📰 Lok Sabha passes Bill that seeks to clarify that 'Govt.' in Delhi means 'L-G'
The Bill also makes it mandatory for the Delhi government to take the opinion of the L-G before any executive action.
•The Lok Sabha on Monday passed a Bill that defines that the word “government” in Delhi means the Lieutenant-Governor (L-G) and makes it mandatory for the elected government in the national capital territory to take the opinion of the L-G before any executive action.
•Amid strong protests from Opposition parties, including the Congress and the Aam Aadmi Party (AAP), the Bill was passed by a voice vote.
•While Union Minister of State for Home G. Kishan Reddy said the Government of National Capital Territory of Delhi (Amendment) Bill (GNCTD), 2021, was necessary to remove ambiguities and make governance in Delhi more accountable and efficient, the Oppositions members accused the Narendra Modi government of ‘usurping’ the power of the elected government in the national capital and trying to rule Delhi through the L-G by making his office a ‘super Chief Minister’.
‘Poor loser’
•The lone AAP member of Parliament from Punjab, Bhagwant Mann, accused the BJP of being a ‘poor loser’ and alleged that the Centre had become a specialist in taking away rights of the States.
•Echoing other Opposition members, Mr. Mann also wondered why Assembly elections in Delhi should be held if all the powers were to be given to the L-G. He also asked if the Centre plans to turn the national capital into a Union Territory like Jammu and Kashmir where there is an Assembly but is non-functional.
•Initiating the debate, Congress MP Manish Tewari said the legislation was ‘unconstitutional and mala fide’ that sought to take away the representative character of Delhi’s government. Citing an amendment moved by former Home Minister L.K. Advani, Mr. Tewari argued that the Delhi government was empowered to make laws on all subjects, except police, public order and land. He also argued that the Bill violated the ruling of a Constitution Bench of the Supreme Court.
•Replying to the debate, the Minister said when the GNCTD Act was enacted in 1991 by the then Congress government that made Delhi a Union Territory (UT) with an Assembly with “limited legislative powers” and quoted former Congress Home Minister S.B. Chavan as saying, “it was in national interest.’
Several cases
•Mr. Reddy said though there had been cordial relations between the Centre and the Delhi governments since 1996, many issues came up since 2015 and several cases were filed before the Delhi High Court.
•“Please do not say that it is a political Bill. It is being brought to end ambiguity in certain issues as Delhi is a Union Territory. It will end certain confusion or technicality and enhance the efficiency of the administration,” Mr. Reddy said.
•He strongly refuted Opposition allegations that “democracy has been murdered by a dictatorial Modi government.”
•“If we are wrong, we will listen to the abuses. But without being wrong, we won’t tolerate abuses. It is aimed at bringing more transparency,” the Minister said.
•Countering the Congress MP, BJP’s Meenakashi Lekhi, who represents the New Delhi seat in the Lok Sabha, said the Bill would rectify the ‘mismanagement’ of Delhi’s governance by streamlining the multiple authorities.
•She also slammed the Arvind Kejriwal government for spending over ₹540 crore in advertisement when that money should have been spent on governance.
•Blaming both the Congress and the ruling AAP for the current state of affairs, Ms. Lekhi asked “Why did the Congress not give full Statehood to Delhi when it was in power” and asserted that India’s Constitution was quasi-federal and not purely federal in nature.
•Another BJP MP, Brijendra Singh (Haryana), said the need for the present Bill arose because “an anarchist” came to power in 2013 and if Delhi had full Statehood under such a person, one would have witnessed ‘civil war’.
•Stressing that the Bill is against the spirit of cooperative federalism, NCP member Supriya Sule asked the government to refer the Bill to a Select Committee of Parliament for further discussions and also asserted that the AAP chief, Arvind Kejriwal, must be doing something right to be ‘repeatedly’ winning elections.
