📰 Sealed justice: On sealed cover jurisprudence
Supreme Court should lay down the limits of using sealed cover material to adjudicate cases
•In refusing to entertain ‘sealed covers’ submitted by the government or its agencies, the Supreme Court has made a noteworthy and welcome shift away from this unedifying practice. At least two Benches have spoken out against it. Recently, in the Muzaffarpur shelter home sexual abuse case, Chief Justice N.V. Ramana wondered why even an ‘action taken’ report should be in a sealed envelope. The use of material produced in a ‘sealed cover’ as an aid to adjudication is something to be strongly discouraged and deprecated. However, it gained much respectability in recent years, with contents withheld from lawyers appearing against the government, but being seen by the judges alone. Unfortunately, in some cases, courts have allowed such secret material to determine the outcome. In a recent instance, the Kerala High Court perused confidential intelligence inputs produced in a sealed envelope by the Union government to uphold the validity of orders revoking the broadcasting permission given to Malayalam news channel Media One on the ground of national security. It is quite disconcerting to find that courts can rule in favour of the government without providing an opportunity to the affected parties to know what is being held against them. In this backdrop, it is significant that the Supreme Court has decided that it will examine the issue of ‘sealed cover jurisprudence’ while hearing the channel’s appeal. For now, the apex court has stayed the revocation order and allowed the channel to resume broadcasting.
•It is true that the law permits the submission of confidential material to the court in some cases. In addition, courts can order some contents to be kept confidential. The Evidence Act also allows the privilege of non-disclosure of some documents and communications. Even when authorities claim privilege over classified material, they had no objection to judges perusing them to satisfy themselves about the claims. The government usually justifies the submission of secret material directly to the court, citing national security or the purity of an ongoing investigation. Courts have often justified entertaining material not disclosed to the parties by underscoring that it is to satisfy their conscience. However, the practice sometimes has undesirable consequences. It compromises the defence of those accused of some crimes, especially those involving an alleged threat to national security, or money laundering and corruption. Undisclosed material is often used to deny bail, something the apex court criticised the Delhi High Court for doing in a case against former Union Minister P. Chidambaram. It observed that recording a finding based on material kept in a sealed cover was not justified. The main mischief of the ‘sealed cover’ practice lies in the scope it gives the state to avoid deep scrutiny of the need and proportionality of its restrictions on freedom. The time has come for the Supreme Court to determine and circumscribe the circumstances in which confidential government reports, especially those withheld from the other side, can be used by courts in adjudication.
India should help Sri Lanka during the crisis and also resolve some of the bilateral issues
•Sri Lanka is facing an economic crisis with long queues in front of petrol stations, steep rise in prices of essential commodities and frequent blackouts. Although the COVID-19 pandemic precipitated a crisis of trade imbalance, the fundamentals of the Sri Lankan economy have always had serious issues. Debt, both domestic and foreign, has been a major problem. Even in February 2020, hardly a few months after Gotabaya Rajapaksa assumed office as President, his elder brother and Prime Minister Mahinda Rajapaksa, during his visit to New Delhi, wanted India to reschedule the loan. Over the last three months, India has provided assistance of $2.4 billion including a $500 million loan deferment and $1 billion credit line to enable the supply of essential commodities. Apart from approaching Beijing, Colombo has also sought help from the International Monetary Fund, shedding its earlier reservation of taking help from the agency. As soon as the shortage of certain essential commodities ends, which the government expects before the start of the Sinhala-Tamil New Year (which falls in the middle of April), steps should be taken for economic recovery. Compulsions of electoral politics should not come in the way of tough measures such as restructuring the administration of concessions and subsidies. Mr. Gotabaya Rajapaksa should also use the scheduled meeting with the Tamil political leadership to create a road map on the issue of political devolution and economic development of the war-affected northern and eastern provinces, among the areas badly hit by the current crisis.
