Sanjha Morcha

SC treads on Article 370

SC treads on Article 370
article of faith: The autonomy of J&K should not be trifled with.

THE Supreme Court of India, notwithstanding some controversial decisions in the matter of constitutional interpretation, has, by and large, contributed to the upholding of the rights and privileges of the States and individuals. But with a decision in Ajay Kumar Pandey Vs. State of J&K & Anr., decided by the Constitution Bench on July 19, 2016, there has arisen the apprehension of interfering with the autonomy of J&K, guaranteed under Article 370 of the Constitution of India.The Constitution Bench has decided that the Supreme Court has the power to transfer a civil or criminal case pending in any court in the State of Jammu and Kashmir to a court outside that State and vice versa. It was common case that the provisions of Section 25 of the Code of Civil Procedure and Section 406 of the Code of Criminal Procedure, which empower the Supreme Court to direct the transfer of civil and criminal cases, respectively, from one State to the other, do not extend to the State of Jammu and Kashmir, and cannot, therefore, be invoked to direct any such transfer. It was also common ground that the Jammu and Kashmir Code of Civil Procedure, 1977, and the Jammu and Kashmir Code of Criminal Procedure, 1989, do not contain any provision empowering the Supreme Court to direct the transfer of any case from that State to a court outside the State or vice versa. It was common ground that the provisions of Article 139-A of the Constitution, which empowers the Supreme Court to transfer a case pending before one High Court to itself, or to another High Court, also has no application to the cases at hand as the Constitution 42nd Amendment Act, 1977, which inserted the said provision itself, has no application to the State of J&K. Thus while accepting that a litigant has no right to seek the transfer of a civil or a criminal case pending in the State of Jammu and Kashmir to a court outside the State or vice versa,  still the court notwithstanding these formulations, went on to answer the question whether independent of all these provisions contained in the Codes of Civil and Criminal Procedure, there is there still a source of power which the Supreme Court can invoke for directing the transfer of a case from the State of Jammu and Kashmir or vice versa. The Supreme Court has held that it has such a power, invoking the principle of “access to justice” being the fundamental right, and secondly, the powers given under Article 142 of the Constitution. The court relied on the principle of our law that every citizen has a right of unimpeded access to a court and referred to Raymond v. Honey 1983 AC 1 (1982 [1] All ER 756) where Lord Wilberforce described it as a ‘basic right’. But with respect, the attention of the Supreme Court was not brought to the specific observations of Lord Wilberforce and its affirmation in this very case; emphasising the exception that; “a citizen’s right to unimpeded access can only be taken away by express enactment… and we accept that such rights can as a matter of legal principle be taken away by necessary implication”. Here, in the present case, the provisions mentioned above specifically negate the right of a litigant to have a case transferred out of J&K, but still the court has held otherwise.The Supreme Court then dealt with the question, namely whether Article 142 of the Constitution empowers the Supreme Court to direct the transfer in a situation where neither the Central Code of Civil Procedure or the Central Code of Criminal Procedure empowers such transfer to/from the State of Jammu and Kashmir. The court thereafter concluded that the powers under Article 142 are wide enough to empower the Supreme Court to direct such a transfer in appropriate situations, no matter whether the Central Code of Civil and Criminal Procedures do not extend to the State nor do the J&K State Codes of Civil and Criminal Procedure contain any provision that empowers this court to transfer cases. It is unfortunate that the attention of the court was not drawn to a seven-judge Bench case AR Antulay v. RS Nayak 1998 (2) SCC 602 where the court held: “Thirdly, however wide and plenary the language of the article, the directions given by the court should not be inconsistent with, repugnant to or in violation of the specific provisions of any statute. If the provisions of the 1952 Act read with Article 139-A and Section 406-407 of the CrPC do not permit the transfer of the case from a Special Judge to the High Court, that effect cannot be achieved indirectly.” It is also unfortunate that the attention of the Supreme Court was also not drawn to an earlier five-judge judgment of the Supreme Court (1998), wherein the court said: “Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly…. that the court will take note of the express provisions of any substantive statutory law and regulate the exercise of its power and discretion accordingly. It must be remembered that wider the amplitude of its power under Article 142, the greater is the need of care for this court to see that the power is used with restraint without pushing back the limits of the Constitution so as to function within the bounds of its own jurisdiction.”More serious than the concern mentioned above, this judgment has, in an indirect manner, nullified the mandatory provision of Article 370 of the Constitution. The J&K legislature has specifically provided that the court will have no such power to transfer cases from J&K courts outside the State. In such a situation, to invoke the powers of Article 142 to pass orders contrary to J&K legislation is a serious breach of Article 370 having grave consequences. I hope the Union of India and the State of J&K will seek a review of this judgment to avoid serious constitutional and political consequences, so as to ensure the people of J&K that there will be no weakening of their autonomy. — The writer is a former Chief Justice of the Delhi High Court


AFT lambasts Centre for filing frivolous leave to appeal pleas

The Union of India cannot behave like an irresponsible litigant resorting to filing applications indiscriminately for leave to appeal in almost all cases without application of mind. The bureaucratic psyche needs to be changed. ARMED FORCES TRIBUNAL BENCH

CHANDIGARH: The Chandigarh bench of the Armed Forces Tribunal (AFT) has lambasted the Union government for filing frivolous leave to appeal applications in almost every case.