Austin’s visit is significant for bilateral ties, and cooperation on Indo-Pacific and Afghanistan
•The timing of U.S. Secretary of Defence Lloyd Austin’s visit to New Delhi over the weekend (March 19-21) was significant for many reasons. As the first senior ranking official of the Biden administration to meet with the Modi government, his visit this early in the new President’s tenure indicates the place India holds, on a par with the other two countries he visited prior to India: Japan and South Korea. The visit, just after the first ever Quad leaders’ summit, confirms the U.S.’s focus on greater maritime cooperation in the Indo-Pacific. Mr. Austin’s trip preceded an unannounced stop in Kabul where the U.S. is undertaking a major review of its troops pull-out schedule and peace plan. As a result, all three areas: bilateral ties, the Indo-Pacific and Afghanistan came up for discussion during talks with Defence Minister Rajnath Singh, and meetings with Prime Minister Narendra Modi and External Affairs Minister S. Jaishankar. On the bilateral front, the two sides agreed to boost their defence relationship through the use of three foundational agreements (LEMOA, COMCASA, and BECA), as well as increase cooperation in the areas of information sharing and logistics, artificial intelligence, space and build more linkages with the U.S. Commands. On Indo-Pacific strategy, Mr. Singh affirmed India’s resolve to maintain a free, open, and inclusive Indo-Pacific region with the U.S., as part of the Quad. On Afghanistan, the discussions are understood to have been consultative, as Mr. Austin is part of the decision-making process over whether the U.S. will stick to its May 1 deadline to pull out all remaining troops, and how to proceed forward in the Intra-Afghan dialogue. The U.S. does not thus far appear to have heeded India’s concerns on talks with the Taliban, making any talks conditional on a ceasefire, including India in all regional talks where Pakistan is also involved, and prioritising the needs of the government in Kabul. Even so, it is important that India expresses its sense of the situation in Afghanistan, given its important role there.
•While Mr. Austin made it clear the Biden Administration is committed to CAATSA sanctions against all countries procuring high-value Russian military hardware, he said that the determination on India would only come after New Delhi takes delivery of the S-400 missile system. He confirmed that he had raised the issue of human rights in India, but added that these are part of conversations any two democracies would share, a sentiment seconded by the MEA. Finally, while officials said they discussed India’s challenge from China, Mr. Austin was careful not to make any direct reference to Beijing or about the LAC dispute, which New Delhi considers a bilateral issue. The omission, in contrast to his comments in Tokyo and Seoul, signalled both that New Delhi desired discretion on the issue, and that the U.S. Defence Secretary was sensitive to his host’s wish.
📰 Of judges, closed probes and the Bar’s omerta
Citizens ought to be informed of the outcome of an inquiry into serious allegations against a future CJI
•On April 24, 2021, Justice N. V. Ramana is to assume office as the 48th Chief Justice of India (CJI). As Master of the Roster, Justice Ramana would have the sole prerogative to constitute benches of the Supreme Court and allocate matters to be heard by these benches. As a matter of law, he would exercise this power even in cases that concern allegations made against him. The importance of the integrity of the person occupying such an important constitutional position cannot be overstated. Yet, a month before Justice Ramana is to assume office, the public is in the dark about the veracity of serious allegations levelled against him by other constitutional authorities.
The allegations
•On October 6, 2020, Andhra Pradesh Chief Minister Y.S. Jagan Mohan Reddy addressed a letter to CJI S.A. Bobde alleging that Justice Ramana was interfering with the constitution of benches and assignment of matters at the Andhra Pradesh High Court in order to ensure that cases concerning the opposition party in the State were assigned to favourable benches. There were also specific allegations against certain judges of the Andhra Pradesh High Court, including the then Chief Justice of the High Court, Justice J. K. Maheshwari.
•Mr. Reddy, who faces several allegations of corruption and criminal cases, does not present as a particularly credible complainant. The Attorney General lost no opportunity in alluding to these controversies in his communication declining a request to initiate criminal contempt proceedings against the Chief Minister for his allegations. Consent was declined on the grounds that the CJI was “seized of the matter”. However, the Attorney General thought it fit to observe that Mr. Reddy’s conduct was prima facie “contumacious” and noted that the timing of the allegation “could be said to be suspect” as Justice Ramana had presided over a bench that had recently passed an order directing various High Courts to expeditiously adjudicate thousands of criminal cases that were pending against former and sitting legislators. The order had galvanised the Telangana High Court to direct a CBI special court to hear a disproportionate assets case against Mr. Reddy.
