1.SC to examine plea challenging sedition

Kedar Nathjudgment which upheld Section 124A needs a relook, says petitioner

The Supreme Court will examine a petition filed by a retired Major-General who said a nearly 60-year-old judgment of the court that helped sedition survive in the Indian Penal Code was behind time and needed a relook.

A Bench, led by Chief Justice of India N.V. Ramana, on Wednesday listed the case for hearing on July 15 and asked Major-General S.G. Vombatkere (retd.), represented by advocates P.B. Suresh and S. Prasanna, to serve a copy of his petition to Attorney General K.K. Venugopal.

The petitioner argued that the 1962 judgment in the Kedar Nath case, which upheld Section 124A (sedition), a relic of the colonial legacy, was given at a time when doctrines such as ‘chilling effect’ on free speech were unheard of.

“The doctrine of ‘chilling effect’ on speech considers the probability of a legal provision causing psychological barriers in the free exercise of the right… This doctrine had not sufficiently developed in 1962. Even in the U.S., the doctrine was established only as late as 1967… The most concrete pronouncement on a statutory provision causing a chilling effect on speech is as recent as 2015 in Shreya Singhal v. Union of India,” he submitted.

‘Sea change’

The Kedar Nath judgment was delivered during an era when the extent, scope and inter-relationship of fundamental rights such as liberty, equality and dignity were “rather restrictive”, the plea said.

In the judgment, the court had reasoned that without Section 124A, the state would be in jeopardy if the government was subverted. It, however, said that Section 124A would apply only to expressions that either intended to or had the tendency to cause violence were punishable as ‘sedition’.

The maximum punishment was life imprisonment. The offence was classified as ‘cognisable’ and ‘non-bailable’.

This judgment could hardly be seen as a beacon of light now, the petitioner contended.

He referred to the Supreme Court’s recent judgments decriminalising homosexuality and declaring privacy as a fundamental right as testaments of how the times and attitudes have undergone a “sea change” over the years.

This article is based on “Criticism is not sedition” which was published in The Hindu on 7/10/2019. It talks about the relevance of Sedition law.

Recently, a lower court in Bihar directed the filing of an FIR under section 124A (Sedition) of IPC against 49 eminent persons who signed an open letter to the Prime Minister of India expressing concerns over mob lynching.

This court decision warrants an urgent and fresh debate on the need to repeal the sedition law.

Historical Background of Sedition Law

• Sedition laws were enacted in 17^th century England when lawmakers believed that only good opinions of the government should survive, as bad opinions were detrimental to the government and monarchy.
• This sentiment (and law) was borrowed and inserted into the Section 124A of IPC in 1870, by the British.
• British used Sedition law to convict and sentence freedom fighters. It was first used to prosecute Bal Gangadhar Tilak in 1897.
• Mahatama Gandhi, too, was later tried for sedition for his articles in Young India.
• The Constituent Assembly debated to include sedition as a ground for restricting free speech. However, this was successfully opposed for fear that it would be used to crush political dissent.
  • The Supreme Court highlighted these debates in 1950 in its decisions in Brij Bhushan v the State of Delhi and Romesh Thappar v. the State of Madras.
  • In these cases, the court held that a law which restricted speech on the ground that it would disturb public order was unconstitutional.
  • It also held that disturbing the public order will mean nothing less than endangering the foundations of the State or threatening its overthrow.
  • Thus, these decisions prompted the First Constitution Amendment, where Article 19(2) was rewritten to replace “undermining the security of the State” with “in the interest of public order”.

Analysis of Bihar Court Judgment

• In 1962, the Supreme Court decided on the constitutionality of Section 124A in Kedar Nath Singh v State of Bihar.
  • It upheld the constitutionality of sedition, but limited its application to “acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence”.
  • It distinguished these from “very strong speech” or the use of “vigorous words” strongly critical of the government.
• In 1995, the Supreme Court, in Balwant Singh v State of Punjab, held that mere sloganeering which evoked no public response did not amount to sedition.
• However, the Bihar lower court ignored these judgments of the Supreme Court.
  • Even if the letter is considered hateful of the government, if it did not incite violence, it is not seditious.

