Law as a Tool to Protect

By: Abhishek Dwivedi

If you have ten thousand regulations you destroy all respect for the law.

– Winston S. Churchill

In 2014, when the new Indian government took charge, one of the first priorities it listed in its election manifesto was to repeal a host of redundant and obsolete laws. The idea was to simplify the doing of business in the country and emphasize the Make-in-India scheme. It seemed to be a simple task, and it forced us to think why weren’t these laws repealed earlier? There can be many answers to it. However, the answer that makes the most sense is that the object of the law in this country has been conceived as being more regulatory in nature than controlling. Society and its citizens are scared of something they cannot understand. And the easiest way to control the masses is to make the law a tool for a few by turning it into a complex matrix which the common masses cannot possibly read, let alone understand.

However, to see the operation of law only domestically will be an obvious injustice to its expandability. The desire to use law to regulate rather than protect is not limited to local or national governments. The creative or rather destructive use of International Law by countries to coerce less powerful nations into total submission is visible in almost every second UN proceeding. The indifference of the powerful nations (or the custodians of collective humanity, as they proclaim themselves to be) towards humanitarian predicaments of the Middle-East and the failure of international law in resolving them is not surprising. Greece is a recent example of how the cartel of creditors and capital exporting nations crushed a democratically elected socialist government with a series of economic and legal blows.

Again, to blame it on the western powers would be redundant when the Indian government itself has succumbed to its desire of regulating foreign subjects with the instruments of bilateral investment dispute settlement. Despite all these steps of repealing redundant laws in the name of Make-in-India, the government has decided to wreak havoc with an instrument that regulates foreign investment in the country. In March 2015, the Government of India released the much-awaited Draft Model Bilateral Investment Treaty (or the BIT). While there were hopes that the draft BIT, while doing away with the obvious lacunas, will reaffirm the National Democratic Alliance (NDA) government’s commitment to protect and promote foreign investment in the country, it failed to use the word “protect” even once in its preamble. The entire draft merely restated the government’s sole desire to regulate rather than protect. It would not be an exaggeration to say that the draft BIT, rather than decreasing investor claims, will stifle investments instead.

BIT is just an example where the Government’s over-enthusiasm to regulate has trumped the rational choice of a balanced regime. To use law as a mode to regulate and never protect is an approach that should never be encouraged. It is true that the fear of sanctions is an important tool in the operation of law. But it is equally true that law cannot be a tool for a few. There should be a fine balance between the two in order that the law protects the masses it seeks to regulate. The protection process should be threefold. Firstly, there is a need for making the law legible to common masses. I say this with the risk of attracting the ire of the lawyers. As Will Rogers remarked, the minute you read something that you can’t understand, you can almost be sure that it was drawn up by a lawyer. It is time we changed that. Secondlywhen law doesn’t work, work the law. A law which is not just is not a law at all. Mere repealing old laws will not work. It is time we re-worked almost all the laws with the intention of incorporating the ideal to protect. Finally, too many laws will only make society indifferent to the rule of law. In fact, redundant laws will only invalidate the necessity of important laws. It is time to unify the laws and make them neutral to gender, class and religion. The legal system cannot be a spider web. It is time for a Uniform Civil Code, to begin with, maybe.

As Tacitus said, the more corrupt the state, the more numerous the laws. Well, I am sure this government will try to avoid earning that reputation.

(Abhishek is former Editor-in-Chief of RMLNLU Law Review and is Founder-President of Society for Research in Law. He writes for Swarajya Magazine on issues of international law and foreign policy.)