•It would, however, be improper to dismiss the accusations of a sitting Chief Minister against the future CJI as the insinuations of a disgruntled litigant. Given the high constitutional offices embroiled in the controversy, the allegations at a minimum deserve a thorough, expeditious and transparent inquiry. The Supreme Court, though, has turned institutional inscrutability into high art. On December 14, 2020, the Supreme Court collegium that included Justice Ramana recommended the transfer of Chief Justice Maheshwari from the Andhra Pradesh High Court to the Sikkim High Court. The collegium’s tendency to resort to transfers in order to avoid the uncomfortable exercise of inquiring into allegations of alleged judicial misconduct is so common that one would be forgiven for mistaking it for a constitutional prescription. There is no information as to the reasons for the transfer of Justice Maheshwari to a much smaller High Court in the wake of Mr. Reddy’s allegations.
The in-house procedure
•This episode serves as a reminder of the inadequate, self-fashioned rules that govern inquiries into judicial misconduct. The ‘in-house’ procedure devised by the higher judiciary in 1997 is riddled with shortcomings, including its absolute insulation from external gaze, its lack of prescriptions as to timelines for completion of the inquiry, and the absence of any requirement to disclose the pendency or results of the inquiry (including to the complainant). The procedure confers wide discretionary powers on the CJI. Interestingly, it also does not contemplate a situation in which allegations may be leveled against the CJI. Sheltered by this in-house procedure, the Supreme Court has avoided having to officially respond to the allegations against Justice Ramana, or share information regarding the existence or status of an inquiry into them. Given Justice Maheshwari’s hasty transfer, and the fact that there is just a month before Justice Ramana is to assume office, the irresistible conclusion is that the court
would rather not apply its judicial mind to this task.
•There is legitimate reason for concern that the allegations may receive a quiet burial. In August 2017, Justice Chelameswar (then a senior Supreme Court judge) had addressed a letter to the then CJI Khehar regarding an “unwarranted intimacy” between Justice Ramana and the then Chief Minister of Andhra Pradesh, Chandrababu Naidu. The concern was that Justice Ramana and Mr. Naidu had rejected certain candidates for elevation to the Andhra Pradesh High Court on identical (but specious) grounds. Despite a senior judge voicing concerns regarding a colleague on the bench, there was no information about the initiation of an inquiry, let alone its result.
Two possible outcomes
•There are two possible conclusions to an inquiry into Mr. Reddy’s letter: that he has falsely accused several members of the higher judiciary, including the second-most senior judge of the Supreme Court, of misconduct; or that the future CJI and other High Court judges have abused their positions. Either outcome requires firm institutional responses. Should Mr. Reddy’s allegations prove to be baseless, his letter would constitute an attempt to use his constitutional office to interfere in the administration of justice and he ought to face criminal contempt proceedings.
•Should the allegations against Justice Ramana and other senior members of the higher judiciary be found to be credible, the in-house procedure requires that the CJI evaluate whether the misconduct warrants the removal of the judge from office or not. In the former event, the judge(s) may be asked to resign. Only in the event of a judge refusing to resign would steps be taken to withdraw judicial work and communicate the finding of misconduct to other constitutional functionaries (the Prime Minister and President) for appropriate action (and a possible impeachment). If the CJI considers that the misconduct does not warrant the removal of the judge, the CJI may “...advise [the judge] accordingly”, and the report of the committee that conducted the inquiry may be “placed on record.” It is unclear what “placed on record” means. But what is certain is that this report is not available to the public.
•Indian citizens, as a matter of right, ought to be informed of the outcome of such an inquiry given the institutions and authorities involved, well before Justice Ramana takes office as CJI. Yet, the Supreme Court – that repeatedly proclaims its commitment to preserving public trust in the judiciary – appears to be moving at a glacial pace in response to Mr. Reddy’s letter, and also deems it unnecessary for the public to be informed of the status or outcome of an inquiry. The Bar stands implicated in the omerta over allegations of judicial misconduct, not just for its muteness in respect of the inquiry into the Chief Minister’s allegations, but its historic failure to demand transparency from the higher judiciary. The mantle falls upon the public to declare to constitutional authorities that citizens of democracies deserve better than a self-serving, non-transparent in-house procedure that is founded on the presumption that the CJI is above suspicion.
