Something About The Law

Our tech-savvy Minister of State for External Affairs seems to have got into a spot of bother again – this time though, its not on Twitter’s turf, but at an event organised by the Association of Indian diplomats and the Indian Council of World Affairs in London. To quote Mr. Tharoor,

“I think his [is a] very clear summary for us of the way in which Indian foreign policy drew from our founding fathers’ sense of our civilisational heritage, the extraordinary contribution of Mahatma Gandhi and Jawaharlal Nehru to the articulation of that civilisational heritage, the manner in which both enhanced India’s standing in the world and gave us the negative reputation for conducting foreign policy as a sort of moralistic running commentary on other people’s behaviour.”

Quite naturally, the Congress establishment has been taken aback by his comments on a rather hallow issue like Nehruvian Foreign Policy. However, his comments, which supplemented Lord Bikhu Parekh’s, opens the door for a lively debate on whether Independent India’s foreign policy was moral to a fault. The need for such a debate is extremely relevant at a time when our aspirations and commitments at both regional and global levels are rapidly burgeoning.

To be very clear, Tharoor himself has not been critical of the moral angles to Nehruvian policy – as is evident from the quote, he has merely stated that the pursuit of such a policy was a double-edged sword which, apart from its advantages, also generated negative reputation for its moral evaluation of ‘other people’s behaviour’. Undeniably true.  When Indian troops marched to occupy the Portugese colony of Goa in 1961, JFK is reported to have said that atleast now, the US would be spared India’s lectures about a moral foreign policy. Despite all our early commitments to non-alignment, India has had phases of proclivity towards the USSR (during Mrs. Gandhi’s regime) and the U.S (the past 6 – 1o years). Whereas we walked the moral high ground of non-proliferation in the 50s, India exulted after the Buddha smiled at Pokhran in ‘74 and ‘98. Evidently, emerging India has rarely sung to the tune of Pt. Nehru’s sacrosanct policy. Despite breaking free from moral shackles (which some may claim never existed), it is critical to understand whether India’s foreign policy benefited from such a posture in its infancy.

Nehru, who was our PM and EAM for 17 long years, articulated India’s foreign policy along the lines of multilateral cooperation and non-alignment. At a time when colonialism was beginning to witness its sunset, Nehru’s statesmanly approach to international organizations emboldened the voice and stance of developing countries in the same. If we have a G77 today, and if India is still bracketed as a benign leader of the Developing World, it is because of old alliances forged during the formation of the UN and the NAM.

When I was at the United Nations for a summer program last year, I was told of the high regard in which Indian diplomats were considered, not just by developing countries, but the Great Powers as well. Its natural to put this down to the talent of some of the best Foreign Service officers in the world, but it is equally important to recognize that our strong presence in the UN is due to our long-standing and invaluable contribution to multilateral diplomacy – be it in the form of Blue Berets in regions and conflicts where India had absolutely no interests to preserve, or to the cause of democratic reform which we preached endlessly about.

Emerging from the bloodbath of Partition and nationalist violence, it was easy for India to have swung towards the path of militarism and authoritarian rule. Our foreign policy’s moral compass, however, prevented that. While,  like Mr. Tharoor says, we might have come across as a running commentator on third-party affairs, our ‘priesthood’ also resulted in a self-imposed responsibility to maintain internal democracy. True, this has been criticized in instances such as Goa’s annexation and Kashmir’s plebiscite condition, but India’s integrity as a conglomerate of incredible and awe-inspiring diversity needed to be protected at all costs. We could’ve had tanks on our streets for decades, but our commitment to (undeniably) moral aspirations have hitherto resulted in 15 General Elections.

Non-alignment is another realm of Nehruvian FP that has often come under heavy artillery. From the rather convenient outpost of hindsight, its easy to see that NAM has had its own advantages. As a newly-independent country, hungry for resources and aid, it was easy to have turned into a superpower-satellite prior to the Cold War.

