1. Analysing U.S.-China bilateral ties

What events led to the unprecedented downturn of relations between the two countries? Is there a growing effort from both sides to reset the relationship to the pre-trade war level? Is the complex relationship between the two powers set on an irreversible trajectory of rivalry?

U.S.-China relations have witnessed an unprecedented downturn in 2022. Nancy Pelosi’s historic visit to Taiwan in August has deeply upset bilateral ties. The imposition of heavy restrictions on China’s semiconductor industry by the U.S. in October has fanned the flames of rivalry further. Amid this escalation, the U.S. President Joe Biden and Chinese President Xi Jinping had their first in-person interaction on the sidelines of the G-20 summit in Bali in November, signalling a probable relaxation of the growing tensions.

How did relations sour between U.S. and China?

The U.S. and China, ever since the establishment of diplomatic relations in the later part of the Cold War, have worked toward enmeshing their economic systems from the perspective of economic complementarity and strategic convergence. As a result, China rose to the status of the second largest economy and got itself ingrained into the global economy. This eventually translated into China’s growing economic competence as well as its rising political ambition and might. China then started to systematically undermine U.S. global dominance through military and diplomatic means. This happened at a time when there was a growing perception of U.S. decline amidst the global financial crisis and its entrenchment in the “forever wars” of Afghanistan and Iraq.

Under Xi Jinping, China’s assertiveness rose further, as its quest for primacy in the world stage became increasingly apparent. With Donald Trump’s entry into the White House, the U.S. concerns about the threat from China reached critical levels. The Trump administration took progressively confrontational steps towards China, with growing bipartisan backing. The administration’s imposition of tariffs on China’s exports turned into a “trade war” which started to reverse the trajectory of U.S.-China relations. Though Mr. Biden succeeded Mr. Trump, the policy on China did not change significantly, as the momentum for “decoupling” bilateral relations did not just continue, but kept on gathering pace. China’s crackdown in Xinjiang and Hong Kong, its “wolf warrior diplomacy” during the COVID-19 blame game, its evident support to Russia during the Ukraine crisis, and its escalating offensive posturing towards Taiwan, made it imperative for the U.S. to continue with a confrontational posture towards China.

The year 2022 witnessed the relations descend into an abysmal trajectory with the Speaker of the U.S. House of Representatives, Nancy Pelosi visiting Taiwan. The visit was extremely significant in light of sabotaging the U.S.’s stated commitment to the One China Policy as well as bolstering its commitment towards the defence of Taiwan. China expressed its exasperation through large scale military drills seemingly aimed at blockading Taiwan and signalling the U.S. of its intent to respond in kind. China has been going on an overdrive to gain technological dominance in the fourth Industrial Revolution over the U.S. In order to undercut China’s growing technological prowess, the U.S. imposed a series of restrictions on China targeting its semiconductor chip industry. With tensions reaching a peak, the G-20 summit held at Bali provided an opportunity for the leaders of both the countries to hit the pause button on the deterioration of ties.

What was discussed between the two leaders on the G-20 sidelines?

Mr. Biden and Mr. Xi discussed outstanding matters related to U.S.-China relations for nearly three hours at Bali. There was no joint statement released after the meeting, although both sides provided their own perspectives on issues of mutual concern. Easing tensions and reopening channels of communication were agreed upon by both the leaders. The U.S. President expressed that both the countries should “manage the competition responsibly and maintain open lines of communication”, and that the U.S. is not looking for conflict with China. However, he said that the U.S. “will continue to compete vigorously” with China. Mr. Biden proposed promoting U.S.-China cooperation on the issues of climate change, global macroeconomic stability, as well as global health and food security. He also underlined the human rights concerns surrounding China’s activities in Xinjiang, Tibet and Hong Kong.

On the other hand, the Chinese President stated that the relationship should not be seen by the U.S. through the prism of “democracy versus authoritarianism”. Mr. Xi also re-emphasised Taiwan’s position as being at “the very core of China’s core interests” as well as the “the bedrock of the political foundation of China-U.S. relations”, which the U.S. needs to respect. Meanwhile, Mr. Biden reiterated that the U.S.’s commitment to the One China Policy had not changed, and that it will oppose “any unilateral changes to the status quo by either side”. This is despite Mr. Biden’s several previous statements which contradicted this stance. Mr. Xi also noted the “five noes” previously mentioned by Mr. Biden — not seek a new Cold War; not seek to change China’s system; not to revitalise its alliances against China; not to disturb the cross-Strait status quo; and not look for conflict with China. Mr. Xi stressed that both the countries needed to “explore the right way to get along”.

