Sunday, October 24, 2010

The most pressing legal issue of the day?

I will sometimes ask students which right in the constitution they think is most important to Indians. Although I haven't done this exercise elsewhere, I suspect in the United States students there would answer the 1st amendment of the U.S. Constitution, or the freedom of expression, given its centrality in American history. In Germany, whose constitution was created in the wake of the horrors of WWII I think they would say article one, or human dignity. In India, the answer from students in my experience is almost invariably the same. First, they say most Indians do not know a single article, or right, in their constitution. Second, the students reply that if they did, Indians would answer that the right to life, or Article 21, is the most important. This is because the Supreme Court has interpreted it to require the government to provide the necessities of life to its citizens including food, health care, and education.

It's not that a typical Indian doesn't value free speech or equality. Many Indians, poor and rich, have fought, and even died, for these rights. Still, in my experience Indians tend to view the government's efforts to lift the population out of poverty as the core promise of the Indian state. Whether you talk to a day labourer in rural Madhya Pradesh or a worker in a slum in Mumbai, you hear it again and again: the government should be providing better schools, or clean water, or decent health care, and it needs to be much, much less corrupt.

With this in mind, in my opinion the biggest legal challenge in India today is not Ayodhya, or the constitutionality of reservations, or POSCO, or NAZ; even though these are all critical to how India's future will be shaped and in some cases threaten to potentially tear the country apart. Instead, I would argue that the largest challenge is to close the gap between what the law says and what is implemented. That is because without overcoming this issue the government cannot hope to use its policies to improve the standard of living of the bulk of its population. It will keep faltering on and breaking its promise.

So I read with great interest this morning that the National Advisory Council was finally moving ahead with the National Food Security Act, proposed legislation which has been discussed on this blog before. Few other pieces of proposed legislation in recent memory have had the potential to transform the lives of so many so radically. The thrust of the NACs recommendation that they will be used to help draft the NFSA was that 75% of Indians should have a legal entitlement to food grain under the Public Distribution System (PDS) - 90% of people in rural areas and 50% in urban. Instead of using the old BPL and APL categories, new categories of priority and general households will be created (and defined by the government) which will determine how much grain a household can claim.

Jean Dreze, also a member of the NAC, issued a letter stating his disagreement with the NACs . Amongst other reservations, he had been advocating universalisation of the PDS and argues the new categories of priority and general households in the proposal just continue the "artificial and divisive distinction of APL and BPL households."

These recommendations (which it should be made clear have not been consolidated and refined into any sort of draft bill) struck me as disappointing as well. For me, the real concern came in the lack of attention or details given to how the bill would actually be implemented. This dovetails with Dreze's argument (as I understand it) in some ways. Universalisation of PDS is often seen by its advocates as a way to bypass the massive difficulties that arise when you attempt to target a social welfare program in India - many families are miscategorized in what is often an expensive, corrupt, and often arbitrary process of targeting. If you are going to subsidize grain to 75% of the population, why not 100%, if the cost of targeting is so high and many of the 25% who don't need such grain would not show up to claim it anyway?

The merit of targeting versus universalization is for another forum, but if you are going to have a targeted system you need a clear vision in how you will implement it. The NAC's relative silence on implementation seems disturbing.

The UPAs recent answer to implementation problems has been to create legally enforceable rights to government programs - whether NREGA, or education, or information, and now food. This sounds promising: people now have the right to go out and claim a government program instead of having to rely on the whims of the administrative state to give it to them. However, as the NREGA experience shows very few people - especially the poor -have attempted to enforce these rights and there is no clear system in place to allow them to do so (the relative success of the right to information act in contrast is arguably the exception that proves the rule). Creating "legal entitlements" doesn't do anyone any good unless there are practical ways that the poor can use to enforce these rights, or there is a system in place to independently ensure these entitlements are given.

I do not think enough intellectual heavy lifting has been done in India to understand the relative merits of different administrative accountability mechanisms to close this implementation gap - whether such mechanisms are administrative tribunals, district courts, commissioner's offices, constitutional torts, administrative fines, independent prosecutors, legally empowered social workers, etc. I am not saying such a task is easy. Having thought some about the relative merits of different administrative accountability measures myself I can say it is certainly not a simple legal problem. Few legal problems require you to have such a detailed knowledge not only of the law, but also policy, different government institutions and their structures and cultures, and the attitudes and needs of the poor. It is easy to become overwhelmed when thinking about how one would go about controlling the Indian bureaucracy in a productive way for ordinary Indians.

I have found that a handful of economists (like Jean Dreze) have taken the task on of trying to figure out these administrative law problems, but to my surprise I have found very few lawyers doing the same. I am not sure why this is. Perhaps it's an undue fixation on the Supreme Court or High Courts being the center of the pressing legal problems of the day. Maybe it's because law schools do not really teach how to approach or reform institutions, but instead mostly still force their students to memorize treatises on black letter law with occasional discussion about how a case can effect policy. I may be wrong in my assessment and I hope I am. Still, my feeling is that the legal community needs more debate about and understanding of how they can help work to fill this implementation gap. After all, it may be the most pressing legal problem of the day.

[Note: If you do know of good work being done in the area of thinking about how administrative law can better be used to implement government policy please leave it in the comments section as I know I would be curious and others might be as well.]

5 comments:

pooja bhat said...

we have seen some wonderful schemes in india, NREGA being one and with todays consensus NAC and PC we are enroute something like NFSA. the problem of implementation and adminstrative accountablity(which i think shud only follow once the administration is provided with charted out course about the effective implementation) is the key to enliven any plan.
in this regard, UIDAI holds the answer to these unpleasant questions. UIDAI has the potential to bridge the gap between outlay and outcome. correct identification of target and a massive database keeping record of services availed is what AADHAAR can do for us.

sopunjabi said...