Relevance of Sedition Law

• Freedom of speech often poses difficult questions, like the extent to which the State can regulate individual conduct.
  • Since an individual‘s autonomy is the foundation of this freedom; any restriction on it is subject to great scrutiny.
• The constitution of India prescribes reasonable restrictions that can always be imposed on this right in order to ensure its responsible exercise and to ensure that it is equally available to all citizens.
  • These restrictions are mentioned under Article 19(2) of the Constitution of India i.e. interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
• Sedition law helps the government to curb secessionist movement and other atrocity propaganda.

Why sedition law should be repealed?  

• Sedition leads to a sort of unauthorised self-censorship, for it produces a chilling effect on free speech.
• It suppresses what every citizen ought to do in a democracy — raise questions, debate, disagree and challenge the government’s decisions.
• Sedition systematically destroys the soul of Gandhi’s philosophy that is, right to dissent.
• Jawaharlal Nehru, in Parliament, clarified that the related penal provision of Section 124A was “highly objectionable and obnoxious and the sooner we get rid of it the better”.
• Even the UK, where the law originated, has already repealed it.

2.Five years later, Brexit continues to divide

The Brexiteers who forecast a clean break with the European Union underestimated many key issues

The British referendum five years ago was supposed to settle the United Kingdom’s historical love-hate relationship with Europe, but while the full consequences of Brexit will not be analysed for decades, the U.K. remains as divided as ever, and the way people voted in 2016 forms a large part of their identity. The referendum dominates British politics as the most significant event since the Second World War, resulting in two general elections, ousting two premiers and threatening the political geography of the U.K.

Loose ends

British Prime Minister Boris Johnson needed a rapid departure from the European Union (EU), and the Withdrawal and Trade and Cooperation Agreements of December 2020 were rushed through. Problems were soon apparent. The U.K. imports 70% of the fish it consumes; the industry only contributes 0.12% of GDP and employs 0.1% of the workforce, but has political traction. In May, after 60 French fishing boats massed to blockade Jersey over fishing rights, naval units from both Britain and France deployed off Jersey, a farcical reminder of the loose ends of Britain’s exit from the EU.

Case of Northern Ireland

Northern Ireland, part of the U.K. but in the EU’s single market, and therefore obliged to follow EU rules, is another case in point. The EU’s external border would be in the Irish Sea between Britain and Northern Ireland, and goods for Northern Ireland would need to be inspected there, which is politically untenable for the U.K. The alternative would be that the EU would itself impose inspections to protect its single market and structure a border either on the island of Ireland or between Ireland and the EU, which are both equally unfeasible.

Tensions predictably arose between Britain and the EU over the import of chilled meat products from Britain to Northern Ireland, with Britain seeking an extension of the transition arrangements from June 30 by three months. No one believes that this can be a lasting solution. It seems Britain is questioning Brexit agreements rather than following them, while boasting about its COVID-19 immunisation compared to the EU and the success of the City of London in maintaining its status against hostile EU legislation and incentives for banks to move to European capitals. To supporters of Brexit, it looked as if the EU wanted to punish Britain for leaving, if only to discourage its other members from doing the same. Thus, after membership of the EU for almost 50 years, mutual trust is lacking, and two versions of a rules-based order are colliding. This was apparent during the G-7 summit, when bilateral meetings between Mr. Johnson and EU leaders lacked warmth. The EU conceded the Northern Ireland postponement and persuaded its member States, especially France and Germany that are losing patience with Britain, to avoid a trade war over British sausages. Such recriminations may become a permanent feature of U.K.-EU relations as a small nation plays a poor hand against the world’s largest trading bloc while seeking trade deals with distant countries, which even official forecasts suggest will produce negligible benefits.