What does the future hold?

The recent meeting between the two heads of states certainly imply that there is a move toward bringing in more stability into bilateral relations. However, to what extent could this move be aimed at taking the relations to where it was before the trade war remains questionable. For one, China has not moved away from its path to attain its long term goal of centrality in the international system. In fact, Xi Jinping has at multiple times underlined China’s time bound aspiration to achieve such a goal through phased modernisation of the country. China’s more specific objectives like the reunification of Taiwan with the mainland has been underscored by Mr. Xi most recently in November during the 20th National Congress of the Chinese Communist Party, where he consolidated his exceptional third leadership term. Further, it has to be noted here that the “new era” of Xi Jinping is marked by China’s efforts to project rather than conceal its capabilities.

On the other hand, the Biden administration has continued with intensifying the U.S.’s rivalry with China by expanding it beyond trade and into avenues like technology and political freedoms. It has also utilised multilateral approaches like strengthening the Quad in the Indo-Pacific, and the founding of the Indo-Pacific Economic Framework. However, the administration has coated these efforts with a veneer of moderation and accommodation to demonstrate some distinctiveness with the previous administration. For instance, the current U.S. administration’s China policy outlined in May by the Secretary of State Antony Blinken identified China as the “most serious long-term challenge” to the international order. Nevertheless, it presented a three-pillar approach towards China — “invest, align, compete”. This showcases the Biden administration’s intent to deal with the threat posed by China without sliding into an inadvertent conflict.

Thus, the long-term trajectories of both countries do not seem to be poised for a reset; rather, both seem to be buying time and reducing unnecessary risks while the strategic rivalry unfolds.

2. Assam Accord: Constitution Bench lists citizenship case for January 10

A Constitution Bench on Tuesday listed for January 10, 2023 a series of long-pending petitions challenging Section 6A of the Citizenship Act, 1955 that allows citizenship to illegal immigrants, mostly from neighbouring Bangladesh, who entered Assam before March 1971. These petitions had been lying dormant while the court had gone ahead and monitored the publication of the final Assam NRC list in August 2019 and the government had enacted the Citizenship (Amendment) Act.

Section 6A was a special provision inserted into the Act in furtherance of a Memorandum of Settlement called the ‘Assam Accord’ signed on August 15, 1985 by the then Rajiv Gandhi government with the leaders of the Assam Movement to preserve and protect Assamese culture, heritage, linguistic and social identity. The Accord came after a six-year agitation by the All Assam Students Union to identify and deport illegal immigrants.

Under Section 6A, foreigners who had entered Assam before January 1, 1966, and been “ordinarily resident” in the State, would have all the rights and obligations of citizens. Those who had entered the State between January 1, 1966 and March 25, 1971 would have the same rights and obligations except that they would not be able to vote for 10 years.

Petitions were filed challenging the “discriminatory” nature of Section 6A in granting citizenship to immigrants, illegal ones at that. The petitioners, including Assam Public Works and others, argued that the special provision was in violation of Article 6 of the Constitution that fixed the cut-off date for granting citizenship to immigrants at July 19, 1948. One of the petitioners, Assam Sanmilita Mahasangha, a Guwahati-based civil society organisation, had sought the updation of the National Register of Citizens (NRC) for Assam on the basis of the 1951 NRC and not on the electoral rolls of March 1971.

In 2015, a three-judge Bench of the court had referred the case to a Constitution Bench.

On Tuesday, appearing before the five-judge Bench led by Chief Justice Chandrachud, senior advocate Indira Jaising said the case concerned people who have been citizens for a period of 40 years. “Whether people who have been acquired citizenship can now be denied citizenship… this question should be heard as a preliminary issue,” Ms. Jaising, for one of the parties, urged the court. Senior advocate Dushyant Dave, also for a party, said the focus of the case was the validity of Section 6A, and that should be decided first. Mr. Dave also highlighted questions raised about Section 3 of the 1955 Act concerning children born in India to parents, one of whom is an Indian and the other a foreigner.

The court asked the lawyers to meet and finalise the issues and present them before the Bench on January 10.

Assam Accord

• The Assam Accord was signed in 1985 by the Centre and the Assam government with the All Assam Student Union (AASU) and the All Assam Gana Sangram Parishad, which had spearheaded the 1979-85 Assam Movement against migration from Bangladesh.
• To implement the various Clauses of Assam Accord a new Department has been established in the name of “Implementation of Assam Accord Department” during the year 1986.
• The Accord set March 24, 1971, as a cut-off. Anyone who had come to Assam before midnight on that date would be an Indian citizen, while those who had come after would be dealt with as foreigners. 
• The same cut-off was used in updating the National Register of Citizens (NRC).