Let’s just take a look at what has happened to USSR satellites now. East Germany, North Korea, Poland, Vietnam, Afghanistan, Cuba – the list is rather long, and boasts of several impoverished regions of the world. Of course, the US fought the war with its ‘Allies’ and in as much as it is fashionable to say that we should’ve teamed up with the eventual winner of the Cold War, India was clearly in no position to be an ‘ally’ to the West. At the same time, India would’ve been doomed to obscurity had we just slept over the War. Instead, Nehru rose to the occasion, seizing an opportunity to grab the spotlight on the international stage. Like they say, any publicity is good publicity.

Its true that our morality in foreign affairs was prone to massive hits, even at the slightest opportunity. Kashmir and the issue of plebiscite was a raw wound, open to further international criticism. But it would be rather foolish not to expect a nation-state to preserve its interests at the foremost – the issue of a moral foreign policy was, in fact, central to our interests. (How?) As an emerging nation, it was in our best interests to ally and possibly ‘lead’ a group of developing nations in order to gain leverage on contentious issues such as Kashmir. It was also the best way to subvert any dominance from the extant superpowers that would later influence our trajectory of development.

It would not be unfair to say that we have not led the true potential of this ‘moral’ foreign policy to its logical conclusion. Nehru’s final years marked the beginning of our isolationism in world politics, and for years we basked in the non-existent sunshine of values, when millions starved. Now we have the opportunity to redeem ourselves, but will the proverbial Elephant in the room squeeze out the others?

Since beginning in early January this year, we’ve had a fantastic response to our posts, events and online discussions. 2009 has been a happening year for the world and India, and that holds for us too. The graduation fromThe Social Blog has been phenomenally well-received by our readers, and thanks to you, Something About The Law can now boast of an extensive network among Indian law schools. We have a number of events/ideas in mind for 2010, and look forward to your encouragement and support. From the editors at SATL, here’s wishing you a fabulous year ahead!

Here’s a year-end compilation of some of our best (most-read, commented and appreciated) posts in 2009. They are in no specific order, and clicking on the title will take you to the full post.

1. The Socio-Legal Debates

Academic circles across premier law schools of the world have been characterized by the presence of an intellectual and interactive atmosphere among students and faculty members. In India, however, we are yet to see the inception of a platform that promotes stimulating, real-time legal discourse outside classrooms. In an attempt to bridge this scholastic divide, Something About The Law has sought to conceptualize a monthly debate-cum-discourse among legal practitioners, academia and experts on a host of socio-legal topics.

2. Attacks on Students: Reflections from Australia

The recent spate of attacks against members of the Indian community in Australia has spawned numerous allegations of racial abuse and discriminatory practice; the Australian Government is currently under immense pressure to bring such perpetrators to justice. The Indian media has whipped up a storm, devoting several hours of airtime to the matter; quite understandably, the nation is quite concerned with such disturbing developments Down Under. Amrita Khemka (a student from NALSAR who is currently at the University of New South Wales, Sydney on an Exchange Program) expresses her views on the matter. In addition, she has garnered diverse views from Indians who are currently studying/employed in Australia. Read on

3.  J.M Lyngdoh on Electoral Reforms in India

We are a nation of sorts; created out of the fundamentalist and acrimonious partition of the   continent’ Against this backdrop, India chose a democracy and have everyone participate in governance.

In the last 60 years, the constitution has had remarkable success. Significant is the involvement of the underprivileged in politics.

4. Musings on the Death Sentence

In 1994 Narayan Chetnam Choudhary committed the crime of murdering five women, one of whom was pregnant and two were children with a tender age of two and a half and one and a half years. In 2000 the Supreme Court confirmed his death sentence. Nine years hence, he lies in the jail at Pune wondering of the morning on which he would be executed.