Scotland’s calculations

In Scotland, the National Party, which seeks an exit from the U.K., has grown in popularity since the Brexit vote. Scots voted in the referendum by 62% against 38% to remain in the EU, but were dragged out by the overall result. For many Scots, leaving the U.K. is the clearest path back to the EU, and anticipate that among other benefits, the EU will grant Scotland least developed status and subventions on the scale enjoyed by the Irish Republic. This is as much an anti-Westminster stance as an effort to join the EU since the chances of an independent Scotland jumping the queue of EU applicants and of all member States approving Scottish membership are not great. Nevertheless, the prospect of a break-up of the United Kingdom is of grave concern to London. Meanwhile, a vote on reunification in Ireland seems more probable now than at any time since the Good Friday Agreement of 1998 which brought an uneasy peace to fratricidal factions in the North.

In perspective

The International Monetary Fund warned that the British economy faced a 10% GDP decline in 2020. In first quarter 2021, food and drink exports to the EU declined by nearly 50% and export of services also shrank. At least 500 British companies have relocated to Europe. The Brexiteers who forecast a clean break with the EU either underestimated or ignored the practical inconveniences of leaving, including the vast paperwork involved in exporting and importing with the EU, but the success of British COVID-19 vaccination compared with the EU’s bungled efforts has enabled Brexiteers to claw back some ground.

In sum, most people have accepted Brexit though few are satisfied with the divorce settlement. No version of Brexit will satisfy everyone, and it has left the United Kingdom less united.

What is Brexit?

‘Brexit’ is the name given to the United Kingdom’s departure from the European Union. It is a combination of ‘Britain’ and ‘exit’.

Referendum: majority votes to leave

On 23 June 2016, the UK held a referendum on its membership of the EU. The question facing voters was: ‘Should the United Kingdom remain a member of the European Union or leave the European Union?’ 51.89% of voters voted to leave the EU. The UK left the EU on 31 January 2020.

Transition period

Up to and including 31 December 2020 a transition period was in place. During that time nothing changed and the UK continued to comply with all EU laws and rules. Negotiations were also held on the new relationship between the UK and the EU during this time.

New relationship

On 24 December 2020 negotiators for the EU and the UK reached a deal on the two parties’ new relationship. The EU and the UK have set out the terms of this deal in three agreements:

• the Trade and Cooperation Agreement
• the Information Security Agreement
• the Nuclear Cooperation Agreement.

On 1 January 2021 the rules set out in these agreements will come into force.

3.People’s voice and Kashmir’s future

The all-party conference failed because it completely ignored Kashmiri sentiments

The all-party conference on Jammu and Kashmir (J&K) revealed the failure of the strategy crafted by the Government of India. The Bharatiya Janata Party (BJP) has long urged the abrogation of Article 370 of the Constitution. But the constitutional coup went miles beyond that. It abrogated Article 35A as well, broke up the State of J&K by lopping off Ladakh, and reduced the rest to a Union Territory. It is unthinkable that any other State would have received the treatment meted out to J&K whose ‘special status’ was an eyesore.

But the elephant in the room was the law on delimitation of the constituencies. It trumpeted the real object of the coup loud and clear, which was to wipe out the political set-up in J&K and establish a new political order. To accomplish this, virtually the entire political class of Kashmir had to be put out of action, the press muzzled, assemblies banned, tourists given marching orders, schools and colleges shut, and electronic communications suspended.

Abrogation of Article 370

Article 370 cannot be abrogated even by Parliament, let alone by the President. Even the letter of Article 370 bars that. But there is a profound reason which fundamentally bars such a result. To cite an example, insurgency erupted in Mizoram on February 28, 1966. The Mizo National Front (MNF) led by Laldenga began an armed insurgency and declared independence the next day. On June 30, 1986, the Mizoram Accord was signed. It said: “Notwithstanding anything contained in the Constitution, no Act of Parliament in respect of (a) Religion or social practices of the Mizos, (b) Mizo customary law or procedure, (c) Administration of civil and criminal justice involving decisions according to Mizo customary law, (d) Ownership and transfer of land, shall apply to the State of Mizoram unless the Legislative Assembly of Mizoram by a resolution so decides.” On February 20, 1987, the 53rd Constitution Amendment came into force inserting Article 371G which reads thus: “Notwithstanding anything in this Constitution, no Act of Parliament in respect of (i) Religious or social practices of the Mizos, (ii) Mizo customary law and procedure, (iii) Administration of civil and criminal justice involving decisions according to Mizo customary law, (iv) Ownership and transfer of land, shall apply to the State of Mizoram unless the Legislative Assembly of Mizoram by a resolution so decides.”

