Book review of “Transformative Law and Public Policy” eds. Babu Mathew, Sony Pellissery, Avinash Govindjee, and Arvind Narrain; Taylor and Francis; 2019; 258pp.

Through a careful compilation of essays, each rooted in distinct contexts, the book is successful in collecting and connecting the thread of social, economic, and political arguments running in the developing world. It offers a range of local and global studies that highlight the convergence of law and policy using empirical evidence and stands out for its contemporariness and concreteness.

Law and Policy Interaction in the Global South

Babu Mathew, Sony Pellissery and Arvind Narrain’s combined experience of teaching and practising law and policy provide an insightful interaction of the two, and its implications on the society, particularly in the Global South. The intrinsic difference in the institutional arrangements and processes are explained by comparing the socio-economic, and political order during the evolution of the constitutions of the Global North and South. The authors present a comparison of ‘Policy-centric and Law-centric Institutions’ based on the quantum of space they provide to deal with public problems. They then arrive at an interesting conclusion; though within the current frameworks of democracy and capitalism, both law and public policy are designed to play a complementary role to advance public interest, they sometimes prove to be counter-productive due to insufficient systems and practices to enable their functioning.

Rise of Anti-global doctrine – strikes in public services

Lilach Litor selects three constitutions; Canada, Germany, and Israel to explore the application of international labour standards, its implications on the freedom to strike in public services, and the capacity of the State to regulate labour disputes. In light of the global conundrum of frozen labour rights against neo-liberal reforms, this article presents an ‘anti-global’ doctrine which prioritises the protection of labour interests irrespective of possible restrictions in the international labour standards. Within the current social and economic order this subject is pertinent because, despite a growing boom in international trade and finance, inequality and job insecurity have grown larger and labour union density has declined. Collective action, especially the freedom to strike, has been excluded in several constitutional documents.

Legal Dichotomy: ‘Policy Matters’ and ‘Operational Matters’

Suzanne and John Bevacqua aim to answer the question on ‘where policy ends, and operational matter begins’ by using policy/operational matters dichotomy as a legal tool for delineating the proper boundaries for scrutiny of Government activities. They do so by examining the Australian ‘Operation Sovereign Border Policy’. Tightening of border control policy to protect sovereign borders and own citizens have become common practice across the world over the past two decades. In this context, the authors present likely scenarios under which misconstrued idea of the two provide ‘additional’, ‘non-legal’ powers to authorities who ‘implement’ policies. Through this, they make a case for clearer categorisation of the two, based on ‘legal heritage’, so that it can be credibly determined as to what details of the policy should be subject to public scrutiny.

Sovereign Debt Reconstruction – Locating Indian Law in the International Legal Order

Sovereign debt crisis is a contemporary international problem. More often than not, debt restructuring is relegated to ad-hoc mechanisms of resolution. Against this backdrop, Ansari Salamah collates and analyses several arguments to make a case for India to set out appropriate rules and regulations that explicitly define the degree, scope, and extent of State Sovereign immunity. The author explores the important factors for indebtedness, options available for countries to pay back debts, and reasons for not being able to successfully design mechanisms for ‘sovereign’ debt restructuring.

FDI in India – Policy and Legal Questions

Priya Misra and Praveen Tripathi’s study on FDI in the Indian context contributes to the existing pool of debates on whether or not FDI has been truly successful in improving the economic and social aspects of the country. The authors expertly select four sectors; banking, aviation, defence, and pharmaceuticals to compare the sectoral caps in FDI Policy and examines its implications. Using a comprehensive collation of landmark judgments in various sectors on FDI, they demonstrate how Courts decline to intervene in policy processes unless there has been a violation of constitutional or legal limits.

Making and Un-making of the Indian Planning Commission

Sony Pellissery, Sharada and Anusha Chaitanya’s essay on the politics of the making and unmaking of the Indian Planning Commission is not just an academic exercise, but also an important insight into how ‘politics’ interacts and influences aspects of ‘policy and planning’. The question that this study aims to answer is, ‘what interests are being served through the planning exercise?’. It attempts to do so not philosophically, but by presenting empirical cases. It is interesting to note the authors’ analysis of the views of Chief Ministers with different party affiliations, on the dismantling of the Planning Commission. The essay seamlessly integrates insights of the study with the popular discourse on Planning Commission, thereby placing it within the current context of decreased space for politics in ‘economic liberalisation’.