5.  Child Sexual Abuse in India

The Children We Sacrifice, a documentary by Grace Poore, a South Asian feminist writer and activist of the Voices Unheard Sisters Unseen fame, deals exclusively with child sexual abuse (CSA). Though I haven’t watched the documentary, the message it seems to be sending across is this: CSA is an everyday reality for about half of India’s children, however, somehow, it remains the least undocumented offences in the country. It, therefore, is not surprising that no legislation specifically deals with the issue which can rightly be categorised as one of the darkest and most worrisome blots on the Indian society.

6.  Why Telengana is a terrible, terrible idea.

Much of this post has been the result of sudden and unsettling change – but I’ve tried to abandon my confessed status-quoism in discussing the future of a territory where I have spent a lion’s share of the last 5 years. It was rather unfortunate to be stuck in a train, far from live coverage, when news of a purported Telengana broke out. It was even more frustrating not to be in Hyderabad, when the exhibition of democratic dissent surfaced.

7.  The Collegium, Judges’ Assets and Justice Dinakaran’s Case

Below is a short version of my Speech for the Constitutional Law Society’s debate on The Collegium, Judges Assets and Justice Dinakaran. It was a laudable effort on the part of the CLS to organise the same and kudos to them.

8. Implications of a New Direct Tax Code

Neha Pathakji, Lecturer in Taxation Laws at NALSAR, writes on the proposed Direct Tax Code, and its impact on the society.) The nation is witnessing winds of change these days, especially in the age old Tax system. Just when a new indirect tax regime is round the corner in the form of GST(Goods and service tax), likely to be implemented in April 2010; the release of brand new Direct Tax Code has leased a fresh life in the Direct Tax system.

9. The Downs – and Ups – of Free Distribution

Why are text messages limited to 160 characters? Why not more – surely we seem to have a lot to say to each other – or less? Why not 200, or even 150? A recently published article in the Los Angeles Times reveals a fascinating, yet somewhat disturbing, story.

Much of this post has been the result of sudden and unsettling change – but I’ve tried to abandon my confessed status-quoism in discussing the future of a territory where I have spent a lion’s share of the last 5 years.

It was rather unfortunate to be stuck in a train, far from live coverage, when news of a purported Telengana broke out. It was even more frustrating not to be in Hyderabad, when the exhibition of democratic dissent surfaced. Perhaps, emotional anguish was most directed against the ripping-apart of a State that has probably been one of the better governed in the country.

Before the Telengana empathizer starts to dig their nails into this post, let me explain why I think the split was a terrible, terrible idea.

My argument, interestingly, stems from Malini Parthasarathy’s tweet about the division being a political result and not historically ‘explained’. Fully in agreement, I think there ought to have been a modus vivendi between the creation of a separate State and the problems of the undeniably underprivileged segments in the region. The States Reorganisation Commission, constituted in 1956 was assigned to do the demarcation on the basis of linguistic lines. Consequently, Andhra, Rayalaseema and Telengana fell within the larger Pradesh, though there were dialect differences to reckon with. In the realm of policy-making, Andhra Pradesh witnessed acts of gross discrimination against the people of Telengana, especially the coastal regions, in issues of public-sector jobs, educational opportunities and standards of living.

Telengana has always been used as a trump card, by N.T. Rama Rao, by Channa Reddy, by Nara Chandrababu Naidu, by K. Chandrasekhara Rao, and by countless other political figures. The objective, in tune with the demand, became political. Unlike Potti Sreeramulu’s hunger strike which resulted in the creation of AP (and his death),  KCR demand’s pertain primarily to administration, and not recognition per se.  In the process of the cause being articulated, especially amongst civil society, it has been viewed as a recognition of Statehood akin to the creation of AP itself.

The Congress has always responded to the Telengana cause politically, which I personally believe,  has been the right way to go about it. But in suddenly relenting to the demand, India’s oldest party has shown that it dearly lacks the acumen and iron hand of someone like YSR.

