ponytail

Where Fantasy Meets Reality

Here is my conversation with Guru Nanak, the founder of Sikhism. I have a lot of questions which I would have asked Guru Nanak if he was alive today. So here is my list, starting with, are you an atheist?

Are you an atheist? Okay, maybe you are not because you believe in some form of superpower which created everything. And that’s what we think, because you composed a hymn, known as Japji, which means that there is one god, who is all-powerful, all knowing and omnipresent, a creator who is without fear and hate.*

From this, it is very clear that you believe in some form of God.

By the way, there is a new religion called Sikhism. It is currently the worlds 5th largest organized religion. And the followers of that religion consider you as the founder of Sikhism.

How do you feel about that? Did you want to start a new religion?

Coming back to your belief in God, there are several gods in our world, so in which God do you believe in?

You said that there is only one God but according to me there are two kinds of god. One is the real God, responsible for the Big Bang and creating this universe. And the second is a human made God. We made it for our own convenience.

The real God is not real, it is the forces of nature responsible for the creation of the entire universe, and the human made God is fake.

I think you are an atheist or at least an agnostic. A person as intelligent as you can not believe in God.

You also clearly denounced religion. You said the following and I qoute, “Nai Koi Hindu, na Musalman” I couldn’t agree more, this is one of my favourite quote. It underlines the human aspect of Being Human. We are all the same no need to divide humanity with religion.

So it is safe to assume that you are non-religious.

Then, why do people consider a non-religious man to be a founder of a religion? If you were alive today, you would have definitely said that, “Nai Koi Hindu, na Musalman, na Sikh.”

You are one of the greatest reformers in the history of humankind, you stood against superstition, nonsense religious practices, casteism, discrimination, etc.

And advocating this is extremely difficult if you are surrounded by ignorant people. And that's why I think you used the God language, a language which the people can understand.

However, today people are still superstitious, they still indulge in nonsense religious practices, our societies are filled with examples of caste based discrimination.

Perhaps we need you again in the 21st century. But be careful this time, last time you ended up creating a new religion, I don’t think we need another religion which will divide us even further, right? Says the guy who wants to start his own religion, that's quite ironic.

But if you were alive today. Will you accept Sikhism as your creation? Will you take responsibility for it?

And if give a chance what change you would like to bring in the practices of Sikhism and in the present day world?

*The explanation of Japji here is incomplete.

Here I will throw some light on the evolution of customary international law through different state practices and how it different it is from the evolution of humankind. But first, we need to understand what amounts to international law, that is, what are the sources of international law.

Article 38 of the Statute of the International Court of Justice directs to the court as to where to look for the law.

ARTICLE 38

  1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

    a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

  2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

Thus, broadly speaking the following are the sources of international law;

• Customs • Treaties • The General Principle of Law Recognized by Civilized Nation • Judicial Decision • Juristic Work on International law • General Assembly Resolution and Declaration

The most historic and most important source of international law is customs. Though its importance has lessened in modern times due to the increasing use of treaties and conventions as a law creating method, it still remains a vital source of international law. Customs has played a significant part in building the present fabric of the international legal system.

A custom is an accepted way of behaving or of doing things in a society or a community. (1)

In international law, customary rules are evolved after a long historic process culminating in their recognition by the community.

A customary rule of international law may be defined as a rule which the community of States has since long recognized as the right rule of conduct and which has the force of law. (2)

Custom is a constant and uniform usage accepted as law. Following are the requirements for usage to be custom: (3)

(I) Material fact: Similar circumstances States act similarly, usage has been constantly and uniformly practiced by States are considered as material facts.

(II) Psychological fact: The feeling States think that they are acting to fulfilling a legal duty, is a psychological fact.

It is the material fact which is significant in the establishment of customs. (4)

Not only in international law, but customs have also played the most important role in the evolution of human societies. Every great social achievement is an outcome of our collective imagination. (5)

Social customs are a product of our collective imagination. Everything which is not present in nature and is built by humans is only possible with the humans’ ability to cooperate.

Evolution of customary international law co-evolved with the evolution of the humankind. (6)

In the field of international law, State practices play a fundamental role in the formation of customs.

But what are State practices?

Broadly speaking State practices includes treaties, diplomatic correspondence and relations, opinions of national legal advisers, national legislation policy statements, press releases, official manual on legal questions, executive decisions and practices, decisions on international and national courts and the practice of international organizations. (7)

In general, a custom can be created by a practice done by few States, for a continuous period with an intention that the act is binding, it is necessary to do that act. Here, both the material fact and the psychological fact is present.

If you compare this with the evolution of ordinary customs by human interaction, for example praying to god. This particular practice also contains both the material fact as well as the psychological fact.

We must pray to god, is a psychological fact, people think that they have to pray otherwise the god will punish them, a fear of sanction. The continuous practice by god-fearing people is a material fact.

Material fact and the psychological fact are always in the formation of custom.

Opinio Juris Sive Necessitatis

What is Opinio Juris? Opinio Juris is the psychological element necessary for the formation of customary international law.

The state practice, even though general and consistent is not customary law unless an Opinio Juris or psychological element present in it. That is, the practice is recognized as obligatory and there is the conviction that its repetition is the result of a compulsory rule. (8)

“Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, that is, the existence of a subjective element, is implicit in the very notion of the Opinio Juris Sive Necessitatis. The State concerned must, therefore, feel that they are conforming to what amounts to a legal obligation. The frequency or even habitual character of the ACT is not in itself enough.” (9)

The following paragraph is from the North Sea Continental Shelf case.

Let us look into two examples to understand what this case is all about.

Example 1.1: Two countries A and B are doing a practice for the last 100 years, let us suppose that practice is to let other country's citizen enter into their border.

Now country A has sealed their borders for the citizens of country B.

Country B objects to this new rule because the majority of its citizens’ workplace is in country A. This new rule will significantly increase the amount of joblessness in country B.

Country B takes this matter to the ICJ, country B claims that country A has violated 100 years old customary international law.

The court says that the acts of country A is not a violation of customary international law, because there was no customary international law existed between country A and country B.