Expressions for which the definitions have not been determined

• The context is Clause 6 of the Assam Accord, which promises “constitutional, legislative and administrative safeguards to protect, preserve and promote the cultural, social, linguistic identity and heritage of the Assamese people”, but doesn’t provide clear cut definitions to identify who would be the “Assamese people”.
  • Clause 6 is important because many felt the 1971 cut-off was inadequate. 
• The Assam Movement had demanded 1951 as the cut-off. 
  • Given that the cut-off for the rest of India is 1948, many noted that the Assam Accord would grant citizenship to a section of migrants who would be counted as foreigners elsewhere in the country.
•  Clause 6 was, therefore, seen as a protective provision that would guarantee certain benefits to the Assamese people, while excluding some sections among those granted citizenship on the basis of the 1971 cut-off.

Why is the definition difficult?

• Because Assam’s demography has been shaped by decades of migration. 
  • Many of the migrants had settled here during the colonial era. While they might not be native speakers of an indigenous language, such as Assamese or Bodo or Karbi, the question was whether the definition of “Assamese” could exclude someone, for example, whose family might have lived in Assam for 100 years.
• Axomiya or Assamese is a contested phrase and there is no specific universal definition to it. Many feel people whose ancestors were living in Assam before 1826, when Assam was merged with British India, are Axomiya.
  • Others feel the word ‘Axomiya’ means anyone who was a permanent resident of Assam before 1951 when the first NRC was drawn up. 
  • Still, others feel anyone speaking Assamese (or any other indigenous language) is an Axomiya. 
  •  Those from Barak Valley, where Bengali is the local language, would want Bengali-speaking residents of Assam to be included as “Assamese”.

Other terms for which no definition has been finalised

• Khilonjia: In common parlance, khilonjia refers to all indigenous communities. The question is who would be considered indigenous. One line of argument has been that the definition should include various communities whose history in Assam dates back before the 1826 annexation with British India, but others contest this because of the groups that would be excluded.
• Adi Basinda: ‘Original inhabitants’, as the phrase suggests, would mean the tribes who have lived for generations in Assam. Some in Assam want this to extend to tribal communities settled by the British during colonial rule, but even this is not a settled definition.

3. ‘India may be first to hold satellite spectrum auction’

TRAI in discussion with experts, regulators worldwide for suitable model, consultation paper to be floated thereafter; to recommend steps to ease process for govt. permissions, says chief Vaghela

India will be the first country to auction spectrum for satellite communication (SatCom), and it should be designed to attract investments in the sector, telecom regulator TRAI chairman P.D. Vaghela said on Tuesday.

Speaking at a Broadband India Forum summit on SatCom, Mr. Vaghela said the Telecom Regulatory Authority of India (TRAI) would soon make recommendations to make permissions required for satellite communication from various Ministries — Information and Broadcasting, Space and Telecom — seamless to enhance ease of doing business in the sector. He also said TRAI had received a reference from the Department of Telecommunication for the spectrum required to be put to auction and associated aspects of satellite-based communication. “I think India will be the first to handle the issue of auctioning the space base spectrum. We are working on it.”

TRAI is yet to come up with a consultation paper on the spectrum auction as per the standard process meant for satellite communication.

When asked about the status of the paper, Mr. Vaghela said that TRAI was in discussion with experts and regulators worldwide for a suitable model and the consultation paper would be floated after those discussions are over.

4. Editorial-1: The attack on the last bastion — the judiciary

Recent comments by the Vice-President, Jagdeep Dhankar, and the Law Minister, Kiren Rijiju, can be read as a concerted attack on the collegium system, the Supreme Court of India, and even the basic structure doctrine (conveniently forgetting that it is this doctrine that has kept the Indian Constitution intact). Clearly, the present government continues to try and undermine judicial independence, which it has been doing since it first came to power in 2014. As a long-standing critic of the collegium system, I might have joined a chorus that called out the problems with judicial appointments. But this onslaught from the Government has been particularly disturbing and wholly unwarranted.

An ‘elected autocracy’

The Supreme Court, conceived as the custodian of the Constitution and the final arbiter of the law, has had an inconsistent history. The ghosts of ADM Jabalpur continue to haunt to this day. While the government under Indira Gandhi intended to destroy the judiciary during the Emergency, the entire Court, barring Justice H.R. Khanna, was also complicit in the erosion of citizens’ rights that took place then.

Over the decades, after much reflection and repair, from both within and outside the judiciary, those dark days have been seemingly left behind. But what worried us then has now re-emerged to torment us again.