The bench headed by justice Surinder Singh Thakur said: “The Union of India cannot behave like an irresponsible litigant resorting to filing applications indiscriminately for leave to appeal in almost all cases without application of mind. The bureaucratic psyche needs to be changed.”

The bench was hearing to a leave to appeal filed by the central government in a case where the AFT has granted a retired soldier, Yashwant Singh Bharmouria, disability pension with benefit of rounding off of disability percentage.

Appeals against the AFT orders cannot be filed before the Supreme Court as a matter of right. The permission from the AFT is mandatory before challenging the order before apex court by filing a leave to appeal application. The AFT grants permission only if a point of law of general public importance is involved in the order.

Passing strictures, the bench said: “We feel the Union government or its instrumentalities should not resort to haphazard filing of leave to appeal/special leave petition as it involves wastage of public time and money and also, at times, causes such an injury to the individual that cannot be compensated in terms of money. At the same time, the dockets of the court are rising at the cost of poor litigants’ money, which becomes unbearable to them to approach the highest court even to defend frivolous appeals against them.”

“The Union government is a welfare state which enjoys the trust of citizens. Their rights are required to be protected. Once the matter is settled by the Supreme Court, it has to be implemented to uphold the rule of law, without resorting to raising frivolous pleas, which causes insecurity and distress to the system.”

Dismissing the “frivolous” application, the bench added: “To see the faith of the common man is not shattered, it would be advisable in the interest of justice that appeals against the orders/judgment in which the point in issue which has attained finality be compiled with without any ifs and buts in a time-bound manner, failing which we shall be constrained to impose exemplary costs and award litigation expenses to be recoverable from the officers/ officials who would raise frivolous objections for not implementing the tribunal’s order.”


I-Day: Paragliders, drone detectors to guard Red Fort

NEW DELHI: For the first time, paragliders and drone detectors will watch over Red Fort — from where Prime Minister Narendra Modi will address the nation during the 70th Independence Day celebrations on Monday.

SUSHIL KUMAR/HTSecurity personnel rehearse at Red Fort on Saturday ahead of the Independence Day celebrations.

The national capital’s security has been tightened with over 12,000 policemen and several companies of paramilitary forces deployed on the routes to the monument.

The police will deploy ‘spotters’— special commandos equipped with fully automatic assault rifles and high-tech gadgets.

Over 400 sharpshooters will be positioned on all high-rise buildings around the venue. National Security Guards, Border Security Force and SWAT commandos will be at strategic locations, said police.

Guards will stand at 605 balconies and 104 windows that open towards Red Fort. “The commandos will be spread out within a 500-metre radius around the venue. We will have policemen in plainclothes,” a police source said.

Twenty-five cops at a control room near the venue will monitor the live feed from 600 CCTV cameras. Cameras will take panoramic photos of the venue, said police. “Dog squads are being sent on the venue five times a day for thorough checks. We will have our quick reaction teams on standby,” a senior police officer said.

The city’s borders have been sealed. The area over Red Fort will be a no-fly zone during the celebrations. Crucial spots such as Parliament complex, international airport, railway stations, inter-state bus terminals and Metro stations will be under vigil.

The traffic police have restricted traffic movement. “Detailed traffic deployment will be in place to facilitate the movement of VIP vehicles, invitees and the general public. Public are requested not to touch any suspicious object. They are requested to immediately report about the presence of any suspicious movements…to the nearest policeman,” said joint commissioner of police, Garima Bhatnagar.

Goods vehicles won’t be allowed between Nizamuddin Bridge and Wazirabad bridge. Interstate Buses will not be allowed between Maharana Pratap ISBT and Sarai Kale Khan. Local buses won’t operate on Ring Road and between Hanuman Setu and Bhairon Road ‘T’ Point between 4 am and 11 am on Monday, said police.

SECURITY CHECK AT JAMIA VARSITY

Policemen reportedly conducted a “routine check” at Jamia Millia Islamia University on Saturday ahead of the Independence Day. Students protested against police entering the university and said they raided the boys’ hostel and disrupted classes.

“How can police enter any university without permission from the court or the university? This is clearly yet another attempt by the government to harass the students,” said student and National Students Union of India member, Laraib Ahmed.

Police said the checks were a part of the Independence Day routine. “The checks are a part of the security drill. We have got 1,500 forms filled in the district to ensure that no outsider is living in the area. This is to ensure residents’ safety,” said a senior police officer. The university said it was a routine check. “This is not a raid. Students have misconceived it. This was just to check that everything is fine in terms of security,” said university media co-ordinator, Iftekhar Ahmad.


ARMY DOCTORS’ RETIREMENT Centre opposes plea for service till 65

R Sedhuraman

Legal Correspondent

New Delhi,  August 13

The Centre is against increasing the retirement age of army doctors to 65 years in line with the age limit for their civilian counterparts. “Army always has its own retirement age for its personnel from time immemorial,” Additional Solicitor General Maninder Singh pleaded with the Supreme Court on Thursday.

The Centre took the stand before a Bench headed by Justice Dipak Misra, which was hearing a PIL by some of the doctors who retired last month after being denied the benefit of a recent government notification on the new retirement age for civilian doctors.

The ASG also pleaded that retirement age was a service issue for which the doctors had no right to approach the apex court directly. The proper forum for resolving the controversy was the Armed Forces Tribunal (AFT), he contended.