•Perhaps, Tamil Nadu has already started feeling the impact of the crisis with the reported arrival of 16 persons from Sri Lanka, including six women and seven children, through illegal means. Tamil Nadu was home to nearly three lakh refugees after the anti-Tamil pogrom of 1983. Regardless of the motive of those who have reached Tamil Nadu clandestinely, the authorities, both in India and Sri Lanka, should ensure that the present crisis is not used to step up smuggling activities and trafficking or whip up emotions in both countries. On the contrary, the crisis should be used as an opportunity for New Delhi and Colombo to thrash out a solution to the Palk Bay fisheries dispute, a longstanding irritant in bilateral ties.
📰 Time for India to redefine its relationship with Russia
It is too risky for New Delhi to pursue vague aims vis-à-vis Moscow at a time of diplomatic and strategic uncertainty
•Russia’s war on Ukraine has decisively shaped international opinion. Indian foreign policy is also going to be affected in a profound manner. The most important question facing Indian diplomacy is how to navigate India’s great power relations in the future. While there has always remained a pro-Russian popular sentiment in India, rooted in Moscow’s support during the Cold War era, particularly against the pro-Pakistani diplomatic activism by powerful Western countries in the United Nations Security Council (UNSC), a majority of Indians today seem taken aback by Russia’s misadventure against a sovereign country.
Foreign policy conundrum
•That Ukraine, a former Soviet republic, is moving closer to the North Atlantic Treaty Organization (NATO) in the hope of membership may be a sufficient reason for Russia to be infuriated, but it is still an insufficient condition for Ukraine to be attacked in violation of all norms of international law. However, India has not directly criticised Moscow’s action. Memories of the historic Indo-Soviet partnership still seem to tip the scales when it comes to India’s vote at the UNSC. Western countries have criticised India’s repeated abstentions at the UNSC on the issue of the Russian invasion, while the Kremlin has praised India for taking an “independent and balanced” position. While India has not cared much about Western criticism of its “independent” approach to foreign policy, it is the Russian angle this time which has come to restrain India’s strategic autonomy.
•President Vladimir Putin’s attack on Ukraine has put New Delhi in a foreign policy conundrum that will not disappear soon because Russia’s action has changed the global order. The Western world has imposed unprecedented sanctions against Russia and banned energy imports. New Delhi is concerned about the impact of these sanctions on global finance, energy supplies, and transportation, amid growing signs that they will constrain India’s ability to import Russian oil.
•The image of the Russian military might be tarnished now as Russian forces have under-performed in their Ukrainian campaign. Ukraine has been able to hold the Russian forces back for a long time, which can be seen as a moral victory for a weaker nation. Mr. Putin is neither a crafty strategist nor a charismatic hero who has risen from the ashes of the Soviet defeat to lead Russia into a new period of resurgence. His reputation has been severely bruised because a comedian-turned-politician next door has exposed the hollowness of Russia’s military tactics and operational planning.
The real strategic challenge
•China’s blatant attempts to project its rising power as well as Russia’s threats against its “near abroad” will continue to test India’s strategic choices. Nevertheless, what must worry India is the fact that Russia will now become increasingly dependent on Chinese support to defend its policies. Mr. Putin may not know what he eventually wants in Ukraine, but he is aware of the ruble collapsing, the punishing sanctions being imposed, and the dire state of the Russian economy. This will push him further into China’s military and economic orbit.
•India’s real strategic challenge is surfacing in the Indo-Pacific with the rise of China, as Beijing has consistently sought to expand its zone of military, economic and political influence through the Belt and Road Initiative. Moreover, instead of smoothing the ruffled edges of India’s insecurities, which are rooted in an undefined boundary, China has only aggravated them further. Though India would like the U.S. to continue to focus on China, it is not possible for Washington to ignore Russia’s aggression along NATO’s periphery.
•Since the end of the Cold War, Indians have been debating the contours of strategic autonomy. For some, the notion is a re-branding of India’s non-aligned posture during the Cold War. Others say that the doctrine of ‘multi-alignment’ is the 21st century avatar of strategic autonomy as India has been expanding its engagement with all the major powers.