This is because there was no Opinio Juris present in this case. The 100 years old practice of visa-free entry was not a result of a belief that this is obligatory.

Example 1.2: Two countries A and B, are doing a practice since last 100 years, let us suppose that practice is to let other country's citizen enter into their boarder, because both the countries think “free movement” is a human right and consider it legally binding on them.

Now country A has sealed their borders for the citizens of country B.

Country B objects to this new rule because the majority of its citizens’ workplace is in country A. This new rule will significantly increase the amount of joblessness in country B.

Country B takes this matter to the ICJ, country B claims that country A has violated 100 years old customary international law.

The court says that the acts of country A are a violation of customary international law existing between country A and country B.

Opinio Juris also exists in the formation of customs between humans. Here are another two examples to explain the importance of Opinio Juris in human life.

Example 2.1: Two human friends help each other to find food. They are helping each other for the last 10 years.

The practice of helping others in finding food is not a custom, Opinio Juris is missing.

Example 2.2: Two human friends help each other to find food because they think God wants them to help each other, and if they do not help each other, then they will be punished. They are helping each other for the last 10 years. This can become a valid custom, as the Opinio Juris is present.

From the North Sea Continental Shelf case, it is clear that for a practice to be a valid custom, it is necessary to have Opinio Juris. The frequency or even habitual character of the practice is not in itself enough to label it as a custom. There has to be a belief that the acts are binding on them, even if originally the act is not binding on them.

Two friends think the act of helping each other is binding on them by the god. In reality, there is no God. Only the belief in god is enough for the friends to help each other in good faith.

Again the belief in isolation is incomplete for a practice to become a custom. Both the material fact and the psychological fact is required. (10)

The Belief System

In the field of customary international law Opinio Juris is an important topic. To understand this completely, let us explore a few more cases.

SS Lotus Case

In SS Lotus case a strict requirement was laid down by the court for a customary rule to evolve.

In this case a French ship ‘SS Lotus’ collided with a Turkish vessel ‘Boz Kourt’ on the high sea killing 8 Turkish nationals. When the SS Lotus arrived in the Turkish Water, criminal proceedings were instituted in the Turkish courts against the captain of SS Lotus along and the captain of Boz Kourt for manslaughter and sentenced.

The French government protested against the Turkish action and by an agreement between the parties the dispute was submitted to the Permanent Court of International Justice.

The French government argued that under the customer international law criminal jurisdiction pertains to the flag state of the vessel in which the crime is committed. The flag state was entitled to exclusive jurisdiction the court rejected the French contention.

The French lost the case because the court failed to find any psychological element in the case.

The court rejected the French contention and observed;

“The circumstances alleged by the French government merely show that states had often, in practice, abstained from instituting criminal proceedings, and not have that they recognize themselves as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom. The alleged fact does not allow one of infer that states have been conscious or having such a duty” (11)

North Sea Continental Shelf Case

This line of reasoning of the SS Lotus case was adopted by the International Court of Justice in the North Sea Continental Shelf case.

Where Denmark and Netherlands in their case against the Federal Republic of Germany for the delimitation of the continental shelf between them. The court found the absence of psychological element required for the creation of such a new rule. The court further said, “there is no evidence that they s acted because they felt legally compelled to draw them in this way because of a rule of customary law obliging them to do so – especially considering that they might have been motivated by other obvious factors” (12)

Anglo Norwegian Fisheries Case

A rule will not be binding on states which have maintained its descent throughout the rules formative period. And in the Anglo Norwegian Fishery Case, the United Kingdom argued unsuccessfully that the ten-mile rule in the case of baye was an established principle of customary international law. The court, while rejecting this contention stated that even if it has required and authorities of general international law, it “would appear to be inapplicable as against Norway in as much as she has always opposed any attempt to apply it to the Norwegian Coast.” (13)

Jurisprudence And International Law

Let us now see the evolution of customary international law from the point of view of different jurists of law.

Austin

Austin overlooked customs in his theory. He gave no place to the judge-made law and treated international law is mere morality. (14)

Reality Check

In reality law, society, morals and behavior are linked with each other. (15) Considering only a sovereign making law backed by sanction limits the scope of the law, made by humans, for humans.

International law is a law made by nations, for nations, and for their proper functioning.

Many countries, who follow the theory of dualism, do not take international law very seriously, for them the international law is secondary to their constitution.

On the other hand, countries, who follow the theories of monism, treats international law and their constitution equally.

Bentham

According to Bentham’s theory of utilitarianism, a good law is a law which makes the maximum number of people happy and the minimum number of people unhappy. (16)

If international law is making the maximum number of people happy that a countries constitution, which is only making its citizens happy, why should there be a conflict between the two? According to this theory, the international must be supreme in all cases.

Reality Check

The difference between the theories of monism and dualism boils down to morality. (17)

But apart from morality, diversity makes everything beautiful. Just look at your self (a complex creature) and (a single cell organism).

“Beware of simple ideas and Simple Solutions. History is full of visionaries who used simple Utopian visions to justify terrible actions. Welcome complexity. Combine ideas. Compromise. Solve problems on a case by case basis.” – Hand Rosling (18)

F K Von Savigny

Only a few points of Savigny, here I want to highlight.

One, Law develops like a language.

The term law in the above sentence refers to state law, what about international law? The evolution of international is not exactly like a language.

Customary international law might have been evolved as a language, local to particular places. However, international law made by sources other customs and treaties might not have been evolved as a language.

Two, Early development of law is spontaneous.

Law, which ever it is, evolves spontaneously in the beginning. International law is no exception.

Imagine, you and I meet in a jungle. We need to survive and fight wild animals and the cold climate. We will instantly make a few laws to suit our needs. Slowly, as time passes, the rate of development of the rules we made will slow down. I strongly recommend trying this experiment.

Three, Law is a continuous and unbreakable process.

After the rate of development of the rules might slow down in our Republic Of Jungle, but it will never stop. We will continue to make new rules according to our needs.