Other affected doctors had already approached the AFT, New Delhi, and as such the petitioners in the Supreme Court should be directed to join the litigation pending with the AFT, Singh pleaded.

Accepting the Centre’s plea, the Bench asked the petitioners to approach the AFT. The apex court directed the Tribunal to dispose of the case expeditiously, preferably in three months.

On July 29, the Bench had asked the Centre to respond within two days to army doctors’ plea for enhancing their retirement age to 65.

The petitioners from the Army Medical Corps (AMC) had pleaded that the Centre had enhanced the retirement age of non-teaching civilian doctors to 65 years, but the Defence Ministry was not extending the benefit to the army where doctors retired at 60 or 62, depending upon their rank.

However, other government wings such as paramilitary forces had decided to follow the Ministry of Health and Family Welfare (MoHFW) decision to retire doctors at 65 years of age from May 31this year.

If the army was not willing to retain them, they should be transferred to other departments facing shortage of doctors so that they could continue to serve till 65, they pleaded.

The Centre’s move to increase the retirement age has come at the instance of Prime Minister Narendra Modi for making use the services of experienced doctors for the benefit of the poor.


Unhappy with 7th pay panel, armed forces write to Modi

Ajay Banerjee

Tribune News Service

New Delhi, August 12

Seeking a quick redress against shortcomings of the 7th Central Pay Commission (CPC), the three armed services — The Army, IAF and the Navy — have collectively written to Prime Minister Narendra Modi and Defence Minister Manohar Parrikar.The Ministry of Defence (MoD) has not issued the notification in regard to enhanced pay like other Central Government employees, who will get higher wages from September 1. The notification has been held up as issues raised by the three services are being considered.The three forces have recently sent a collective letter through the office of the Chairman of Chiefs of Staff Committee (CoSC) – the CoSC being the senior most among the Chiefs of the three services. Air Chief Marshall Arup Raha, the IAF Chief, is the present CoSC.A letter from the services to Modi and Parrikar seeking better wages is not unprecedented. After the Sixth Pay Commission, the services had faced a similar “lowering of status”. The then CoSC, Admiral Sureesh Mehta (now retired) had shot off a letter to the UPA-I regime. A high-powered committee was set up in 2008 under Pranab Mukerjee (then a minister in Manmohan Singh’s Cabinet) to study the matter.The services, in their letter, have pointed out four key issues that need to be addressed and lift the morale of the forces. The first is how the salaries of the service officers have been “artificially suppressed”. The formula applied for basic pay fixation is different than the one applied to other Central Government employees. As a result, in each rank the service officers have ended up being lower in pay scales.In the government, facilities like car, housing, or sanctions for air travel depend upon the basic pay.The second is the non-acceptance of the demand for non-functional upgrade (NFU). After the last pay commission (the sixth), the government allowed “non-functional scale upgradation” and allowed Group-A officers to get the same scale as a Joint Secretary, but after 24 years of service.Strangely, the armed forces are neither classified as group “A” services nor are they termed as “Central services” like the IAS or the IPS and did not get NFU. Now, with others getting NFU the gap gets widened.The third issue is higher military service pay (MSP) for junior commissioned officers (JCOs). They rise from the lower ranks (jawans). The 7th CPC has clubbed the MSP of JCOs and jawans at Rs 5,200. The demand is to have it at Rs 10,000 for the JCOs. The MSP for officers between Lieutenant-rank and Brigadier-rank is common at Rs 15,500.The fourth main issue is lowering of disability pension. As per the new formula, okayed by the 7th CPC, soldiers/officers with 100 per cent disability will see their pensions reduced from the current levels. However, in case of the disabled of other services their perks will rise.In March this year, the MoD had conveyed to an empowered committee headed by the Cabinet Secretary that the status, pay and allowances of the armed forces be kept above all other “fighting” arms of the government. Defence Minister Manohar Parrikar had also taken up the case that issues of status, pay and allowances for the forces have to be paramount.

Four key issues highlighted

  • First, the 7th pay panel’s recommendations have “artificially suppressed”salaries of the service officers. In each rank, service officers have ended up being lower in pay scales
  • Second, non-acceptance of the demand for non-functional upgrade has widened the gap with other Central employees
  • Third, the military service pay for junior commissioned officers and jawans should be Rs 10,000 instead of Rs 5,200
  • Finally, the 7th pay panel’s new formula for pension lowers the benefits of soldiers/officers with 100 per cent disability

IAF jet crashes in West Bengal, pilots eject safely

IAF jet crashes in West Bengal, pilots eject safely

Kolkata, August 4

A Hawk advanced jet trainer on Thursday crashed soon after take-off from Air Force Station, Kalaikunda, in West Midnapore due to a “technical snag” but both the pilots ejected safely.

IAF sources said the aircraft developed a technical problem at about 1100 hours, minutes after taking off from Kalaikunda air station in West Bengal, where another Hawk had crashed in June last year.

The crash occurred within the boundary of the air station, 138 km from here, and the two pilots ejected safely, they said.

“A Court of Inquiry has been instituted into the crash,” an IAF source said.

