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.
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.
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.
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.
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.
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.
very interesting Nick. There is some very interesting literature on reflexive law and autopoiesis (work by Teubner etc) which may be relevant to your research. Implementation is a function of institutional framework, legal and political culture, legislation design, the nature of the norms in question and a lot else. Am glad you are working on the issue.
Thanks Tarunabh – hadn't thought of the Teubner/Luhmann connection. Worth pursuing.