The two are identically worded because Article 371G gives legal force to an accord between the Union and the MNF. Parliament cannot repeal it or even amend it unilaterally.

Article 370 stands on a higher footing. It gives legal force to an accord between the Union and a State of the Union and the parleys were held by Prime Minister Jawaharlal Nehru and his deputy, Sardar Vallabhbhai Patel. They began at Patel’s residence on May 15, 1949 and ended in mid-October with an agreed text. But it was moved in an altered form in the Constituent Assembly on October 17, 1949 by N. Gopalaswami Ayyangar in the absence of Sheikh Abdullah who happened to be in the lobby. He rushed to the House.

Article 370 made Kashmir’s Constituent Assembly the sole authority to accord consent to any addition to the Centre’s power and to further extension to Kashmir of India’s Constitution. The Assembly first met on October 31, 1951 and was formally dissolved on November 17, 1956. Article 370 enabled the State government to accord its concurrence only subject to J&K’s Constituent Assembly’s concurrence. This was abused to make the State government and even the Governor alone to be the consenting authority.

The result? Ninety-four of the 97 entries in the Central List were applied to Kashmir leaving a balance of three. So much for the ‘special status’. The Constitution is studded with ‘special’ provisions for Nagaland, Assam, Manipur, Andhra Pradesh, Sikkim, Mizoram, Arunachal Pradesh, and Goa (Article 371A-1). Kashmir had an elected Sadr-E-Riyasat. The Centre replaced him with a Governor it nominated.

We have high legal authority for challenging the ‘laws’ of August 5, 2019. After the First World War, countries of the British Empire were restive about their independence. In 1926, the Earl of Balfour devised a formula which pleased all. The autonomy of those countries was recognised simultaneously with their loyalty to the British Crown. This was incorporated in the Statute of Westminster passed in 1931 by the British Parliament. It said that no law it passed would extend to the Dominions unless they had so wished (Section 4). In 1935, the Privy Council ruled that “the Imperial Parliament could, as a matter of abstract law, repeal or disregard Section 4 of the Statute. But that is theory and has no relation to realities. In truth, Canada is in enjoyment of the full scope of self-government” (British Coal Corporation v. The King).

Areas of ‘special status’

Areas of ‘special status’ abound the world over. Scotland joined England in 1707 to form Great Britain. It held a referendum on its independence without its beingcalled ‘treason’. Quebec held two referenda on secession in 1980 and 1995. All three failed.

For historic reasons, the German-majority South Tyrol is partly Italy. Its autonomy is guaranteed by an Austro-Italian accord. The Swedish-majority Aaland Islands are Finnish territory under an accord of 1921. The autonomy of both territories (Aaland Islands and South Tyrol) is internationally guaranteed.

Indonesia quelled militancy in Aceh by an accord on August 15, 2005 based on “special autonomy”. Newfoundland signed the Terms of Union with Canada on December 11, 1948 after a referendum. Denmark conferred home rule on Greenland in 1979. On June 12, 2009, Denmark enacted an Act on Greenland Self-Government to confer greater power than that of our States.

Fifty years ago, Sheikh Abdullah told former Foreign Secretary Y.D. Gundevia, “Only that person who enjoys the confidence of the Government of India can be Chief Minister of Kashmir”. A ‘special status’ worse than, say, Kerala or Tamil Nadu, which can have Chief Ministers that the Centre does not approve of.

The Supreme Court’s record on Kashmir is uninspiring. The matter is too politicised. The petitions must be withdrawn in favour of a political, peaceful, constitutional approach. The Gupkar Declaration of August 4, 2019 must be amplified in a Convention.

