📰 Time for India and Nepal to make up
The mending of the most exemplary inter-state relationship of South Asia must be as dramatic and rapid as the rupture
•When the Nepal-India dispute over the Himalayan territory of Limpiyadhura flared up in May, New Delhi opinion-makers presented it as the doing of an upstart nation run by a renegade Prime Minister thumbing its nose at India, that too at Beijing’s instigation. Kathmandu’s polity bristled at the accusation and the entire political spectrum came together in nationalist climax to adopt a new map which included Limpiyadhura.
•There has been much blood-letting over the past four months, with one side (India) petulant, the other angry. New Delhi pointedly says it will sit for talks only after the COVID-19 pandemic and some north Indian TV channels have targeted Nepal’s Prime Minister K.P. Oli with revolting coverage. In turn, he abandoned diplomatic decorum to question India’s commitment to ‘satyameva jayate’ and then claimed the true birthplace of Lord Ram was situated in present-day Nepal.
•This tailspin must be halted so that the most exemplary inter-state relationship of South Asia may recover. De-escalation must happen before the social, cultural and economic flows across the open border suffer long-term damage.
Fear of abandonment
•Right off the bat, New Delhi analysts must try and understand why Nepal does not have an ‘independence day’. It would help them in unravelling the Limpiyadhura tangle and accepting the need to go back to the archival papers (and misdemeanours) of the East India Company and the successive Viceroys and Governors General — right down to the imperious present.
•From the Kathmandu perspective, Indian diplomacy seems increasingly unresponsive under the centralised control of the Prime Minister’s Office. As geopolitical capacity dwindled, Indian commentators have returned to lambasting hapless Pakistan while ignoring China, the true would-be adversary.
•With regard to China, New Delhi has nurtured a paralysing paranoia regarding the Himalayan range that goes back to the 1962 debacle, a condition now worsened by the Galwan intrusion. Nepal, Bhutan and India’s own Himalayan tracts are regarded merely as strategic buffers under this ossified policy. In addition, there is the constant preoccupation with neighbours who have supposedly ‘sold out’ to China. A confident nation-state without fear of abandonment would have behaved differently on Limpiyadhura.
•The cause of the chasm that has opened up between Kathmandu and Delhi relates to the disputed ownership of the triangle north of Kumaon, including the Limpiyadhura ridgeline, the high pass into Tibet at Lipu Lek, and the Kalapani area hosting an Indian Army garrison.
•New Delhi’s position on the dispute is based on its decades-long possession of the territory, coupled with Kathmandu’s implied acquiescence through its silence and the omission of Limpiyadhura on its own official maps.
•Nepal’s claim is centred on the Treaty of Sugauli (1815), whose language reads the “Rajah of Nipal renounces all claim to the countries lying to the west of the River Kali”. No agreement has superseded that treaty, and so no subsequent cartographic chicanery by the Company Sarkar or successor governments can undermine the 1815 document. Essentially, Nepal wants to stay with what was considered the upstream Kali at the time of the treaty’s signing 205 years ago.
•While the colonised parts of South Asia have had to deal western surnames that pervade their maps and frontiers, such as Radcliffe, McMahon and Durand, a historically evolved country such as Nepal would tend to rely more on proof of continuous state administration.
•Journalist Bhairab Risal (who celebrated his 93rd birthday on August 13) was the government official conducting the 1953 national census in the Limpiyadhura villages, whose citizens also voted in the first democratic elections of 1959. Land records were kept in Nepal’s district headquarters of Darchula and Baitadi until access was blocked in the 1960s by the Indian base at Kalapani.
•Kathmandu responded with sensitivity to Indian strategic concerns before and after the 1962 China-India war by allowing the Indian army post to be stationed within what was clearly its territory at Kalapani and not publicly demanding its withdrawal. However, following the advent of democracy in 1990, the demand for evacuation of Kalapani gained momentum.
•Kathmandu’s diplomats deny the accusation of passivity over the decades, saying that as the weaker power, Nepal preferred quiet diplomacy and that Kalapani had never been off the table since talks began in the early 1980s. As for the ‘possession’ argument, if control of a disputed region were to confirm ownership, then what of China’s continuous hold over Aksai Chin since Independence? Regarding the suggestion of Nepal acting on China’s ‘behest’, in fact Kathmandu considers China complicit on Lipu Lek, and has lodged strong protests with Beijing regarding its joint plans with New Delhi on use of the high pass.
