before this hon’ble court that ceding of Indian territory

requires amendment of the Constitution by Parliament. The territory of India is defined in

Article 1(2) of the Constitution read with Schedule 1 to the Constitution. Entry 7 in Schedule

1 defines the territorial extent of the State of Tamil Nadu. And as it is very much clear by the

facts of the case that the Kachchativu island was owned by the erstwhile Ramanad Kingdom

of Ramanathapuram Dist. (Tamil Nadu). Thus, alienation of any part of the territory of Tamil

Nadu, to be valid in Indian law, requires an amendment of the first Schedule to the

Constitution.
10
Ibid

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PETITIONERS’ BRIEF
Conclusion and Prayer for Relief_____________________________________________________________24

The Hon’ble Supreme Court of India in the famous case of, Re Berubari Union and.. v.

Unknown11 held that any treaty entered into by India purportedly ceding Indian territory to a

foreign power is without effect in Indian law unless Parliament chooses to give effect to the

same through an amendment to the Constitution.

Cession means transfer of sovereignty over a territory from one state to another. As an

attribute of sovereignty12, every sovereign State possesses the power not only to acquire new

territory but also to cede any part thereof to foreign state. It is affected by means of a treaty

between the two states accompanied by an actual transfer of possession to the transferee state.

But though the power to cede is derived from sovereignty, it may be subjected to limitations

by the constitutional law of the land subject to which only a sovereign can act when the rights

of its citizen are to be affected.13

The Hon’ble court in the Berubari case held clearly that clause (c) of Article 3 is restricted to

inter-state adjustments and does not apply to cession of territory in favour of a foreign state14.

Hence an agreement which involves a cession of a part of the territory of India in favour of a

foreign state cannot be implemented before amending the Constitution15.

The hon’ble court had also answered to the question that yes a legislative action is required

before ceding any property to a foreign nation and a law of Parliament relatable to both Art.

368 and Art. 3 would be necessary for the Parliament to first pass a law amending Art. 3 and

then the parliament have to pass a law on those lines under Art. 368 and then follow it up

with a law relatable to the amended Art.3 to implement the agreement.16

11
AIR 1960SC 845.
12
COOLEY, Constitutional Law, 4th Ed., p. 409; Starks, International Law (1972), p. 181
13
Re Berubari Union, AIR 1960 SC 845 (857)
14
Ibid
15
Ibid
16
In Re: The Berubari Union And ... vs Unknown, AIR 1960 SC 845

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PETITIONERS’ BRIEF
Conclusion and Prayer for Relief_____________________________________________________________24

The Supreme Court has opined17 that thought the power to cede territory is derived from

sovereignty, under the Indian constitution which cannot be affected or changed to give effect

to a mere treaty. An amendment of the constitution is necessary because it would involve an

alteration of the territory of India, which can be done only by an amendment of the First

schedule of the Constitution, in accordance with Article 368. This is the due procedure to

carry out the ceding of the property, which has not been followed in the present case as the

sovereignty over the property was given up to the foreign nation without making any

amendment to the constitution.

In an another landmark case of Ram Kishore Sen v. Union Of India18 the Hon’ble court

concluded that the power to cede a part of the national territory and the power to acquire

additional territory were the inherent attributes of sovereignty but if any part of the national

territory was intended to be ceded, a law relating to Art. 3 alone would not be enough unless

appropriate action was taken by the Indian Parliament under Art. 368. The court further

emphasized that the Parliament passed the Constitution (Ninth Amendment) Act, 1960.

Under this amendment, "appointed day" means such date as the Central Government may, by

notification in the Official Gazette, appoint as the date for the transfer of territories to

Pakistan in pursuance of the 'Indo-Pakistan Agreements' which means the Agreements dated

the 10th September, 1958, the 23rd October, 1959, and the 11th January, 1960 entered into

between the Government of India and Pakistan. No such “appointed day” has been appointed

for the transfer of the territory to Srilanka by India in the present situation.

In the present case, The Fishermen Protection Forum (FPF) v. Union of India, in the absence

of due procedure followed, defined by the Constitution of India and judiciary for cessation

the property, the agreement between India and Sri lanka in 1974 is unconstitutional and not

valid, as it also violates Article 3 of the Constitution of India.

17
AIR 1960 EC 845
18
AIR 1966 664

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PETITIONERS’ BRIEF
Conclusion and Prayer for Relief_____________________________________________________________24

___________________________________________________________________________

[III] INDIA CAN CLAIM ITS SOVEREIGNTY OVER THE KACHCHATIVU ISLAND CEDED TO SRI

LANKA

___________________________________________________________________________

[III.A] NO RATIFICATION DONE BY THE GOVERNMNETS OF INDIA AND SRILANKA

It is humbly submitted by the petitioner before this hon’ble court that according to Article

14(1)(b) of the Vienna Convention19 states that,

The consent of a States to be bound by a treaty is expressed by ratification when:

The treaty provides for such a consent to be expressed by means of ratification.