On July 9, 1953 Maulana Azad offered to Sheikh Abdullah that the Government of India “is willing to declare that the special position given to Kashmir will be made permanent without any conditions”. Abdullah replied on July 16, “If such a declaration had been earlier, it would have strengthened my hands”. Now, “if I fail to gain the confidence of my people here, I will not be able to render my service to my friends.” The people matter more than they did in 1953. Statesmanship lies in crafting a solution acceptable to them.

Time is running out. The Delimitation Commission visited Kashmir to fulfil the vision of the BJP’s Vision Document — more seats for Jammu. A lot depends on the statesmanship of Farooq Abdullah, Mehbooba Mufti and Mirwaiz Mohammad Umar Farooq. Their objectives should be two-fold: to work for the restoration of Kashmir’s identity and pride and help to complete the four-point formula which former Prime Minister Dr. Manmohan Singh and former Pakistani President Pervez Musharraf had built four-fifth. The all-party conference failed because it ignored Kashmiri sentiments.

Background

On 5th August 2019, President of India in the exercise of the powers conferred by Clause (1) of Article 370 of the Constitution had issued the Constitution (Application to Jammu and Kashmir) Order, 2019. Through this, Government of India has made modifications in Article 370 itself (not revoked it).

With this, the Government of India has dramatically altered the relationship between the state of Jammu and Kashmir and the Indian Union.

History

• On October 17, 1949, Article 370 was added to the Indian constitution, as a ‘temporary provision’, which exempted Jammu & Kashmir, permitting it to draft its own Constitution and restricting the Indian Parliament’s legislative powers in the state.
  • It was introduced into the draft constitution by N Gopalaswami Ayyangar as Article 306 A.
• Under Article 370: The Constituent Assembly of Jammu & Kashmir was empowered to recommend which articles of the Indian Constitution should apply to the state,
  • The J&K Constituent Assembly was dissolved after it drafted the state’s constitution. Clause 3 of the article 370 gives the President of India the power to amend its provisions and scope.
• Article 35 Astems from Article 370 and was introduced through a Presidential Order in 1954, on the recommendation of the J&K Constituent Assembly.
  • Article 35A empowers the Jammu & Kashmir legislature to define the permanent residents of the state, and their special rights and privileges.
  • It appears in Appendix I of the Constitution.

Key Changes

• The Constitution (Application to Jammu and Kashmir) Order, 2019 has replaced Presidential Order of 1954.
• Subsequently, the Jammu and Kashmir Reorganisation Bill, 2019, passed by Parliament divides the state of Jammu and Kashmir into two new Union Territories (UTs): Jammu & Kashmir, and Ladakh.
  • This is the first time that a state has been converted into a UT.
  • Of the six Lok Sabha seats currently with the state of Jammu and Kashmir, five will remain with the union territory of Jammu and Kashmir, while one will be allotted to Ladakh.
  • The UT of Jammu and Kashmir will have an Assembly, like in Delhi and Puducherry.
  • Instead of 29, India will now have 28 states. Kashmir will no longer have a Governor, rather a Lieutenant Governor like in Delhi or Puducherry.
• Status of J&K Union Territory
  • J&K Assembly will have a five-year term, not six, as was the earlier case.
  • Section 32 of the J&K 2019 Bill proposes that the Assembly can make laws on any subjects in the State and Concurrent lists except on state subjects relating to “public order” and “police”.
    • This is similar to Article 239 A of the Constitution that is applicable to Union Territories of Puducherry and Delhi.
    • However, by insertion of Article 239AA and by virtue of the 69th Constitutional Amendment, the Delhi Assembly cannot legislate on matters in entry 18 of the State List, i.e. land.
    • In the case of J&K, the Assembly can make laws on land.
• The special status provided to J&K under Article 370 will be abolished.
  • Jammu & Kashmir will no longer have the separate constitution, flag or anthem.
  • The citizens of Jammu and Kashmir will not have dual citizenship.
  • As the new union territory of Jammu and Kashmir will be subject to the Indian Constitution, its citizens will now have the Fundamental Rights enshrined in the Indian constitution.
  • Article 360, which can be used to declare a Financial Emergency, will now also be applicable.
  • All laws passed by Parliament will be applicable in Jammu and Kashmir, including the Right to Information Act and the Right to Education Act.
  • The Indian Penal Code will replace the Ranbir Penal Code of Jammu and Kashmir.
  • Article 35A, which originates from the provisions of Article 370 stands null and void.
    • Since Presidential Order has extended all provisions of the Constitution to Jammu and Kashmir, including the chapter on Fundamental Rights, the discriminatory provisions under Article 35A will now be unconstitutional.

