Books​ Reviews

The Constitution Matters

Vinod Rai

Transformative Law and Public Policy

Edited by Sony Pellissery, Babu Mathew,
Avinash Govindjee and Arvind Narrain
Routledge India, 2020

The book is a follow on of papers presented in a conference on ‘The Interface of Law and Public Policy’ during the Third International Conference of Public Policy organised by the Lee Kuan Yew School of Public Policy, Singapore, in June 2017.

The editors have sought to address the question of the interface between law and public policy as viewed through the filter of a constitution. They believe that public policy in any constitutional democracy seeks to operationalise constitutional values. Towards this objective, the book has a very wide array of papers depicting the experience and analysis of situations as they emerge under different constitutional dispensations. The findings are predicated on experiences of institutions that operationalise policy mandates either through constitutional provisions or through statutes and the gaps that occur between theory and practice. There is a detailed politico-legal examination of the role, impact and extent of influence on public policy by the constitution. The contributors seek to divide the countries in two broad groups: the Global South and the Global North. The reasoning is that the policies and constitutional evolution of the Global South has been after the influence of colonial occupation whereas those in the Global North have evolved out of enlightenment and subjugation of feudal forces to democratic processes.

The editors have drawn a distinction in the Global South where (as in the case of India) the constitution very affirmatively mandates specific fundamental rights. These constitutions of the Global South have been termed as ‘transformative constitutionalism’. It is contended that public interest finds an integral place in these constitutions, thereby protecting individual liberties by enabling legal avenues to challenge interfering state action. One such enabling provision is ‘Public Interest Litigation’ in which a third party could approach the judiciary to seek directions to the executive (government). Thus, when the state takes public policy steps, it is left to the constitution to ensure that it does not impinge on fundamental public interest. The editors have attempted to demonstrate that constitutional principles provide guidance when conflicting value frameworks emerge on public interest issues and thereby often interface rather than have a ‘policy versus law’ situation. However, it is observed that public institutions have often not kept pace with societal progression, thereby proving to be inadequate in protecting citizens’ interests.

The book, in one of its chapters, contains an interesting insight on how opacity surrounds the implementation of the state’s operation sovereign borders (OSB) and how OSB-related ‘policy matters’ are attempted to be kept out of public view. Quite often, the state’s actions in this context have been proven to be fairly indefensible and incapable of withstanding judicial scrutiny. It is argued that a more transparent approach to immigration issues would serve to build trust between a society and its government.

Lilach Litor’s piece explores the application of labour standards in Canada, Germany and Israel. The right to strike, as embodied in practically all democratic societies, does interfere in the capacity of the state to address public interest in providing maintenance of essential services. Applying international labour standards invariably undermines the state’s capacity to design labour policy in the local political context.

The book also contains a comparison of constitutional practices as against transformative provisions of minorities in the South Asian countries. Mushtaq Malla very cogently establishes the wide gaps between the professed assertions and the ground reality. In the case of Pakistan, the position does not appear to be encouraging, despite various provisions in the new reservation policy of 2002 and its announcing 11th August as minority day, as there are only a few Hindus in the navy and one Sikh in the air force. The Sri Lankan constitutional provisions of devolution of powers and proportional representation appear to have been introduced to ensure equality in participation, but there is stiff resistance from Sinhalese nationalist groups, thereby making implementation rather complex. The Bangladesh constitutional amendment of 2011 referred to ethnic minorities without providing any guarantees to them. In fact, instances of silent discrimination in recruitment with uncomfortable questions and challenging personal integrity in interview boards seem to be the order of the day. In comparison, the treatment of minorities in India in terms of no discrimination in public employment seems encouraging.

The book contains articles on various laws governing foreign direct investment and sovereign debt restructuring in the background of the doctrine of sovereign immunity. With increasing state participation in commercial activity, the enforceability of sovereign immunity is becoming increasingly infeasible; it has, in fact, become an anachronism. The chapter on the politics of the reincarnation of the Planning Commission into the National Institution for Transforming India (NITI Aayog) records the views of the chief ministers. These are understandably along partisan lines. It would be interesting to undertake an analysis as to the extent that the NITI Aayog has been able to fulfill the objectives of its creation.

Land policy, in terms of production of space in urban areas, has been a vexed issue for citizens and the state alike. Whilst legislation may have been structured with the intention of protecting individual rights and titles, the interpretations of such legislation is exceedingly cumbersome. It is further compounded by the fact that digitisation of land records or titles has not taken place. India lacks a comprehensive policy on land. The subject ‘Land and its Management’ falls within the exclusive jurisdiction of the states. As a consequence, the states have formulated their own separate policies and there is no uniform national policy. Legal solutions, as in the Attapady tribal area of Kerala, have been obscured by the complexities of implementing these on the ground.

Transformation or, in fact, transformative constitutions have become a well-articulated modern notion. However, providing clarity to the concept and considering its widespread misuse does make the task rather difficult. Whilst constitution makers have orchestrated the ideological, intellectual and legal notions, legal interpretations do obscure implementation. Thus, the concept of transformation, if construed appropriately, should be beneficial to citizens. It is only emphatic interventions of the judiciary that can be instrumental in a true interpretation of the legislative content. The book has made a very cogent case for evolving constitutions to synchronise laws with public policy so as to deliver a more sustained societal change in upholding the socio economic rights of citizens.

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Mr Vinod Rai is a Distinguished Visiting Research Fellow at the Institute of South Asian Studies (ISAS), an autonomous research institute at the National University of Singapore (NUS). He is a former Comptroller and Auditor General of India. He can be contacted at isasvr@nus.edu.sg. The author bears full responsibility for the facts cited and opinions expressed in this paper.