Last year in June, another Hawk had crashed after taking off from Kalaikunda station as it developed a technical problem. Budding fighter pilots undergo their stage-III training for a year on Hawk. — PTI


Defence lok adalat inaugurated

Tribune News Service

Amritsar, August 26

The two-day defence pension adalat was inaugurated by the Controller General of Defence Account, SK Kohli, at the Army cantonment auditorium here today.The event was organised for on-the-spot redressal of pension- related problems of ex-defence personnel.A defence pension camp to create awareness among pensioners about various schemes available for them was also organised at Satkar Palace in Tarn Taran today.Ex-servicemen from Amritsar, Tarn Taran, Gurdaspur and Pathankot districts attended the lok adalat at the Army cantonment here today.Speaking on the occasion, Kohli said the purpose of the event was to ease official work for pensioners. He, however, added that legal disputes pertaining to pensions or its various heads were not considered as pensioners were free to appeal with the competent authorities.


Kashmiris proud as sons become India’s soldiers

RANGRETH: At a time Kashmir’s youth are raging against the Indian state, a small group has donned the khaki-and-olive green of the army and pledged to fight for the country.

WASEEM ANDRABI/HT PHOTOA Kashmiri father kisses his son who graduated as an army soldier at a military base in Srinagar.

On a bright, clear Thursday, 308 soldiers participated in a passing-out parade to join the Jammu and Kashmir Light Infantry (JAKLI) — an exclusive regiment of soldiers drawn from the state. Of the 308, 116 were from the Valley and Muslim dominated areas of Jammu. Their families travelled in the stealth of night to watch them take the salute and fly the tricolour at the Rangreth Centre in Budgam district — mindful of the tension outside its walls. A 41-day curfew keeps a fragile peace after violent clashes between young Kashmiris and security forces that have left 66 dead and thousands injured.

Most of the recruits from Kashmir and their families weren’t keen to discuss why they joined the army.

Asked why he had sent his son to the army, Ghulam (who refused to reveal his full name) said, “The situation is very bad. It is not easy to talk.” The farmer hails from south Kashmir’s Anantnag, which has seen the highest number of killings (18) in the ongoing unrest that is a result of the people’s anger against the killing of a militant commander.

“We are poor families. That is why we send our children to the army. We know the sentiment of the people (against the army) is not favourable,” said a woman from the same district, who had come to cheer her cousin


Strategy to China- Pakistan collusion::Article by Gen VP Malik

The USI National Security Lecture

A Comprehensive Strategy to Counter China-Pakistan Collusion’

 An Over view: India’s Bilateral Relations with Pakistan and China

Since Independence, India’s relations with Pakistan have fluctuated but always remained below the friendly level. Pakistan has never shed the animosity and employed various means to pursue its feud through direct military aggression, supporting insurgencies, stoking communal tensions, infiltration and use of terrorism as an instrument of state policy. It has used foreign collusion against India, whenever and wherever it could get strategic advantage over India. Pakistan Army, which drives Pakistan’s security and strategic policies, has always endeavored ‘strategic parity’ with India.

China occupies Aksai chin (40,000 Sq Km), which de jure is part of India’s Jammu and Kashmir (J & K). It keeps asserting claim on Arunachal Pradesh (92,000 Sq Km). The Line of Actual Control (LAC), which came into existence after India-China war in 1962, remains disputed and un-delineated. Since 1962, there have been two incidents of military fire fight on the LAC; in 1967 (Natu La) and 1986 (Wangdung). China has now improved military infrastructure and capability in Tibet substantially. Despite several high level agreements to maintain peace and tranquility on the LAC, and many rounds of negotiations to work out a frame work to resolve the border dispute by the Special Representatives, border confrontations, where even a slight miscalculation can spark off a limited border war, keep occurring frequently.

China, which received Shaqsgam Valley by Pakistan from the Gilgit-Baltistan region of J & K in 1963, treats India’s J & K and Pakistan Occupied Kashmir on different footings; apparently challenging Indian sovereignty over J & K.

China has also positioned itself in the rest of South Asia. It has been increasing its economic and military footprints in India’s immediate neighbourhood-Nepal, Myanmar, Bangladesh, Sri Lanka and Maldives-and its maritime interest and assets in the Indian Ocean.

Despite the strategic challenges mentioned above, India and China have been able to maintain political, diplomatic, economic and military dialogues. There have been regular high level state visits and rapid improvement in the trade (Expected to touch $100 bn by 2015) despite an ever increasing trade deficit for India.

An important factor in China- Pakistan- India security relationship is that all three nations are nuclear weapons equipped nations. This has an impact on the possible nature of conflict.

There are reports that Pakistan is developing/has developed tactical nuclear weapons. As per current Indian nuclear doctrine, our response to all types of nuclear, chemical, or biological strike would be a massive counter strike.

Definitions: Collusive and Collaborative Threats

‘Collusive threat’ from China and Pakistan to India implies both countries acting in secret o achieve a fraudulent, illegal, or deceitful goal’ or being engaged in secret or hidden avowed goals vis a vis India.

‘Collaborative threat’ implies a joint threat by working together. Basically, that would cover overt as well as covert threat to India from the China-Pakistan nexus.

History of China-Pakistan Collusion and Collaboration

Pakistan was the first non-communist, Islamic country that broke relations with the Republic of China (Taiwan) to recognize Peoples Republic of China and establish diplomatic relations with it.