Hence, the theory of Savigny fits properly in the evolution of international law. Apart from his some criticism. (19)

The evolution of customary international law was like the evolution of humankind, by natural section. Now it is slowly starting to evolve by the evolution of intelligent design.

End Notes

  1. Custom.” custom_1 noun – Definition, pictures, pronunciation and usage notes | Oxford Advanced Learner's Dictionary at OxfordLearnersDictionaries.com. https://www.oxfordlearnersdictionaries.com/definition/english/custom. Last visited on 20 Apr, 2020.

  2. Verma, S K. An Introduction To Public International Law. 3rd ed. New Delhi, Delhi: Satyam Law International, 2019. Page Number 27

  3. Verma, S K. An Introduction To Public International Law. 3rd ed. New Delhi, Delhi: Satyam Law International, 2019. Page Number 27

  4. Verma, S K. An Introduction To Public International Law. 3rd ed. New Delhi, Delhi: Satyam Law International, 2019.

  5. Sapiens: A Brief History Of Humankind. London: Vintage, 2011.

  6. Haidt, Jonathan. The Righteous Mind: Why Good People Are Divided By Politics And Religion. New York: Vintage Books, 2013.

  7. Verma, S K. An Introduction To Public International Law. 3rd ed. New Delhi, Delhi: Satyam Law International, 2019. Page Number 26-28

  8. Verma, S K. An Introduction To Public International Law. 3rd ed. New Delhi, Delhi: Satyam Law International, 2019. Page Number 34

  9. North Sea Continental Shelf Case (1969) ICJ Rep. 3

  10. Verma, S K. An Introduction To Public International Law. 3rd ed. New Delhi, Delhi: Satyam Law International, 2019.

  11. SS Lotus Case (1927) PCIJ (Ser. A) No. 10

  12. North Sea Continental Shelf Case (1969) ICJ Rep. 3

  13. Anglo Norwegian Fisheries Case (UK vs Norway) (1951) ICJ Rep. 116

  14. Dr Paranjape, N V. Studies In Jurisprudence And Legal Theory. 8th ed. Allahabad: Central Law Agency, 2016. Page Number 33

  15. Ponytail. “Relationship Between Society And Law.” Pony Tail. Ponytail, February 15, 2020. https://ponytail.in/relationship-between/. Last visited on 20 Apr, 2020

  16. Dr Paranjape, N V. Studies In Jurisprudence And Legal Theory. 8th ed. Allahabad: Central Law Agency, 2016. Page Number 27

  17. Verma, S K. An Introduction To Public International Law. 3rd ed. New Delhi, Delhi: Satyam Law International, 2019.

  18. Rosling, Hans, Ola Rosling, and Rönnlund Anna Rosling. Factfulness: Ten Reasons We are Wrong About the World – and Why Things Are Better than You Think. London: Sceptre, 2019.

  19. Dr Paranjape, N V. Studies In Jurisprudence And Legal Theory. 8th ed. Allahabad: Central Law Agency, 2016. Page Number 55-60

Do you know the terms “religion”, “minority”, “persecuted” are not used in the CAA? Then why do the government says that the CAA is to give Indian citizenship to the religious minority from Pakistan, Afghanistan and Bangladesh, facing persecution?

But first, we need to understand who is a migrant?

According to section 2 (1) (b) of the Citizenship Act, 1955 an illegal migrant means a foreigner who has entered into India-

(i) without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or

(ii) with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period;

With the enactment of Citizenship (Amendment) Act, 2019 the following proviso has been added.

“Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December 2014 and who has been exempted by the Central Government by or under clause © of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for this Act;”

Here in this new definition, you will be struggling to find the terms “religion”, “minority”, or “persecuted” in it.

Saying that this is an Act for providing Indian citizenship to religious minorities from Pakistan, Afghanistan and Bangladesh, who fled to India to avoid religious persecution before a cut off date, is an interpretation.

The actual text does not say this, we imagine it. Law is not what is written, it is what we perceive it to be.

For example, Section 377 of the Indian Penal Code. After 2018 the interpretation changed and now consensual sex between adults of the same gender is not a crime. But if you read the Section 377 before 2018 and after 2018, you will notice that there is no change it. The language is the same, the interpretation changed and that changed the law.

Is the Citizenship (Amendment) Act valid? If not, can we interpret in a way to make it valid?

The legality of Citizenship (Amendment) Act depends on how you interpret it. Let us see what happens when we do a strict interpretation of it?

In strict interpretation, we are not using our imagination, we say whatever is written, is the law. In that case, the Citizenship (Amendment) Act is illegal. It violates Article 14 of the Constitution, by not treating every one of that same class equally. It is excluding Muslims and people with no faith.

But what if we do a liberal (imaginary) interpretation?

Let us assume the law is what the government is saying.

That means religious minorities from Pakistan, Afghanistan and Bangladesh, who fled to India because of religious persecution before a cut off date will be given Indian citizenship.

Which religious minorities? The Act says, six communities which will be considered as religious minorities, that is Hindus, Sikhs, Parsis, Christians, Buddhist and Janis. Again we do not see the people with no faith. Non-religious people are also considered as a religious minority and especially in Pakistan, Afghanistan and Bangladesh. Therefore, it is violating Article 14 of the Constitution.

Why only Islamic countries, when we have ample evidence of religious persecution in other neighboring countries?

By only limiting the scope of this amendment to Islamic countries, when we have evidence of prosecution of minorities based on religion in other Non-Islamic countries is not against the Constitution. Of course, it is ethically wrong to do so. It is sending a very negative message to the world. But this issue can be solved by making another law for providing Indian citizenship to people from other countries too.

Why provide citizenship to only religious minorities facing religious prosecution?

The prosecution can be of many types, by only providing citizenship to people facing religious persecution is arbitrary. Moreover, a non-religious person can also face persecution, a Muslim in an Islamic country can face persecution.

What if we provide citizenship to only religious minorities? Again Article 14 will be violated because the Act is excluding non-religious people.

What if we provide citizenship to only prosecuted refugees? Again Article 14 will be violated because the Act is excluding non-religious people and Muslims.

No matter what is your religion, you can still be a victim of persecution because persecution can me of many types.

