Sunday, 6 November 2016

Kashmir: A settled unsettled dispute?

Kashmir has been in the news for a long time due to allegations of illegal occupation from both India and Pakistan and comprises one of the longest unsettled international disputes in history. I felt there requires to be clarity on the issue of what has actually happened in the past and how we arrived at where we are now. To understand the legality of the dispute one needs to consider various factors and most importantly, the United Nations Security Council Resolution 47. But before that, let us dive into history to see what caused the dispute in the first place.

Maharaja Hari Singh, then Kashmir’s erstwhile ruler had an option to remain independent or go with any of the two countries that were formed during the Independence from the British. Even before there was a decision in that regard Kashmir had witnessed armed violence and blocking of essential supplies in the Pakistani Punjab area. The forced displacement of Sikhs and Hindus from Punjab were already in motion before Kashmir had joined India. This led into religious conflict eventually and many Muslim coup d’etats were witnessed leading to the formation of an ‘Azad Kashmir’. Faced with no basic supplies and an overwhelming amount of armed violence, Kashmir willingly and legally acceded to India as can be seen from Arts. III and IV of the Jammu and Kashmir Constitution. India had sent its military to control the insurgency and worsening situation in Kashmir.

After the first Indo-Pak war in 1947, where Pakistan supported and supplied arms to insurgent groups, India expressed willingness to refer the dispute to the UN Security Council mediation under Art. 35 for maintenance of international peace and security. It is thus the fruit of this that UN Security Council Resolution 47 was adopted. Resolution 47 can be studied simply and was a three-step resolution to be precise if one has a clear reading of Part A of the Resolution. Firstly, it required the Pakistan Government to withdraw any Pakistani nationals not ordinarily resident in the State, including armed forces and tribesmen and stop providing material aid to the belligerent groups in the State. It is after this condition was satisfied that the Indian government was required to reduce the number of armed forces in the State but keep such forces so as to maintain the law and order of the State. India, was however entitled to take measures for the protection of minority groups in the State, namely the non-Muslims who had by then, already been forcefully displaced by the belligerent groups.

The third and most extensive condition was that there required to be held a plebiscite after the satisfaction of the two pre-conditions to determine whether Kashmir would accede to India or Pakistan. Unfortunately, the first condition was never met and Pakistan refused to not aid belligerent groups in hampering law and order and neither did they remove a single member of the army from Kashmir. Subsequently, Pakistan illegally ceded 5,180 sq. Km. in the Shaksgam valley to China via the 1963 China-Pakistan Border Agreement. Further on, in 1990, there was what was known as ‘ethnic cleansing’ in the Kashmir valley when all the Kashmiri Pundits were forced to flee their homeland. Thus, prima facie, it appears that not only has Pakistan not abided by the resolution, but gone against its whole letter and spirit. The argument that a Muslim-majority princely State should mandatorily join Pakistan is a bad argument since if religion was the sole basis of the divide, the Hindu-majority princely State of Umerkot should have been offered to India after it acceded to Pakistan in lieu of Kashmir.

India had long agreed for a plebiscite since the time of Jawaharlal Nehru, but Jinnah was fearful of losing territory and hence asked for the plebiscite to be conducted by the Governor Generals instead of the United Nations. It is unfortunately Pakistan that has blocked the right to self-determination of the Kashmiris by blocking Resolution 47. The use of force is considered illegal even in case of self-determination under Art. 2(4) of the UN Charter. However, the question of self-determination was also settled on 6th February 1954 when the freshly elected Jammu and Kashmir Legislative Assembly unanimously ratified Kashmir’s accession to India.

Sunday, 31 July 2016

The changing legal order

Hello there! I’ll be talking today continuing the broad theme of what I have said in the earlier post. Today I tell you why it is expensive to be poor.

Well, it should not come as a surprise that inequality in the world is increasing and that the top 75 people in the world own more than the next 3.6 billion people[1]. In today’s world order, most of the things are determined by economic forces including lawmaking, social status and unsurprisingly, financial benefits. Today’s hero is not the one with intellectual prowess but the one with economic prowess.

