📰 A game of chess in the Himalayas
In the stand-off with China, India has two choices — walk into the trap that has been laid, or learn from the 1962 event
•With the tensions along the Line of Actual Control (LAC) refusing to die down, despite the marathon military and diplomatic-level talks, the obvious question that stares at every stakeholder is this: is 2020 another 1962? While the future is uncertain, the present is undoubtedly tense. As stated by India’s External Affairs Minister, S. Jaishankar, this is “surely the most serious situation” along the India-China border “after 1962”.
•The parallels are hard to ignore. In August 1959, after the first border clash between Indian and Chinese troops in Longju, in the eastern sector, China said Indian troops had crossed the McMahon Line and opened fire, and the Chinese border guards had fired back. The next day, New Delhi protested against the Chinese statement, saying it was Chinese troops that had moved into Indian territory and opened fire. Sixty-one years later, the statements issued by India and China after the border clashes are eerily similar. Both sides accuse each other of transgressing across the LAC. Both sides accuse each other of opening fire. Both sides blame each other for the current stand-off.
The trigger
•What led to the war? To understand the current tensions, one has to go back in history. When the Longju incident happened, not many in India might have thought the border tensions would lead to a full-scale Chinese invasion. Prime Minister Jawaharlal Nehru and Defence Minister V.K. Krishna Menon were absolutely certain that China would not attack India. Nehru had betted big on India’s friendship with China. He saw both countries as victims of imperialism and the natural leaders of Asia. The realist in Nehru believed that peace on India’s northern border was an imperative for the newly-born republic’s rise and material development. So in the 1950s, Nehru continued to defend China in international fora. India accepted Chinese sovereignty over Tibet and signed an agreement with Peking over trade with Tibet. But what Nehru hoped in return for India’s friendship was China respecting its bequeathed boundaries — the McMahon Line in the east and the frontier (based on the 1842 Tibet-Kashmir agreement) in the west. Nehru was wrong.
•The first setback to this position was the Longju incident. Within two months, an Indian police patrol team in Kongla Pass in Ladakh came under Chinese attack. This was a wake-up call for Nehru. He asked Chinese troops to withdraw from Longju in return for an assurance from India not to reoccupy the area and proposed that both sides pull back from the disputed Aksai Chin, where China had already built (unilaterally) a strategic highway. China rejected this proposal and made a counter offer — to recognise the McMahon Line in the east in return for India’s recognition of Chinese sovereignty over Aksai Chin. Nehru, having checked the historical maps, documents, including revenue records and land surveys, which he got from the India Office in London, rejected the Chinese offer because he thought it would mean India abandoning its legitimate claims over Aksai Chin. After the collapse of the Nehru-Zhou Enlai [Chou en Lai] talks in 1960 in Delhi, tensions escalated fast. China intensified patrolling along the border. In November 1961, Nehru ordered his Forward Policy as part of which India set up patrol posts along the LAC, which was seen as a provocation in Beijing. In October 1962, Mao Zedong ordered the invasion.
The parallels
•The situation today is not exactly the same as 1962. Back then, the Tibet factor was looming over India-China ties. As soon as the Dalai Lama took refuge in India, Chinese leaders, including Deng Xiaoping, had threatened “to settle accounts” with the Indians “when time comes”. China also feared that India was providing help to Tibetan rebels, after the 1959 rebellion. Today, both sides have managed to sidestep the Tibetan question in their bilateral engagement. And unlike in 1962, when India was not politically and militarily prepared for a war with China, today’s conflict is between two nuclear powers. But the problem is this; while the overall situation is different, the border conflict looks similar to what it was in the late 1950s and early 1960s. The boundary has still not been delimited and demarcated. China has not recognised the McMahon Line and India has not accepted China’s control over Aksai Chin.
•Despite the volatile situation, an uneasy truce prevailed on the border at least since 1975 and both sides have made improvements in ties since Prime Minister Rajiv Gandhi’s visit to Beijing in 1988. This period of truce allowed both countries to focus on their development. But that truce has now been disrupted with China first moving to block Indian patrolling in the Finger area of Pangong Tso and the Galwan Valley in eastern Ladakh during the summer. India then made a forward move on the southern banks of Pangong Tso last month, similar to Nehru’s Forward Policy in 1961, taking over the heights of the Kailash Range. When Nehru ordered the Forward Policy, his aim was to secure the vast border and prevent further incursions. He never thought China would attack. Now, despite the experience of 1962, India appears to be taking a calculated risk by making forward movements. This led to the opening of fire in the region, for the first time in 45 years. So, practically, the border situation is back to what it was in 1961.
Strategic dominance
•In the run-up to the 1962 war, Mao had taken a “unity and struggle” policy towards India. This meant, laying emphasis on unity with India on mutually agreeable matters while continuing the struggle over the border issue. Nehru failed to understand the gravity of this approach. He first saw only unity, and, after the Longju and Kongla clashes, he saw only struggle. China, on the other side, consistently played what game theorists call the game of “strategic dominance”— the strategy which would yield positive outcomes, irrespective of the strategies of the rival player. Back then, China saw itself as the most powerful force in Asia. Japan had been devastated by the war. The British withdrawal and the partition of the subcontinent had changed the geopolitical balance in the continent. Mao was facing challenges to his leadership within the party after the disastrous Great Leap Forward. Globally, there were cracks in the Sino-Soviet alliance, especially after the Soviet intervention in Hungary. When it set the ball of border tensions rolling, it knew that the ultimate risk would be a limited war and it was ready to take that risk because even in the event of a war, China calculated that it could retain its strategic dominance. And it did so in 1962.
