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Monday, October 21, 2019

The HINDU Notes – 21st October 2019

📰 After Mamallapuram, the reality of asymmetry

If India does not wish to live in a China-dominated global order, it must make difficult choices now

•Describing India-China summits as marking a “new era” in bilateral relations follows a predictable pattern, and both sides are guilty. Rarely have such summits deserved these high sounding labels. There are exceptions. The Vajpayee-Hu Jintao summit in 2003 established the Special Representatives mechanism to seek a political settlement to the boundary issue. China acknowledged Sikkim as part of the Indian Union. The Manmohan Singh-Wen Jiabao summit in 2005 had more significant outcomes. India and China were able to conclude the Political Parameters and Guiding Principles for the Settlement of the India-China Boundary Question.

•This document is important in that it conceded two very important principles from the Indian perspective. One, it accepted that prominent geographical features would be a basis for determining the border. For India this means the Himalayan watershed. Two, there was an acknowledgement that interests of “settled populations” must be taken into account while arriving at a border settlement. This was a code phrase for the status of Tawang which China claims. During Chinese Premier Wen Jiabao’s visit to India in April 2005, the Chinese side shared official maps showing Sikkim in the same colour wash as the rest of India.

Guiding principles

•The two leaders, Manmohan Singh and Wen Jiabao, arrived at a consensus on four key points which would henceforth guide India-China relations: one, India is not a threat to China and China is not a threat to India; two, there is enough room in Asia and the world for both a resurgent India and China; three, India-China relations have now acquired a strategic and global dimension and their cooperation is critical to tackling a host of global challenges such as Climate Change; and four, India and China should seek an early settlement of the border issue within this larger perspective so as to better work together on the strategic dimension of their relations.

•In private conversations, Wen Jiabao also conveyed to his Indian counterpart that China welcomed a more active participation by India in the United Nations and was not opposed to India’s permanent membership of the UN Security Council.

Two different settings

•This positive turn in relations had as its backdrop the deepening relationship between India and the United States and the prospect that these would be further cemented by the proposed India-U.S. civil nuclear deal. India was also emerging as a rapidly growing emerging economy registering GDP growth of 8-9% per annum and globalising its economy further through a slew of trade agreements. It was seen as the next China in terms of commercial and investment opportunities. It was anticipated that India would continue to narrow the gap in GDP terms with China given its faster rate of growth. The phrase, Chindia, reflected this perception. China recognised India’s convening power and leadership role among developing countries, whether on global trade, public health or climate change.

•The setting for the second informal summit (October 11-12, 2019) between India and China at Mamallapuram, off Chennai, could not have been more different. India’s $3-trillion economy looks modest against China’s $14-trillion. India’s economy has been slowing and is now barely keeping up with China’s 6% growth rate. China does have an interest in the Indian market where its companies have already emerged as major players in the mobile and smartphone market and in the fast expanding digital space — in particular, digital payments and social media. India is the largest market for TikTok, the Chinese owned video sharing platform. India is critical to the global success of 5G, where China’s Huawei is the leader. This is one important leverage India has and it appears to have persuaded the Chinese to address India’s concerns over access to the Chinese market and on the yawning trade deficit. The agreement to set up a high-level ministerial mechanism to deliberate on this issue is an important take-away from the summit.

Summit and China’s strategy

•Like the earlier Wuhan informal summit, Mamallapuram was more of a holding operation, aimed at keeping bilateral relations on an even keel in the aftermath of serious differences threatening to derail them. It was the Doklam stand-off which was defused by Wuhan; at Mamallapuram, “differences” over Jammu and Kashmir and over Indian military exercises in Arunachal Pradesh were prevented from becoming “disputes”. Neither summit was expected to address or resolve any of the outstanding issues. But they conveyed the message that the leaders were keen to maintain high level and cordial engagement and dialogue, and project to the world that they are mature enough to manage differences.

•China’s strategy towards India may be characterised as “neutralisation”, that is to inhibit India from pursuing policies inimical to Chinese interests even while accepting no constraint on its own policies which undermine India’s interests or are insensitive to India’s security concerns. The calculated display of bonhomie and cordiality which accompany such summits do inhibit India from seeking stronger countervailing arrangements with other major powers which could constrain China. China displays no such restraint as was apparent during the Pakistani Prime Minister Imran Khan’s visit to Beijing on the eve of Chinese President Xi Jinping’s India visit this month as well as Mr. Xi’s visit to Nepal soon after. This is the dynamic unleashed by the power asymmetry between the two countries. The Mamallapuram summit, while a useful and positive development, should not be over-interpreted.

