India Can Become a Real Hub of Legal and Policy Innovation for Good

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We often hear honest stories of how in India, our policy makers and legal systems many a times become dysfunctional, without any use. That happens due to many reasons. Instead of too much getting into all of the reasons, let me describe the genesis behind the title of the article. My proposition, in fair terms, is quite pragmatic and less “academic” or “political”. In addition, I do not think a revolution can make the aspiring proposition I am trying to make here.
So, let me reiterate my proposition:

India Can Become a Real Hub of Legal and Policy Innovation for Good. We are past the post-colonial, colonial and pre-colonial dilemmas already. It is time that we decide our trajectories, smartly, and effectively.

The Hope or Inspiration Behind the Proposition

Developing the cycle of innovation and transformative outlook is generally based on the triggers that make them happen. That is a global truth and every civilisation could try or have tried to do the same. Now, with India, I will be honest that it has become a participant towards the global continuum. It just depends as to how much we would be interested and competent to wield out from this participatory indulgence that we have started to inherit. Funnily, it does not limit to globalisation or de-globalisation.

In a neorealist, multi-polar world order, we are quite obviously seeing the possibility of the regionalisation of globalisation, where Asia is already, beyond American, Russian and European ambitions cum pivots, doing well. India is at the heart of such impact and effect.

Now that the “international relations” aspect is quite known, let us domesticate further. Innovation thus, even if has political and other backings to be pressed forward, cannot be monopolised for long. Beyond questions of science and technology, it is important to understand that we are past the times when in Europe or North America, we used to be rather patronising about knowledge systems. The Austinian-Benthamite times of positive law has created a legacy of institutional and constitutional understandings of law, which we call as “Law 1.0” or Hard Law. As neoliberalism in the WTO era of the 1990s grew, we see the rise of Soft Power, as a conception in reality. It was not limited to your regular FMCG chains and cultural cum performance assets, such as cinema and art.

Soft power, in my view, always existed, but it were the 1990s, the post-cold war times, when we see its potential coming up in significant terms. If in case I have had to define Soft Power, I would do. However, let us revisit Joseph Nye’s definition first from his own book:

A country may obtain the outcomes it wants in world politics because other countries — admiring its values, emulating its example, aspiring to its level of prosperity and openness — want to follow it. In this sense, it is also important to set the agenda and attract others in world politics, and not only to force them to change by threatening military force or economic sanctions. This soft power — getting others to want the outcomes that you want — co-opts people rather than coerces them.

The reason why hard power existed for long in dominance was simply because of the nature of the realpolitik. Colonialism or not, soft power existed in some forms. Now, in these times, even the sovereign interests, which could shape any country’s interests to shape their “soft power goals, institutions and trajectories” would itself constitute an interesting area of study. Whatsoever it is, in whatsoever discipline it is, and even whether it corresponds or co-conspires with the methods, traits and approaches of hard power policies or not, is again a subjective question. We are seeing it happening day by day for long. It is just that we named it differently.

But what about “The Weaponisation of Everything”?

I am now getting to this general phenomenon, which we know as the Weaponisation of Everything. It clearly means that as political, legal and economic systems at the level of the sovereign and the ententes — grow and transform with time, many capillaries of action or omission are obviously available. Many canals of accessibility could be used to weaponise assets, people, ideas and even data. It seems to be quite Hobbesian and sad, but that is exactly what happened in the Ukraine crisis in 2022. We see that a whole set of systems, private, multinational, public or whatever, were weaponised to cancel or target specific people, leaders, entities and countries. I am not even getting on whether that is moral or not, or whether even the pretext of asserting any justification would make sense or has to make sense either. This is however a genuine fear among people in the Global South, especially Asia and Africa, as to why such all-comprehensive ecosystem of actions bear any necessity.

The best thing in positive terms, that this “Weaponisation of Everything” has done, however needs to be known widely. It has affected the role of hard law and the rules-based international order, which is heavily values-based and not practical. It has germinated the growth of soft law, an idea which existed in different shapes and forms, but surely is credited to the end of the 20th century, and this century, for its widening acceptance. Nevertheless, the sovereign cannot be replaced and sovereignty will always have its own importance in vogue.

The loss of credibility of the rules-based international order, despite any political or apolitical understanding of the global order can make anyone realise, in obvious and simple terms, that people and their systems, be it in South Africa, UAE, India or any Global South country, have to think about developing their own legal and policy frameworks, beyond the basics which do not just make sense, but are ambitious, evolutionary and realist enough to push forward newer agendas for multilateralism and cooperation. In my view, that can change the way global governance fundamentally works. We cannot obviously quantify each time when such trajectory ideally begins. Yet, I can safely conclude that the change is happening.