Since there has been a clause of ratification in the agreement of 1974,ratification of the treaty

is necessary between the negotiating states. But there is no indication that the India-Sri Lanka

agreements have been ratified by the President of India. And as a result of which this

agreement cannot hold good in the eyes of international law and must be declared void ab

initio.

Now the fact must be appreciated by this hon’ble court that article VIII of the agreement of

197420, stipulates obtaining a ratification agreed upon by both the nations, which could be

done by bringing a suitable amendment to the constitution before enforcing the agreement.

No such ratification or sanction has been obtained in the present case and as a result this

agreement has lost his sanction, has become inoperative and unenforceable. Therefore India

retains its historical sovereignty over the land.

19
23rd May, 1969
20
This Agreement shall be subject to ratification. It shall enter into force on the date of exchange of the
instruments of ratification which will take place as soon as possible.

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PETITIONERS’ BRIEF
Conclusion and Prayer for Relief_____________________________________________________________24

[III.B] BREACH OF THE TERMS AND CONDITIONS OF THE 1976 AGREEMENT BY THE

SRILANKAN GOVERNMENT.

The terms of the agreement of the 1974, has been violated by the Sri lankan government, who

have breached article V and VI of the agreement which states,

Subject to the foregoing, Indian fishermen and pilgrims will enjoy access to visit Kachchativu

as hitherto, and will not be required by Sri Lanka to obtain travel documents or visas for

these purpose21s, and

The vessels of Sri Lanka and India will enjoy in each other's waters such rights as they have

traditionally enjoyed therein.22

As the Indian fishermen are not allowed to enjoy their traditional rights and visit

Kachachativu island, which is their right not just by terms of the agreement signed by the

parties but is also their fundamental right, as they have been enjoying this right from time

immemorial and are dependent on the island for their livelihood. Since the live threatening

attacks by the Srilankan naval forces had deprived the Indian fishermen of the fundamental

right to livelihood enshrined under Article 21 of the Constitution of India.

In a recent judgment23, the hon’ble Supreme Court of India has said that every individual has

right to livelihood and it must not be taken away by any individual at any cost.

Thus the terms of the agreement have been violated by the Srilankan Government and in turn

this agreement must be considered as null and void.

21
Article V of the 1974 agreement
22
Article VI of the 1974 agreement
23
Occupational Health and Safety Association v. Union Of India,

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PETITIONERS’ BRIEF
Conclusion and Prayer for Relief_____________________________________________________________24

III.B] INDIA HAVING RIGHT OVER KACHCHATIVU ISLAND AS PER MARITIME ZONES ACT
As per the Maritime Zones Act24 section 5, which deals with the Contiguous zone states

(1) the sea beyond the territorial waters referred to in section 4, but within a distance of

twenty four nautical miles from the baselines, shall be the contiguous zone of the Republic.

(2) within the contiguous zone and airspace above it, the republic shall have right to exercise

all the power which may be considered necessary to prevent contravention of any other

facial law or any customs, emigration or sanitary law and to make such contravention

punishable.

The court must appreciate the fact that since this agreement is null and void the court’s

jurisdiction extends up to the contiguous zone (up to 24 nautical miles) of India. Section 5 of

the Maritime Zones Act specifically provides Indian courts with powers in the contiguous

zone in matters where the “security of India” is involved. In the present matters pertaining to

Katchatheevu, which is 18 nautical miles off the Indian coast, and the safety of the fishermen

in the waters around it is within the ambit of Indian courts.

In the present case, as there is a clause of ratification by the government of india and since

india has not ratified this agreement the agreement stands null and void at the very foot step

of its inception. Also as per the Maritime Zone Act, the area of 24 nautical miles is within the

ambit of Indian jurisdiction and the island fall within this territory at 18 nautical miles. Thus

india has sovereignty over the island as per this law and as the srilankan government has

itself breached the terms of the agreement the agreement can be declared as null and void.

Therefore India can claim its sovereignty over the Kachchativu island.

24
Of 1994

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PETITIONERS’ BRIEF
Conclusion and Prayer for Relief_____________________________________________________________24

CONCLUSION AND PRAYER FOR RELIEF

In light of the facts stated, issues raised arguments advanced and authorities cited, it is

submitted that the honorable Supreme Court of India be pleased -

1. To allow the petition.

2. Declair the 1974 agreement between India nad Srilanka as void ab initio and

unconstitutional.

3. Give directions to the legislature and executive to take back the sovereignty of the

Kacchativu island.

4. Pass any other writ or order or make any direction as the court may deem fit to meet

the interests of justice in the instant case .

All of which is respectfully prayed

PLACE: NEW DELHI COUNSELS FOR PETITIONERS

DATE: AUGUST 28, 2014 X___________________

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PETITIONERS’ BRIEF
Conclusion and Prayer for Relief_____________________________________________________________24

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PETITIONERS’ BRIEF