Three NLSIU Bangalore graduates - Lavanya Rajamani (1996 batch), Dev Gangjee (2000) and Tarunabh Khaitan (2004) - have been appointed to prestigious full professorships at Oxford University, and are very likely the first law professors with Indian undergraduate law degrees to have done so, at least in living memory.

All three had also won the prestigious Rhodes Scholarship to Oxford University at some point in their career.

“It is interesting that all three of us are here and were at Oxford on scholarships at various points in time,” commented Gangjee on that point. “That scholarship really set us up, so it’s just a note of gratitude.”

In addition, both Gangjee and Khaitan are amongst the editors of the Indian Law Review.

But beyond just their academic achievements - which are many and listed on their faculty profile pages (Rajamani, Gangjee, Khaitan) - the three are also operating in cutting-edge areas of law that will be highly relevant to our future as humans on this planet.

And so, we recently spoke to each of them about their research and what the law can do in a world that increasingly seems to be teetering on the brink of an environmental, democratic and technological apocalypse, that seems to evolve largely outside of the law.

(Update 27 August 2019: As an aside, at least three other NLSIU grads are law professors internationally: Shyamkrishna Balganesh got professorship at Ivy League UPenn, Srividhya Ragavan is professor at Texas A&M, and Neha Jain at European University Institute in Florence).

Stuck between a rock and many hard places: Lavanya Rajamani on environmental law

Centre For Policy Research visiting professor Lavanya Rajamani had been appointed to professor at St Peter’s College a year ago, and will move to Oxford next week from Delhi.

At Oxford, her title is professor of international environmental law and Yamani Fellow in public international law (PIL), and she will teach a new Bachelor Of Civil Laws (BCL) course on international environmental law at the law faculty, and tutor St Peter’s College undergraduates PIL and jurisprudence.

Rajamani had also advised the United Nations on the 2015 Paris Agreement on climate change, and was invited by the the Hague Academy of International Law last year, for which she has just finished a manuscript on “innovation and experimentation on climate change, looking at the ways in which dysfunctional politics, have led to a lot of legal innovation and experimentation, which is advancing the frontiers”, she said.

We talked to her about climate change and the environment and what the law can contribute to a series of ever-heightening crises, amidst a morass of policy, politics, technology and culture.

On the positive side, India’s position on climate change has improved over time, in part because it’s an “existential threat”, she said. “It’s more proactive and it is contributing in some fashion to the international climate change regime. There’s always scope to do more, to do it for reasons of self interest, not just global policy, but also because India is one of the most vulnerable to global climate change.”

What space is there for law to help?

One of the problems with battling climate change and environmental pollution is that there were no “silver bullets”, because problems and solutions were not just about laws or policy or technology but also about very personal lifestyle choices, such as meat consumption, for instance. “There is a lot of emphasis on technology because it’s an easier fix than fixing lifestyles,” she noted, when asked about potential innovations such as growing artificial meat in laboratories, but climate change also raised a lot of international legal issues that had to-date not been examined much.

For instance, with respect to island states that are at risk of disappearing completely as sea levels continue rising, “there are so many interesting legal issues at the intersection of all of this”. She said that she had advised several such countries on an international stage: “They’re going to lose their nations, so what happens to sovereignty? Are they considered states anymore if they don’t have a territory because of climate change problematics? Can you have a government in exile [without territory]?"

Pollution, closer to home

The pollution crisis in Delhi and health concerns for herself and her young child were also an impetus for Rajamani’s move to the UK, she said, and solving air pollution in India was similarly complex to climate change. One of the great challenges concerned “overlapping jurisdiction” requiring a lot of coordination and sustained public pressure.

“We can’t solve this by banning one thing or the other, or going down hard on just crop burning”, construction, power plants or car pollution in the city, for instance, Rajamani stated. “You need to find alternatives to [crop burning] for people, you need to have coordination from different departments, you need to create right incentives. That thinking seems beyond us at this point, and part of the problem is us: we are not able to sustain a level of demand.”

“A few weeks in October, when crop burning intersects with crackers [...] the Supreme Court comes in with some ban and everyone’s really pleased about it and then it happens again in January for a couple of weeks when we can’t keep the level of demand high enough,” she said, means that the public “takes their eye” off the problem, and “politicians are not going to respond with the bigger policy changes required across the board throughout the year”.