The present move — of attempting to undermine and discredit the judiciary, as seen in the comments — is part of the larger mission to make the executive the most powerful entity. Today, executive accountability is a thing of memory, for no one raises any questions about its actions. Since 2014, the Government has undertaken a well-crafted, deliberate takedown of various institutions and mechanisms that could hold the executive accountable. Its efforts may not be as brazen as the Indira Gandhi-led government, but the same ends are being achieved: the state is rendered practically comatose, and the executive, most often, has the upper hand.

Parallels can be drawn with ‘elected autocracies’, where elected governments use the very institutions integral to democracy to kill democracy itself and destroy civil liberties. We have heard nothing of the Lokpal since. The National Human Rights Commission has been made dormant. Investigation agencies are misused at the slightest opportunity, with action against activists, journalists, students, political opponents, or anyone who protests against the government. The Election Commission of India appears to have been clearly compromised. The Information Commission is almost non-functional. The list is long and disturbing. Others who can hold the executive accountable — academia, the press, and civil society — have also been systematically emasculated. Universities are under attack. An unbiased mainstream fourth estate in India no longer exists, and the media operates mostly as a propaganda machine. Civil society, too, is being slowly but surely strangled.

And a resurgent judiciary

Since the Supreme Court’s decision in 2015 on the National Judicial Appointments Commission (NJAC) Act, arguably, from the Court under the Chief Justices of India (CJI) Dipak Misra onwards, through the tenures of notably Justice Ranjan Gogoi and Justice S.A. Bobde, the judiciary has remained passive, even submissive, to the executive. Consequently, not even a whisper emerged against the collegium. However, with the last three CJIs, i.e., Justice N.V. Ramana, Justice U.U. Lalit, and Justice D.Y. Chandrachud, the Court is being more assertive and speaking in a non-aligned and confident voice. The executive seems to have recognised that the judiciary is the last bastion and final protector of civil liberties which it must overcome to claim its position as the most powerful entity in India.

History tells us that in the early years of modern India, decisions on judicial appointments were usually made on the advice of the CJI. Even if concurrence was not contemplated, for our founding fathers, an independent judiciary was non-negotiable. B.R. Ambedkar was unambiguous that appointments should have no political pressure and considerations, but that ‘consultation with persons who are well-qualified … to give proper advice’ would be appropriate. This was followed through the Nehru-era.

Both the Indira Gandhi and Rajiv Gandhi governments attempted to manipulate the process. The collegium was created as a historical response to contemporaneous challenges, and succeeded in preventing the executive from hijacking judicial appointments. However, I maintain that ‘judges appointing judges’ is never a good idea, and a formal, structured appointments commission, with rules and accountability mechanisms, is the ideal way forward.

The NJAC law could have fixed this problem but it had many flaws, structured to undermine judicial independence, including giving a veto to so-called ‘eminent persons’. The Court could have read down these flaws and at least set up a body that could incrementally improve with every selection round. But the Government refused to accede to any change or modification in the law. Eventually, the Court was forced to strike down the law completely, leaving us, once again, with the collegium system.

Fixing the system of appointments

For better or for worse, the collegium system is currently the law of the land, which everyone, including the executive, must adhere to. Instead, we see a defiant government refusing to cooperate, let alone consult, with the Supreme Court. Names proposed by the collegium are left pending for years, only to be eventually returned unceremoniously. The Government would also do well to think about its own culpability in allowing the problem of pendency and vacancies to fester. Pendency is caused majorly by poor judicial infrastructure, including an abysmally low number of judges. Court funding is at the mercy of the government, which is either particularly frugal or deliberately parsimonious in the matter. Similarly, vacancies in the higher judiciary are directly due to the Government’s frequent refusal to accept names of persons who are out of favour, or who have not toed the Government’s line.

All this points to the same thing repeatedly, i.e., the appointments system must be fixed. Pending a clear, rule-based system, even the existing collegium system can be improved, e.g., through well-defined criteria for appointments, transparency and accountability in selection, better methods of assessing candidates for elevation, and improved ways of ensuring diversity and representation. CJI Chandrachud, with two years in office, has a wonderful opportunity to make these changes, even as, in the long term, we strive for a well-structured and balanced legislation on a judicial commission that brings in transparency without compromising judicial independence.

Until then, issues of pendency and infrastructure should be broached in appropriate forums, such as the Chief Justices Conference, or meetings between the Prime Minister and the CJI. Press interviews or parliamentary addresses are not fit stages for this, and only serve to incite acrimony and reinforce the view that the Government does not have a cooperative spirit.