If you think that Citizenship (Amendment) Act is wise legislation and none of the objections raised on it is valid, because it is correcting a historical wrong by providing citizenship to religious minorities from Pakistan, Afghanistan and Bangladesh who have fled and sought shelter in India on the accounts of religious prosecution.

Then you deny the existence of 16% of the world's population who consider themselves as non-religious.

Then you are deliberating limiting the scope of the Act to enforce the RSS’s hardcore Hindutva belief and sending a strong message to the world that we do not want Muslims in our country.

Is the Citizenship (Amendment) Act legal? You decide.

A society consists of laws to govern itself. Every society has few internal laws to govern itself, but why? What happened in the history that our ancestors decided to have had laws in society?

Here I will explain how law and society are interlinked with the help of other sciences. I have established a link between law and society through morals and human behaviour. Now I will explain each link to establish a complete link between law and society.

to understand the relationship between society and morals, we need to understand what are morals and where do morals come from? After that, we will be able to understand how morals and linked with society.

What is morality? Morality is the best attempt of our brain to decide what is right and what is wrong. It is our terms and conditions, which helps us to survive in this social jungle.

Where does morality come from? There are three most common answers to this question.

Answer 1: Morality is innate, it is by birth and has been developed through the evolution of natural selection. (1)

If morality is innate, then why it varies around the globe and through different periods? (2)

Answer 2: Morality is a learned behaviour, kids learn what is wrong and what is right through harm.

If a child is harmed, they feel bad. From this, they learn that harming others is bad because the other person will feel bad. (3)

Here are few examples, you have to decide whether the given situation is moral or immoral?

• “A family's dog was killed by a car in front of their house. They had heard that dog meat was delicious. So they cut up the dog's body and cooked it and ate it for dinner. Nobody saw them do this.” (4)

• “A man goes to the supermarket once a week and buys a chicken. But before cooking the chicken he has sexual intercourse with it. Then he cooks it and eats it.” (5)

What do you think? Was it right for the family to eat their own dog? Is having sexual intercourse with a dead chicken moral?

These situations contain no harm, but still, people will find this immoral. This shows that morality extends beyond harm.

Answer 3: Morality is a learned behaviour that goes beyond the understanding of harm. (6)

This theory comes from Shweder, a psychological anthropologist who conducted a study, in which he interviewed a variety of people from USA and India. Shweder came up with thirty-nine short stories in which someone does something that would violate a rule either in the United States or India but with no direct harm to someone. (7)

From this experiment, Shweder stated that morality extends beyond harm. And when morality goes beyond harm society plays a huge role.

This argument is further supported by Jonathan Haidt, a social and cultural psychologist. Haidt conducted a similar experiment in several different parts of the world, subjects ranging from different social backgrounds to different educational and economic levels.

Result? The moral domain varied across nations and social classes. Lower class groups moralized less than upper-class people. Children moralized more than adults.

Individualistic and educated cultures have a narrow moral domain. Sociocentreic and less educated cultures have broader moral domains.

Your morals are a combination of natural selection, your childhood experiences of harm and fairness and your socialization. Morals and society are like two sides of a coin.

Morality depends upon society, morality controls our behaviour.

People behave differently. Differences in their behaviour correlate to different moral values they hold.

We can understand this by observing society. You will find cultures where children call their parents by their names. There are cultures in which children call their parents by other, respectful adjectives. In Indian cities, wife calls her husband by his name. In Indian villages, the wife does not call her husband by his name.

Morals are a major source of laws. This is an undisputed fact. Different nations have many laws based on the morals of their society.

Indian laws of marriage are based on customs. Customs is repeated behaviour. Behaviours are guided by morals (see link 2).

In my opinion, in the next million years, there will be no laws, everything will be governed by our morals.

Take Delhi Metro, for example, the announcements within the train vary from what the next station is to-dos and don't in the train, do not spit in the train, do not sit on the floor of the train, etc. On the other hand, in Montreal Metro, the announcements are limited to the name of the next station.

There are no announcements in Montreal Metro deterring the commuters, not to spit in the train or to face punishment.

The reason for this, no Canadian spit in the train or sit on the floor of the train, but Indians do. Canadian society is more sociologically advance than Indian society.

As a society get sociologically advance with time, their reliance on laws will reduce. The daily actions of sociologically advanced people will be governed by their sociologically advanced morals. The current example is the difference announcements in Delhi Metro and Montreal Metro. An example in the next million years could be, a nation with no laws to deter murder, because their killing of another human by a human is not permitted by their morals. And there could be a less sociologically advanced nation with a law to deter murder.

However, there is a flaw in this hypothesis. In link 1 I mentioned that in individualistic and educated societies moral domain is narrower. And here in this hypothesis, I say that sociologically advance society, that means more educated one, will have a wide moral domain, so wide that entire legal system will be covered my morals.

Till now I have established links between society and morals, morals and behaviour and between morals and law. Now the fourth link is between behaviour and law.

To understand the application of the law to a greater degree and to find flaws in its application, we need to have a better understanding of our psychology, and human nature.

Any shortcoming in our understanding of human behaviour and human psychology can have a huge negative impact on our legal system.

And yes, there are many shortcomings in our understanding of human nature and human psychology, and due to which there are many flaws in our legal system.

Our legal system is based on some flaws. (8)

In the case Ginnah Muhammad vs Enterprise Rent-A-Car (2006)

On October 11, 2006, forty-year-old Ginnah Muhammad brought suit against Enterprise Rent-A-Car seeking relief for $2,750 in assessed damages to a rental car, damages she claimed were caused by thieves. Rather than discussing her claims, however, the court focused on her outfit. She was wearing a niqab, worn by some devout Muslim women, covering the head and face except the eyes. (9)

Ginnah Muhammad was asked by the judge to remove her veil. Ginnah Muhammad refused to uncover her face as her faith does not allow to uncover her face in front of a male member. She said that she has no issues to uncover her face if there was a female judge and requested a female judge. The judge dismissed the case. (10)

Presiding Judge Paul Paruk dismissed her case and gave the following reasoning:

“I can't see your face and I can't tell whether you're telling me the truth or not and I can't see certain things about your demeanour and temperament that I need to see in a court of law.” (11)

The judge thought that he could not fairly adjudicate a disagreement between two parties when he could not see one of them.