Understanding China’s moves
•The Chinese strategy today is not very different from that of the 1960s. Now, China considers that it has arrived on the global stage as a military and economic superpower. The COVID-19 outbreak has battered its economy, but it is recovering fast. India, on the other side, is in a prisoner’s dilemma on how to tackle China. India is a big, rising power, but is going through short-term challenges. Its economy is weak. Its geopolitical standing in the neighbourhood is not in its best days. Unlike in the 1960s, when Nehru’s non-alignment was blamed for Chinese aggression, today’s India has cautiously moved toward the United States. But still, there is no guarantee that it would deter China or if the U.S. would come to India’s help in the event of a war. A combination of all these factors might have led China to believe that it can play the game of strategic dominance once again. If India plays it on China’s terms, there will be war. The question is whether it should walk into the trap laid in the Himalayas, or learn from the experiences of 1962.
A Court order, on Delhi’s slum dwellings, threatens to undo the promise of the right to housing offered in earlier verdicts
•In a short order (https://bit.ly/3hktF2F) with devastating consequences, the Supreme Court of India on August 31 ordered the removal of about 48,000 slum dwellings situated along the railway tracks in Delhi. A three-judge Bench headed by Justice Arun Mishra, in one of his last orders before his retirement, directed State authorities to remove the jhuggi jhopri clusters in the railway safety zone within a period of three months. Most shockingly, the order stated that “no Court shall grant any stay with respect to removal of the encroachments” and in case any such interim order is granted “that shall not be effective”.
•Relying on an affidavit filed by the Railways, the Court observed that there is a “predominant presence” of slums in close vicinity of the 140 km-long railway line in Delhi. It noted that while the National Green Tribunal had constituted a special task force for the removal of encroachments from railway property — “There seems to be some political intervention against removal of such encroachments”. The Court ordered that these “encroachments”should be removed within three months and “no interference, political or otherwise, should be there.”
A flawed order
•The Supreme Court order which seeks to summarily demolish informal settlements of poor urban residents is deeply disturbing and raises serious legal questions. The order is fundamentally flawed because the Court has ignored principles of natural justice, judicial precedents on the right to shelter, and state policies governing evictions.
•The order violates principles of natural justice and due process since it decided on the removal of jhuggi jhopris without hearing the affected party, the jhuggi dwellers. The order was passed in the long-running case, M.C. Mehta vs. Union of India & Ors. , regarding pollution in Delhi and was in response to a report by Environment Pollution (Prevention & Control) Authority for the National Capital Region on the piling up of garbage along railway tracks. However, neither this case nor the report concerns itself with the legality of informal settlements. Still, the Court made an unconvincing connection between the piling of garbage and the presence of slums and gave an eviction order without giving the residents a fair hearing.
•The Court ignored its long-standing jurisprudence on the right to livelihood and shelter upheld in various judgments. In the landmark decision concerning pavement-dwellers, a five-judge Bench of the Supreme Court in Olga Tellis & Ors vs. Bombay Municipal Corporation & Ors. (1985) held that the right to life also includes the “right to livelihood” and that no eviction shall take place without notice and hearing those affected. Further, in Chameli Singh vs. State Of U.P. (1995), the Supreme Court recognised the “right to shelter” as a component of the right to life under Article 21 and freedom of movement under Article 19(1)(e).
•The Court also failed to consider the policies and case laws on slum eviction and rehabilitation in Delhi. In Sudama Singh & Others vs Government Of Delhi & Anr. (2010), the High Court of Delhi held that prior to any eviction, a survey must be conducted and those evicted should have a right to “meaningful engagement” with the relocation plans. The procedure laid down in this judgment formed the basis for the Delhi Slum and JJ Rehabilitation and Relocation Policy, 2015. This was reiterated in Ajay Maken & Ors. vs Union Of India & Ors. (2019), a case concerning the demolition of Shakur Basti on railway land, where the Delhi High Court invoked the idea of the “Right to the City” to uphold the housing rights of slum dwellers. This case led to the framing of a Draft Protocol for the 2015 Policy on how meaningful engagement with residents should be conducted. However, neither the case laws nor the state policies were referred to by the Court.
Evictions amid pandemic
•The Supreme Court order that threatens to leave lakhs of people homeless amid a health and economic emergency is callous and unconscionable. As the pandemic makes urban informal livelihoods more vulnerable, the UN Special Rapporteur on the right to adequate housing has called on member-states to declare an end to forced evictions. However, as in a recent report of the Housing and Land Rights Network (HLRN), over 20,000 people were displaced in 45 incidents of forced evictions between March 25 and July 31, when India was under lockdown. Over the last three years, over five lakh people have been evicted, most often for various “city beautification” projects.
•The courts have also played an active role in such demolition drives, often under the premise of environmental protection. The present order follows the trajectory of court-led evictions, highlighted by Anuj Bhuwania in his book, Courting the People: Public Interest Litigation in Post-Emergency India , whereby the court admits a Public Interest Litigation (PIL), ignores the specific issues and proceeds on a tangential topic, relies on reports of court-appointed committees and orders the demolition of slums, often without hearing the affected population. This represents a dangerous turn of PIL jurisprudence whereby its procedural relaxations are used to deny principles of natural justice to the most marginalised groups.
•The promise of the right to housing offered by Sudama Singh and Ajay Maken is now being undone by an insidious and legally dubious order that pre-empts other courts from giving orders to stop the eviction. The Court disdainfully refers to how “political interference” does not allow “encroachments” to be evicted. However, it is often through such political negotiations that residents of informal settlements incrementally make claims on housing and exercise their “Right to the City”. These residents would now need to employ a combination of political and legal strategies to protect their housing rights and ensure that no eviction or rehabilitation is conducted without their prior informed consent.
