Implementation challenges are one of the most pressing legal problems in India today. There are many laws and policies on the books that in reality are under-implemented (often dramatically), whether these are traffic regulations or rules surrounding telecom allocation. Plausible causes of this problem are numerous and include corruption, resource constraints, administrative apathy, and broader cultural norms. In other words, the problem of poor implementation is big and complex.
In this UPenn CASI working paper – “Complaining to theState: Grievance Redress and Social Welfare Programs in India” – I take on this problem from one narrow angle by looking at the implementation of social welfare programs. In the paper, I only examine the mechanisms by which citizens complain to the state. Obviously, there are many other ways to tackle poor implementation including better policy design, better-trained administrators, better internal auditing, etc. Still, a good grievance redress system seems an important ingredient as well.
I wrote this paper – which is based off of field research in Bihar and Madhya Pradesh – for a number of reasons, but I think the most important for this forum is that I found that Indian legal scholarship (and indeed legal scholarship in general) had not produced the conceptual frameworks or analytical tools needed to address the implementation challenges a country like India faces. When lawyers in India think about implementation problems (and possible remedies) they usually do so through the framework of public interest litigation. If a program isn’t working file a PIL and then use the resulting court orders and media attention to implement the program as best as possible. This has been and can be a useful strategy in many situations. However, if we limit ourselves to just thinking about PIL or courts (or even rights), my sense is that we are missing out on a lot. There are big changes afoot in the Indian administrative state and we need to understand them if we want to be good advisors in how to construct institutions, craft policy interventions, or just decide when to file a PIL or take some other route.
If people are interested in the argument of the paper they can read the abstract and the introduction/section one, but here’s the basic idea: When I approached this problem years ago I was a bit overwhelmed and confused by all the different ways people complained to the state – this paper tries to create a more coherent descriptive and theoretical narrative using the idea of accountability regimes developed in the administrative law literature in the US and elsewhere. There is an understandable fixation on rights and courts by lawyers, and a cost-benefit analysis prism by many policy types, and although in some instances these are often the best normative prism to approach grievance redress problems, I don’t think they are the best descriptive prism. In some ways this is obvious. A right is a tool, not a description of what’s happening. Same with CBA. Yet, I find often the literature focuses on describing how these tools are being wielded instead of the larger institutional story about how chains of accountability are being shaped. These are not mutually exclusive stories, but they are different. This paper tries to prod along the administrative law literature in India to face this and begin to develop a suitable descriptive theory of what is happening.
Just a couple years ago I would say the literature in this area was practically non-existent or at best fledgling. However, there has been increasing interest by legal (and other) academics in the area of accountability and implementation around social welfare programs. Azim Premji University’s Law, Governance, and Development Initiative recently hosted a conference on the Right to Welfare in India (you can find blog posts summarizing presentations at the conference here). Jayanth Krishnan et al have an interesting and well-researched paper out that surveys how the lower courts do (to some extent) and could (to a much larger extent) enforce social and economic rights. I’m sure as time goes on there will be more and more contributions in this area both descriptively and normatively, which will hopefully contribute to producing an ever more accurate and useful picture of what is happening in India’s administrative state.