Something About The Law

“At once familiar and little known, the Khyber Pass provides a valuable lens for observing history where empires continue to rise and fall, allowing us to look upon the invaders that marched through it to create kingdoms or to destroy them.“

- Paddy Docherty (2008)

What is The Khyber?

The Khyber is a student-reviewed biweekly newsletter focusing on South Asian policy and regional affairs. The body of the newsletter consists of a collation of news-related op-eds from leading national, regional and international sources. The Khyber was launched to bring oft-neglected policy discussions into mainstream academic discourse, and hopes, like the Pass from which its name is borrowed, to provide easy access for the information-thirsty traveller into this strange, misunderstood, frustrating but important part of the world.

Why?

The goal of encouraging policy discourse comes at a time when Indian Universities are qualitatively deficit (in terms of faculty/experts and research centres) in International Relations and Foreign Policy. The news streams, available (at least) on a biweekly basis on The Khyber, provide much-needed views and insights into contemporaneous affairs in South Asia.

So its basically a compilation – What’s New?

Pretty much everything. In our preparations to create such a collation, we found that no such model for South Asian Affairs exists in India, either at the academic or professional level. We continue to labour under the impression that a JNU could quench the thirst of a up-and-coming generation getting increasingly connected to a global network. MATRIX, the e-journal from the JNU School of International Studies, had its last publication in September 2000. The era of Cold Wars and Ideological Battlefields is passe -nor does Ancient India’s prowess in Foreign Policy excite anyone – rather than generic analyses of antediluvian power structures, the Khyber aims to bring the latest to your attention.

How do we propose to go about it?

Well, the Khyber is designed to be an interactive feature, symbolic of Web 2.0, where your suggestions/findings of an interesting news or op-ed/analysis could be fuel to the newsletter. Consequently, we have  dedicated pages on Facebook and Twitter, and aim to increase its outreach beyond lawschools.

Do subscribe, and contribute.

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?

… [China’s] summit with [India]….. brings together the leaders of more than a third of humanity and of the two countries whose growth is the starting-point for all serious discussion of the global economy in the 21st century. Few bilateral relationships are more important than this. This one matters to us all.

- ‘Rivals in Partnership’, The Guardian, November 22, 2006.

The term ‘South Asia’ only found its way twice into the recent Sino-U.S. Joint Statement issued during President Obama’s trip to Beijing – but it was enough to ruffle feathers on the other side of the Himalayas, and many Indians viewed the reference as an interventionist move by China to meddle in sensitive issues of the sub-continent. The controversy surrounding the Joint Statement was just another incident in the long string of seemingly hostile strategies, press releases and communiqués that have characterized Indo-China ties in the past few months. Contentious border problems have come to the forefront, and hawkish media entities and political circles in both countries have predicted an inevitable war. Yet, it is easy to forget amidst all the uproar that China has emerged as India’s largest trading partner since 2008 and its volume between these emerging giants is well on course to reach $60 billion by 2010. Their mammoth economies have extensively co-operated in leading the world out of the global financial crisis, and both nations acknowledge the value of their commercial relationship. What, then, explains the growing tensions between India and China as these powerhouses remained locked in a curious relationship that befuddles analysts and policy makers alike?

This piece, divided into 5 parts, examines the paradigm shift in relations between India and China that has influenced their bilateral relationship in recent years. While the Sino-Indian discourse had hitherto focused on the territorial space, it is being increasingly defined by emergence in economic growth and strategic regional clout. To this extent, as is noted later, it would not be improper to state that these ‘new’ factors in Indo-China relations have in fact, dictated the countries’ positions on borders, and territorial suzerainty.

(Image courtesy telegyaan.com)

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.

I was in Jammu and Kashmir recently, to witness a two-day dialogue on issues of autonomy, sectarian violence and Indo-Pak relations vis-a-vis the Kashmir Valley. To be naively frank, the complexities on the ground were mind-boggling to me. Ensconced in ivory towers, myths have been created by the self and the other about the situation in the Valley – as I observed discussions between local politicians, academics and social workers, these myths were being demolished, in rapid succession. Needless to say, it was shocking to wake up to the amount of disinformation and ambiguity surrounding one of India’s most troubled and beautiful locations.

The air of confidentiality surrounding the dialogue mandates that I be discrete with the particulars of the same. Consequently, I’ve jotted down a couple of issues which I think are of great contemporaneous relevance to the problems faced by the Kashmiri people.

The most important, is undoubtedly, the question of autonomy. During a sideline conversation that I had with a young Kashmiri friend, he told me the Kashmiri youth were overwhelmingly in support of Azaadi, and if a plebiscite was held, there would be few who would choose to be part of the Indian polity. Yet, the great irony lay in the fact that the same people who wanted Azaadi did not know what to do with it! The political space on Azaadi (and the moderate demand of Autonomy) of the Kashmiri people is filled with confusing discourse of the political parties in the State. How else would you explain the six-odd voluminous reports that have been issued by every major political party in J&K, right from Sheikh Abdullah’s Naya Kashmir to the PDP’s Self-Rule Document?

At the heart of the Kashmir problem, yes, with all of militancy, unrest and dissent, lies the issue of governance. It is so profoundly simple, and yet so complicated that clear solutions have become the distant future. For years, indeed, since the time of Independence, the State has felt the need for free and fair elections. The number of people I met, who exhorted that J&K State Governments were blessed by the Centre rather than its people, is many. Governance has been a tricky issue for the Central Government because Kashmir has had a tortuous history – right from claims of the Instrument of Accession being non-existent, to conspiracy theories  as to why the Indian Army did not go after what is now PoK – there are many thorns in the establishment’s path. But in venturing down this dangerous path, one feels, after listening to countless people in Kashmir, that the pulse of the public is yet to be gauged.

What has spawned off a movement for Azaadi and autonomy has now resulted in decades of militancy and unrest. I left for Kashmir a strong Unionist, and remain one, because I believe that there can be no compromise on the territorial integrity of our country. At the same time, it was heart-wrenching to know and hear about the plight of fellow citizens in a far corner, treated and often understood as ‘different’ from the Indian mainstream. Demands of autonomy, I often felt, were justified, if it meant that the people of Jammu and Kashmir had access to better, effective governance. But amidst all the internal turmoil, be it between Jammu, Kashmir, Leh, Kargil or the Chenab Valley, it is important that top priority is accorded to developmental needs of the State. In thrashing out a plan for autonomy, or governance within the federal framework, either through Chidambaram’s ‘quiet diplomacy’ or other modes, its important that the solutions are responsive and reactive.

On the foreign policy front, I do believe that it is time for India to restart negotiations with Pakistan. The latter is in a dire internal situation, and has repeatedly emphasized its willingness to get back to the table. Rather than watching the show unravel in Pakistan, the Indian Government must engage in a composite dialogue on Kashmir. CBMs have shown the way forward, and must be kept in place to further continuity of relationship. Trade and economic relations must improve to benefit J&K, and for once, the hawks must be ignored to take our relations with Pakistan forward.

(The immediate future of Indo-Pak relations will also form the subject of the next post)