So yes, there is hope. India, whether its establishment approves or not, will change and shape its own systems. It is just that the post-colonial dilemmas, which have ruptured and affected the legal systems within, would have to wither with time. That even if is not borne by any Sampoorna Kranti or decolonialisation, does not matter. We often forget that incremental changes in the spheres of law and policy, are not based on the 20th century methods of hactivism (activism on digital platforms). Even televised revolutions never work, because incremental changes, shape lives. Whether we fear that those changes reflect materialism or existential faultlines, is not the problem of those who produce those incremental changes. Blaming at such a level, to merely do nothing, and develop or evolve nothing, is sheer incompetence, in my opinion. We do not EVOLVE because we are having some existential crisis every day.

We evolve because beyond this obsession with the ideas of Thomas Hobbes of Leviathan, we cannot control evolution in its own ways. It is just that as we evolve and shape our systems and ideas, we enculture the trajectories by reading them better. Seeking innovation does not destroy our traditional past, simply because continuous cultures and ideas always exist. Hence, the moment we eject this existentialist thinking, the better it is for us to go forward and think about continuous, evolutionary streams of thinking. That is Indian Renaissance in the 21st Century.

Are Law and Policy intertwined? If Yes, then how we can think differently in these Streams?

Law and policy are quite close to each other. You do not require a policy document to define everything. Your actions ascribe upon your thinking and your way of institutionalising cum crystallising things in vogue. Laws, are primarily based on policy nuances, in any field, be it data rights, or environment policy. The less aware we are, the more we feel it is smoky or translucent enough to be ignored. Policy realities whenever, in methodological terms, are estimated, will require some schematic basis. Parameters do make us feel what we would shape and why. Legal thinking comes in to develop equity and systemic persistence, in general. Interpretation, application of mind and other such components play the role of shaping the real-time embodiments of the systems we live with.

Beyond the Colonial and the Post-Colonial

Often when we (as Indians) analyse flaws in the judiciary, our administrative architecture, law education and law enforcement, we adopt a post-colonial mentality that whatsoever problems in norm creation and perpetuation come in, are about the binaries of redemption or incompetency. That is quite a limited way of looking at our problems. To really get out of this mentality of coping — let us look at why we make laws or need basic regulations cum guidelines. Can laws be written in a certain way to control or pretend to control everything? Of course, it is impossible. Yet we know that it is not about control when fatal laws and regulations (also regulators) come into being. Here, control is not the objective, but plunging the target stakeholders towards a particular spiral of observation, is the objective. This is why Free Speech laws in India are fundamentally weird and reforms in the CrPC & the IPC are genuinely needed. So, can we say that it is a jurisprudence problem? Yes it could be. Jurisprudence does shape our policy outlooks, thereby shaping our systems.

Teaching Jurisprudence Differently

A distinguished academic posted this on Twitter about teaching jurisprudence to law students. I find it quite fascinating that I would like to express something on this:

So, here is my understanding why students have this dilemma:

Jurisprudence is very flimsy. In fact all public law subjects are flimsy except those which have real administrative law features to be largely pragmatic, like in fields like company law, for example.

Instead of teaching jurisprudence as political scholarship, like de-colonial studies and post colonial studies, people should teach it like history. I remember learning Jeremy Bentham and Hart from an exceptional faculty member long back.

Jurisprudence is narrative and history in the legal realm, about the evolution and growth of legal systems around the world. It has logical aspects because it is the philosophy of legal systems.

But then, as world changes, ideas and their worldview change. It is similar to the usual problem of indoctrination paved with good intent. Even those who wish to teach and incorporate Yajnavalkya, Narada and Vishnugupta into jurisprudence with an “Indic” point of view, if they wish to, do not even understand. They too, make the same mistake — treating it as some zero sum game. I humbly consider that not all ideas require materialistic or timely interpretation, from a need perspective. Yet, even shaping systems inherited in some form from others, in our own way, is what I would celebrate as one of the INDIAN WAYS of LEGAL INNOVATION. Yes, the Indian administrative machinery from the Union to the State and the UTs could not cope up with any tweak of innovative thinking due to their policy, bureaucratic and legal reasons. But that does not prevent anybody else to stop innovating.

The jurisprudence curriculum in India has 2 fundamental issues:

  • It lacks Indian ideas (by that I mean that it has 0 pragmatic and understanding aspects)
  • It sources itself from the cold war and post-colonial narration of political history+science+policy. Nobody fixes these.

And as I said, the most sarcastic aspect is that even if you will try to have an Indic viewpoint of law, unless you can relate Purushartha or any virtual responsibility idea of Indian Schools of Thought, with a sense of pragmatism, it would fail.

Law will always be relatable to political realities (an immune reality, which would only rhyme yet cannot be changed)— but learning and educating cum researching politics, its policy, science and history, has to be OBJECTIVE.

Jurisprudence for sure would have some artistic and poetic aspects. But that is a quite limited way of seeing things. Policy innovation and legal design thinking can actually be different, unique and quite obviously, INDIAN. It is just that people need to relook at the theories of policy innovation. They can create newer theories, and even estimate how norms and first principles are agreed or commuted among people, in actions or principles, from time to time.

Hence, I am hopeful that if we look at legal and policy innovation, from a prosperity-centric and curiosity-centric point of view, we have a long journey ahead.



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