Our legal system is based on this myth. Our daily interactions with each other are based on this myth.

We think if someone is not making eye contact while talking, they may be lying. They may be lying, but this is not always true. Some people will not make eye contact and tell the truth, some will make eye contact and lie. Mismatched personalities are wrongfully convicted due to this myth in our legal system. (12)

In a study conducted by economists, computer scientists and bail experts in New York City, they gathered 5,54,689 records of defendants bought before the court of law for granting bail. Out of which human judges released around 4,00,000 when compared it with an artificial intelligence software created by the researchers, the people were on the AI’s list were 25% less likely to commit any a crime when on bail. (13)

The machine flagged only 1% of defendants as “high risk” individuals to commit a crime when out on bail.

25% is a huge number. Why did human judges under-performed the AI judge? Human judges were able to see both the parties, their expressions, their demeanour but still, they were not able to beat a machine who only rely on the information entered in it.

Is this gap of 25% due to our myths in our legal system? Accordind to Sendhil Mullainathan (the economist from the above mentioned study) it is.

To mitigate these problems, we need to first mitigate these myths form the legal system. To achieve this the judges must have a basic understanding of human behaviour.

Studying law in isolation will only lead to grave issues in our legal system. We need to study law with other subjects like sociology, psychology, morals, history, etc. And this is how law and society are interlinked. They are two sides of the same coin.

In sum

To establish a link between law and society I started by explaining how morals are based on our society. Our socialization affects our morals principles. [link 1] Then I explained how morals influence our behaviour in society. [link 2] Further, I discussed issues arising in our legal system due to our behaviour. [link 4]

Morality is a learned behaviour, we learn moral principles from our society. Those moral principles control our behaviour in society. That behaviour can sometimes fool us into believing a few myths, which create problems in our legal system.

Law and society are two sides on a single coin. One without another is incomplete and a recipe for disaster.

EndNotes

1 Haidt, Jonathan. The Righteous Mind: Why Good People Are Divided by Politics and Religion. Penguin Books, 2013. Page Number 5

2 Haidt, Jonathan. The Righteous Mind: Why Good People Are Divided by Politics and Religion. Penguin Books, 2013. Page Number 5

3 Haidt, Jonathan. The Righteous Mind: Why Good People Are Divided by Politics and Religion. Penguin Books, 2013. Page Number 11

4 Haidt, Jonathan. The Righteous Mind: Why Good People Are Divided by Politics and Religion. Penguin Books, 2013. Page Number 3

5 Haidt, Jonathan. The Righteous Mind: Why Good People Are Divided by Politics and Religion. Penguin Books, 2013. Page Number 4

6 Haidt, Jonathan. The Righteous Mind: Why Good People Are Divided by Politics and Religion. Penguin Books, 2013. Page Number 21

7 Haidt, Jonathan. The Righteous Mind: Why Good People Are Divided by Politics and Religion. Penguin Books, 2013. Page Number 17

8 GLADWELL, MALCOLM. TALKING TO STRANGERS: What We Should Know about the People We Dont Know. PENGUIN BOOKS, 2020. Page Number 50, 185

9 Claire McCusker, When Church and State Collide: Averting Democratic Disaffection in a Post-Smith World, 25 Yale L. & Pol'y Rev. (2006).

10 GLADWELL, MALCOLM. TALKING TO STRANGERS: What We Should Know about the People We Dont Know. PENGUIN BOOKS, 2020. Page Number 153

11 Oxford Journal of Law and Religion, Volume 8, Issue 1, February 2019, Pages 213–222.

12 GLADWELL, MALCOLM. TALKING TO STRANGERS: What We Should Know about the People We Dont Know. PENGUIN BOOKS, 2020. Page Number 50

13 GLADWELL, MALCOLM. TALKING TO STRANGERS: What We Should Know about the People We Dont Know. PENGUIN BOOKS, 2020. Page Number 39

[The following is the first draft of Manav Ujjwal Samaj Samiti's privacy policy. Please have a look, review it and let us know how we can improve it. Contact us at muss4us@pm.me]

This NGO is domiciled in India.

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India needs drastic educational reforms. In the days of Hindu-Muslim, Cow cures cancer, etc. We need to promote logic and reasoning. This can only be done through schools. This can only be done with the help of a revolutionary educational policy by the State. The fundamental duties require us to have a scientific outlook towards life, unfortunately, the majority of us fails to do so. It is the time for the State to step in. This will be a brave new step, but it can not be overlooked because it is also the duty of the state to promote reason and logic.

Education must be without religion. Today you can find poems about God, entire stories of Mahabharata and Ramayana in school textbooks. Whether to be religious or not, should be our choice. Religion should not be imposed. Sadly religion is always imposed on us. There is no harm in being religious or believing in God. But there is a lot to lose if that belief is without reason and logic. There is a lot too loose if that turns into hatred towards other religions and beliefs.

From the early age, we need to teach our children different religious philosophies, not to make them a believer but to teach them that every religion teaches us the same basic principle, to be a good human. At the same time, Rationality should be a mandatory subject in our schools teaching our kids to think logically and to apply their own brain. There are a lot of better theories than “God created us”. Our world could be a simulation, who knows. Let the students decide what they want to believe. Let the students realize themselves that the existence or the non-existence of God has little to no effect on our lives.

In 2020 and in the next decade religion needs to die. Otherwise, there won’t be any sociological development of our race. Religion is a creation of our collective imagination. God exists but in our imagination. As of now, we have no evidence to know whether if there is any God outside our imagination.

What do we need? A better, peaceful, scientific future. And how we can achieve it? Through a good educational policy.

First, there has to be a strict separation between education and religion. If you teach religion in schools, make sure to teach all the religions and the similarities between them not their differences.

Second, a mandatory subject for everyone to learn rationality and logic.

Third, the history of human evolution must be taught to everyone, we need to learn who we are and how we got here. And why it is important to know who we are.