Road to Lipu Lek
•From the time when a joint communiqué was issued in 1997 during I.K. Gujral’s prime ministership down to the present time of Prime Minister Narendra Modi, the two governments have agreed that a territorial dispute exists on upstream Kali and have assigned negotiators. A border demarcation team was able to delineate 98% of the 1,751 km Nepal-India frontier, but not Susta along the Gandaki flats and the upper tracts of the Kali.
•In 2014, India’s External Affairs Minister Sushma Swaraj agreed to the establishment of a Border Working Group, which was announced by Prime Minister Modi and Prime Minister Sushil Koirala. It too failed to make headway. In August 2019, India’s Minister for External Affairs S. Jaishanker and Nepal’s Minister of Foreign Affairs Pradip Gyawali assigned the task to the two Foreign Secretaries. That was where matters rested, with India dragging its feet on the Foreign Secretaries’ meeting, when things went awry.
•Nepal has been keen to sort out the matter away from the limelight. It was after India published its new political map in November following the bifurcation of Jammu and Kashmir and Ladakh that the pressure arose for Kathmandu to put out its own map incorporating the Limpiyadhura finger. The government cartographers got busy.
•Knowing full well the dangers of taking on the Indian lion, Prime Minister Oli held off on the map release while waiting for New Delhi to come to the table. But diplomacy did not get a chance, with the Ministry of Defence evidently having kept even South Block in the dark until India’s Defence Minister Rajnath Singh, with much fanfare, digitally ‘inaugurated’ the unfinished track to Lipu Lek on May 8.
•Prime Minister Oli’s position became untenable, and he proceeded with the constitutional amendment to certify the new map. Indian diplomats lobbied to keep Nepal’s Parliament from adopting the amendment, but Kathmandu needed it for the sake of cartographic parity with India in future talks.
•Truth be told — that the Limpiyadhura triangle exists now on the maps of both countries should not obstruct negotiations, when you consider that the smaller area of Kalapani, too, has remained on the maps of both countries for decades. And, life has gone on.
Dousing the volcano
•The ice was broken on August 15 when Prime Minister Oli called Prime Minister Modi on the occasion of India’s Independence Day, but that is just the beginning. Talks must be held, for which the video conference facility that has existed between the two Foreign Secretaries must be re-activated.
•Delay will wound the people of Nepal socially, culturally and economically. As the larger country, India may think it will hurt less, but only if it disregards its poorest citizens from Purvanchal to Bihar and Odisha, who rely on substantial remittance from Nepal.
•India does have experience of successfully resolving territorial disputes with Bangladesh, Sri Lanka and even Pakistan bilaterally and through third-party adjudication. Given political will at the topmost level, it should be possible to douse the Limpiyadhura volcano just as quickly as it has erupted.
•One difficulty is the apparent absence of backchannel diplomacy between the two capitals, which helped in ending the 2015 blockade. Today, India’s Prime Minister’s Office exercises such exclusive power that all channels have dried up. The Rashtriya Swayamsevak Sangh leadership might have been approached, but that was the very category Prime Minister Oli riled with his Ayodhya-in-Nepal claim.
•There is an immediate need to de-escalate and compartmentalise. The first requires verbal restraint on the part of Prime Minister Oli and India’s willingness to talk even as the pandemic continues. While India’s Foreign Office has thankfully remained restrained in its statements, India is required to maintain status quo in the disputed area. This means halting construction on the Lipu Lek track, which is the immediate cause of the present crisis.
•With the Prime Ministers setting the tone, the negotiating teams must meet with archival papers, treaties and agreements, administrative records, communications, maps and drawings. The formal negotiations should begin with ab initio public commitment by both sides to redraw their respective maps according to the negotiated settlement as and when it happens.
•Not to prejudge the outcome, if Nepal were to gain full possession of Limpiyadhura, it should declare the area a ‘zone of peace and pilgrimage’. The larger area must be demilitarised by both neighbours to ensure security for themselves, while the Kailash-Manasarovar route is kept open for pilgrims. The idea is certainly worth a thought: a Limpiyadhura Zone of Peace and Pilgrimage.
