The doctrine of colourable legislation tells us that what cannot be done directly, cannot be done indirectly. Any law that breaches this principle stands the risk of being struck down by courts. While the legal world is fairly well-demarcated into black and white, the same cannot be said of the other domains, especially that of international relations.
Diplomacy and international relations are mostly about doing indirectly what cannot be done directly. The world of espionage works only on this principle. It cannot be directly linked to any act or intent but gets things done indirectly.
Here is a case study right in our home.
The Narendra Modi government took a tough stand against China after it had breached all norms of civilised warfare and protocol and launched a savage attack on the Indian armed forces a year ago. The brave Indian soldiers gave it back in kind with greater force, sending a very strong message to the country not to cast its evil eye on India.
While the response was immediate on the ground in military terms, the Government of India took this further and ensured that there was a thorough review of all the apps of Chinese origin that were operating in India. The apps that were found to be a threat to national security in terms of data storage and protection, were banned. A long list of such banned apps was followed by severe restrictions on the inward flow of capital from countries having land borders with India.
However, the art of indirectly doing things that cannot be done directly comes naturally to some countries like China.
By long-tripping — using multiple changeovers and several layers of real and shell companies in many countries — apps banned by India a year ago can make a comeback in a different shape. This can take the form of licensing the product/service in some neutral country that can operate in India. Or it could be launched a new form through an investee firm with significant ownership, interests and control (especially if the investment is indirect, there is no way to know the extent of ownership and control). Or worse, put it on third-party platforms to appear fully neutral.
For instance, TikTok may make an appearance as TickTock or PUBG may appear in a familiar but different form.
What this means for India is that China’s ‘war by other means’ continues. Only this time, it is more discreet, indirect and hard to ban upfront.
While the flashpoint period is over and a series of discussions is happening at very high levels of the military between both the countries for de-escalation along the borders, this threat is surely far from over. The ownership of these apps/investments is too opaque to be banned outright. The extent of data espionage can happen yet again through the new avatars of these apps.
The threat is a strong cue for the Indian authorities — both intelligence and commerce/trade regulators — to see the pattern which emerges in terms of colourable doctrine. Expect the Chinese to do indirectly what they cannot do directly.
What should India do? Of course, dig deeper to find the ownership. But our authorities also need to ensure that they extend the ring of suspicion to countries that seem to either knowingly or unknowingly support China’s dark acts. The real challenge for Indian authorities would be to convey the message to these neutral countries that while we welcome their homegrown companies, ties with Chinese entities — be it of investors, technology partners or any other business enablers — would be investigated and stopped.
While the Chinese are expected to continue their ‘colourable activities’, it is for India to expose the firms and expose their true colours.
The author is the state convener of the BJP Economic Cell, Karnataka. He holds a PhD from IIM Bangalore