The China-Pakistan collusion started soon after India China 1962 war. In 1963, China and Pakistan signed a Boundary Agreement to formally delimit and demarcate the boundary between China’s Xinjiang and the contiguous Northern Areas of Pakistan Occupied Kashmir.  With this delimitation, Pakistan ceded the Shaksgam Valley to China. Both countries extended their common boundary up to Karakoram Pass. China was careful. Article 6 of the Agreement states that after the settlement of Kashmir dispute between India and Pakistan, the ‘sovereign authority’ will re-open negotiations with the Chinese Government so as to sign a formal Boundary Treaty to replace the Agreement.

Cooperation in Nuclear, Missiles and Arms Industry

China has played a major role in the development of Pakistan’s nuclear infrastructure.[1] In 1990s, China designed and supplied heavy water Khushab reactor, which plays a key role in Pakistan’s production of plutonium. A subsidiary of the China National Nuclear Corporation contributed to Pakistan’s efforts to expand its uranium enrichment capabilities by providing 5000 custom made ring magnets, which are a key component of the bearings that facilitate high-speed rotation of the centrifuges.

When China joined the Nuclear Suppliers’ Group in 2004, it ‘grandfathered’ its right to supply Chashma 1 and 2 reactors.[2]

Despite growing threats of Pakistani terrorists acquiring material to make nuclear devices, in March 2012 China re-affirmed that it would continue to support Pakistan’s civilian nuclear programme. Currently, Chinese state-run companies are in talks to build three 1000 megawatt plants in Pakistan-two at the Karachi Nuclear Power Plant and the third at the Chashma Nuclear Power Complex.

 On the missiles front, it is well known that the Chinese sale of 34 complete M-11 ballistic missiles around 1990 was in contravention of the Missile Technology Control Regime guidelines. China also built Pakistan’s missile plant at Tarwanah, near Rawalpindi.

In the last 20 years, China and Pakistan have been involved in several joint ventures to enhance military and weaponry systems. These include the JF-17, K-8 advanced training aircraft, AWACS, Al Khalid tank, Babur cruise missile, and so on.

Treaty of Friendship, Cooperation and Good-Neighbourly Relations

Of all the treaties and agreements signed between China and Pakistan, the China-Pakistan Treaty of Friendship, Cooperation and Good-neighbourly Relations, ratified by both the sides in 2005-06, is the most significant in China Pakistan collusion and collaboration. It binds the two nations to desist from ‘joining any alliance or bloc which infringes upon the sovereignty, security and territorial integrity of the other side’. It also forbids both countries to conclude a similar treaty with a third country. Then Chinese President Hu Jintao had described it as ‘an important legal foundation for the Strategic Partnership’. While Pakistan considered significance of the Treaty in terms of protecting its security and a hedge against India[3], the Chinese downplayed the security aspect but laid stress to the importance of the document in preventing Pakistan go back to the US camp[4].

China and Pakistan have signed several agreements for development of communications along the Karakoram Highway, and railway and oil pipe line from China to Gwadar Port (of Pakistan), which has been constructed by China and is being managed by their company. Optical Fibre Cable is being laid along the Karakoram Highway. Recently, China has committed $45.6 bn for ‘China-Pakistan Economic Corridor’ and for various energy and infrastructure projects.

China and Pakistan have also signed several agreements for the military usable infrastructure in Gilgit-Baltistan and POK. A Chinese Company is building/to build 165-km long Jaglot-Skardu road, and the 135-km long Thakot-Sazin road. China Mobile has set up cell towers in the area. There are some intelligence reports of (a) 22 tunnels being constructed, which could be used for stocking missiles, and (b) about 1000 Chinese working on the Neelum-Jhelum hydro-electric project and on Muzaffarabad-Athmuqam road project. These include elements of the PLA to provide security to the Chinese engineers and workers on these projects.

In March 1997, I was invited by the Chinese PLA for a friendly visit. When I called on the Defence Minister General Chi Haotian, our conversation was mostly about the need to improve military to military relations and implementation of the agreements signed by China and India in 1993 and 1996. I suggested that Chinese and Indian divisional commanders on either side of the LAC should meet each other. He agreed promptly and said that the first such meeting could be held in Leh. Several months later, after I had taken over as Chief of the Army Staff, a date was fixed mutually for the meeting of division commanders of both sides in Leh. At the last moment, the PLA sent word that the Chinese division commander will not be able to go to Leh and that the meeting should be held in New Delhi. I felt that such a meeting in New Delhi will not serve the intended purpose. We therefore called off the proposed meeting. The reason behind this change was not Chinese accessibility to Leh, but because Pakistan did not like a senior Chinese officer visiting J&K.

In 1999, after Kargil war, when all foreign defence attaches were invited to visit Dras and Kargil, only the Chinese defence attaché did not avail this invitation. Later, when I asked him the reason, he told me informally that they did not want to hurt feelings in Pakistan.

In May 30-31, 2011, during Siachen talks between India and Pakistan in New Delhi, Pakistan pushed for China to be represented during negotiations on the ground that Beijing controls the Shaksgam Valley.

On 13 Dec 2011, in an Urdu Daily, Tufail Ahmed wrote ‘Chinese Military Taking over Gilgit Baltistan: Pakistan Considering Proposal to Lease the Dispute Region to China for 50 years’.