The Need for Changes

• Article 370 was added in the Indian constitution to provide autonomy to J&K.
  
  
  • However, it failed to address the well-being of Kashmiris who have now endured two generations of insurgency and violence.
  • It contributed to the gap between Kashmir and the rest of the nation.
• International events
  • The situation emerging in the western neighbourhood and the possible re-ascendance of the Taliban in Afghanistan call for greater attention and care.
  • More so, the emerging geopolitical dynamics in Afghanistan and the resultant United States-Pakistan rapprochement could have potentially led to more heat on the Kashmir situation in the months ahead.

Challenges

• Constitutional challenges
  • Presidential order that sought to abrogate of Jammu and Kashmir’s special status, according to Article 370 (3) the President would require the recommendation of the constituent assembly of Jammu and Kashmir to make such a change.
  • However, the 2019 Presidential order adds a sub-clause to Article 367, replacing the terms:
    • “Constituent Assembly of Jammu and Kashmir” to mean “legislative Assembly of Jammu and Kashmir”.
    • “Government of Jammu and Kashmir” to mean “Governor of Jammu and Kashmir acting on the aid and advice of the council of ministers”.
  • The government sought to dilute the autonomy under Article 370 without bringing a Constitutional Amendment that would require a two-thirds majority in the Parliament.
    • This provision is currently under challenge in the Supreme Court on the ground that it added article 35A in the Indian Constitution only through a Presidential Order.
• Conversion of Jammu and Kashmir into a Union Territory is in violation of Article 3, as the Bill was not referred to the President by the State Assembly.
  • In the reorganisation of the state, the Presidential order also requires the concurrence of the government of the state. However, since Jammu & Kashmir is currently under Governor’s rule, the Governor’s concurrence is deemed to be the government’s concurrence.

• Federalism issue:
  • The Instrument of Accession was like a treaty between two sovereign countries that had decided to work together.
    • The maxim of pacta sunt servanda in international law, which governs contracts or treaties between states, asks that promises must be honoured.
  • In Santosh Kumar v. State of J&K & ors (2017), the SC said that due to historical reasons, Jammu and Kashmir had a special status.
  • In SBI v Zaffar Ullah Nehru (2016), the SC held that Article 370 cannot be repealed without the concurrence of the Constituent Assembly of Jammu and Kashmir.

Possible Consequences

• Rise in Militancy: Article 370 was seen by Kashmiris as a marker of their separate identity and autonomy.
  • There is a possibility of widespread protests and violence as a reaction to the dilution of Article 370.
  • Terror elements in Pakistan would find Kashmir to be the most fertile ground for breeding terrorism.
  • The unrest can affect the democratic progress that has been made so far.
• Out-maneuvering Pakistan: Pakistan used 370 to wage a proxy war, internationalise Kashmir, supporting terrorism, all that is gone now.

4.‘LAC impasse is affecting bilateral ties’

Jaishankar says India had hopes China will ‘follow through’ in resolving issues

The impasse between Indian and Chinese troops at the Line of Actual Control (LAC) is “visibly impacting” bilateral ties “negatively”, External Affairs Minister S. Jaishankar told Chinese State Councillor and Foreign Minister Wang Yi as they met in Dushanbe on the sidelines of the SCO meeting on Wednesday. Highlighting the lack of movement in the disengagement process apart from the initial withdrawal of troops around the Pangong lake area earlier this year, Mr. Jaishankar said India had hoped China would “follow through” in resolving issues at the LAC, as had been agreed in a five-point agreement with Mr. Wang when the two Ministers had last met in Moscow last September.