In the days of Hindu-Muslim and Cow cures cancer, we need to have more scientific and logical people. Because we need more scientific and logical people in Parliament, we need more scientific and logical people everywhere.

What is the Citizenship Amendment Act, and why there is a nationwide protest against it?

The Citizenship Amendment Act gives Indian citizenship; to six non-Muslim religious refugees (Hindus, Sikhs, Parsis, Christians, Buddhist and Janis), from Pakistan, Bangladesh and Afghanistan, who fled to India before December 31, 2014, to avoid religious persecution.

In simpler words, religious minorities from Pakistan, Afghanistan and Bangladesh, who fled to India because of religious persecution before a cut off date will be given Indian citizenship.

There are many questions which can be asked, for example, why only these three countries? Why only these six religions? And why a cut-off date? But the most important question, “Is Citizenship Amendment Act constitutionally valid?”

The opinion is mixed, many will say that the Citizenship Amendment Act is legally correct and many say that the Citizenship Amendment Act violates the principles of our constitution.

Let us start with the preamble of the Constitution. It declares that the Republic of India is a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC. This means India as an ideology is supposed to be sovereign, socialist, secular, democratic and a republic country.

Now, does the Citizenship Amendment Act violates the principles mentioned in the preamble?

But first, let's understand what CAA aims to achieve and what's being left out.

An Act for granting Indian citizenship to non-Muslims from Pakistan, Afghanistan and Bangladesh who entered India before December 31, 2014, because of religious persecution or if they fear religious persecution.

Muslims are not included in this act. What about those who don’t have any religion? The Act is silent. Maybe in the eyes of the Indian government, every human has a religion, if not two religions or no religion.

This act is clearly against the Constitutional fabric of India. It is clearly against the basic principles of the Indian ideology.

Article 11. Parliament to regulate the right of citizenship by law. Nothing in the foregoing provisions of this Part (Part 2 which deals with citizenship) shall derogate from the power of Parliament to make any provision concerning the acquisition and termination of citizenship and all other matters relating to citizenship.

This provision allows the parliament to make any law for taking or granting Indian citizenship. Citizenship Amendment Act is because of Article 11.

Article 13. Laws inconsistent with fundamental rights.

This makes everything more interesting. According to this any law in force which is inconsistent with the fundamental rights are void. It also imposes a duty on the state that it should not make any law which is inconsistent with the fundamental rights.

If the Citizenship Amendment Act is inconsistent with any of the fundamental rights, as per Article 13 it is void.

Does the Citizenship Amendment Act violate any fundamental rights?

Article 14 talks about equality, equality before the law and equal protection of the law.

Article 14. Equality before law.

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

If you read this you might think CAA is against Article 14, because it does not provide for equal treatment of the refugees. Some of them are more equal than others.

Article 14 is for everyone, even non-citizens. Every human being inside the Indian territory is entitled to equal protection of the law and equality before the law.

Equality before the law and equal protection of the law does not mean equal treatment to all. It guarantees similar treatment but not equal treatment. Article 14 is based on the principle of Reasonable Classification, equals must be treated equally and unequal must be treated differently.

Citizenship Amendment Act discriminates on the bases of religion by excluding Muslims.

Are Muslim illegal immigrants equal to non-Muslim illegal immigrants? Are Muslim refugees equal to non-Muslim refugees? Are immigrants equal to locals?

Everyone is entitled to equal treatment as humans, as all humans are equal as humans.

Muslim immigrant, legal or not, is equal to non-Muslim immigrant, legal or not. Allowing some communities the right to citizenship and excluding others is discriminatory and a violation of Article 14.

Even if the government tries to cover this up by claiming that the CAA is to give citizenship rights to religious minorities facing religious persecution.

Why not protect all the refugees coming from all the neighbouring countries facing religious persecution?

Restricting the CAA to just three countries is arbitrary when there is evidence of religious persecution in several neighbouring countries. Tamils in Sri Lanka and Rohingya Muslims in Myanmar, for example, face religious persecution and have taken refuge in India.

Apart from fundamental rights, CAA violates Human Rights and other international customary laws.

“To protect the human rights of refugees, in 1951, under the aegis of the United Nations, countries adopted a convention relating to the status of refugees (Refugee Convention), which was later amended by the 1967 Protocol. These two global legal instruments, now ratified by 145 countries, constitute the major international legal framework on the treatment of refugees globally. India is not a party to either the Refugee Convention or the 1967 Protocol.” – Prabhash Ranjan (Senior Assistant Professor, South Asian University’s Faculty of Legal Studies)

Citizenship should never be given on the bases of religion. All religions are equal, religious people are equal to non-religious people.

By explicitly not including Muslims, the state has reinforced the Hindutva’s belief that India is the sacred land of Hindus, not of Muslims.

Religious discrimination hurts economic development. In July 2018, researchers from the Universities of Bristol (UK) and Tennessee (US) published a study, 'Religious change preceded economic change in the 20th century', clearly establishing the causal relationship between secularism and economic growth.

This is CAA in isolation. If we see CAA with NRC (National Register of Citizens) the situation becomes a nightmare for Muslims and poor of the country.

As of today, 60 petitions have filed in the Supreme Court of India challenging the Act, and the court has not yet put a stay on the law. The next hearing is on January 22, 2020.

As of today, we need more scientific and logical people in Parliament.

The views expressed are personal

I’m creating a new religion called Lubnaism.

I’m creating a new religion because I want to legalise same-sex marriages. And I have some different set of theories explaining the trivial matters of life and the existence of god.

This will be the religion of the future. A religion which accepts conflicting opinions and encourages questioning everything.

My only motive to create a new religion is to legalise same-sex marriages and marriages between any two (or more) humans legal.

The Indian culture doesn’t accept marriage between people of the same sexes. Moreover, the constitution hasn’t legally recognised same-sex marriages in India.

India is a deeply religious country, 80% of its adult population said that religion is very important to their lives.

In India there is no uniform law for marriage, people from different religions have different laws for their marriages. Marriage laws in India are derived from religious texts and their scriptures.