The Disputed Border Length

Our Army HQ and MoD claim the length of India-China border to be 4056 km which includes boundary/LAC with J & K and Gilgit-Baltistan, including the Shaqsgam Valley. Beijing declares the length of the border with India to be about 2000 km, which obviously excludes J & K and Gilgit-Baltistan. The strategic implications of this move can be: (1) China has become a new factor in the India-Pakistan debate over J & K. (2) the India-China boundary dispute may get divided into two parts. While the eastern and middle sectors remain a bilateral issue between India and China, the western sector becomes a trilateral issue involving India, China and Pakistan. (3) Repeated references to the length of the India-China border as 2,000 km may impact future global discourse on J & K relating to subjects like construction and international loans or financing of development projects. (4) China can now question India’s locus standi to discuss the western sector, while its own territorial integrity and authority over Shaqsgam Valley and Aksai Chin remains unquestioned and therefore secure. (5) In the security scenario and defence planning for the western sector, Indian armed forces would now have to seriously factor in the collusive, two-front China-Pakistan threat.

Manifestation and Dimensions of Collusion on the Military Front

The dimensions of a China Pakistan military collusion could vary from (A) collusive support without direct military intervention, to (B) activating a second front militarily. The transition from (A) to (B) could also occur seamlessly.

Collusive Support without Direct Military Intervention

This activity, as noted earlier, is already happening. It is likely to increase manifold in an India- Pakistan conflict scenario. Its probability is higher as it is easier to deny, and will accrue high benefits compared to the efforts put in. Such support could take the forms such as:

(a) Military Material Support China has been providing military material support to Pakistan for decades. This is likely to continue. In a combat, it may enhance Pakistan’s weapons and equipment reserves, force re-generation and war duration capability. Support in the nature of high end technological weapons and equipment can become a major advantage for Pakistan.

(b) Locating Extra Forces in Tibet In an India- Pakistan war situation, mere positioning of extra PLA forces in Tibet (from within or outside the military regions) can influence Indian armed forces’ decision to move any dual tasked formations and other military assets from the India-China front.

(c)  Cyber Warfare Support China has potent cyber warfare capability, which if shared with Pakistan, can cripple India’s crucial networks, including strategic forces assets, command and control systems, air defense, and civil support structures like the railways, civil aviation, power grids, banking sector, and so on. It can impact India’s deterrence and war fighting capability very adversely.

(d) Information Warfare Support.  China can support Pakistan’s strategy to shape the world opinion against India, in the UN and other world forums.

(e) Internal Destabilization China in the past has shown capability to exploit India’s internal fault lines and instigate ethnic strife, particularly in the North East. It would result in diversion of India’s war effort.

Collusive Support with Direct Military Intervention

An interventionist military collusion could come about in different scenarios (a) Pakistan led or China led. (b) Either state may take advantage of an adverse situation for India brought on by the other.  (c) It could be part of a grand design between China and Pakistan to bring India down to its knees.

Historically, full scale activation of a second front has never occurred despite the collusion being in place since the 1960s. However, in view of the updated military infrastructure development in Tibet, and by China in Gilgit-Baltistan and POK, the possibility of a two front war can not be ruled out. Let us take the Pakistan-led scenario first.

In this manifestation, China is likely to participate only if it sees some gains for itself. Otherwise, it would not be in its best interest. But then Pakistan could beg for the Chinese support even if China does not wish to be drawn in physically. In such a situation, a major offensive by China is unlikely. That would hurt its global image and scare many friendly neighbors. However, China may use the rail and road communications being developed in Gilgit-Baltistan to provide logistic support to Pakistan. It could also make moves to tie down our forces in the North and East by (a) Moving extra forces in Tibet. (b) Aggressive patrolling by the Chinese leading to provocation and minor clashes. (c) Major/minor fire assaults, and (d) intrusion of Indian airspace. India’s dual tasked formations would then not be available for deployment against Pakistan. Our offensive capability on the Western front would be affected adversely.

In a China-led manifestation, there may be an attempt to seize Tawang or other territory along the LAC, and/or to teach India a lesson. China may then initiate a limited or even a higher level conventional war, depending upon its objective(s). The latter would have to take into consideration its likely escalation into the nuclear, aero-space and maritime domain. In any such conflict, it is unlikely to bank on the Pakistani collusion or participation.

But Pakistan could try to exploit such a situation on the LoC or international border. It could make diversionary moves in Kargil or Siachen, which will result in 14 Corps (based in Ladakh) having to ‘look’ both ways. Pakistan could also upgrade proxy war conditions in J & K.

The possibility of a concerted twin strike in a ‘grand design’ by China and Pakistan has very serious implications: nuclear, aero-space and maritime dimensions. It may also involve Bhutan, Nepal and Bangladesh.  Such a venture would hurt China’s global image badly. India would have diplomatic support of almost the entire world. This, to my mind, is the least likely manifestation. However, if it does occur, India could initially hold China in the North, and turn its attention and weight towards Pakistan. This probability will serve as a deterrent to the Pakistani participation. As India would be the main sufferer, it could legitimately ‘hurt’ maritime interests of China and Pakistan in the Indian Ocean and even rescind its NFU of the nuclear doctrine to send warning signals to both countries.

In all these manifestations, China-Pakistan military collusion in the Karakoram Pass region can be considered as the most likely scenario.

Comprehensive Strategy to Counter Collusion and Collaboration

What should be our comprehensive response strategy to the collusive and collaborative threat from China and Pakistan?

