For quite some time, I have been writing on CRI under the pseudonym “Politically Incorrect”. Since the alter ego has served its purpose well and has no reason to exist anymore, I have decided to write henceforth under my true name.

Ever since I took up the study of law seven years ago, I have tried my best to consistently follow and contribute to the evolution of policy and jurisprudence in at least one branch of the law. Given my background as an engineer, I was in a position to contribute better to certain niche areas of technology law, in particular Intellectual Property (IP) law (with specific focus on patent law), before diversifying into more general areas of practice as a litigator.

From what I have seen of the Indian IP discourse, it is my opinion that populism and unrestrained leftism unfortunately drive and characterize the voices that are most heard. Before I proceed, it becomes important to explain what I mean by “populism”.

“Populism”, as originally understood, is a philosophy or a movement which advances the cause of the common man against the privileged and the well-heeled. However, today “populism” is typically understood as indulging mob opinion at the expense of an informed and nuanced discussion. This point is better explained using this excerpt from Alan Barth’s “Prophets With Honour” which was said in the context of Courts of law:

A Court which yields to the popular will thereby license it to practice despotism, for there can be no assurance that it will not, on another occasion, indulge its own will. Courts can fulfil their responsibility in a democratic society only to the extent that they succeed in shaping their judgments by rational standards, and rational standards are both impersonal and communicable.”

In other words, public opinion, although extremely critical, cannot entirely and solely dictate the course of policy making. Policy making must be governed by rational standards evolved by those trained in the relevant subject, who have what is commonly called “domain expertise”.

Not for a moment am I saying that these experts must lock themselves up in their ivory towers like the scions of the Nehru-Gandhi clan. Experts must indeed be in touch with ground realities, after all their logic must be informed by, and not be out of touch with, experience. However, their analysis must not be completely swayed by public opinion. In fact, if necessary, it must go against the tide of public opinion. This breed of politically incorrect policy analysts seems to be on the decline, at least in the Indian IP discourse.

What is hypocritical is that populism is pushed under the garb of “participatory policy making”, when in fact there is very little room for participation of right owners or advocates of private property rights. Any voice or opinion which tends to support the right owner is discredited and silenced, and this happens in so-called “academic discussions” where one would expect greater encouragement to diversity of thought.

For all their professions of love for free speech and expression, left-leaning academics are rarely accommodative of views which are at variance with theirs. In fact, typically a calumny campaign is initiated to undermine the credentials of anyone who does not toe the leftist line and commits the sin of supporting the position of right owners.

One practical consequence of over-playing the “public interest” angle is that rigorous analysis is given a complete go-by, and “public interest” is used to dumb down the quality of the debate by pandering to the gallery. It doesn’t take an IQ of 200 to understand that the primary and immediate casualty of this approach is the quality of research into the dialectics of an issue.

Slowly and gradually, the public becomes incapable of elevating the quality of its thought and articulation. And those who invest serious efforts in adding value to the subject end up being called “boring and dry”. The consequence? The pressure to “show more cleavage” sets in and policy analysis becomes more about showmanship than content.

The other critical practical consequence of this brand of militant populism, which borders on naked anarchy, is that evisceration and complete disembowelment of private rights is projected as the shortest path to the greatest good. This is then sold as “public interest”, which is willingly lapped up by the public that is not familiar with the workings of the law, and does not possess the necessary tools to comprehend the consequences of a rabid anti-right owner stance.

This is partly because Indians are accustomed to seeing themselves as under dogs and supplicants, and never as right owners. For us, rights owners usually translate to multinational corporations, and therefore we find it acceptable that the public interest argument is being used to undermine private property rights. What we don’t seem to realize is that Indians are already dominant players in a few spheres of commerce, and this number is only bound to increase. So our anti-right owner stance will come back to bite Indian right owners in their derrieres. Therefore, myopic populism under the facade of “public interest” does not pay, is my short point.

It is high time we started exposing the shallow “scholarship” (how oxymoronic is that) of these left-leaning “jhollawallahs” and explained to the public the calamitous consequences of defining public interest to mean “zero private rights”.

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J. Sai Deepak

Engineer-turned-Advocate, High Court of Delhi. Founder of the "blawg" "The Demanding Mistress" (http://thedemandingmistress.blogspot.in/).