No major religion in India allows same-sex marriage, hence same-sex marriages are not yet recognised in the country.

To change the narrative we have two options, either we all come together and demand equal rights for all. Or we create a new religion which supports the cause. If we are able to legally recognise our new religion in the country and are able to create our separate laws for marriage, just like the separate laws Hinduism, Christianity and Islam have in India. We might be able to legalise same-sex marriages without a legal fight.

Creating a new religion isn’t easy.

We will be needing an all-powerful god, some vague philosophy explaining everything in this universe and something to offer afterlife. And most importantly we will be needing followers.

As an atheist, I don’t think god is real. It could be, but we humans don’t believe in the real God who created everything, in fact, we believe in an imaginary god which we had created in our imagination.

This new religion will not be a theistic one. The followers of this new religion must understand that the existence of God or the non-existence of a god is beyond our control, and it doesn’t affect our daily lives in any way.

It is just like living in a simulation, or not living in a simulation. If we are in a simulated world, it will not change our lives. If we are not in a simulated world, again it won’t make any difference.

75% of Indians pray daily.

They pray to whom exactly? God? The one we created in our collective imagination? Or the real one, if it exists?

Prayers have no real benefits to human life, expect it might help us psychologically.

Your prayers to reverse climate change will not do any help until you yourself take any action.

If there is a god, not the one we created in our collective imagination, but the one whose presence we are not aware of, isn’t it an all-powerful thing which created everything in this universe.

How come my disbelieve in that power can challenge its authority? And why do these religious vigilantes need to defend an all-powerful thing? In addition, that all-powerful power, if it has any consciousness, isn’t a super insecure being who will punish us if we do not believe in it.

My thoughts can’t affect that power, that power can’t affect my thoughts, even if it does, it’s beyond my control. Therefore, its existence doesn’t make any difference.

This will be the underlining philosophy of my new religion. And just like any other religion, this new religion also encourages its followers to be good humans and to treat everyone with equal dignity and respect.

But unlike other religions, you will not get any rewards for your good behaviour in your afterlife. Because heaven and hell are not real places, they exist in our collective imagination. There won’t be any rebirth, because when you die, you die forever.

The reward you will get for your good deeds will be from the fellow humans you will come across.

PS. Creating a new religion sounds stupid. Creating a new God for a new religion sounds stupid. Having your own philosophy to explain the world sounds stupid. A religion to legalise same-sex marriages sounds stupid.

But we all need to understand this and accept that every other major religion in this world once started with similar stupid ideas. And today for us it’s the most important thing in our lives.

There is a chance that we are living in a simulated universe. If that is true, what if that simulation is an extremely advanced video game? And we are a character in that game with predefined actions? We act in a way in which are coded by the creator of this game of life.

And if this is a game, there must be some number of lives we have to live. What if we have an unlimited number of lives? What if we never die, until we complete the mission?

This is only possible if we are in a simulated universe, if this is a real universe, we may never be immortal without the help of medical science. But we don’t know this yet whether we are in a simulated universe or not, because we cannot differentiate between the two. This may be a simulated universe but it seems real to us.

“There is a one in a billion chance that this is base reality” -Elon Musk

Coming back to the game analogy, if we are in an extremely advance video game, with unlimited lives.

Am I the only one who is immortal? Or we are all immortals? If we all are immortals, why do people die? I never died before, perhaps I am immortal. But the idea that only one or few of us are immortal seems rather bizarre. How is this possible? Or it isn’t? We don’t know that yet.

But what if this is an extremely advanced video game, and I am the only conscious character in it, or I am the only main character being controlled by someone, possibly the gamer.

Does this sound possible? Nobody knows that. Because your attempt to disprove this might be due to the algorithm governing our actions.

You say, “I am real and a conscious being” because you are programmed to say that.

You say, “I am real and you are not, you are acting in a particular way because you are programmed to do so” because you are programmed to say that.

This assumption may be wrong or incomplete, but what if it isn’t? What if I am actually the main character or an only conscious character in this extremely advance video game with unlimited lives?

Now does that make me immortal? Does this mean I can never be killed? Or does this means if I die, I can respawn to the last saved checkpoint?

If I die and respawn at the last saved checkpoint, will I remember I died? Will I know that I respawned?

For this to be proved I need to kill myself and wait to be respawned again. But I won’t be able to prove this if I don’t remember that I died and respawned. What if this isn’t a video game? What if there are no unlimited lives in this game? What if I am not immortal? And what if this is the base reality?

This again leaves us in a situation will never be proved or disproved.

Killing yourself to prove this is not a good idea because we are not sure, or I should say that I am not sure, that whether this is a simulated video game or not.

Considering all the possible outcomes and probabilities, from the best of my knowledge, I came up with a number. I calculated that there is a 4.16666666667% chance we are immortals or at least I am immortal.

As I doubt my mathematical skills, I have reasons to believe that this number is inaccurate. As we consider more and more factors, this number will change, most probably it will further decrease our chances (or my chances) of being immortal(s). Here how I came up with is number

Philosopher Nick Bostrom in his research paper “Are You Living In A Computer Simulation?”, said that there is a 20% chance that we are in a simulation.

On the other hand, Elon Musk says that the chances that we are in a computer simulation are much higher.

Nick Bostrom in this paper argues that one of the following propositions is true:

  1. The human species is very likely to go extinct before reaching a post human stage.
  2. Any post human civilization is extremely likely to run a significant number of simulations.
  3. We are most certainly living in a computer simulation.

From this, I have given all the three possibilities equal chance to be true. That is 1/3. Therefore, there is a 33.33% chance that we are living in a computer simulation.

Further, the idea that we are in an extremely advanced video game is only possible if we are in a computer simulation.

We are in an advanced video game. We are not in an advanced video game.

That is, there is a 50% chance that we are in a video game if this is a simulation.

Now I further divided the idea of being in a video game into two possible outcomes.

We have one life. We have more that one lives.

If we have more than one life, there are again two possibilities.

We have unlimited lives. We don't have unlimited lives.

If we have unlimited lives, then we are virtually immortal.