📰 Delhi’s administration as the tail wagging the dog
The Government of NCT of Delhi (Amendment) Bill, 2021 will reduce the elected government to a mere vestigial organ
•A courtier once said about Charles II, “We have a pretty witty king, Whose word no man relies on. He never said a foolish thing, And never did a wise one.” Charles supposedly replied, “The wise words are my own, the deeds are my ministers.” Thus was seeded the system of the cabinet form of government, which eventually flowered in England and left its imprimatur over constitutional structures throughout the world. India has no monarchs but a President and Governors, in whose name, the government is run. They can do almost nothing by themselves, without the aid and advice of their cabinet of Ministers. However, the Lieutenant Governor (LG) of Delhi, will likely be an exception soon.
•Parliamentary democracy, with a cabinet form of government, is part of the basic structure of the Indian Constitution. Its first article reads, “India that is Bharat, shall be a Union of States.” When the Constitution came into force, there were four kinds of States, called Parts A,B, C and D States, with the last two being administered by centrally appointed Chief Commissioners and Lieutenant Governors, with no locally elected Assemblies to aid and advise them.
Governing Delhi
•Delhi as the National Capital, belonged to the nation as a whole. It was felt that if Delhi became a part of any constituent State of the Union, that State would sooner or later acquire a predominant position in relation to other States. Second, the need for keeping the National Capital under the control of the Union Government was deemed to be vital in the national interest. It was felt that if Delhi became a full State, the administration of the National Capital would be divided into rigid compartments of the State field and Union field. Conflicts would likely arise in vital matters, particularly if the two governments were run by different political parties.
•Hence, Delhi was initially made a Part C State. Its population then was around 14 lakh people. In 1951, a Legislative Assembly was created with an elected Chief Minister. Chaudhary Brahm Prakash became the first Chief Minister in 1952. However, a prolonged stand-off with the Chief Commissioner, and later the Union Home Minister, Govind Ballabh Pant, over issues of jurisdictions and functional autonomy, eventually led to his resignation, in 1955. In 1956, when the Constitution of India was amended to implement the provisions of the States Reorganisation Act, only two categories, namely, States and Union Territories remained in the Indian Union. Delhi then became a Union Territory to be administered by an Administrator appointed by the President. The Legislative Assembly of Delhi and the Council stood abolished, despite loud protests in Parliament. Ten years later, the Delhi Administration Act, 1966 provided for a limited representative Government in Delhi through a Metropolitan Council comprising 56 elected Members and five nominated Members. This structure continued for many years, with repeated political demands for full statehood to be granted to Delhi.
•In 1987, the Balakrishnan Committee was set up to submit its recommendations with regard to the status to be conferred on Delhi. In 1989, the Committee recommended that Delhi should continue to be a Union Territory but that there must be a Legislative Assembly and Council of Ministers responsible to the said Assembly with appropriate powers; and to ensure stability, appropriate constitutional measures should be taken to confer the National Capital a special status. Based on this report, the Constitution (69th) Amendment Act and the Government of National Capital Territory of Delhi (GNCT) Act, 1991 were passed. They roughly restored the kind of governance system that was offered to Delhi in 1952: a Union Territory with a Legislative Assembly, a Council of Ministers and an elected Chief Minister. This limited reincarnation has continued to hold the field to date, despite several efforts to progress to full or near-statehood.
Politics and questions
•Between 1991 to date, there have been various instances when the Delhi Assembly has been won by a party other than the ruling party at the Centre. In an era of mixed but slim mandates, the Delhi government and the Union Government have differed, but more often than not found a modus vivendi . But the Lok Sabha elections of 2014 and 2019 and the Delhi Assembly elections of 2015 and 2020, have resulted in huge mandates to personality-led governments, from different parties that are seemingly locked in mortal combat with each other.