The Committee for Reforms in Criminal Law locks subjugated groups out of the consultation process
•In July, the Ministry of Home Affairs (MHA) constituted the Committee for Reforms in Criminal Law to undo the “colonial foundations of our criminal law”. The precise mandate of the Committee has not been put into the public domain, but it is apparent that the Committee aims to recommend an overhaul of the Indian criminal justice system. Among others, judges, lawyers, and activists have voiced their concerns about the composition and operation of the Committee.
•Reforms based on the Committee’s recommendations will have serious ramifications for every person who is subjected to the criminal justice system. A smoothly functioning legal system determines our freedom to live authentic lives as full citizens in a democratic polity. The (mal)administration of criminal justice shapes the boundaries of whom we love, what we say, whether we complain about violence, how we respond to hate, and many other foundational aspects of our lives. Despite the pervasive ways in which criminal laws interact with our most intimate decisions, the scope of these laws is now going to be determined by a process that is exclusionary for most of the Indian citizenry.
•If the aim is to decolonise the law, by disabling democratic deliberation, the Committee has set itself up for failure from its very inception. Decolonisation was not a moment in 1947. Decolonisation is an ongoing process, which requires a commitment to undoing the colonial logic of domination governing citizen-state relations. The Committee’s methods, on the other hand, entrench structures of oppression. As we analyse below, they treat a majority of the population as having nothing valuable to offer to the reform process.
Disabling participation
•The Committee’s procedures are designed to disable broad-based participation. The exclusive route to participation is the Committee’s website. However, only about 40% of the population actively uses the Internet. Internet usage itself is linked to structural barriers. For example, women are less likely to have Internet access; and in Kashmir, Internet services that were suspended in August 2019 are yet to be fully restored. Further, all the Committee’s documentation and background resources, including 89 reports of the Law Commission of India (LCI), are in English. The most reliable estimates suggest that only 10% of the Indian population speaks English, and most such persons reside in urban areas.
•Moreover, the life cycle of the Committee coincides with the COVID-19 pandemic. The pandemic has wrought havoc on people’s lives and livelihoods. With several marginalised groups struggling to secure even rudimentary healthcare, education and employment, it is inconceivable that they could participate meaningfully in a reform exercise of this scale at this moment in time.
•Finally, there appears to be no representation on the Committee from subaltern caste, gender, sexual, or religious groups. As far as we can tell, there is no representation from working class or disabled communities. Let alone fraught areas of conflict, there are no members on the Committee based outside of a limited geographic region in north India. It is crucial for a Committee tasked with transforming criminal justice to be more representative. It must include members who can speak to the experience of the many publics governed by the criminal law.
•Oppressed communities across India are over-policed and under-protected. Religious minorities as well as the impoverished Dalit and Adivasi communities bear the brunt of criminal laws through police violence, long periods of undertrial detention, harsh punishments and poor legal representation. Women, transgender people, and sexual minorities, who overwhelmingly experience gender-based violence, are frequently let down by the criminal justice system. The Committee’s composition and operation render democratic participation from these groups impossible.
Disabling deliberation
•Opacity has characterised the Committee’s mandate and working from the outset. There are no published Terms of Reference. There is nothing to explain why an ad hoc Committee was set up for a task of this relevance and magnitude when such questions of law reform are typically entrusted to the LCI, which has established procedures to ensure inclusion and transparency. The Committee has not undertaken to publish the representations it receives from the public during its consultation process. Nor has it explained the circumstances under which the MHA logo was added to its website and then removed, raising doubts about its autonomy. Why was the membership of the Committee, as originally advertised, altered without explanation? There can be no contestation, debate or deliberation without the Committee communicating openly and honestly with all its interlocutors.
•The Committee’s procedures also inhibit deliberation. The Committee is carrying out consultations from July to October. Within three months, respondents are expected to form and articulate reasoned opinions on almost every conceivable issue of criminal law, procedure or evidence. In contrast, the Malimath Committee, which had a comparable mandate, took five times as long as this Committee to submit its report. Just the first of the current Committee’s six consultative questionnaires contains 46 questions, several of them deploying controversial legal concepts as if they have a neutral or objective meaning. There is no formal documentation explaining the context and relevance of these questions, diminishing the prospects of productive deliberation among stakeholders.