•Reality has many dimensions. And in this case, history is relevant. Indian nationalists of various shades still fondly remember which countries were India’s allies during the Cold War and which were not. Former Prime Minister Jawaharlal Nehru’s advocacy of neutrality in the bloc politics was justified in the pursuit of an independent post-colonial foreign policy. The Soviet Union was seen as a trustworthy partner against Western hegemony. Following the disintegration of the USSR, India joined Russia and China against the unipolarity of the U.S. The purpose of this trilateral initiative was to promote a multi-polar world to constrain the U.S.’s unbridled power and ambition. India was also uncomfortable with the arrogance that defined Western attitudes towards Russia in the immediate post–Cold War period. For some time, this common concern about unipolarity put the three countries on the same path towards mutual cooperation and understanding. Later, Brazil and South Africa were also brought into this coalition. However, it soon became clear that India and China did not see eye to eye. Moreover, India was determined to maintain its partnership with Russia, an important arms supplier. Its ties with the U.S. have also improved significantly since the end of the Cold War. But continuing dependence on Russian weaponry has become India’s strategic headache.
An unpredictable Russia
•Nostalgia cannot be allowed to trump reality. Mr. Putin seems too frozen in old-fashioned grievances against the West to appreciate the value of India’s friendship. Much of New Delhi’s disillusionment stems from a failure to understand not only Mr. Putin’s political thinking, but also Russia’s place in the emerging global order. If it was a nuclear-armed superpower yesterday, Russia seems to be behaving like a nuclear-armed bully today. Under Mr. Putin, Russia is in a state of transition, swinging wildly from one crisis to another. Therefore, it is too risky for India to pursue vague aims vis-à-vis Russia in these uncertain times.
•Those in India echoing Russian resentment against the eastward expansion of NATO are reminded by Western analysts that a NATO-Russia Council was formed specifically to alleviate Russia’s concerns, and that Russia was recognised as one of the world’s leading industrial powers through a formal admission into the elite G-7 not on the basis of its industrial might, but to soften its bruised superpower ego. Truth lies somewhere in between, which perhaps explains India’s stance at the UNSC.
•Everyone in and around government must think seriously about India’s relations with Russia as the unfolding Ukrainian tragedy has introduced a new era in international relations. Though Moscow has drifted much closer to Beijing, and is sharply critical of India’s engagement with the U.S. and the Quad, India finds it difficult to extend support to Ukraine. Prime Minister Narendra Modi may still personally like Mr. Putin, but he understands that in the halls of global diplomacy, nations have interests which are not determined by personalities alone. It goes without saying that the U.S. is the country most likely to bolster India’s future as a great power.
•It is not going to be easy for New Delhi to maintain its balancing act in the future as Washington hardens its position further. It is inevitable that during this time of diplomatic and strategic uncertainty, New Delhi needs to be ready to radically redefine its relationship with Moscow.
📰 The peculiar case of Ladakh’s eastern boundary
Atmanirbhar Bharat requires a bold relook at old misconceptions while continuing dialogue
•Chinese Foreign Minister Wang Yi is in India and is expected to meet External Affairs Minister S. Jaishankar and National Security Adviser Ajit Doval. The changed global geopolitical situation is a good time to focus on the peculiar case of Ladakh’s eastern boundary and the unnecessary ongoing conflict.
Treaties, usage and custom
•There has never been a defined boundary in this area because high watershed frameworks do not apply to the parallel ranges in Ladakh, where the topography shaped both its polity and relations with others. Leh was the ‘cross road of high Asia’ where traders exchanged goods by barter. Ladakh translates as the ‘land of high passes’, which defined the limits of its administrative control over trade routes via the Karakoram pass to the north, Demchok to the south and Zojila to the west, triangulating the small settled population limited to the Indus Valley, now with India. Grazing grounds in the south were shared with Tibet. The uninhabited soda plains to the east extending over 100 square miles at a height of 17,000 feet, now disputed between India and China, were of no use and not governed by anyone.
•Ladakh emerged as a distinct entity with the Treaty of Timosgang in 1684. This treaty established relations between Leh and Lhasa through trade exchanges. With the Treaty of Chushul in 1842, Ladakh and Tibet agreed to maintain the status quo. The Treaty of Amritsar in 1846 between the East India Company and the State of Kashmir included Ladakh with its eastern boundary undefined, and the focus remained pashmina trade for making shawls.