Growth, foreign links are key

•Given the reality of asymmetry, what are the options available to India? In the medium to long term, India can only tackle this asymmetry through a return to sustained and accelerated economic growth which alone can generate resources comparable to China’s. India must be seen as shrinking the power gap with China in order to enjoy credibility as a countervailing power. This is the lesson to be drawn from the 2003-2007 experience, when despite the gap in their volumes of GDP, India was growing faster than China and expected to catch up with it or even surpass it. China treated India as a serious contender in geopolitical contention and was more sensitive to India’s concerns. This phase began to fade after the global financial and economic crisis of 2007-8, from which China emerged as a more powerful and confident country. India needs to engage in careful and nuanced balancing, seeking closer partnerships with other major powers which share India’s concerns over the Chinese penchant for unilateral assertion of its new found power. The upgradation of the Quad, a consultative forum of India, Australia, Japan and the United States, to the ministerial level is a good move. Bringing in Australia into the annual ‘Malabar’ exercises should be a logical next step. This should be accompanied by a significant transfer of resources to the Indian Navy to enable India to retain its current edge in the Indian Ocean.

•Safeguarding its immediate neighbourhood must be India’s primary foreign policy focus. And this must translate into more regular and high-level political engagement, a renewed and vigorous push for enhanced physical connectivity and economic integration and leveraging the size of India’s economy to become the engine of growth for the entire subcontinent. The perennial problem of poor delivery on projects should no longer be tolerated.

•India is the only country which has the potential to match China in comprehensive national power. Realising this potential requires making difficult choices. The current political leadership has the ability to mobilise national opinion to make sacrifices today which may enable a more hopeful future. If India does not wish to live in a China-dominated global order, it must make the difficult choices now.

📰 A time-tested way to trade away conflict

Trade strengthens peace and there needs to be a revised strategy towards restarting cross-Line of Control trade

•Eleven years ago, on October 21, 2008, a truck loaded with rice, turmeric and red chillies crossed the Jhelum river at the Line of Control (LoC) to reach Uri. The banners at Kaman Aman Setu (‘bridge of peace’) read: “From Home to Home, we extend a very warm welcome to our Kashmiri Brethren.”

•Such was the spirit and the emotion of people on both sides of the LoC. A fresh beginning, it also brought with it the hope of reuniting friends and families across the LoC. This marked the beginning of cross-LoC trade.

Confidence building measure

•It was in 1972 that the LoC between India and Pakistan was thought of as a part of the Shimla Agreement. Though the LoC was almost always an issue of contention, it was 33 years later that the two governments decided to take a giant leap. On April 7, 2005, Indian Prime Minister Manmohan Singh flagged the first cross-LoC bus, called ‘Karwaan-e-Aman’, from the Sher-i-Kashmir stadium in Srinagar towards Muzaffarabad. This Confidence Building Measure (CBM) came as a humanitarian reform reuniting divided families and friends.

•In 2008, a significant year, the two governments decided to further exploit the potential of existing transport routes by establishing trade. In May that year, the Foreign Ministers of India and Pakistan decided to finalise the modalities of intra-Kashmir trade and truck service. Cross-LoC trade, following barter system, thus began in October that year, across Uri-Muzaffarabad and Poonch-Rawalakot, for a list of 21 mutually agreed tradeable items. Given the underlying conditions, trade was seen as a ray of hope to establishing peace. This measure was aimed at converting social interconnectedness into commercial interdependence of the two similar yet separate sides of the LoC, rightfully presuming that trade would flourish on the basis of the emotional capital of the people living on either side. The LoC gave rise to hope in the virtuous cycle between trade, trust and people-to-people connect.

•Cross-LoC trade would have failed in its infancy had it not been for the sentiments of the people attached to it. It was much more than a mere commodity exchange. The whole concept of exchange across this border was not coined as isolated economic activity but, instead, to open a new chapter of building bridges and (re)connecting communities. And cross-LoC trade did manage to connect the two divided sides of Jammu and Kashmir, thereby creating a constituency of peace in an otherwise tense region.