•The ensuing fights lead to constitutional questions on Delhi’s peculiar government structure being litigated up to the Supreme Court. A Bench in 2018 ruled that “...Parliament envisaged a representative form of Government for the NCT of Delhi. The said provision intends to provide for the Capital a directly elected Legislative Assembly which shall have legislative powers over matters falling within the State List and the Concurrent List, barring those excepted, and a mandate upon the Lieutenant Governor to act on the aid and advice of the Council of Ministers except when he decides to refer the matter to the President for final decision”. The Court further ruled that “... The Constitution has mandated a federal balance wherein independence of a certain required degree is assured to the State Governments. As opposed to centralism, a balanced federal structure mandates that the Union does not usurp all powers and the States enjoy freedom without any unsolicited interference from the Central Government with respect to matters which exclusively fall within their domain.”
•The remaining issues of governance, especially in the matter of control over Delhi government servants, was remitted to two judges of the Court for further adjudication. In 2019, there was a difference of opinion recorded in separate judgments by the two judges and the matter awaits hearing before a larger Bench.
The consequences
•It is against this convoluted historical and legal background that we must assess the Central government’s justification that “In order to give effect to the interpretation made by Hon’ble Supreme Court in the aforesaid judgments, a Bill, namely, the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 seeks, inter alia, to clarify the expression ‘Government’, ….consistent with the status of Delhi as a Union territory to address the ambiguities in the interpretation of the legislative provisions.”
•The Bill effectively reduces the elected government to a mere vestigial organ and elevates the centrally appointed LG, to the position of a Viceroy with plenipotentiary powers. Simply put, the elected government in Delhi can do nothing, if the LG does not permit them to so do. It provides that, “The expression ‘Government’ referred to in any law to be made by the Legislative Assembly shall mean the Lieutenant Governor.” It further provides that “...before taking any executive action in pursuance of the decision of the Council of Ministers or a Minister, to exercise powers of Government, ...under any law in force in the Capital, the opinion of Lieutenant Governor ...shall be obtained on all such matters as may be specified, by a general or special order, by Lieutenant Governor.”
•If the Bill is passed by both Houses of Parliament, as it seems so, it will be a case of the unelected tail wagging the elected dog. The population of Delhi which counts among the highest in the world, will have an unrepresentative administration. It will be ruled by an appointed LG, who can only be changed if the rest of the country, decides to change the Central government. There can be no recourse to the ballot box to hold to account an unelected, centrally appointed government functionary. It is quite likely that the amendment act will end up being challenged in the constitutional courts. The Supreme Court has already cautioned — “Interpretation cannot ignore the conscience of the Constitution. That apart, when we take a broader view, we are also alive to the consequence of such an interpretation. If the expressions in case of difference and on any matter are construed to mean that the Lieutenant Governor can differ on any proposal, the expectation of the people which has its legitimacy in a democratic set-up, although different from States as understood under the Constitution, will lose its purpose in simple semantics.”
📰 No rights despite reforms: on Qatar's labour laws
Labour law reforms being celebrated in Qatar fall short of upholding the basic rights of migrant workers
•Not one of the six Gulf Cooperation Council (GCC) states can cater to their labour market needs domestically. Their dependence on migration is only set to increase with fertility rates falling. Despite there being unemployment, the citizens of these countries are unlikely to step in and do the supposedly low-skilled, and definitely low-paid, jobs of the millions of migrants who work there.
The reality in Qatar
•Qatar, the richest of the six countries in terms of per capita GDP, is the most dependent on migrant labour. Nationals count for less than 15% of the 2.6 million population and about 7% of the labour market. About 60% of the population lives in labour camps. The Qatarisation (nationalising the workforce) plan only affects the most well-paid jobs in the private and public sector. But there is enough to go around even after targets are met for the ‘expat’, usually well-heeled citizens of the global North.
•This reality must be the basis of any analysis of the human rights of migrant workers in the country and the slew of reforms that Qatar has been boasting about. The main reason for the growing demand to boycott Qatar as the host of the FIFA World Cup for 2022 is that the country treats its migrant workers poorly, resulting in destitution and unexplained deaths. But while the muck has been stirred up in light of this event, there is no meaningful effort to actually clean it up.