From the above assumptions, I made few calculations, (1/3)(½)(½)(½)(100) = (1/24)*(100) = 4.16666666667%

Hence, there is a 4.16666666667% chance that we are virtually immortals or at least I am virtually immortal.

Probably the craziest ideas ever:

This all started with the idea to make my own laws. Elon Musk has created his own school for his children because he did not like the traditional way of teaching. Similarly, if you don’t appreciate your current laws, why not make your own laws just like Elon made his own school?

You might think that it is impossible to make our own laws. You may be right, but I came up with three different ways by which we can achieve this.

In India, we have different personal laws for different groups of people based on their religions. A Muslim is governed by Muslim personal law, a Hindu is governed by Hindu personal law, etc. There is no uniform civil law in India. Uniform Civil Code (UCC) is an ongoing debate within Indian mandate to replace personal laws based on the scriptures and customs of each major religious community in India with a common set of rules governing every citizen. UCC has been a proposal even before the independence of the Republic of India.

I support the Uniform Civil Code, I want every single Indian citizen to be governed with a common set of rules which are secular in nature and treat everyone with equal dignity and freedom.

But in 2015 the Supreme Court of India said that the UCC cannot be accepted, otherwise, every religion will say it has a right to decide various issues as a matter of its personal laws. In 2018 The Law Commission of India said, “the UCC is neither necessary nor desirable at this stage.”

Also, an average Indian is not comfortable with the idea to have laws which are non-religious in nature. But at the same time, there are many people in India who want laws which are based on pure logic and reasoning rather laws which are based on outdated religious scriptures and customs.

The first way to make your own laws.

Here in India we already have different personal laws, why not have another set of laws for those who want to be governed by the laws which are not based on their old customs and traditions?

Why not create a community and demand for our own laws? Personal laws in India are divided by religion. My idea is to make a community for everyone who chooses to be governed by a common set of rules which doesn't discriminate anyone by their religion.

The main idea is to remove old customs from our laws. But unfortunately, we can’t do that in India very easily. But what we can do is to make our own laws void of old customs and traditions.

If we manage to unite people with similar views, we can demand separate laws from the government.

If we can’t have a uniform law why not let the people decide what they want?

And in this digital age internet will play a major role.

The second way to make your own laws

If all the humans with similar views are able to unite and demand change, but the government chooses not to acknowledge our demands, why not make our own government? Why not make our own country?

At this point, you will be thinking that this is indeed the craziest idea ever. But hold it right there, the craziest part is yet to come.

I agree, demanding our own nation is utterly stupid and no reasonable human will think it is possible. I also know that this isn’t a reasonable demand and the Indian government won’t even reply to my email if I email them with this demand.

What if a drunk politician accidentally grants us permission to make our own nation. Beside some political outrage and public revolt, nobody is going to move into our newly formed nation (and move outside if they want to). But we all know that this isn’t possible, so let's remove this possibility.

The idea to create a nation is indeed a stupid idea, but the idea to create an online nation isn’t.

You surely can’t create your physical nation with actual land. But you can create your own nation, online. With no physical land, no borders, no army, no police, no infrastructure, without a welfare state, etc.

An online nation might seem to be an extremely stupid idea, more stupid than demanding your own physical country. But who knows this might be the next political ideology of the future.

An online nation is like creating an online community of like-minded people, aliens, animals and computer AI's. But this is more than an online community. An online nation will give immense freedom to its citizens. A citizen of an online nation can reside anywhere on the planet. The world will be a border-less society.

If this happens in the future there will be many nations on our servers made by like-minded humans or aliens or your dog. Every nation might have different laws according to their needs and belief, some might still be governing their citizens by their old customs and traditions.

As per 2019, this sounds like science fiction. But this might be the next political revolution. Why not start by creating a website for our online nation, let the users buy our citizenship. We can add a draft constitution and a draft of our civil laws on our website for future citizens to know what we stand for.

We want to create a nation for those who chose to be governed by a common set of rules made with pure logic and void of outdated customs.

Who knows we might start issuing our passport to our citizens. (Literally not possible in the next 50 years)

The number one problem we will face if this becomes a reality is going to determine how to make a uniform criminal law? And that too online?

The third way to make your own laws

This again seems impossible in 2019 but will be the future soon in the next 10 to 20 years.

With the advancement in artificial intelligence and machine learning, it is hard to ignore the fact that automation will soon take over our jobs and it will be able to perform those functions much better than humans.

Lawmakers, judges, lawyers and everyone else in the legal field will soon be unemployed. AI will soon be in our courtrooms providing justice. You might hire a robotic lawyer to represent yourself in the court of law.

AI taking over the judiciary will be one of the greatest things achieved in the 21st century. A lot of people will lose their jobs but all those cases pending in our courts will be dealt away as soon as possible. Justice will be served with no delay. And if you are worried about those who will lose their jobs then don’t worry, they will soon find new jobs, created due to automation.

Automation of judiciary seems an amazing business opportunity for a hardcore capitalist.

All we want to do is to make an infrastructure which can support automation of judiciary.

Start by building courts all around the country and install the machines to replace the lawyers and the judges. Or do it all online. Pitch this idea to the government and ask them to privatize the judiciary. Let the private companies take over the role of the judiciary. Or if they don’t privatize it, provide the government with your infrastructure and help everyone access affordable and fast justice.

Sounds impossible but this can be achieved if done properly.

If you manage to create a system like this, if you control the judiciary it won’t take much longer to start making your own laws.

But this too comes with difficulties to overcome. Why would any government privatize its judiciary? And what could happen if a private company controls the judiciary functions of the state? What would happen if a company has a monopoly over the judiciary?

Does this sound like a future in which justice will be served without any discrimination and without any delay or does this sounds like a future in which only the rich and the powerful will control the whole world?

All the above mentioned three ways to make your own laws are interlinked. One can lead to another.

This could end up being the next big thing of the 21st century, a new political ideology with online state and private owned judiciary and legal system.

It is very much likely to have this kind of governance in the future, which not only exists in our imaginations but in our computer servers too.