Somasekhar Sundaresan: Failure to read the difference

Often, when laws are made in India, the merits of the objective sought to be achieved from them are conflated and projected as the legitimately anticipated outcome

Never before has the National Anthem been debated so much. Indian society is abuzz with arguments for and against the Supreme Court ruling that the National Anthem must be played in every movie hall, with the doors of the hall being shut to avoid insult to the forced rendition of the anthem.  But this column will not add to the verbiage on the merits (or the lack of it) of the judgment.
 
Instead, the anthem judgment brings to the fore the human propensity to assume human reaction to legislative instruments.  Every arm of the state — the legislature, the executive and the judiciary — is guilty of blundering with misreading outcomes. The merits of the objective sought to be achieved are often conflated and projected as the legitimately anticipated outcome.

 
The legislature (Parliament and state Assemblies that make law) as well as the executive (central and state governments that use delegated powers to make law) routinely misread potential outcomes when making law. Specificity in defining the objective is itself a tall ask. They rely primarily on intuition.  The near-absence of pre-legislative consultation makes matters worse. The measurement of intended outcomes is made difficult right from the time the law is written. 
 

However, the judiciary, which legislates, particularly when dealing with public interest litigation, too, makes the same mistakes, although limited pre-legislative consultation takes place.  Any member of society can call upon the judiciary to write law, often citing the reluctance or failure of the legislature and the executive to work on solutions. Despite growing reluctance, several laws get written in this space. The parties before the court air their views about the measures the court must adopt, and eventually un-elected judges make policy choices. The consultation may be only with those before the court, who are interested in defining the problem and the solution, yet, severe capacity constraints make it hard for judges to take measures that deliver intended outcomes.

 
To write law, one would need to hone the capacity to think through a defined problem statement, and then choose from competing policy choices to structure a solution. The comparison of competing potential legislative measures and weighing it against the potential benefits of each measure, is not a matter of judicial skill or training. It is a matter of administrative training and policy choice skill. However, in this department, all three arms of the Indian state can display quite a serious degree of inadequacy. Worse, without articulation of intended outcomes, the measurement of the efficacy of the law becomes suspect.

 
Take the example of the environmental entry charge imposed on vehicles entering the National Capital Region comprising Delhi and its surroundings. The stated objective of the law was to curb air pollution in Delhi. It was believed that a substantial chunk of the pollution came from vehicles. It was felt that imposing a charge on entry of vehicles into Delhi would create disincentives to ply via Delhi and thereby curb pollution. This was a fully judge-made law that later came to be adopted by the executive formally. This year, Delhi has faced its worst air pollution crisis. The thick haze is attributed to multiple factors — this time newer factors are being guessed — ranging from burning of farmland waste to fireworks after the Diwali festival. No one wondered how the law imposing a charge on entry of vehicles into Delhi, fundamentally driven by the intended (if not promised) outcome of curbing air pollution, had not met its stated objective.

 
The death penalty is an easy example of legislature-made law failing to deliver promised outcomes. When the Nirbhaya assault case occurred in December 2012, people took to the streets demanding action. As is wont, instead of looking at how to better enforce existing laws, we ended up writing a new law — partly as a measure of placating the mob, with the demand for law being satisfied and to ensure that the demand for bloodshed was made redundant. Definitions of sexual assault were changed. Punishment was bumped up to bring in the death penalty. In August 2013, the Shakti Mills sexual assault took place. No one wondered how the new law, fundamentally driven by the outcome of the crime, had not met its stated objective.

 
On the executive side, demonetisation is the live and classic example of the stated objective being conflated with the potential outcome. If the seriousness of the purpose for which a law is proposed were adequate to justify any ineffective measure, there would be no need to debate the measure. If the need for spirit of patriotism were lofty enough, the lawmaker would hope that there need be no debate on whether the measure is successful. Whether singing the anthem before a movie starts would achieve the outpouring of love for the nation would then become secondary.  Whether black money would actually be curtailed by demonetisation would become secondary. So long as it is intended to hurt black money, supporters of the measure would not want a debate on the efficacy of the measure. In much the same way, the efficacy of an entry charge on vehicles plying into Delhi, would ostensibly curtail air pollution in Delhi.

 
The author is an independent legal counsel. He tweets at @SomasekharS