To cut through the brass tags, let’s take a look at the infamous Red Corridor. Which states do some of the most lawless, most violent and dangerous parts of India comprise? Chattisgarh and Jharkhand. Rings a bell?

I’m not going to the justifiability of the demands that led to the creation of C and J (socio-cultural identity, of course, was the predominant one). What I am going to dwell on, is the administrative facilities available in a nascent State.

Andhra Pradesh has had a long-standing history of Maoist insurgency, with the naxals constantly infusing doses of violence in society. Not only has the Telengana movement provided ample cover for Naxal stirs, the separate, autonomous region will also house significant chunks of radicals. The new administration will find it increasingly difficult to manage the hostile demands of Maoist groups, but will also see Andhra Pradesh and the Union Govt reticent to come to its help without a concrete plan of action.

Consequently,equitable and effective governance, which has been the rallying cry for the creation of Telengana, will not materialize. The difficulties in formulating public policy that gauges the pulse of the secessionist sentiment, will be gargantuan. Not just because the sentiment is mixed with emotion and rhetoric, but is a classic case of the political thumping the real needs of those affected. The naxal problem is merely one thorn in the administrative flesh, and the problems faced by new States are for everyone to see.

Well then, why is it a problem, if the long run sees a developed Telengana that has won its wars with itself? The irony lies in the fact, that Telengana is being created from a State that has been the only one to have successfully combated naxalist violence. Status quo, to which I will respectfully allude to now, is the product of years of negotiation, and years of counter-insurgency (sometimes ruthless, and cold-blooded). The question to be asked is, will all roads lead to the same Rome, though disguised as populist sentiment?

As usual, I escape, without talking about the modus vivendi or other viable alternatives – but this time, its because there’s no point in crying over spilt milk.

(I would like to reiterate that this post has been the consequence of emotional, rather than rational outpour – Comments and criticisms are most welcome.)

Here’s a very interesting take on the India connection from Obama’s speech yesterday, by Robert Kaplan, known for his controversial views on foreign affairs. The statement has been sourced from the Centre for a New American Security (more specifically, from comments by National Security Experts on Obama’s speech). The full statement may be viewed here.

“In calling for 30,000 more troops, President Barack Obama is solidifying the budding strategic partnership with India and putting Pakistan between a rock and a hard stone. India requires a relatively stable and westernized polity in Afghanistan that will not serve as an Islamic rear base for its rival Pakistan, which is why India has been heavily invested in the government of Hamid Karzai, who previously studied in India. India has opened consulates throughout Afghanistan and was uncomfortable with the barrage of anti-Karzai criticism coming out of Washington. Obama’s decision to add troops will, therefore, bring a sigh of relief to New Delhi. Pakistan’s strategic calculus is dif ferent. The Pakistani military has been willing to show some resolve in battling the Taliban inside Pakistan, but it still sees Karzai as a pro-Indian enemy whom it would like to see undermined, rather than built up as Obama is now intent on doing, even if aid money bypasses him and goes directly to local governments. But since Pakistan gets military aid, including spare parts, from the United States, it cannot openly sabotage Obama’s efforts. Thus will arise the principal tension in Obama’s new policy – and one of the tensions that will help define his presidency – keeping Pakistan on board. The degree to which he can woo Islamabad will directly correlate with the success he hopes to achieve. Both Iran and Russia are conflicted over Afghanistan: they oppose the Sunni Muslim Taliban – Iran is Shia and Russia fears a radicalized Central Asia. But the fact that Obama is now forthright behind a troop surge may cause Tehran and Moscow to make choices, which hopefully will be in A merica’s interests.”

