For delving deeper into the domain of Public Policy it is necessary to fully understand the interface between law and policy. However, when deciphering the policy landscape concerning the law, several questions dealing with the interrelation of law and policy tend to confuse us. To simplify and demystify the law and policy interface, let’s try to understand this interface, through our contemporary laws and policies.
Role of Laws in Policy Making:
What is the relevance of laws with respect to policies?
Laws define the goals and objectives of any particular policy.
What does “defining policy goals and objectives” mean?
To state simply, determining the absolute outcomes that a particular policy intends to attain, would be defining the policy goals.
We will understand this with the help of a few examples.
Example 1: The policy for the protection of women against various forms of gender violence in the country found its goals well defined through several codified laws, some of which are as follows:
- The Criminal Law (Amendment) Act, 2013, determined better and foolproof provisions to provide more teeth to the safety mechanism for women and girls in the country.
- The Protection of Women from Sexual Harassment at Workplace (POSH) Act, 2013, ensured that workplaces inherit a safe environment where women get access to legal recourse in instances of sexual assault.
- The Dowry Prohibition Act, 1961, ensures that women and girls are protected from getting into marital bonds with individuals who intend to trade a woman’s life, respect and integrity for money.
To summarise, the policy for the protection of women in the country is based on laws that ensure that the goals of this policy are specified, categorized and hence well defined.
Example 2: India’s Environmental Protection and Preservation Policy finds its goals specified in the following Acts and Rules:
- The Environment (Protection) Act, 1986
- The Forest (Conservation) Act, 1980
- The Wildlife Protection Act, 1972
- Water (Prevention and Control of Pollution) Act, 1974
- Air (Prevention and Control of Pollution) Act, 1981
- The Indian Forest Act, 1927
- Solid Waste Management Rules, 2016
- Noise Pollution (Regulation and Control) Rules, 2000
As explained earlier, each of the aforementioned laws clearly defines the objects and objectives that our environmental policy aims to attain and the problems that it aims to address.
Policies without Laws:
But does that mean that there are no policies without laws?
Absolutely not! Some policies exist even without any legislative sanctions.
So do policies without laws have no definite goals?
No. In the case of policies without laws defining their goals, the goals are either well defined and attained through schemes, campaigns or in some cases are simple or short-termed. For any such policies, the goals can be achieved even without the laws in place for them.
There can also be policies that haven’t fully developed so far and hence, do not have standard codified laws defining their goals for them. This means that once they begin to take shape, they may or may not resort to laws to define their goals.
As has been mentioned, policies without laws may exist in the following two cases:
- Policies with goals without any standard codified laws
- Policies that may or may not need standard codified laws to define their goals
Let’s now elaborate on each of these categories through examples.
Policies with goals without any standard codified laws
Example 1: The Swachh Bharat Mission
This Policy consists of a variety of schemes and campaigns, all of which aim to mitigate the problem of open defecation in the country. The policy aspires to attain its goals by focusing on the behavioral aspect of sanitation and hygiene habits of the citizens.
It did not resort to any laws to define its goals or determine its outcomes, rather it chose to create many schemes and campaign ideas to attain its goals.
Example 2: Beti Bachao Beti Padhao
This Policy aims to deal with the menace of female foeticide and infanticide, a practice that led to staggering sex ratios in several States of the country. This Policy was put into place after realizing the inability of the Preconception and Pre-Natal Diagnostic Techniques Act, 1994, (which banned the medical facility of determining the sex of the fetus and penalized sex determination of the fetus) to effectively address the challenge of sex-selective abortions.
Rather than resorting to laws to define or achieve its goals, the policy took recourse in awareness campaigns and schemes that extended financial support to incentivize retaining a female child (Sukanya Samridhi Yojana).
Policies that may or may not have standard codified laws to define their goals
Example 1: Single Use Plastic Ban Policy
More than half of the States in India have some form of plastic ban policy in place, to confront the challenge of plastic pollution. While some states have released the ban notifications under their respective State level Non-Biodegradable Garbage Control Act, others resorted to provisions under the Constitution as well as the Environment Protection Act, 1981.
However, none of these laws make any mention of banning single-use plastic and the States have referred to these laws only as the authority conferring them the power to come up with a policy of this nature. This means, that we do not have any standard codified laws that expressly talk about the mode and manner of banning plastic use in the country, i.e., defining the goals of the plastic ban policy. Even the Plastic Waste Management Rules, 2016 do not talk about any provisions for banning the use of plastic. So, for the Plastic Ban Policy to attain long-lasting solutions, we are yet to determine whether a uniform set of standard legal provisions in place will make any difference.
Example 2: Menstrual and Reproductive Health Policy
Currently, India has no specific policies for menstrual or reproductive health. The existing schemes address very limited aspects of women’s menstrual and reproductive health in the country. For instance, schemes to distribute free sanitary pads for better menstrual health and the decision to remove the GST from sanitary pads pricing to improve their accessibility. Similarly, a scheme has been in place to incentivize institutional deliveries to avoid maternal deaths, and Anganwadi Centres are required to provide nutritional assistance and information to pregnant and lactating mothers throughout the country.