While Indian and Chinese troops completed the first round of disengagement in February 2021, withdrawing from areas and posts around the Pangong lake, officials have said China continues to stall talks on withdrawing from the other areas where PLA troops have amassed since April 2020, including at Depsang, Gogra and Hotsprings areas in Ladakh.

“[Mr. Jaishankar] pointed out to State Councillor [Mr. Wang] that the successful disengagement in the Pangong Lake Area earlier this year had created conditions for resolving the remaining issues. It was expected that the Chinese side would work with us towards this objective. EAM noted, however, that the situation in remaining areas is still unresolved,” a statement by the External Affairs Ministry said.

Ahead of the Foreign Ministers’ meeting, however, both New Delhi and Beijing denied reports of fresh tensions along the LAC. The Army also insisted that the agreements with China have not “collapsed” as claimed in an article published on Wednesday.

“Ever since the disengagement agreement in February this year, there has been no attempt by either side to occupy the areas from where the disengagement had been undertaken. There have been no clashes in Galwan or any other area,” the Army statement said.

Chinese Foreign Ministry spokesperson Zhao Lijian said he was not “aware of the situation mentioned” in the report as well.

Mr. Jaishankar and Mr. Wang “agreed to remain in touch”, as India hoped that “all remaining issues” would be discussed at the next round of Senior Military Commanders talks as decided by the WMCC group on June 25.

In contrast to their last meeting in Moscow, there was no joint statement issued by the two sides after the Jaishankar-Wang meeting. According to the Ministry’s statement, Mr. Jaishankar also made it clear that other bilateral relations on other issues could not proceed successfully unless the present LAC situation is resolved.

 

What is the Line of Actual Control?

The LAC is the demarcation that separates Indian-controlled territory from Chinese-controlled territory. India considers the LAC to be 3,488 km long, while the Chinese consider it to be only around 2,000 km. It is divided into three sectors: the eastern sector which spans Arunachal Pradesh and Sikkim, the middle sector in Uttarakhand and Himachal Pradesh, and the western sector in Ladakh.

 

What is the disagreement?

The alignment of the LAC in the eastern sector is along the 1914 McMahon Line, and there are minor disputes about the positions on the ground as per the principle of the high Himalayan watershed. This pertains to India’s international boundary as well, but for certain areas such as Longju and Asaphila. The line in the middle sector is the least controversial but for the precise alignment to be followed in the Barahoti plains.

The major disagreements are in the western sector where the LAC emerged from two letters written by Chinese Prime Minister Zhou Enlai to PM Jawaharlal Nehru in 1959 , after he had first mentioned such a ‘line’ in 1956. In his letter, Zhou said the LAC consisted of “the so-called McMahon Line in the east and the line up to which each side exercises actual control in the west”. Shivshankar Menon has explained in his book Choices: Inside the Making of India’s Foreign Policy that the LAC was “described only in general terms on maps not to scale” by the Chinese.

After the 1962 War, the Chinese claimed they had withdrawn to 20 km behind the LAC of November 1959. Zhou clarified the LAC again after the war in another letter to Nehru: “To put it concretely, in the eastern sector it coincides in the main with the so-called McMahon Line, and in the western and middle sectors it coincides in the main with the traditional customary line which has consistently been pointed out by China”. During the Doklam crisis in 2017, the Chinese Foreign Ministry spokesperson urged India to abide by the “1959 LAC”.

 

What was India’s response to China’s designation of the LAC?

India rejected the concept of LAC in both 1959 and 1962. Even during the war, Nehru was unequivocal: “There is no sense or meaning in the Chinese offer to withdraw twenty kilometres from what they call ‘line of actual control’. What is this ‘line of control’? Is this the line they have created by aggression since the beginning of September?”

India’s objection, as described by Menon, was that the Chinese line “was a disconnected series of points on a map that could be joined up in many ways; the line should omit gains from aggression in 1962 and therefore should be based on the actual position on September 8, 1962 before the Chinese attack; and the vagueness of the Chinese definition left it open for China to continue its creeping attempt to change facts on the ground by military force”.

