IOD SPECIAL TALKS - Embracing the Facilitative Elements of Law

There is a nice word in English called 'serendipity'; it means 'happy chance meeting'. So, on one occasion, I was talking at a platform, and Mr. Ashok Kapur, Director General, Institute of Directors happened to be in the audience, and late in the evening, he called me and said I probably cherish a long association with you, but little did I know that at that time, I was going to be invited today, and it's indeed a delight to be among very accomplished people here. A couple of years ago, we were talking about 33% reservation for women in Parliament, and today we are celebrating 33 years of IOD, which is something interesting. Sometimes, these coincidences make a lot of sense in your thought processes.

Having said that, when the Constitution of India was born, the literate part of the nation stood in great expectation. The muchawaited new-born child with bright eyes and delightful forms, we call it the 'Constitution'. While the colonial master packed his last, the new-born child was looking for national adoption. Between the dark days of partition and the optimistic deliberations in the constituent assembly to fashion a charter for governance, we peacefully marched; that peace, which ushered a great moment of nation-building, continues to be with us today. What a great value to have peace amongst us! If you look at the failures of Constitution experiments-the failures of Constitution working across the globe in the past 100 years or so-tell us the importance of peace around us. While I would like to talk about that, when Adam Smith wrote 'Wealth of Nations', the idea of a corporate entity for something very different and famously said by him, the butcher, the candle maker, and the baker do not do what you do because they have some common human interest among them, but because of the 'invisible hand' as they call it, Adam Smith's wealth of nations. So, from then on, we moved very far away. If one is to look at the Memorandum of Association, or probably at an 18th-century company, it looks like a Bronze Age document.

Today, we as individuals, as institutions, as entities, born as products of law or otherwise, in the midst of law or as some people say, 'too much of law'. Well, I suppose, when we built our crest of destiny, as a new-born baby with the Constitution amongst us, and we go back to years of pre-1990 days, when we hear the industries develop under the Regulation Act of 1957, the old picture was that 'law' was looked at as prohibition, as control, as regulation, of an entirely different dimension. So, we moved away from that understanding of law amidst a human generation of wealth and value. All that we are talking about is how each of us, individually or collectively, in some form or another, engages in generating 'human wealth' and 'value'. Generative 'human wealth' and 'value', if it really has to be generative and not be bound by prohibiting, regulating, or facilitating a legal environment, then we have a problem. That's when we begin to talk about the paradigm shift of law from being prohibiting or controlling to an era or an environment of facilitating.

Law always requires a civilization, whichever civilization you may look at and whatever way you may look at it. Whether it requires civilization in law, law will not work because that is the reason that human nature defies any regulation from outside. We talk about internal compliance with our own perseverance and values. But that can be supported in a very minimal way. We always seem to be requiring some external pulls and pressures. That's the element of law. It requires an indefinite element of law, but not necessarily in all areas of life; I'm not talking about criminal law. But in all areas of life, we think we need a facilitating and comforting element of law. If a facilitating and comforting element of the law is possible, how do you really make it?

A couple of weeks ago, after having taken up this assignment, my first job was to look at what's happening as a private practitioner of law. Looking at the practice of law in the Supreme Court is very different; you only have a brief handle. When you become the top law officer at the Government of India, you begin to look at the intricacies of policy-making, which happens like an auto-mobile or gizmo today. Policy-making does not happen the way we look at it - the outside. The intricacies of policy-making are very important. What happens in a boardroom position or a company formulation when working together and navigating the pulls and pressures in the community? So the policy-making dimension of the government became a very important issue for me to understand. How do you really navigate the various demands of different sectors of your life?

I would like to share with you that one of my insights has been drawing as a practitioner of law, particularly in contemporary times, drawing a quick look at the world history in the past 100 years from institutions like NATO in the Cold War era, and where are we? So we have all kinds of regional initiatives, regional alliances, and regional engagements, and for doing what? I think one important challenge in contemporary times is, on the one hand, 'freedom and liberty-all of us would like to be innovative and creative and be part of creating value for each and every one of us, for our own comfort and well-being. We talk about liberty as something so important to us. On the other hand, there is another important value, namely the equal claim, or the 'claim to equality' by all human beings. So these are the fundamental challenges in contemporary life across the globe, regardless of whatever stages of economic development different countries might have gone through. It is, and is going to be, a very important challenge. Our constitution tries to attend to it to some extent, but I think it is not merely the role of a constitution. I think it's the job of each and every one of us. I think all of us are stakeholders in what we are doing, in some way or another. In some way we are consumers, in some way we are policymakers, and in some ways we are regulators. All of us put together, there is some kind of seamless pattern of relationship between each of us in society today. Countries have gone beyond the colonial era. The colonial era had two important objects: one to occupy other people's geographical areas, and the other to colonise their minds. But we have gone beyond that. Today, we believe in a world of sharing where we do not intend to colonise. That's a very important aspect, even in corporate governance and the values we generate in corporate engagement, in looking at human welfare. Therefore, if you've gone far away from merely generating wealth in a very narrow sense, like in the Adam Smith days, we are now looking at wealth generation in the most expansive sense possible.