Dev Gangjee on collective creativity in IP and fast-expanding corporate might

Dev Gangjee had been at Oxford University from 2000 until 2006 for the BCL, then joined the London School of Economics and returned to Oxford as faculty six years ago.

He had found out he had been appointed to full professorship at Oxford’s St Hilda’s College two weeks ago, specialising in intellectual property (IP). The nature of his job wouldn’t change much, since it was an internal promotion, and would continue spanning admin, teaching and research, as well as running a diploma for intellectual property with law firms at the university where “60 to 70 leading leading practitioners take the course”, and as an academic “you get a sense of what’s going on” on the ground.

Gangjee’s research has been focusing on what he calls “collective creativity” or “collective copyrights”, i.e., “thinking of creativity in a collective sense, as a process, rather than output”. This covers issues such as user-generated content on platforms such as Facebook and the policing of copyrights contained in such contents.

Recently, the European Union’s controversial Digital Single Market directive has brought this topic into the public spotlight, highlighting some of the fundamental tensions between corporates, end-users and regulation, which are only likely to get starker and more important to economic-, creativity- and user-rights, the further technology advances.

“A number of concessions were made to the more ‘activisty’ user side,” commented Gangjee, but adds that most commentators “would say that the users lost that one and corporate interests got what they were after”. That is likely to get worse, with increasing mergers and acquisitions consolidated our cultural and creative history into conglomerate corporate behemoths.

The corporatisation of creativity

“Disney is very interesting,” he noted about the company that now controls iconic brands relating to “superhero movies, to Star Wars, to Pixar, and they keep on rebooting origin stories, so nothing will ever fall into public domain”.

Technology adds the second risk factor that could end up with users losing out. “One of the risks is going to be the extent to which technology is taking over - it’s a concern in many areas of law - the rise of the algorithm. Algorithms are increasingly better at pattern recognition and finding things that are [infringing copyrights].”

For rights-holders, such as copyright holders of music or video or other content, it can become a game of “whack-a-mole”, he said, where infringing content can be uploaded by users at a greater scale and speed than humans and lawyers can get them taken down.

“Technology seems to be the answer to scale,” he continued, “but how do you program the bots and the system so it is weighted towards automatic outcomes?" Should the playing of 20 seconds of a song in an uploaded birthday video - something that sophisticated audio fingerprinting technology can increasingly detect - be flagged by an algorithm, even though “a human judge would say never say it was infringing but would say it’s fair use”, asked Gangjee.

Brains vs bots

So what can the law’s role be in a world where such decisions are increasingly made automatically by the algorithms, without much recourse for users whose creativity is stifled or effectively censored due to copyrights?

“People are experimenting,” noted Gangjee. “We might be at a new regulatory paradigm, where bots are the first tier [of review], and humans are a second tier.” While the self-styled ‘platforms’, such as Facebook and YouTube have fallen in between regulatory cracks right now, being neither “full blown editors” nor just dumb pipes like an internet provider, the much-needed counter-balance in this space to ensure algorithms implement copyright protections fairly, should be provided by a public regulator, according to him.

“To say we let the private sector by consensus come to agreement, the more you’re letting vested interests [control the regulation],” he noted, adding: “The concern is real.”

Tarunabh Khaitan: What can the law do about breakdowns of democracy?

Tarunabh Khaitan has been appointed to professor at the same time as Gangjee, though he has been on leave from Oxford since 2017 at the University of Melbourne as Future Fellow. That position could run up until 2021, before he returns to the UK and Oxford’s Wadham College, and early next year he will be teaching in New York University’s well-known Hauser Global Scholars programme for half a year.

While he had, to date, specialised in discrimination and equality law, his more recent research projects under the Melbourne fellowship have taken him in the direction of examining various aspects of democracy, notably “the mechanisms for democratic decay and what if anything can be done about it”, with “Indian insights” driving a lot of his research in the area.

“I became interested because of the global recession in democracy,” he explained. “For the last three decades, almost, the world was seeing a continuous deepening and furthering of democratisation. The last five years has reversed the trend and we are seeing a slump in democracy.”