Response from civil society?  Arif Rafiq, of Pakistan Policy, tweets:

“Robert Kaplan oft constructs lovely sentences that shed little light on reality“

My take: I think the strategy is definitely inclined towards India’s interests, especially in light of the development-oriented partnership that we’ve engaged with Afghanistan. However, to say that this was a calculated measure can hardly be true (more like an inevitable consequence). Further, it doesn’t exactly hurt Pakistan’s ’strategic calculus’ – the possibility of troop withdrawal from Afghanistan right now could present a nightmarish scenario for Islamabad, with its already turbulent setting. However, Kaplan’s trying to play this down as a zero-sum game – and I don’t think he’s very close to the mark here.

In his op-ed on Foreign Policy, Daniel Twining speaks on the significance of considering the US’ relationship with India as a value-based interaction among the world’s largest and most populous democracies.  He criticizes the Obama Administration for attempting to engage China in a near zero-sum, interest-based relationship, one that is  myopic in nature.

Taking a similar line of argument, it is important to note the relevance of Barry Buzan’s theory of the international security community in this context – classifying regional (and to a limited extent, global) relationships in the spectrum of (1) conflict formation, (2) security regime and (3) international security community. The third phase in the spectrum, as Buzan describes in his book Security: A New Framework For Analysis, is a situation envisaged where the security interests of two or more nations are so intertwined that they cannot be realistically considered apart from one another – basically, a situation of war is inconceivable between them. Take for instance, the EU. The argument then, is that this ’secure’ community is able to facilitate economic and cultural ties between its constituent members.

Where does the U.S-China relationship figure in this scheme? Alan Collins makes an articulate case, using Buzan’s theory, on Sino-US ties – he sees it developing towards a nascent security regime, where the threat of conflict is very real (accounting for a number of factors, including Taiwan and N.Korea) but perhaps not imminent, for the parties’ own interests will then be harmed. The essay does not consider the impact of the global financial crisis (it was written a year before the meltdown) but the credit crunch has only added to Collins’ argument. This is perhaps best exemplified through Obama’s recent visit of China.

China is expected to play a significant role in leading the global economy out of recession, and American interests are heavily reliant on it. The fact of China holding billions of U.S Treasury bonds is well-known, and consequently, the US is extremely cautious about its approach to the Asian giant. Obama, evidently, is keen to appease China to sustain its interests (in the Korean peninsula as well), and this interest-based relationship is not founded on a culture of solidarity. In fact, the situation could not be more contrasting: China’s track record on democratic regimes/reform, human rights and free speech is deplorable, and has often been a cause of concern to the United States. Yet, in prevalent circumstances, the Obama administration can ill-afford to rub China the wrong way on these sensitive issues.

On the other hand, U.S Presidents (till Obama) have treated India as a ‘natural’ partner in South Asia. Democracy is a defining factor that connects India and America, in a way that is a significant buttress to US exhortations in Af-Pak and the Middle East. It is also important in the struggle against extremist activity where India and US get hurt the most. Despite sanctions imposed in the immediate aftermath of Pokhran I and II, the US has recognized India as a responsible nuclear power and has even entered into a civilian nuclear agreement.

Thus, it was not surprising that the US-China joint statement hyphenating India with the India-Pakistan problem created a furore here.

And yet, even if we were to go beyond the value-based relationship, an ideal bedrock of Indo-U.S. ties, America stands to benefit greatly from nursing Indian growth in South Asia. As Twining states, India’s stiff competition to China on economic growth and its involvement in sensitive issues such as Tibet, has greatly worried the latter. Ergo, we have the Arunachal Pradesh ruckus (part of the larger border dispute), paper-stamped visas, joint statements, hawkish press releases and what-have-you.

Admittedly, India needs to go a fair distance to catch up with China. The Chinese, at the moment, present a direct threat to American leverage in Asia-Pacific, even as its Japanese grip seems to be easing with the Hatoyama Government in place. The U.S needs a strategic partner in Asia, that can directly counter the rising Chinese tide, and the answer in plain and obvious. There can be no better rationale for partnership and co-operation with India, than the culture of solidarity that exists (almost subliminally now) between both nations.