However, complications of abortions, issues of surgical delivery deaths in the case of reproductive health and lack of awareness and awareness of menstrual health complications such as Endometriosis, Poly Cystic Ovarian Disorder, et. al., are yet to find any policy solutions in the country. If and when India has proper menstrual and reproductive health policies in place, they may or may not need the assistance of standard codified laws to define their goals and objectives.
Relevance of the Law & Policy Interface:
If policies can determine their goals even without laws, why do we need laws to define policy goals at all? What is the relevance of the law and policy interface?
The interface between laws and policies is relevant because our laws provide accountability and validation to our policies.
Example 1: Law ensuring accountability of a Policy
Antyodaya Scheme came into being to provide food grains at subsidized rates to people belonging to the Below Poverty Line (BPL) category. This was chiefly aimed at addressing the problem of hunger and malnourishment amongst the poorest citizens of the country. The idea of assigning Ration Cards to the poor was also devised to make the distribution of subsidized food grains easier. Similar policies were put in place to guarantee food for pregnant and lactating women from poor families and for children who attended public schools.
However, over time, these policies were suffused with corruption, lacked transparency and accountability, as the benefits of the policies failed to reach the targeted beneficiaries.
To address the challenge of curbing corruption and ensuring the accountability of these policies, the government passed the National Food Security Act, 2013.
This law makes food a matter of right for those citizens who cannot afford to purchase food grains or afford meals to meet the nutritional needs of their bodies. To achieve this goal, The National Food Security Act, 2013 puts the onus on the State. Therefore law ensures transparency and accountability for policies related to guaranteeing food to the citizens.
Example 2: Law validating a Policy
The Constitution of India which is recognized as the prime source and guardian document for all laws in the country serves as the primary source of law that validates the Reservation Policy in India. Primarily, Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and Article 16 (Equality of opportunity in matters of public employment) of the Indian Constitution provide for the essential principle which is the basis of our reservation policies.
Role of Judiciary in the Interface:
What about the role of the judiciary in policymaking?
In the history of policymaking in India, judicial decisions have played a crucial role by bridging the existing gaps and ensuring that the law and policy interface continues to thrive for better policies in the country.
On various occasions, court verdicts have provided the necessary impetus, by paving the way for some policies and clearing the roadblocks for other crucial policy decisions. At the same time, judicial rulings have dismissed the prevalent policies of the government and showed the way forward to maintain the sanctity of the “public” in the policy.
Example 1: Judicial Verdict paving the way for a Policy
In the case of Shayara Bano v. Union of India & Ors., in August 2017, the Supreme Court held the practice of Triple Talaq to be illegal and unconstitutional. In doing so, the Court also prompted the government to consider passing legislation thereby paving the way for a policy to protect the rights of Muslim women against discriminatory practices in matters of marriage.
Example 2: Judicial Verdict clearing the roadblocks for a Policy
In the case of National Legal Services Authority v. Union of India, in April 2014, in April 2014, the Supreme Court accorded individuals identifying as transgenders the right to be recognized as the third gender. Moreover, acknowledging the discrimination against transgenders, the Court held that they are granted reservations in educational institutions and jobs.
In the aftermath of the verdict, all official documents of the Government thereafter included the “Other” gender category along with Male & Female. The biggest contribution of this judicial ruling is the drafting of the long-awaited Rights of Transgenders Persons Bill, 2014 which seeks to end the discrimination faced by transgender people in India.
Example 3: Judicial Verdict dismissing a Policy
In the case of Justice Puttaswamy (Retd.) and Anr. v. Union of India and Ors., the Supreme Court struck down certain sections of the Aadhar Act while declaring that the Aadhar can not be treated as a mandatory document. By dismissing the provisions that stipulated breaching citizens’ personal information in the name of national security and sharing citizens data with private entities, the verdict dismissed a policy which was believed to be a blatant violation of the privacy rights of citizens. Though the judge didn’t expressly call the Act violative of privacy rights, in reading down the controversial provisions, it has retained people’s right to privacy.
Are Law and Policy merely interchangeable words?
No. Contrary to popular belief, there is more to policies than just laws. Whether or not a policy has well-defined laws for it, there will also be schemes, regulations, and campaigns to determine the policy goals. Hence, though laws are a crucial part of policies, laws and policies are not the same.
Do Laws also exist independent of Polices?
No. As explained earlier, policies may or may not exist without laws, however, none of our codified laws can exist independent of policies. This means that every single piece of legislation is dependent on, influenced by and finds its origin in, some policy somewhere. This means that if you delve a little deeper, you will know that each of our codified laws has been derived from some policy.
Do policies without laws prove to be ineffective?
We cannot conclude this or make any such assumptions, as it is largely a subjective question. However, objectively speaking, as we are always assessing our policies, if and when the need for laws is felt, our systems are flexible enough and our civil society efficient enough to suggest the same, rather than waiting for policies to be rendered ineffective in the absence of laws. Also, whether or not some policies work best without laws is a moot point and hence the answer to this question changes depending on the nature of the policies at any given point in time.