Constitutional Promises vs Practices of Participation and Representation of Minorities

Ahmad Malla’s study on the status of minorities (ethnolinguistic, caste, tribe, religious, etc.) in South-Asia is one of the initial such studies at the sub-continental level. His essay entails a case study of four of the oldest democracies of the sub-continent – India, Pakistan, Sri Lanka and Bangladesh. His comparisons attend to the variations in ‘participation’ and ‘representation’ of minorities and present a unique typology. He analyses the ‘constitutional promise’ by examining the extent to which the constitution ‘recognises’ minorities and by evaluating whether or not ‘provisions’ made for their betterment is envisioned to be ‘transformative’. The author adds relevance to these facts by exploring the practice on the ground and ultimately comments on the level of exclusion/inclusion of minorities. Malla deftly evaluates challenges unique to minorities in each region and suggests a comprehensive constitutional and policy framework.

Recognising Children’s Right to an Adequate Standard of Living – A Case study of Norway

By deliberating on the relationship between legal rights, legal obligations, and policy, the author aims to attribute the onus of reduction of child poverty to political bodies as much as to legal institutions and obligations.

Julia Köhler-Olsenbegins by describing Norway as a strong welfare state, but sharply addresses that certain groups such as children growing up in families with low income, receive abysmally low support from the state. Focusing on three main strains of social policy: social benefits cash transfers, workfare and universal social services, she examines the scope and implications of each. She then attempts to gauge whether, from a human rights-based perspective, the measures chosen are appropriate and adequate. She views child rights through the lens of the UN convention, and the Constitution of Norway, to analyse the reasons and implications of child poverty. By deliberating on the relationship between legal rights, legal obligations, and policy, the author aims to attribute the onus of reduction of child poverty to political bodies as much as to legal institutions and obligations.

Street-level bureaucrats in India – Implementers of Law or Policy Makers?

This chapter explores the potential of street-level bureaucrats to act as policymakers by studying their daily practices, interactions with the local population, and with the policy text. The novelty of the study lies in the fact that Ms. Pampackal uses primary data in the form of narratives from a village in Kerala, India to analyse how various bureaucrats interpret the Tribal Resettlement and Development Mission (TRDM) policy text differently and presents the implications of the same. She points out that the policy document is weak in content and is filled with ambiguities, omissions, and contradictions which allow for its interpretation to be based on personal inclinations of the bureaucrat. Using these empirical evidences, she makes a case for creation of more comprehensive policies, and an accountability framework.

Production of Spaces in Urban India – Legal and Policy Challenges

Varun Panickar argues that the influence of public policy in the development of urban land is especially important because formal legislations are not backed by a strong repository of property records. He examines ‘individual-led’ forms of producing spaces by looking at the ‘GPA sale’ in NCR. It is interesting to note that although GPA sale is not a ‘legal’, the prevalence of its use has accorded it a semi-legal status. He compares this to ‘state-led’ forms of producing property by examining the provisions, vision, and implications of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (LARR) Act, 2013.

Multiple Versions of Distributive Justice in an Indian Village

By bucketing the narratives of settlers and adivasis into either of Rawl’s, Nozick’s or Dworkin’s principles, they [the authors] claim that it is relevant to understand people’s perception of what they think is fair to contain social unrest and instability through appropriate policy.

Naivedya Parakkal, Sony Pellissery, and Rajesh Sampath introduce theories of distributive justice, not as an erudite tool that governs policies of distribution, but as tools that all of us inadvertently use in making judgements about rights and entitlements. The authors incrementally add layers of complexity to analyse how people apply these theories in the concrete case of ‘land alienation’ in a village in Kerala. By bucketing the narratives of settlers and adivasis into either of Rawl’s, Nozick’s or Dworkin’s principles, they claim that it is relevant to understand people’s perception of what they think is fair to contain social unrest and instability through appropriate policy. The study stands out because of its authenticity and relatability which rekindles the reader’s understanding of fair distribution.

Transformative Constitutionalism as a Framework for Law and Policy

The central idea of the essay as expressed by Avinash Govindjee is the implication of lack of ‘justiciable socio-economic rights’ in the constitution of developing countries. He analyses the requirement of more activist forms of judicial intervention in these jurisdictions due to non-alignment of the legal and policy aspects. It is here that the ‘transformative’ nature of the constitution can be used successfully to address poverty. Expressing the reasons for non-inclusion of socio-economic rights as justiciable rights, the paper presents alternatives that promote the involvement of the judiciary in the form of ‘constitutional review’ to ensure that state is prioritising social expenditure to the levels implicit in the wording of the constitution.

Overall, it is a book that can be savoured not just by academia, but by policy implementers, social scientists, legal scholars, and anyone working in the area of law, government, and public policy.

(Swathi Krishnamurthy is a Masters student of Public Policy at NLSIU, Bangalore. She is an Engineer by graduation and has worked for over five years across Corporates, NGOs and start-ups. Having worked at the grassroots, her interests lie in understanding and attempting to solve the complex educational crisis and inequity in the country, through a systemic approach. She can be reached at swathi@nls.ac.in)