It is a sad state of affairs unfortunately, that money commands obedience from the public. It inevitably follows that political power flows from economic power. Laws are lobbied for by the wealthy to be in their favour, they can afford to spend to save, they can afford to jump the queue, they can afford to buy the system.

This world is very cruel to the poor, and it does not reward sacrifice, or talent, or even love. The world rewards those who kneel down obediently before the economically and politically powerful – those who surrender their lives to the almighty all-powerful neo-gods of the present who can control your lives in more ways than you can imagine. To be told what to feel, what to think, what to wear, what to do in private, what to speak by these all-powerful is now a reality. The legal system now has more control over its subjects than it has ever did in history. Even more than the great rulers and autocratic monarchs in their time. Kindly allow me two minutes of your time to present to you a classic paragraph from Sir Edward Coke:

[…] a man’s house is his castle. […] The poorest man may, in his cottage, bid defiance to all the forces of the crown. It may be frail, its roof may shake, the wind may blow through it, the storm may enter, the rain may enter; but the king of England cannot enter! All his force dare not cross the threshold of the ruined tenement.”

When it comes to today, at most this can be called legal romanticism. This presents an ideal which today’s generation has never witnessed. The transition of society from being ‘human’ to being ‘mechanical’ is inevitable where only a small group of the population seeks to control the lives and destiny of others. Huxley’s ‘Brave New World’ might soon be a reality.

To ask again who is to be blamed for this? One need not look at anyone else to seek the root cause of the problems. It is you who has caused this impending doom that has befallen humanity. Systems of government fall and rise but human mentality stay the same. For those who say war or a bloodshed revolution is the solution, I pity them. War and bloodshed has never brought any good to humanity for people die – the good die and the bad die. Bad deeds eventually go away like the good deeds. The circle of good and bad continues.

Am I suggesting humanity will self-destruct? With a war, maybe. But with what continues, society will drastically change towards the picture that Huxley had painted for us long ago. A great visionary indeed! He could imagine today when Sir Edward Coke could say such great things of the erstwhile legal order. I would end with a beautiful quote from Charles Evans Hughes:

“No greater mistake can be made than to think that our institutions are fixed or may not be changed for the worse. […] Increasing prosperity tends to breed indifference and to corrupt moral soundness. Glaring inequalities in condition create discontent and strain the democratic relation. The vicious are the willing, and the ignorant are unconscious instruments of political artifice. Selfishness and demagoguery take advantage of liberty. The selfish hand constantly seeks to control government, and every increase of governmental power, even to meet just needs, furnishes opportunity for abuse and stimulates the effort to bend it to improper uses [...] The peril of this Nation is not in any foreign foe! We, the people, are its power, its peril, and its hope!”





[1] Treanor, J. (2015). Half of world's wealth now in hands of 1% of population – report. [online] the Guardian. Available at: https://www.theguardian.com/money/2015/oct/13/half-world-wealth-in-hands-population-inequality-report [Accessed 31 Jul. 2016].

Tuesday, 24 May 2016

There's a little problem with democracy and power

I write after long gaps, yes. I agree to that. Law school takes its toll on people. I’d also point out the fact that I write on certain important issues that might sting people, cause disagreements to my views and the like. That is how society works – that is how democracy works. Nah, wrong. That is how a democracy is supposed to work. There is a reason there’s that emphasis on that ‘supposed to work’ part. Today, I write about democracy.

Today’s democracy is a distorted democracy – it is not a very flawless form of power-check on the powerful. We associate ‘authority’ and ‘power’ to the modern State than we associate ‘co-operation’ and ‘development’. Most States are often mostly associated with police and militia than with the welfare of its people. Most people would agree, the phrase, “Tu jaanta hai mera baap kaun hai?” (Do you know who my father is?) is a commonly used phrase that explains this entire concept. Those in power, use it for various different purposes including essentially suppressing other’s powers.

The powerful often forget that this power does not belong to them. It is held, at least in my opinion, in public trust. This power to decide the fate of millions of people is not a right, but a grace conferred upon him by those millions. India has a pretty bad rank in the rule of law index, especially in the field of legislative corruption[1], pertaining to legislators, and it is rightly so. Legislators more often than not, deem the power to be a right rather than a grace, they deem it to be absolute rather than held in public trust.

