In Part I, we looked at the legal mechanism around IP professors’ engagement with the judiciary. This post furthers the discussion by broaching a few questions/ideas for engagement.
Two Hypotheses and Many Questions
I get two points or hypotheses from the Part-I discussion: the Indian legal system doesn’t see, or at least doesn’t leave much space for (IP) law professors as influential drivers of socio-legal change, unlike advocates, leaving little room for them to make substantial contributions outside the classroom. This is paradoxical because, at least in theory, law students are trained and expected “to take on the challenges of the 21st century” which arguably includes serving the public interest and addressing extant and emerging societal needs. Or, Socially Relevant Legal Education as Prof. Upendra Baxi calls it in his eponymously titled report. If that’s the case, then why shouldn’t the same apply to those imparting such legal education – their role in taking on the challenges of the 21st century should be equal if not more. Second, this stems from a narrow perception of legal education as just producing advocates and assuming professors’ roles in legal professions, confined largely to the classroom and, to some extent, research while barring them from practicing in courts. This can be inferred from the Bar Council’s rules on legal education, which set a narrow objective focused primarily on the enrolment of advocates. This rigid categorization—be a professor or be a practitioner (or advocate with part-time teaching)—feeds into the issue. However, it’s an altogether different talk whether academics are given the space, mentally or institutionally, to fulfill their oft-expected academic roles.
To prove or disprove these hypotheses, we need to think about and answer a few other questions: Should academics be allowed to practice in the courts? (Why not?), Why do Indian IP academics focus mainly on teaching students in the classroom, and not strive to contribute to broader discussions about the law —particularly the areas they specialize in and profess to students—and its societal implications through active academic interventions? Expectedly, this question opens up a wider subjective and more difficult discussion, about whether Indian IP academics understand the complexities of the field, especially regarding India, and appreciate its stakes in the broader governance of knowledge. We can get an inkling about this after observing the sorry state of IP research in India.
I resist making normative or ideological claims about what IP is for and the stakes of public interest therein. Instead, I’d like to underscore an observation made in a paper with empirical research (See page 15), “Academics educated in high-income countries, most of whom are presumably teaching in the same group of countries, tend to be more critical of the traditional IP paradigm than their colleagues educated and teaching in developing countries.” For context, this paper, arguing for the role of IP academics in international IP law-making, develops a “Paradigm Index” that places respondents on a spectrum: those who support stronger IP protection (higher values on the index) versus those who favor more flexibility and access (lower values on the index). While we can discuss the accuracy of the observation, it raises important questions about how IP is taught and understood across different socio-economic contexts and the implications this has for the future of knowledge governance.
Similarly, whether Indian IP professors have the mental space—after juggling through their non-specialized courses and administrative tasks—and the institutional freedom, given the much-polarized nature of IP debates and its embedded Bush-y approach of “You are either with us, or against us”, to engage with pressing policy issues. Perhaps, we need a strong and active IP professors’/scholars’ community to engage with national and international IP policy. This reminds me of a Copyright Reform Agenda from a Group of Like-Minded IP Teachers.
Next, what incentives exist for them to pursue this engagement especially if they are already burdened or/and burnt out by their current workloads? Plus, such academic interventions are less likely to get scored on the “Academic Performance Index.” This reminds me of two interesting Indian constitution provisions, Article 124(3)(c) and Article 217 which empower the President to appoint a ‘distinguished jurist’ to the Supreme Court and High Court respectively. The term ‘jurist,’ although not defined in the Constitution, is understood in the ordinary sense to refer to a legal academic or a scholar with considerable expertise in law. However, this provision has never been invoked for Supreme, despite the presence of brilliant legal academics in post-independence India. Or maybe it has been used, as Swapnil Tripathi argues. In any case, can we say that – if this provision had been utilized, it might have given law teachers a tangible “bonus” to aspire to—potentially inspiring a more robust engagement in socially relevant legal research and developing deeper perspectives on policy issues affecting the nation at large. Maybe yes, maybe no.
Finally, the assumption underlying CPC rules, that third parties (i.e., IP professors in our context), can only engage in cases involving public interest needs to be problematized. An interest in legal questions and the ability to bring theoretical insights should be enough to allow participation (see this Op-Ed Engaging academic lawyers). As cliché as it sounds, today’s law students are tomorrow’s lawyers. If they see their professors actively engaging in societal change, it could inspire them to do the same, making them (re)think more about how and why they should involve themselves more in the socio-legal situations in the country.
On a separate note regarding IP professors’ engagement and contribution to policy-making, Prof. Arul Scaria pointed out an important question during our email exchange. Given not all the information about stakeholders and consultation remains open, how do we measure Indian IP professors’ contributions that remain undocumented? There are likely many other indirect engagements that may not be immediately visible or easy to quantify. Plus, how do we gauge the impact of research articles or op-eds on legal and policy-making? It is high time we ask these questions, discuss, understand, and investigate them more. Once we fathom the depth and complexity of the issue, we will be able to think about and bring solutions.
I leave these questions for you, to think, analyze, and comment on for further engagement.
A special thanks to Shivam Kaushik, Swaraj Barooah, Dr. Arul Scaria, and Prashant Reddy for their valuable comments on the draft.