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.]
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