•The problem is viewed as one of inadequate legal protection, and the solution is framed as reforming or abolishing the Kafala (sponsorship) system, without acknowledging the many facets of various laws and practices that are the foundation of this system. The failure to understand this complexity has allowed Qatar to get away with the bare minimum in terms of dialogue and reform: it has engaged with the International Labour Organization (ILO) by entering into a technical co-operation without really ratifying key labour treaties; allowed access to international NGOs and trade unions (which its neighbours won’t do) without allowing civil society activism and unionisation domestically (which Bahrain and Kuwait do); and donated to the World Health Organization and other United Nations mechanisms while keeping the majority of its residents in poverty.
•The global scrutiny and demand for accountability does affect the emirate’s reputation, but not enough to lose its rich and influential friends. We are seeing an increasing presence of UN agencies, the most prominent of which are the ILO, the International Organization for Migration, the United Nations Development Programme, and the United Nations Educational, Scientific and Cultural Organization. Qatar remains one of the few places where there is an opportunity for profitable economic participation for the big businesses headquartered in the North, and that can’t be jeopardised. So, that leaves us with Asian and African countries (a steady source of cheap labour), which are facing climate change, loss of livelihoods, and increasing unemployment. Understandably, they won’t stand up to countries from where much-needed remittances flow. These are some of the reasons why a low minimum wage and allowing workers to exit the country or change jobs without the sponsor’s permission are celebrated.
Maintaining the status quo
•But will Qatar’s response to these aspects in the shape of reforms remove exploitation of workers? The short answer is ‘no.’ Across the GCC, migrant labour is increasingly referred to as ‘temporary’ or ‘guest’. While this may have made some sense a few decades ago, when Qatar and its neighbours were hosting 2,00,000-3,00,000 workers to meet their labour needs, it is unjustifiable when dependency on migrants is inarguably permanent, so much so that the entire economy will collapse without access to cheap labour.
•In order to maintain the status quo, all the other complexities of the ‘Kafala’ have been ignored in the reforms. There is no attempt to curb the unchecked powers of the kafeel, who can have the workers they sponsor arrested, detained and deported without due process. Charges of absconding are used to keep workers in abusive employment or risk being criminalised as irregular. There are no mechanisms to address rampant wage theft, despite the electronic payment systems. Migrant domestic workers, mainly women, are excluded from the labour law. They are trapped within households at the mercy of the employer and do not enjoy the most basic freedoms, including off days, mobility and access to modes of communication.
•From domestic and care work, construction and hospitality, to nursing and maintenance, even if a quarter of the employed stop work for a week, Qatar will come to a standstill. It is this fear that drives the GCC countries to exercise control over the most essential of their labour. So, celebrating reforms is questionable. What Qatar is doing is making exploitative laws that enable forced labour more palatable.
📰 Getting it right on the LAC disengagement
India’s negotiators ought to be commended for their efforts in ensuring a successful border disengagement at Pangong
•In the aftermath of the India-China agreement reached on February 10 for pullback in the Pangong Lake area, there has been much speculation about the gain and loss for India. Some have averred that the mutual withdrawal amounts to the creation of a “buffer zone on Indian territory”. Others have alleged it to be a “surrender of Indian territory”. Yet others have questioned the withdrawal of India’s presence along the Kailash range on the South Bank of Pangong since it enabled India to dominate the Chinese garrison at Moldo.
Things are moving
•Another charge has been levelled — of inadequate budgetary allocation for defence in the face of a “two front war”. The fact of the matter is that the increase in the outlay for capital procurement announced by the Finance Minister on February 1 for FY 2021-22 represents a 18.75% jump over the previous financial year, the highest in 15 years. Moreover, the government has enhanced the delegated financial powers up to ₹200 crore in senior ranks below the rank of vice chief as well, to facilitate procurement. Improved procedures and oversight have ensured better utilisation with no surrendering of funds over the last four years.