More than metrics

•Till April 2019, when cross-LoC trade was suspended by India, both bus links and trade had survived for more than a decade despite intermittent suspensions and ceasefire violations. Between 2008-2018, trade worth ₹7,500 crore was transacted across the LoC, generating more than 1.7 lakh job days and an approximate freight revenue of ₹66.4 crore for transporters in J&K, on account of 75,114 truck crossings and ₹90.2 crore paid to labourers. While these numbers may be minuscule when looked at through the lens of the overall trade of India, the impact of such CBMs go beyond standard metrics. The case of thriving businesses and reunited families on both sides of the LoC stand testimony to the story of change. A sizeable community of traders, businesses, transporters and labourers have benefited from this trade and have a stake in keeping the trade process active.

Steps for a revival

•Given the present situation in J&K, it is imperative that India plans an outreach connecting all stakeholders from across the spectrum including the ecosystem of cross-LoC trade. However, there is need for a revised strategy towards re-initiation of cross-LoC trade. Concerns around transparency have negatively impacted this trade over the last decade. The lack of transparency needs to be addressed in the complete ecosystem which includes the standard operating procedure, invoicing, Goods and Services Tax (GST) norms, and trader registration. Other steps such as clarifications on harmonised system codes to avoid misrepresentation of commodities, rules of origin to avoid third country goods, GST rates and inter-State taxation rules to avoid tax evasions, and a trader registration policy to ensure credible traders are involved in this trade, are needed to address long-standing concerns around cross-LoC trade.

•Digitisation of systems and procedures at the trade facilitation centres at Uri and Poonch is another important step to help take LoC trade to the next level. Globally, when we look at trade facilitation — international as well as domestic — digitisation of procedures and lower human intervention are the two major pillars that drive trade across borders. And today, more than ever before, there is increasing focus on improving India’s ‘ease of doing business’ ranking. Hence, similar steps are needed with respect to cross-LoC trade. Digital platforms to monitor invoicing, traders’ records, balancing and truck details will ensure real time checks by the authorities, leaving lesser room for misuse.

•The current suspension of LoC trade could be seen as a window of opportunity to address these issues and revive this trade in a stronger and more organised manner.

•As talks begin for a revival of normalcy in J&K, strengthened and more transparent cross-LoC trade mechanisms could be put on the table as a part of the economic package. Cross-LoC trade in its new avatar could continue to prove the value of a peace-through-trade policy, and one that has stood the test of time globally.

📰 A case for abjuring custodial interrogation

It violates the right against self-incrimination and the right to silence and is therefore unconstitutional

•Commenting on the situation in India immediately after the end of the 1975-1977 Emergency, Justice V.R. Krishna Iyer said in his Nandini Satpathy v. P.L. Dani judgment (1978), “A flash flood of demands against self-incriminatory interrogation has risen now when very important persons of yesterday have got caught in the criminal investigation coils of today”.

•Forty-one years on, once again, “very important persons of yesterday (are getting) caught in the criminal investigation coils of today”. In a blitzkrieg on freedom, the Union of India is on its feet in courts across the country demanding imprisonment of its ideological and political opponents for “custodial interrogation”. Unlike in 1978, however, there is no sign yet of a “flash flood of demands against self-incriminatory interrogation”. If our liberty is to be protected, we the people must raise once again a formidable “flash flood of demands” against custodial interrogation (i.e., in the context of this discussion, arrest solely for the purposes of interrogation) — not only in courts, but also in public discourse — because custodial interrogation inherently, invariably and unavoidably violates our fundamental right against self-incrimination and our right to silence.

Right to silence

•What is the right against self-incrimination and the right to silence? Article 20(3) of the Constitution says, without any ifs, buts, caveats, qualifications or restrictions, “No person accused of any offence shall be compelled to be a witness against himself”. Section 161(2) of the Criminal Procedure Code implements the constitutional right against self-incrimination: “[Every person who the police is authorised to examine orally] is bound to answer truly all questions relating to such case put to him by [the police officer legally authorised to examine him], other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture” (emphasis added). In other words, such a person has the right to remain silent to avoid incriminating himself. Our right to silence thus flows from the right against self-incrimination. It is the basis for the ‘rule against involuntary confessions’ in the Indian Evidence Act, 1872. It protects us from the mortification of being forced to join the police investigation against ourselves.