Article 39 of the Indian Constitution talks about the distribution of the material resources of the community for the common good and looks at the possible and potential meaning we can give to this wonderful provision of the Constitution. That's the probability we are talking about millennial development goals, i.e., 8 goals, 60 indicators, and 21 targets; they were an interesting expansion of what humans could aspire towards the end of the century. So I don't mean to talk about corporate governance in the very technical sense; all of you are more engaged in it and more experienced in those areas.

But what I want to do is draw a broad picture of what the law can do in the coming years and move away from being merely a coercive element into a more facilitative element. And what the coercive and regulative dimensions of law can be brought on, if not completely eliminated, and I think that would require a common engagement by all of us. I am sure that the industry, which learns not only from the demand but from the wide range of demands today, has a demand for earth care, and earth care is very new today. I suppose whatever the value of an earth care, how does each and every one of us, in a generation of wealth in the larger sense, take up the earth care? I don't also propose to go into those dialogues in ecology and environment protection, and all those new legislations, global demands, etc.; all of us know about them. But how do you really make it happen in a harmonious way? How is it possible? Is it possible only at the domestic level, or is it possible only when we have a certain globalised way of looking at it? I think nations all across the globe are trying to get to the depths of these dimensions.

I have requested the government to have an industry-government interaction to look at litigation issues, look at dispute resolution from a comfort point of view, and also for a larger goal, namely, how do we really sustain India in a more creative understanding of law and justice

I would also like to share with you a few concerns. Thomas Piketty is talking about inequality; one of the senators of the US Congress is saying, "Are you not required to look at socialism once again"? Some kind of new thought pauses us, which is sceptical of the values that we generated only by innovativeness, creativity, freedom, and liberty. I think it is important and will not go back on those important values. It is important that we keep these values with us. But how do we keep them with us is the next question. I think all of us may have to probably collectively engage in that.

I will share with you a few ideas.

If we think in terms of law, or the community level, or if we think in terms of the Social Value Performance Index, another day, in some other meeting, I was talking about the possibility of global investment legislation for India. If there could be a possibility of such legislation where the facilitative element of generating good wealth for all of us is possible, and let us also try to connect it with some concerns, that concern would be how we really look at corporate engagement in the Social Value Performance Index. When I say 'social values', we bunch together a wide range of values, where a value for ecology is regarded, human welfare of the downtrodden is regarded, and equality is regarded. All this is regarded as part of normative indicia in social value performance. So if corporate governance can include and think about the Social Value Performance Index and that can become again a part of the legislative framework that is why innovative ideas in law and innovative ideas in corporate engagement will usher in India's engagement and India's roadmap. We do not need BRI (Belt and Road Initiative) to be copied. We need to build our own initiatives that are beyond BRI. I don't think India needs to engage with the hegemonic idea behind BRI. The more each and every country drops over a period of time, brick by brick, the hegemonic idea of colonising, I think, the more it is good for the globe. So India can lead in this direction by picking up some of these initiatives and innovative ideas for legal frameworks.

I am sure of a few thoughts if I am able to generate some kind of initiative and interest in your mind. I am sure we all look forward to more engaging deliberations on this.

To conclude, one of my other concerns as an attorney general was the mounting litigation in court. All of us talk about it. But how do you find a solution? There is not an easy and comforting way to go about it. But I have been making a sincere attempt to the Government of India, and the Government is listening to this. If you are able to have a Litigation Management Policy, and even in that process of having that policy, I think it is important that each one of us engage ourselves. I have requested the government to have an industry-government interaction to look at litigation issues, look at dispute resolution from a comfort point of view, and also for a larger goal, namely, how do we really sustain India in a more creative understanding of law and justice? I am sure I would be seriously concerned about it.

I take this opportunity, before this enlightened audience, to share my very infantile thoughts, to put it like that. Probably somewhere, some fire would kindle in someone's mind, and that would keep the train going.

Thank you to everyone for your attention and to the Institute of Directors for inviting me.

Thank you.

*Excerpts from the 'Keynote Address' delivered by Hon'ble Mr. R. Venkataramani, Attorney General for India, at the '33rd IOD Annual Day Ceremony' of IOD's Annual Directors' Conclave held on August 10, 2023, in New Delhi.