The democracy of today has gone wrong somewhere – it has lost the way and has been derailed from its goal. Today’s democracy is a ‘democratic dictatorship’. Those elected to power neither speak for the majority view nor hold the office in public trust. A legislator hardly ever gets 40% of the vote, often getting elected with 20% of the votes. Thus, ignoring the voice of the other 80%, decisions are made that changes the lives of millions of people. The subjects neither have access to decisions and can hardly ever influence any decision. Any form of protest is criminalized and this brings us again back to the relationship of police and State. It is more often than not, any form of protest against the State is tackled with tear gas and rubber bullets. How, in the world is this a participatory democracy? How is this not a dictatorship of a handful of people?

An ’ignorant democracy’ has made this possible. Those who rise to power, are seldom judged on merits. Selfish gains of people who vote have crumbled down the foundational pillars of democracy. A ‘participatory democracy’ had presumed people would know how to choose what is in the interest of the nation – but that assumption was wrong. People vote not for people who will look after the interest of the nation, but for those who will give them the most benefits when elected. Corporations look after their economic benefits, ordinary citizens look after reduction of income tax and other taxes and so on. It is the personal interest and not national interest that triumphs the other. So, ordinarily, legislators are not exempt from this addiction of personal interest. If they are standing for the elections, it is more out of personal interest of power than out of national interest of serving the nation.


So, people, please come out of your palace of illusions, and see what you have done – what the sacrosanct ‘we the people’ has been into by putting selfish gains first.

[1] You can access the data at http://data.worldjusticeproject.org/#/groups/IND

Friday, 15 January 2016

What is postmodernist jurisprudence?

Postmodernist jurisprudence often runs parallel to critical legal theory. The essence of postmodernism is 'deconstruction' and 'skepticism'. Additionally, postmodern legal theorists are also against 'structuralism'. Critical legal theory, as we know it, is a repudiation of the natural order of things, for example:
  1. Repudiation of patriarchy - Feminist Jurisprudence
  2. Repudiation of the concept of race - Critical Race Theory
  3. Repudiation of the free market - Critical Legal Theory
  4. Repudiation of meta-narratives - Postmodern Legal Theory
The basic concepts of critical legal theory lie herein that:
  • Law reproduces political & economic power (Law is decided by politics and money)
  • Law is a spurious legitimacy
  • Law is not distinctive and discreet
  • Fictions and illusions are foundations of legal paradigm
To take up one of the postmodern theorists, Jean Francois Lyotard, would serve a good purpose here. To him, "Postmodernism is incredibility towards metanarratives." 'Reification' of Freudian hegemonic consciousness, Hegel's transcendental idealism cannot possibly be true was a core concept in this theory. He emphasized that real-world issues become more 'exteriorized' from its knowers in the form of automatic calculation and informal storage and retrieval of the information. In his sense, he says, these become 'data' - separated from context, pre-requisites or other idealism.
To Lyotard, as disciplines become more and more specialized, more and more developed in search of precision and specificity, there ceases to be a general universal unity among these. Further interesting is his concept of 'metanarrative', which says it is a narrative about narratives which offers a societal legitimization through an anticipated master idea. It is indeterminate in nature. There are three types of metanarratives:
  1. NINO = Normative from normative (Normative In, Normative Out)
  2. DINO = Normative from descriptive (Descriptive In, Normative Out)
  3. DIDO = Descriptive from Descriptive (Descriptive In, Descriptive Out)
To go into the details of these would be an unending process in itself. To see more, please refer to the book The Planning Theory of Law.
His main theory is that, now, in the modern world, we are not controlled by 'extra-linguistic value paradigms' that define ultimate purpose and universality of meaning, but by mechanically automated responses to 'language games'. He opposes universality, generality and consensus and seeks to replace the metanarratives by localized narratives.
Postmodern legal theory is a very vast and diverse subject, but its very essence lies in what I have simplified for you to understand.

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