THE HINDU EDITORIAL-
MARCH, 25, 2022
|
Sealed justice SC 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 cover’ as an aid to adjudication is
something to be strongly discouraged and depreciated. 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 criticized 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. Crisis in Sri
Lanka India should 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
Minster Mahindra 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 load 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 program 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. |
The peculiar case
of Ladakh’s eastern boundary Atmanirbhar Bharat requires a bold
relook at old misconceptions while continuing dialogue MUKUL SANWAL 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 limit 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 Ladakh’, 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 recognizing
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
Tranquility 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
characterized 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
South-east 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 civilizations
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. 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 VINAY KAURA 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 criticized 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 criticized 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 Russia 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 it’s “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 recognized
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. |