We can rest assured that the leadership at the Supreme Court appears to be in good hands now and is resisting the pressure and attacks in a dignified and restrained way. If the Government continues to stonewall, perhaps the judiciary should find ways to persuade or even compel the Government to follow the law of the land. This is the best that the Supreme Court can do to protect democracy, and for the sake of Indian citizens.

5. Editorial-2: A conservation Bill that endangers forest rights

The expeditious passage of the Wild Life (Protection) Amendment Bill, 2021 in the Rajya Sabha this winter session — this followed its passing in the Lok Sabha during the monsoon session — needs comment. The Wildlife Protection Act (WPA), 1972 has safeguarded numerous species of wild animals and plants by prohibiting all forms of hunting and, more importantly, creating inviolate areas where wildlife conservation may be carried out. The amendment further invests in this conception of protected areas and species by bringing in newer species to be protected, augmenting the penal repercussions. While the aspects of protecting species from the wildlife trade, in line with international standards, have received thoughtful scrutiny by civil society, Members of Parliament and the Parliamentary Standing Committee, the impact of the criminal legal framework adopted by the WPA is less known.

Criminal laws and wildlife conservation

The need for criminal laws to assist wildlife conservation has remained unchallenged since its conception. From regulated hunting to complete prohibition and the creation of ‘Protected Areas (PA)’ where conservation can be undertaken without the interference of local forest-dwelling communities, State and Forest Department control over forests and the casteist underpinnings of conservation would not have been possible without criminal law. In this context, pitting wildlife species against communities as human-animal conflict has eluded the true cost of criminalisation under the WPA.

The recent move to increase penalties by four times for general violations (from ₹25,000 to ₹1,00,000) and from ₹10,000 to ₹25,000 for animals receiving the most protection should raise questions about the nature of policing that the WPA engenders.

Study based in Madhya Pradesh

A study by the Criminal Justice and Police Accountability Project (the CPA Project examined arrest records, first information reports (FIRs), offence records of the police and Forest Department in Madhya Pradesh) found that persons from oppressed caste communities such as Scheduled Tribes and other forest-dwelling communities form the majority of accused persons in wildlife-related crimes. The Forest Department was found to use the threat of criminalisation to force cooperation, apart from devising a system of using community members as informants and drawing on their loyalty by employing them on a daily wage basis. Cases that were filed under the WPA did not pertain solely to the comparatively serious offence of hunting; collecting wood, honey, and even mushrooms formed the bulk of prosecution in PAs. Over 95% of the cases filed by the Forest Department are still pending.

Hunting offences that were primarily filed against Schedule III and IV animals (wild boars) which have lesser protection than tigers and elephants formed over 17.47% of the animals ‘hunted’ between 2016-20. Among the animals hunted the highest, only one in top five belonged to Schedule I (peacock). Surprisingly, fish (only certain species relegated to Schedule I) formed over 8% of the cases filed. A whopping 133 cases pertaining to fishing (incorrectly classified as Schedule V species) were filed in the last decade in Madhya Pradesh.

Forest rights, individual and collective, as part of the Forest Rights Act (FRA) were put in place to correct the injustice meted out by forest governance laws in recognising forest-dependent livelihoods. The natural overlap of recognising forest rights in intended-as-inviolate PAs was quickly resolved by making the FRA subservient to the WPA, thereby impeding its implementation.

In the field work carried out, it was noticed that while individual forest rights in buffer zones of the Kanha National Park of Madhya Pradesh were recognised, the same cannot be said of collective rights over usage of forest resources, fishing, and protecting forest resources. Fishing, which forms an important part of subsistence for tribal communities, has come to be regularly criminalised as part of the WPA. In cases recorded by the Forest Department, as noted above, the very fact that these occurred in PAs led to the offence becoming punishable by three to seven years.

In a case from 2016 documented by the CPA Project, five men were apprehended by a range officer and beat guards as they sat across a fire with fish they had caught from the river nearby. The catch weighed less than 500 grams, yet the accused were charged with causing damage to a wildlife habitat under a host of WPA provisions. The case continues to remain pending in trial court.

Criminal cases filed by the department are rarely compounded since they are meant to create a ‘deterrent effect’ by instilling fear in communities. Fear is a crucial way in which the department mediates governance in protected areas, and its officials are rarely checked for their power. Unchecked discretionary policing allowed by the WPA and other forest legislations have stunted the emancipatory potential of the FRA. Any further amendments must take stock of wrongful cases (as in the case of fishing) and resultant criminalisation of rights and lives of forest dwelling communities.