•Why do we have the right against self-incrimination and the right to silence? In Selvi v. Karnataka (2010), then Chief Justice of India K.G. Balakrishnan explained that “the underlying rationale [of the right against self-incrimination] broadly corresponds with two objectives — firstly, that of ensuring reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily. It is quite possible that a person suspected or accused of a crime may have been compelled to testify through methods involving coercion, threats or inducements during the investigative stage. When a person is compelled to testify on his/her own behalf, there is a higher likelihood of such testimony being false. False testimony is undesirable since it impedes the integrity of the trial and the subsequent verdict. Therefore, the purpose of the ‘rule against involuntary confessions’ is to ensure that the testimony considered during trial is reliable. The premise is that involuntary statements are more likely to mislead the judge and the prosecutor, thereby resulting in a miscarriage of justice. Even during the investigative stage, false statements are likely to cause delays and obstructions in the investigation efforts... We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking. An individual’s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties.”

•Justice V.R. Krishna Iyer said in Nandini Satpathy vs. P.L. Dani, “Article 20(3) is a human article, a guarantee of dignity and integrity and of inviolability of the person and refusal to convert an adversary system into an inquisitorial scheme in the antagonistic ante-chamber of a police station... Under the Indian Evidence Act, the Miranda exclusionary rule that custodial interrogations are inherently coercive finds expression (Section 26)... Our purpose is not to sterilise the police but to clothe the accused with his proper right of silence. Article 20(3) is not a paper tiger but a provision to police the police and to silence coerced crimination.”

The ‘Miranda warning’

•The 1966 U.S. Supreme Court judgment in Miranda v. Arizona is a locus classicus on the right against self-incrimination under the Fifth Amendment to the U.S. Constitution which is identical in form and substance to India’s Article 20(3). Miranda says, “The privilege against self-incrimination, which has had a long and expansive historical development, is the essential mainstay of our adversary system, and guarantees to the individual the ‘right to remain silent unless he chooses to speak in the unfettered exercise of his own will,’ during a period of custodial interrogation as well as in the courts or during the course of other official investigations” (emphasis added). Miranda lays down strong safeguards for the right against self-incrimination including the now world famous “Miranda warning”.

•Why does custodial interrogation violate the right against self-incrimination? In P. Chidambaram v. Directorate of Enforcement (2019), the Supreme Court explained that “grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation” (sic). In this view, the preferred laxative for “disintering” (to borrow an evocative word used by the Supreme Court in State Represented by the CBI v. Anil Sharma in 1997 in a similar context) useful information and concealed material from persons being examined appears to be coercion — fear, pain, discomfort and stress created by deprivation of liberty in brutal conditions in a jail or a police lock-up as well as, in some cases, physical and mental torture. As noted, the Supreme Court found in Nandini Satpathy that custodial interrogations are inherently coercive. The Supreme Court held in Selvi that a core rationale of the right against self-incrimination is the protection of voluntariness. As coercion and voluntariness cannot coexist, it follows that custodial interrogation in Indian prisons necessarily violates the right against self-incrimination and is therefore unconstitutional and illegal.

•Convictions of innocent people based on unreliable evidence obtained through coercive custody would have little impact on improving public safety, as the actual wrongdoers would likely still be on the loose. Abjuring custodial interrogation will improve public safety. It will encourage the police to reject self-incrimination as a tool of investigation and improve their ability to find evidence through modern, scientific and humane means. Above all, it will reduce the scope for arbitrary power and strengthen liberty.

📰 India, Maldives to take forward defence ties

Dornier aircraft will be leased to Male

•With the recent improvement in relations, India and the Maldives will take forward several pending measures to promote defence cooperation in the next few months, diplomatic sources said.

•These include lease of a Dornier aircraft, bringing the Maldives under India’s coastal radar chain network and a broad-based humanitarian assistance and disaster relief (HADR) exercise.

•“The agreement for lease of a Dornier aircraft for maritime surveillance is being finalised. It should be done in the next few months, at the latest by early next year,” diplomatic sources told The Hindu, adding the Maldives was looking to transform its military in a big way, and the cooperation would be beneficial to the island nation.

•New Delhi sent a Letter of Exchange for a two-year lease of the Dornier at the request of Male a few years ago. But the deal was not finalised by the Maldives owing to the friction in the relationship. In this context, sources pointed out that the two Advanced Light Helicopters (ALH) given by India were of “great service”. They were flying round the clock for medical evacuation and search and rescue.

•India had gifted the Maldives two ALHs in 2013 and each was operated by the Indian Coast Guard and the Indian Navy. However, a controversy broke out last year after the previous Maldives government refused to extend the visas of Indian military personnel and asked India to take back the helicopters.

•Work on the radar stations to plug the Maldives into India’s coastal radar chain is progressing fast. “Two of the stations are functional and the third is in an advanced stage. It should be fully linked by January,” the sources added.