India’s national aim is to achieve economic development without compromising its security and strategic autonomy. Thus, it would wish to avoid a war.

The objective of this strategy, therefore, would be to (a) prevent and weaken collusion to minimize its adverse impact on our security, and (b) deal with warlike or a war situation, if it occurs despite our efforts to prevent it. This will have to be a multi-faceted, multi-layered strategy, with synergized political, diplomatic, economic and military measures. These measures will have to be bilateral as well as multilateral.

When deciding on war preventing measures, and their prioritization, we need to look at the history of our relationship as well as the likely future trajectory. While China and India are expected to grow on the world stage, and increase their influencing power, Pakistan’s growth appears stunted. We must also take note of our comprehensive national power. India factors 5 to 6 times ahead of Pakistan, and about 3 to 4 times behind China. Most analysts also believe that this gap is widening on either side of India. China, therefore, requires greater focus in the collusion and war prevention measures.[5]

At the same time, an assertive militarily backed-diplomacy is imperative to safe guard our core interests. There is no need to underplay or de-emphasize the ‘China Threat’, as we have been doing in the past decade. In order to outflank China-Pakistan axis, and/or to create ‘distance’ between Pakistan and China, we should exploit the widespread regional and global apprehensions about Pakistani terrorism, and Chinese hegemony in Asia. India should not severe or compromise its connections and stakes in Tibet. The spark of China’s ‘forcible military occupation of Tibet’ could be kept alive.

A war with China (over disputed territories) can not be prevented unless we maintain active political, diplomatic and economic interactions with China.[6] Such a China India relationship can, and should, transcend bilateral scope. Where possible, it should develop regional, global and strategic significance.[7]

Political and Economic Cooperation Strategy

The desired level of cooperation, without compromising security and strategic autonomy, is already reflected in the ‘India-China Strategic and Cooperative Partnership for Peace and Prosperity Agreement’. Some of the thrust areas mentioned therein are:

  • Deeper bilateral and regional economic engagement.[8] Improve trade arrangements, establish industrial zones for enterprises of both countries and explore prospects of regional economic partnership such as the BCIM Economic Corridor etc.
  • Maintain peace, tranquility and improve bilateral relations on the India-China border. Border Defence Cooperation Agreement to strengthen measures to maintain stability on the border.
  • Exploration of a framework for the settlement of India-China boundary question by the Special Representatives of both countries. We need to push this with greater vigour.
  • Defence exchanges and military exercises to build greater trust and confidence. This should continue.
  • Strengthening cooperation on trans-border Rivers, exchange of flood season hydrological data and emergency management.
  • Facilitation of greater people to people contacts and exchanges, supported by sister-city relationships.
  • Coordination and cooperation in multilateral forums (including Russia-India-China, BRICS, and G-20) on tackling global issues such as climate change, international terrorism, food and energy security, and in the establishment of a fair and equitable economic system.

India should also endeavor to forge and sustain strategic relations with its immediate neighbors in South Asia, the littoral states of the Indian Ocean Region including South China Sea, and major powers surrounding China including Russia, Japan, Vietnam, Myanmar, Afghanistan and Iran.

It needs to strengthen its military diplomacy in the immediate neighborhood; even reduce these nations’ dependency on the China made weapons by offering subsidized military equipment.

To cover China’s rise in immediate neighborhood, and other global issues which are likely to be affected adversely by China-Pakistan collusion, India needs to develop a measure of strategic coordination with the US in the Asia Pacific region, the Persian Gulf, Central Asia and Afghanistan. We should aim to leverage our regional and global relations to dissuade or weaken this collusion.

China being a permanent member of the UNSC, and a greater economy, is better placed in the global political and economic structure. It would be possible to neutralize this Chinese advantage to some extent if/when India is admitted to the UNSC.

Military Confrontational Strategy

As stated earlier, India’s national aim is to achieve economic development without compromising its security and strategic autonomy. It would wish to avoid a war. But we all know that there are limits to diplomacy.[9]

While continuing with cooperative strategy and measures, therefore, our military strategy should be to possess a level of military capacity, capability and ‘escalation dominance’, which acts as a ‘deterrent’ against Pakistan, and ‘dissuasion’ against China.

To some extent, the nuclear deterrence and our capability with long range weapon systems will itself act as a war preventive deterrent and/or dissuasion. And if a conflict does take place, it would be desirable to apply the limited war concepts and limit the war in space, in duration, and in its intensity.[10]

The limited war concept also implies that diplomatic channels be kept open, and government to government communication uncluttered. The communications through direct and indirect channels, and tacitly by actions manifest on the ground, would help condition the adversary. At the higher level of a conflict, an early conflict termination would be desirable for both. Localized conflicts are easier to terminate. A face saving is easier because the resources committed are less, and prestige is not staked inordinately. The limited war concept would also ensure that the NFU of the nuclear doctrine holds. Restricting the conflict to one or more theatres (Ladakh theatre, the Central theatre, Sikkim theatre, and the McMahon Line theatre) may localize the conflict. In a sense, this concept avoids the worst penalties of war to adversaries on both sides.