 

When did India accept the LAC?

Shyam Saran has disclosed in his book How India Sees the World that the LAC was discussed during Chinese Premier Li Peng’s 1991 visit to India, where PM P V Narasimha Rao and Li reached an understanding to maintain peace and tranquillity at the LAC. India formally accepted the concept of the LAC when Rao paid a return visit to Beijing in 1993 and the two sides signed the Agreement to Maintain Peace and Tranquillity at the LAC. The reference to the LAC was unqualified to make it clear that it was not referring to the LAC of 1959 or 1962 but to the LAC at the time when the agreement was signed. To reconcile the differences about some areas, the two countries agreed that the Joint Working Group on the border issue would take up the task of clarifying the alignment of the LAC.

 

Why did India change its stance on the Line of Actual Control?

As per Menon, it was needed because Indian and Chinese patrols were coming in more frequent contact during the mid-1980s, after the government formed a China Study Group in 1976 which revised the patrolling limits, rules of engagement and pattern of Indian presence along the border.

In the backdrop of the Sumdorongchu standoff, when PM Rajiv Gandhi visited Beijing in 1988, Menon notes that the two sides agreed to negotiate a border settlement, and pending that, they would maintain peace and tranquillity along the border.

 

Have India and China exchanged their maps of the LAC?

Only for the middle sector. Maps were “shared” for the western sector but never formally exchanged, and the process of clarifying the LAC has effectively stalled since 2002. As an aside, there is no publicly available map depicting India’s version of the LAC.

During his visit to China in May 2015, PM Narendra Modi’s proposal to clarify the LAC was rejected by the Chinese. Deputy Director General of the Asian Affairs at the Foreign Ministry, Huang Xilian later told Indian journalists that “We tried to clarify some years ago but it encountered some difficulties, which led to even complex situation. That is why whatever we do we should make it more conducive to peace and tranquillity for making things easier and not to make them complicated.”

Is the LAC also the claim line for both countries?

Not for India. India’s claim line is the line seen in the official boundary marked on the maps as released by the Survey of India, including both Aksai Chin and Gilgit-Baltistan. In China’s case, it corresponds mostly to its claim line, but in the eastern sector, it claims entire Arunachal Pradesh as South Tibet. However, the claim lines come into question when a discussion on the final international boundaries takes place, and not when the conversation is about a working border, say the LAC.

 

But why are these claim lines controversial in Ladakh?

Independent India was transferred the treaties from the British, and while the Shimla Agreement on the McMahon Line was signed by British India, Aksai Chin in Ladakh province of the princely state of Jammu and Kashmir was not part of British India, although it was a part of the British Empire. Thus, the eastern boundary was well defined in 1914 but in the west in Ladakh, it was not.

A G Noorani writes in India-China Boundary Problem 1846-1947 that Sardar Vallabhbhai Patel’s Ministry of States published two White Papers on Indian states. The first, in July 1948, had two maps: one had no boundary shown in the western sector, only a partial colour wash; the second one extended the colour wash in yellow to the entire state of J&K, but mentioned “boundary undefined”. The second White Paper was published in February 1950 after India became a Republic, where the map again had boundaries which were undefined.

In July 1954, Nehru issued a directive that “all our old maps dealing with this frontier should be carefully examined and, where necessary, withdrawn. New maps should be printed showing our Northern and North Eastern frontier without any reference to any ‘line’. The new maps should also be sent to our embassies abroad and should be introduced to the public generally and be used in our schools, colleges, etc”. This map, as is officially used till date, formed the basis of dealings with China, eventually leading to the 1962 War.

 

How is the LAC different from the Line of Control with Pakistan?

The LoC emerged from the 1948 ceasefire line negotiated by the UN after the Kashmir War. It was designated as the LoC in 1972, following the Shimla Agreement between the two countries. It is delineated on a map signed by DGMOs of both armies and has the international sanctity of a legal agreement. The LAC, in contrast, is only a concept – it is not agreed upon by the two countries, neither delineated on a map or demarcated on the ground.