•In the aftermath of the 26/11 Mumbai terror attacks, India began setting up the coastal radar chain network to monitor the movement of traffic on the high seas. Mauritius, Seychelles and Sri Lanka have already been part of the network.

•At the Goa Maritime Conclave, hosted recently by the Navy for Indian Ocean littoral states, the major focus was on information-sharing. India offered to share real-time movement of maritime traffic. Of late, the Navy has stepped up cooperation with the countries in the region.

•Terrorism is a major threat to the Maldives, and maritime security is the top-most concern, diplomatic sources said.

Joint exercise

•A proposal for a joint humanitarian assistance and disaster relief exercise is in the works. The aim is to draft all agencies of both countries involved in the area, officials said.

•In the recent past, the Indian Navy has become the first responder to calls for help from countries affected by natural disasters in the Indian Ocean Region. The exercise is especially important owing to the increase in natural disasters in the region, official said.

•The bilateral relationship went on a downward trajectory since the Maldives started moving closer to China under the earlier regime of President Abdulla Yameen. However, the relations have normalised after President Ibrahim Mohamed Solih took over.

📰 Liver transplant registry off to a good start

First of its kind in the country; has received data of 74 transplants across States

•India’s first voluntary liver transplant registry that started on August 15 has picked up pace. In a span of a little over two months, it has received data of 74 transplants carried out by 11 hospitals across six States.

•Initiated by the Liver Transplantation Society of India, the registry aims to collate national data of the procedures and their outcomes.

No specific data

•Nearly 2,000 liver transplants are carried out in the country annually, highest in the world, yet there is no India-specific data. This leaves doctors to take help from the evolved U.S. and the U.K. registries.

•“Hospitals from Delhi NCR, Kerala, Karnataka and Tamil Nadu have voluntarily reported their transplants to the registry. More hospitals are in various stages of signing up and by December, we hope to get the majority of liver transplantation centres on board,” Bengaluru-based transplant surgeon Sonal Asthana told The Hindu. Dr. Asthana, secretary of the Indian Liver Transplant Registry committee, said the registry would be the largest in the world.

•“In the U.S. and the U.K., it is mandatory to report all transplants and the outcomes. But that’s not happening here which is why there is lack of Indian data,” he said.

•The members of the LTSI had four month-long consultative discussions on various important aspects like patient confidentiality, data sharing techniques, designing a user-friendly interface, etc.

Test run

•A beta version was first tested before starting the registry. Medical experts say India has a 90% survival rate in liver transplants, but it may vary from hospital to hospital and doctor to doctor.

•In the West, organ transplants are highly regulated and permissions are given to hospitals and doctors based on the outcomes, rate of mortality, morbidity etc.

•“This registry is completely focussed on national outcomes,” said Dr. Asthana.

📰 Centre all set to revamp British era Indian Penal Code

The code is based on ‘master-servant’ view, says official

•The Home Ministry is all set to overhaul the Indian Penal Code (IPC) designed by the British. A senior government official said rebooting the code introduced by the British in 1860 was necessary as it is primarily based on the spirit of “master and servant.”

•On September 28, Home Minister Amit Shah while speaking at a function in Delhi had said that the Bureau of Police Research and Development (BPR&D) should work on a proposal to amend various sections of the IPC and the Code of Criminal Procedure (Cr.PC) after seeking suggestions from people across the country.

•He said that in the British era, the police were raised to protect their interests, but now their duty is to “protect the people,” adding that since Independence more than 34,000 policemen across the country lost their lives in the line of duty.

•Recently the Ministry wrote to all States and Union Territories seeking suggestions to amend various sections of the IPC.

•Two committees comprising legal luminaries have also been constituted by the Ministry.

•“The idea behind the overhaul is that the master-servant concept envisaged in IPC should change. After it was framed, the IPC has never been amended in totality. Some additions and deletions have been made,” the official said.

•He explained that there was uneven punishment for crimes of grievous nature. “For example — snatching of chains or bags on road. It could be life-threatening in some cases but the punishment is not commensurate with the gravity of the crime. Depending on the whims of the police, it is booked under robbery or theft. We have to standardise the punishment,” he added.

•In 2016, the Home Ministry had proposed insertion of two stricter anti-racial discrimination provisions in the IPC. The two amendments — Section 153A and Section 509A “to deal with racially motivated crimes” received lukewarm response from the States.

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