Is policy the new law? The quick take here pursues this question.
The observation appears to hold ground considering the manner in which important decisions are made and implemented by governments worldwide, although this applies more to democracies than other forms of political systems. There is an increasing preference to policy making over law making. This shift in a way marks a weakening of constitutionalism as the traditionalists knew it. The shift was subtle to begin with in post World War – II era and became a rapid transformation after the emergence of structural reforms and new public management. Newly independent countries either accepted the structural reforms which basically made countries change their governance style via policy than law making or had to forego development aid and loans. The preference for policy making in such a context is evident.
The policy route to change is probably due to a shorter path to implementing a new order and significantly less public resistance and scrutiny that policy making involves. Making laws is slower and fraught with public scrutiny and interference. Policy making tends to happen in a government space which is deeply embedded and is far higher in reach and access to citizenry in comparison to law making. This procedural and structural advantage is likely cause for the safety and ease that policy making provides to governments.
Moreover, the legitimacy to such a style of governance (by policy making) is given by global pressures of trade, globalized economic processes and inter-dependencies. Domestically, it is the political demands which make governments opt for policy route, as this delivers well to satisfy popular demands. Policy is a faster and comparatively obstacle free solution of a modern democracy’s problems. Take for instance the regulation that defines use of coastal zones in India. As a policy it caters to the demands of the market as well as the state itself. This also gets legitimized by the fact that the guideline document is issued by the legislature itself (in this case Ministry of Environment, Forests and Climate Change).
It is likely that the most important precedent for greater preference of policy over law was set by the economic reforms of 1991. While that yielded on the intended outcome of jump-starting economic growth, it was also in a way a signal to subversion of democratic process. Most certainly, it was the beginning of end of constitutionalism as a cornerstone. Policy process is seen to be at odds with constitutional values at times. However, contemporary policy process is a mix of desirable and undesirable consequences. Economic policy which led to liberalization of Indian economy has been regarded as a desirable change whereas environmental policies have largely failed in being inclusive and has consistently been violent in its impact on marginalized groups.
With emergence of regulatory governance we see that preference of policy route to governance has increased further. Independent regulatory authorities which have near complete autonomy over controlling key government sectors have achieved success through policy making. The RBI and TRAI are fitting examples of the trend. With mainstreaming of regulatory governance as a practice, policy’s position as the new law will only strengthen.
The space (policy and law and things in-between) is getting complicated to understand, navigate through and study. We are likely to see more policy think-tanks setting up and public policy programs being offered by top institutions in India. While this take is about governments’ preference to policy making as a procedural ease, a much broader take on public policy and its relevance was pursued by Shiv Visvanathan in this editorial.
Contested Realities 