Very insightful and interesting post! Perhaps officials disregard the issue of implementation because they simply want to earn cheap political points by introducing such theoretically revolutionary bills, but care little for its implementation.

There is a wonderful little book by Stuart Scheingold entitled The Politics of Rights that discusses the American obsession with rights and rights talk and illustrates that rights, no matter how bold in wording, are often chimeras. Rights are seen as the panacea to our problems, and it seems that, to some extent, this mentality is increasingly penetrating Indian legal thought (though I must admit I am rather ignorant on this topic). Lawyers are brought up believing in the power of rights and are often taught to separate rights and legal thinking from politics and policy. The dangers of this artificial barrier are apparent: rights alone do not generate social change. There is another book by Canon entitled Judicial Implementation and Impact that discusses the events following judicial decisions. It is also rather short, but illustrates how agencies that are expected to fulfill a goal refuse to do so for a number of reasons.

One possible solution to this problem could be a more vociferous civil society (made up of lawyers and activists) that reports on ongoing process of implementation and alerts those in the political realm when implementation stalls. We see this occurring in Europe where the European Roma Rights Center and other Roma rights organizations are continuously publishing material on the lack of implementation in the D.H. and others v. Czech Republic case (concerning discriminatory educational policies) and pushing educational bodies in the country to implement. These rights organizations are also communicating with EU and EC bodies that have their own oversight bodies that focus on discrimination issues. So a combination of a robust and aggressive civil society that is not afraid to 'get dirty' & pressure government and institutions that are not afraid to accomplish their goals is one possible solution to the implementation problem.

Tarunabh Khaitan said...

couldnt agree with you more nick. i have myself been thinking on similar lines of late, especially in the context of tort law. in most other common law jurisdictions, it seems that tort law is the main vehicle for enforcement of individual rights. in india, we come across many constitutional cases which should have been tort cases (whether against the state or a private party) in a civil court. on querying a friend who practices law in a small town, my suspicion that the relative ease of filing a writ and the delays associated with smaller courts has meant that litigants prefer to go to constitutional courts (no wonder they remain overwhelmed). i am sure there is an important story to be told about why, despite its poor implementation, the nrega has seen so little litigation.
on the other hand, i think the government devising a special enforcement mechanism to accompany every law is actually worsening the problem - we dont need special adjudicatory regimes in most cases, it is the system of ordinary courts that needs to be fixed. similarly, we have almost completely obliterated the distinction between administrative and constitutional law. how has it come to be that only constitutional courts have the power to declare an administrative measure unreasonable? by locating all administrative ills in Article 14 (even though the constitution itself is silent on the issue), we have removed the power of administrative supervision from the local judiciary.

Rohit De said...

I agree there is a need to create structures of implementation and the suggestion of independent prosecutors of legally empowered social workers sounds like it has potential.

I would also, second Tarunabh's note of caution about the idea of separate legal regimes. The experiment with administrative agencies that began in the fifties failed, wit the judicialization of that system.

My note of disagreement would be with the first assumption in your argument where you try to equate 'rights consciousness' in the knowledge of constitutional provisions. As you yourself point out, there is are popular conception of haq/ or adhikar which while not necessarily mapping onto rights create a language of entitlements.

Secondly, given the limited way our constitutional text comprehends rights, it is probably a good thing that we aren't too fixated by textual provisions. The American first amendment expanded the right to speech, the Indian first amendment took it away. The Indian constitutional imagination saw the constitution as a way of empowering the state to launch a socio-economic revolution, and perhaps it is only natural that people's expectations of the state coalesce around these.

Lastly, and this is merely a point of rhetoric, I do agree that the gap between the promise of the law and its implementation is critical, but this is a problem that is at the heart of Naz, reservations and POSCO as well.

Nick Robinson said...

Thanks for all the great comments. Rohit, to respond to a couple of your concerns: I agree it's dangerous to compare understandings of rights across countries. Still, I think the example is telling for how people in India understand the promise of their constitution and to draw a quick contrast with some other contexts. I also generally don't like the idea of ranking rights or entitlements - I don't think people usually go around in their head thinking "x" right is more important than "y" right, but it is a useful thought experiment to draw out a point for an article like this I think.

Also, I would argue because of this general emphasis in public perception about the constitution judges have been more willing to accept public interest litigation and in the process have constitutionalised much of administrative law. I certainly believe there is a strong role for public interest litigation in the country, but this constitutionalisation has come with costs, which include an under-emphasis on administrative law mechanisms.

I agree with you on your last point I think if it's about the general "promise of law." However, I would say a case like NAZ is more about what the policy/right is than implementation of that policy/right. My understanding of NAZ is that it is about determining the constitutionality of 377, but doesn't really emphasize how it will then implement its ruling (i.e. how will we make sure the police actually follows the letter and spirit of the order by not harassing gay couples, etc.). To be fair, I do obviously pull a sleight of hand in this article by lumping all implementation problems we face in the law together and then comparing them to individual cases - NAZ, POSCO, etc. - and this isn't really fair. That said, it serves to get the point across and I feel the enormity (and commonality) of the implementation problem isn't always fully realized because we look at it on a case-by-case basis. Again, I'm not sure if we are really disagreeing.

Tarunabh, I like your point about how much of these problems might have arrived from over-clogged lower courts leading to a reliance on High Courts and the Supreme Court which then led to constitutionalization. I generally agree and it's difficult to see how India can overcome a lot of these administrative law problems until it grapples with backlog and capacity problems at this lower level of the judiciary.