“The problem of democratic recession was seen as a problem of the global South,” he added, but now it has spread to countries from Hungary, to Poland, Israel and the UK and the US. “The only things that seems to be in common is that they’re relatively of a large-ish size - though very different context and cultures - but the quality of democratic setbacks has been very similar: it’s been initiated by elected politicians.”

Elected autocracies

“Twentieth century autocracies have tended to be military leaders, whereas autocrats of today tend to be democratically elected leaders. We don’t see in the 21st century a full frontal assault on democracy, we don’t see a declaration of emergency, tanks on the street, taking over of broadcasting towers,” Khaitan explained about his area of current studies. “The assaults of democracy are incremental, they’re creeping, the normal rules of democracy are being chipped away.”

The system had appeared stable, but the traditional “bulwarks or defenders” of democracy such as the higher judiciary “haven’t worked very much”. His focus as a lawyer, therefore, was on looking at “institutions not normally studied by constitutional scholars”, such as political parties, and non-judicial branches, such as election commissions, transparency watchdogs, anti-corruption bodies.

“It is a big question and [constitutional] design is not a panacea,” Khaitan noted about legal protections - put in place by constitutional lawyer, the “engineers of democracy”. These could make erosion harder in some cases - “no amount of constitutional designing can stop an overwhelming political force”, according to him - but legal scholars can have nothing to say about the fundamentals, the “sociopolitical developments that are causing that decay”.

Khaitan said he was therefore looking hard at electoral systems, political parties, “political insurance” and the autonomy of “fourth-branch institutions”.

Can electoral systems create less extreme politics?

Instead of the Indian debate about first-past-the-post electoral system vs proportional representation, for instance, a preferential system of ranked choices of candidates could do much to moderate extreme and anti-democratic positions taken by political parties. Making voters optionally rank their 2nd and 3rd most-preferred candidates, could benefit “parties which are able to convince voters, if you don’t like us that’s fine, but can you tolerate us?"

“It encourages parties to speak to broader social coalitions, which makes them broad churches rather than narrowly focused on single social issues.”

The cost of not buying insurance, politically

The idea of political insurance suggests that the “ruling party should buy political insurance while in power”, Khaitan explained. “They should always govern imagining themselves in opposition.”

“You can see the recent arrest of Congress leaders [in India] as failure [of Congress] to buy political insurance while in power,” he added. “If police prosecution and the judiciary are not completely free of political influence, obviously the government of the day can abuse and misuse them, targeting the opposition.”

“It comes at a cost: yes, you can’t use the CBI to go after your political opponents, but it means they can’t come after you either. It may not even be inter-party, it may be within the party: it’s not entirely out of question that someone within your [own] party comes to power and goes after you.”

In India, there is the compounding problem that the Supreme Court’s “appellate function has completely eaten up its constitutional defence role”, to which it is only able to devote minuscule resources.

They’re all crooks...?

For those saying that it’s unlikely any ruling government will ever be sufficiently altruistic enough (or sufficiently self-interested in some unspecified future incarnation of itself in opposition), Khaitan said he believed that such thinking was short-sighted: “There’s a big danger - which I think is quite a lazy middle-class attitude but also [present in] journalism - to think of all politicians as corrupt.

“I’ve met enough to now think that some of them are genuinely interested in the public good. I’m not saying they’re all saints either but this, ‘they’re all crooks’, is extremely lazy and dangerous.

“That’s what sows the seeds of fascism. The political class broadly has been delegitimised by a two decade long narrative of ‘all politicians are crooks’, and that has empowered self-seeking outsiders to drain the swamp.

“If democracy is the only legitimate game in town, we have to see them [politicians] as people like ourselves and ask what would we do in [their] situation, and judge them a little more kindly...

“The only alternative to politics is violence: humans know only two ways of settling disputes, and we seem to be moving in that direction anyway, and a lot of countries are moving towards a system where we don’t debate, towards systems of settling disputes using coercion. We need quite a fundamental appraisal [of this].”

Nevertheless, according to Khaitan, the end of the world does not have to be nigh. “I’m optimistic and hoping it won’t have to take the third world war to come to our senses. We are really just burning up the planet and getting rid of democracy the only workable system we know of.

“It’s hard to keep up optimism, but good things are happening too, and the only way to keep sane is to know the limits of your own capacity and power and to try to sleep easy, and believe that ‘I try to change the world in whatever way I can’.”