•The charge that India is not according proper priority to national security is baseless. Military modernisation, indigenisation and defence exports are top priorities. The building of long overdue roads, bridges, culverts and other infrastructure in the border areas, in mission mode, has spurred mobility and capacity for a rapid induction of forces. The Darbuk-Shyok-Daulat Beg Oldi (DSDBO) Road has facilitated seamless access all the way up to Sub-Sector North (SSN) which abuts the Karakoram Pass and the Siachen Glacier. It has provided an axis for developing lateral roads towards India’s frontline in Eastern Ladakh. Another example is the eponymous Atal Rohtang Tunnel, approved by the government of Atal Bihari Vajpayee. The Tunnel, inaugurated in October 2020, makes for a much shorter logistics loop connecting the Middle and Western Sectors of the India-China boundary on the Indian side.
•Many defence reforms recommended by the Naresh Chandra Committee have been implemented in recent years. The creation of the Department of Military Affairs (DMA), the appointment of the Chief of Defence Staff, and, the soon-to-be-a-reality Theatre Commands, are but a few examples.
The buffer zone stands
•India has not surrendered any land in Galwan, Pangong or Depsang since the border crisis broke out in April/May 2020. The assumption that the disengagement implemented at Pangong, especially that the temporary moratorium on patrolling by both sides will result in a buffer zone entirely “in our area”, is incorrect. India has neither accepted the unilateral definition of China’s so-called Line of Actual Control (LAC) of 1959 nor its subsequent mutants. As such, a buffer zone on the other side of any so-called Chinese LAC is still a buffer zone on India’s side, given that India regards the whole of Aksai Chin as an integral part of its territory. By using the benchmark of the so-called Chinese LAC to identify India’s territory and China’s, the naysayers are actually legitimising the illegal Chinese presence across the LAC.
•During the late 1950s and early 1960s, the idea of a mutual pullback by 20 kilometres, which would have resulted in buffer zones, had been proposed by China and rejected by India. Later, India had accepted the modified “Colombo Conference Proposals” mooted by six non-aligned countries in December 1962 after the war, which would have permitted Indian civilian administration to be present alongside the Chinese in the vacated areas. China had reservations and backed out in March 1963 after initially acquiescing. It was ready to consider them only as a basis for further bilateral negotiations. Much water may have flown down the Chip Chap, Galwan and Chang Chenmo rivers since then, but it is not as if pullbacks and buffer zones have never been considered before.
•The pullback on the North Bank of Pangong has resulted in the Chinese ceasing their patrolling between Fingers 4 and 8 for the first time in several decades. After the 1962 debacle, Indian patrols limited themselves to visiting Finger 8, which evolved as the de facto Indian line in this sector, but this access too was restricted by vehicle-mounted Chinese patrols along that stretch in recent decades. Given that China perceives its line to run further west of Finger 3, India has done well to maintain its permanent presence at the Dhan Singh Thapa Post near Finger 3 on what the Chinese regard as their side of the LAC.
•As former Northern Army Commander Lt. Gen. D.S. Hooda has stated in a recent opinion piece, by agreeing to relocate east of Finger 8, the PLA is pulling back from its claimed “customary boundary line” and “this is definitely not a minor concession”. It is, as he has pointed out, in line with India’s consistent demand to restore the status quo ante that existed in April 2020.
Different implications
•The word status quo ante in regard to the India-China boundary matters has different implications for the ground situation depending entirely on the timeline being referred to. In seeking a restoration of status quo ante on the North Bank of Pangong with reference to April-May 2020, the advantage secured by India on the South Bank was naturally a plus point, and put to good effect by Indian negotiators.
•If the retention of the heights along the Kailash range is deemed so important for leveraging concessions elsewhere, as some claim, why is it that no previous government acted to occupy the heights earlier, including during the face-off in Depsang in 2013? After all, differences over the LAC are hardly new. The fact is that Indian troops secured the heights on the South Bank precisely to offset China’s “first mover” advantage on the North Bank. Moreover, if India’s objective is to achieve status quo ante, India too would logically be required to revert to its pre-April 2020 status.