•After Britain took over governance of India, attention shifted to the northern boundary of Ladakh because of the Russian advance into Central Asia. In 1870, a British Joint Commissioner was posted at Leh, who continued good relations and correspondence with the Dalai Lama and the Chinese Amban at Lhasa and with the Kashmir State. Both India and China have relied on the correspondence and travel accounts, which had a very different purpose, obscuring the reality that the customary boundary was defined only for the limited area under human occupation.
•The authoritative ‘Gazetteer of Kashmir and Ladak’, brought out in 1890, states that from the Karakoram to the head of the Changchenmo valley the boundary with ‘Chinese Tibet” is “quite doubtful” (the area of the current discussions) and clear only for the area to the south and west which represents actual occupation (currently not disputed). The unoccupied Aksai Chin is described as “neutral territory”, suitable for wheeled transport and where the Chinese built their road.
New domestic consensus
•There has been advance in developing a common understanding, moving from establishing respective claims to recognising the ground reality. In 1959, experts of both countries, not unexpectedly, further hardened positions as both sides relied selectively on any correspondence or travel record that would justify their already established stand. In 1993, the signing of an Agreement on the Maintenance of Peace and Tranquillity along the Line of Actual Control brought in diplomats, and the dialogue moved from history to principles. In 2020, the focus shifted to the ground situation and after 15 rounds of talks, the recent joint statement has highlighted continuing the military and diplomatic dialogue and reaching a mutually acceptable resolution of the remaining issues at the earliest for progress in bilateral relations.
•Outside this process, Indian diplomats, Army chief Kodendera Subayya General Thimayya earlier and recently former Commanders of the Leh Corps have characterised the Karakoram watershed as a defensible border, to which the Chinese claim line broadly corresponds, leaving the area where earlier no one exercised control, Aksai Chin, to China. This raises the question why this assertion has been ignored at the political level.
•A former Foreign Secretary and Ambassador to China and the U.S. has explained initial decisions as “ineptitude” and the approach as “unrealistic”, arguing that it is necessary to first acknowledge mistakes of the 1950s for moulding a new domestic consensus. For example, following the Seventeen Point Agreement between China and Tibet in June 1951, even as the Chinese moved into Tibet across Aksai Chin, the North-East Frontier Agency was handed over to the Ministry of External Affairs (MEA) but not Ladakh. Examining this Agreement, the MEA felt it was “reasonable” and inexplicably that India had no use for the Consulate in Kashghar across the northern border of Ladakh. In the India-China Agreement of April 29, 1954, it appears that the reference to passes marking the boundary in the central sector was taken as including the passes in Ladakh assuming recognition of the boundary. This led to new official maps in June 1954 with the MEA deciding on ‘the most favorable line’ in eastern Ladakh. As the Ambassador points out, in Parliament, Prime Minister Jawaharlal Nehru never admitted that the entire boundary was unilaterally defined or even that it was in dispute leading to the notion of “Chinese betrayal” in the public imagination.
•The year 1954, not 1962, was the turning point in complicating the situation. Unilateral actions in “neutral territory” establishing a strategic road and defining the boundary converted a colonial ambiguity into a dispute, instead of adopting the watershed principle as in the case of the border of all other Himalayan States. The Cold War heightened mistrust, with Pakistan joining the Southeast Asia Treaty Organization and the United States’ covert operation with the brother of the Dalai Lama residing in Kalimpong arming Tibetans.
Omission and commission
•The solution lies in the equally unique 70-year-old continuing dialogue despite each side calling the other an aggressor and sporadic military incidents. Instead of claims, the growing confidence of both countries should enable them to acknowledge acts of commission and omission in the 1950s as newly independent ancient civilisations extended overlapping sovereignty in the uninhabited area in Ladakh over which neither had ever exercised control.
•In what would be a bold political step, agreement on the watershed boundary following a well-established principle would meet the national security concerns of India and China without bringing in intractable issues of sovereignty.