Deliberative democracy
•A deliberative vision of democracy requires that all members of society are able to participate in collective decision-making, and that decision-making takes place through reasoned deliberation. It recognises that participation in political processes is hindered by structural inequalities produced by interlocking systems of oppression, including caste, patriarchy, disablism and communalism. As a response to these hierarchies, deliberative democracy requires that everyone participates in decision-making by giving reasons for why they prefer a particular course of action. This reasoning must be made publicly available for others to contest. Where political decision-making takes place in an open and transparent manner, oppressed groups can influence it through the strength of their reasons. This can mitigate the extent to which a lack of economic, social or political power will otherwise compromise their participation. An inclusive, transparent and meaningful public consultation process for law-making is one practical way to implement a deliberative version of democracy.
•Unfortunately, the Committee falls patently short of these ideals. It locks subjugated groups out of the consultation process so that they have no way of challenging the dominant systems of knowledge and governance that currently shape our criminal laws. It is deeply ironic that a Committee underpinned by this colonial logic professes that its primary aim is to decolonise the law.
📰 Resurrecting the right to know
The All Assam Students’ Union has taken a progressive decision to release the High Level Committee report in public interest
•A significant development in the right to information campaign has largely gone unnoticed. The resurrection of the right to know is momentous considering that we are increasingly witnessing an unfortunate denial of information while forgetting the right to know.
Releasing the report
•A High Level Committee (HLC) chaired by a retired judge of the Gauhati High Court and including, among others, the Advocates General of two Northeast States was constituted by the Home Ministry through a gazette notification of July 15, 2019. Its mandate was, among others, to recommend measures to implement Clause 6 of the Assam Accord and define “Assamese People”.
•The HLC finalised its report by mid-February 2020 and submitted it to the Assam Chief Minister soon after. He handed over the report to the Union Home Minister on March 20. With the Central government apparently “sitting idle” over the report, the All Assam Students’ Union (AASU), which was represented in the HLC, released the report on August 11. The proffered reasons for the release were the Central government’s inaction on the report and the people’s right to know.
•Sitting idle over a report is not an uncommon phenomenon. The Vohra Committee report on the alleged nexus between politicians and criminals was kept under wraps for almost two years. It was tabled in Parliament following a public uproar on the murder of Naina Sahni by a prominent politician.
•The right to know was recognised nearly 50 years ago and is the foundational basis or the direct emanation for the right to information. In State of U.P. v. Raj Narain (1975), the Supreme Court carved out a class of documents that demand protection even though their contents may not be damaging to the national interest. For example, Cabinet papers, foreign office despatches, papers regarding the security of the state and high-level interdepartmental minutes. A pragmatic view was canvassed by Justice Mathew who held that “the people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security.” This view was endorsed in
S.P. Gupta v. President of India (1981) and a few other decisions. In S.P. Gupta , Justice Venkataramiah observed that “the tendency in all democratic countries in recent times is to liberalise the restrictions placed on the right of the citizens to know what is happening in the various public offices. The emphasis now is more on the right of a citizen to know than on his ‘need to know’ the contents of official documents.”
•In Yashwant Sinha v. Central Bureau of Investigation (2019), the Supreme Court referred to the decision of the U.S. Supreme Court in New York Times v. United States (1971) wherein Justice Marshall declined to recognise the right of the government to restrain publication of the Pentagon Papers. Our Supreme Court held that a review petition based on three documents published by The Hindu was maintainable since the provisions of the Official Secrets Act, 1923 had not been violated. It held that there is no provision by which Parliament had vested power in the government either to restrain the publication of documents marked as secret or from placing such documents before a court of law which may have been called upon to adjudicate a legal issue concerning the parties. Justice K.M. Joseph referred to Section 8(2) of the Right to Information Act, 2005 which provides that a citizen can get a certified copy of a document even if the matter pertains to security or relationship with a foreign nation, if a case is made out. Therefore, it is clear that the right to know can be curtailed only in limited circumstances and if there is an overriding public interest.
Being more transparent
•Keeping in mind the view expressed by the Supreme Court over nearly 50 years, it is clear that the Official Secrets Act is not attracted to the disclosure of the HLC report. There is no doubt that a bold and progressive decision has been taken by AASU to release the report in public interest. Hopefully, this will encourage governments to effectuate the citizen’s right to know and be more transparent in public interest, as long as the security of the country is not jeopardised. As observed by the Supreme Court in S.P. Gupta : “If secrecy were to be observed in the functioning of government and the processes of government were to be kept hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority, for it would all be shrouded in the veil of secrecy without any public accountability.”