•The potential linkage between the heights of the Kailash range and Depsang, or for that matter Gogra and Hot Springs, cannot be arbitrarily conjured up. The situation in the pockets of differences is sui generis.
•At the end of the 10th round of the India-China Corps Commander Level Meeting, the two sides have positively appraised the smooth completion of disengagement at Pangong, acknowledging that it was a significant step that provided a good basis for resolving the remaining issues along the LAC.
•Instead of commending our military and External Affairs Ministry negotiators for their efforts in ensuring a successful disengagement at Pangong, some commentators have questioned the absence of “iron-clad agreements” for resolving the differences at Depsang or Gogra/Hot Spring, which are still being discussed. The negotiators ought to be given a chance. The truth is that there were no iron-clad guarantees in any of the agreements and protocols signed so far either, whether in 1993, 1996 or in 2005. Bilateral differences are best negotiated from a position of strength as has been done at Pangong, while maintaining high vigil and striving for positive outcomes elsewhere.
📰 An unconscionable act: on India's position on Myanmar
India would be in breach of international law in turning its back on the people of Myanmar
•The world has been watching Myanmar descend into a brutal military dictatorship again. The scenes from the past few weeks have been terrible — peaceful protestors being killed, detained, and communities terrorised. In all this, the people of Myanmar have been pleading with the international community to support them in their hour of need. It is incumbent upon Myanmar’s neighbours to stand up for rule of law, democracy and human rights.
Engaging in doublespeak
•While many in India are supportive of those in Myanmar calling for democracy, the Indian government has been engaging in doublespeak. On the one hand, India has made relatively strong, laudable statements as part of the UN Security Council and at the UN Human Rights Council in Geneva in support of the people of Myanmar. On the other, the government is simultaneously detaining and preparing to deport Rohingya refugees to Myanmar.
•The Ministry of Home Affairs has also recently issued a diktat to border States to check “illegal influx” from Myanmar to India. The Ministry wrongly labels those fleeing into India as “infiltrators”, arguing that they are not to be considered refugees as India has not signed the UN Refugee Convention.
•This is an erroneous position in international law. These individuals would fall within the legal definition of refugees i.e., those who have a well-founded fear of persecution, and the customary international law norm of non-refoulement is legally binding. This means that no State can send individuals back to a situation of danger, which is clearly the case in Myanmar. Non-refoulement applies to those countries which have signed the conventions as well as those that have not.
•This is of particular relevance to those police and security personnel refusing illegal orders to attack protesters, instead seeking refuge in India, as multiple credible reports indicate. There are growing calls from the UN and states for the atrocities committed by Myanmar security forces in the course of these protests to be investigated as possible crimes against humanity, given their scale, coordination and their widespread and systematic nature. Furthermore, this week, the Independent Investigative Mechanism for Myanmar (IIMM), a UN established body that is mandated to investigate and build case files for international crimes committed in Myanmar since 2011, issued a public call to security personnel to reach out and provide information regarding illegal orders and policies, which are a necessary component of building cases against those higher up in the chain of command. India must shelter these individuals and allow the IIMM access, should they indicate willingness to cooperate in these international investigations.
Crimes against the Rohingya
•Coinciding with the mass crackdown against protesters in Myanmar this month, reports emerged of Rohingya refugees being rounded up and detained in India, in preparation for deportation to Myanmar. The office of the UN High Commissioner for Refugees in India was denied access to individuals detained in Delhi. The Rohingya are refugees who have fled years of atrocities and a genocidal campaign, and must not be sent back to Myanmar where their lives are in certain danger. There are also international legal proceedings ongoing in relation to the Rohingya. A case before the International Court of Justice relates to violations of the Genocide Convention by Myanmar, and has been brought against it by The Gambia, with Canada, the Netherlands and Maldives joining the case recently. Simultaneously, the Prosecutor of the International Criminal Court is investigating international crimes against the Rohingya. These international legal proceedings are indications of the seriousness and gravity of the crimes against the Rohingya, which India would do well to heed.
•To turn its back on the people of Myanmar would be unconscionable now, and India would be in breach of international law in doing so.