Limiting a conventional war also requires a certain level of ‘escalation dominance’. This can be achieved horizontally as well as vertically. Horizontally, it could mean opening other land border (s) like the Chumbi Valley and the maritime front, where we have some strategic advantage. Vertically, it implies stepping up the ladder-with high caliber conventional weapons, air power, missile strikes, and readiness to use nuclear weapons. Since there is excessive disparity on the land border, we may also consider using naval capabilities to interdict Chinese shipping on the sea lanes near the Malacca Straits and Arabian Sea.

What is important is that we do need to improve our military capacity; with greater focus on cyber, space, C4I and special operations capabilities; and rail, road infrastructure development on both fronts, which enable force mobilization with minimum delay.

I also recommend three additional, more important efforts to improve military capacity. These are:

  • The need to improve intelligence gathering in Tibet and China. This is a serious limitation and can significantly affect the performance of the armed forces on the Northern front.
  • A unitary control in border management. Operational command and control of para military forces deployed on the LoC/LAC (disputed border belts) should be entrusted to one agency and one ministry.
  • A comprehensive operational doctrine for asymmetric war, with special emphasis on the use of Special Forces, against Chinese military adventurism. It is necessary because the desired level of our war preparedness will take years to materialize.

The Siachen Dispute

 Many people in India and Pakistan think that Siachen is a ‘low hanging fruit’ amongst India-Pakistan disputes. They are keen on withdrawal of Indian troops from the Soltoro Ridge. No doubt, in the initial stages, occupation of Siachen, apart from a military effort of Herculean proportions, involved considerable loss of lives and financial drain. The sacrifices made by the army and air force personnel on account of harsh terrain and enemy actions can never be forgotten. But over the years, with experience and ever improving technology, it has been possible to overcome terrain and sustenance problems substantially. Technological advancements in future can be expected to further offset these difficulties. Should India forego its strategic advantage due to cost-benefit ratio analyses?  Or, because not a blade of grass grows in the area! If that is to be believed then why has India put up its flag at Gangotri in South Pole?

Conclusion

The China-Pakistan strategic embrace is not likely to change in the near future. We know that a central feature of Chinese strategy is to persist with a policy of no-compromise on core issues, and to try and win a war without having to fight a battle. Ambiguity with a smile is characteristic of Chinese diplomacy.

China continues to delay delineation of the LAC and to resolve the boundary dispute. It is now becoming shrill on claiming Arunachal Pradesh now. The Chinese strategic presence in the POK, particularly in the Northern areas of Gilgit-Baltistan, which had been accepted by them as a disputed area in 1963-64, is yet another provocative joint venture.

Pragmatism demands that we do all that we can to contain our differences with China and prevent a two-front war situation.  We can continue to build economic links which have made impressive strides, and separate our bilateral differences from the global issues on which we can work together to mutual advantage.

At the end of the day, India’s ability to deal with its external security challenges will be determined by its own comprehensive national will, and tangible power in its economic and military spheres. While forging partnerships with other nations, India must build its own strength. This itself would act as a restraint on China-Pakistan muscle-flexing.

                     General V P Malik (Retd)                                

[1] When stringent export controls by the Western countries had made it difficult for Pakistan to acquire materials and uranium enriching equipment from elsewhere. The US then ignored the China-Pakistan nuclear proliferation nexus, to the point of covering it up in the A.Q. Khan’s case, when India was most affected.

[2] Under a 1991 agreement, permissible under the revised 1992 NSG guidelines. In early 2010, Pakistan ratified an inter-governmental agreement with China, which provided for Chinese funding of the reactors to the extent of 82 per cent.

[3] Hussein Haqqani once said, “For China, Pakistan is low cost secondary deterrent to India while for Pakistan, China is a high value guarantor of security against India.” According to Zardari, “Pakistan is a force-multiplier for China”.

[3] The atmosphere prior to signing of this Treaty was dominated by the US policy announcements to help India to ‘become a major world power in the 21st century’.

 

 [5] In fact this is how India-China relations are panning out currently; at bilateral as well as multilateral levels. 

[6] Such relations are also necessary to be able to create ‘distance’ and cracks in the China Pakistan collusion.

[7] “India and China relations today are becoming autonomous and inclusive, moving beyond the orthodox bilateral context. Both are important powers in the current global political and economic structure. They are the two largest economies after the US and have a major impact and influence in the evolving global order. Both are attached to a range of multilateral mechanisms and bodies at regional, cross-continental and global levels, which helps them to establish new layers of engagement and power politics. The emerging layers of power politics do take the scope of their relationship far beyond the purview of bilateralism.”Dr Jagannath Panda in Review Essay, Strategic Analysis, 2014

[8] Create a condition like two boxers getting into a clinch.

[9] Admiral J C Wylie in his papers ‘Military Strategy: A General Theory of Power’ stated (a) ‘Despite whatever effort there may be to prevent it, there may be a war’, and (b) ‘we can not predict with certainty the pattern of war for which we prepare ourselves.’ It has seldom been possible to forecast the time, the place, the scope, the intensity, and the general tenor of a conflict.

[10] On October 18, 2014, the Prime Minister in the Commanders’ Conference said, “Beyond the immediate, we are facing a future where security challenges will be less predictable; situations will evolve and change swiftly; and, technological changes will make responses more difficult to keep pace with. The threats may be known, but the enemy may be invisible. Domination of cyber space will become increasingly important. Control of space may become as critical as that of land, air and sea. Full scale wars may become rare, but force will remain an instrument of deterrence and influencing behavior, and the duration of conflicts will be shorter.”