Finance minister Arun Jaitley recently criticised the prevalent trend of judicial overreach in India, saying that unwarranted intrusions by courts are weakening the mandate of the legislature and the executive. The argument against judicial overreach is based on the distinction between political and administrative decisions on the one hand and adjudicatory decisions on the other. The former, which includes budgetary allocations and taxation, lies within the domain of the legislature and the executive. The latter, within contestable boundaries, is the domain of the judiciary. What is needed to preserve this distinction is an evidence-based approach to policymaking in India.
The degree of permissible substantive intervention by the courts in issues of policy and resource allocation is a subject of debate. In the judicial review of administrative decisions made by public bodies, the mainstream, classic and limited conception of the Wednesbury standard of review entails an assessment of whether the decision reflects an outrageous defiance of logic or accepted moral standards. In doing so, it permits a low degree of intrusion by the courts. This is predicated on the notion that the relevant decision-making authorities possess the requisite information and expertise that the courts as an institution lack.
Supporters of the Wednesbury review allege that the heightened stringency of the proportionality test is an illegitimate judicial intrusion in the realm of public bodies. While the Wednesbury test merely concerns itself with whether the impugned decision falls foul of an extraordinarily high threshold of unreasonableness, the proportionality test increases the onus on the authority by examining the manner in which it has ordered its priorities. Thus, the court of review would be able to look into the alternatives available to the decision-maker and the accuracy of the decision in the light of these options. Further, a greater degree of judicial deference is warranted under both frameworks in matters involving executive expertise, such as macro-economic policy.
The problem of ad-hoc directives
The underpinning assumptions of judicial deference to the decisions of public bodies and arguments for limiting the intervention of courts lead to a case for evidence-based policymaking in India. Data and empirical research can inform law and policymaking by “revealing and explaining the practices and procedures of legal, regulatory, redress and dispute resolution systems and the impact of legal phenomena on a range of social institutions, on business and on citizens,” as noted in the Nuffield Report.
Evidence-based policymaking involves synthesising research with policy formulation in a two-pronged manner. First, policy decisions should be backed by sound data from the design stage. Second, evaluation of implementation should be carried out through data-gathering exercises. This involves being open to policy alternatives, the availability of quality research, using this research productively and quantifying the number of changes that can be solely attributed to the introduction of the policy in question, instead of other unaccounted factors. It fits into a positivist paradigm where research is used to bridge gaps in the knowledge of decision-makers. During his tenure at the Office of Information and Regulatory Affairs in the US, Cass R. Sunstein implemented an executive order that specified “each agency is directed to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible”. It highlights the importance of informed regulation based on rigorous quantification.
In contrast, a large body of law, policy and administrative directives in India are ad-hoc and flow from views and predilections of the decision-making individual or collective. This increases the possibility for flawed decisions susceptible to cognitive biases, which hinder the ability to weigh risk and uncertainty. There are at least two examples of such cognitive shortcomings engendered by ad-hoc policies. First, the government, bureaucracy and expert administrative bodies operate within the walls of bounded rationality, that is finite cognitive abilities involving “limited computational skills and seriously flawed memories”.
This leads to the adoption of heuristics, which, though convenient and expedient, may lead to incorrect and inaccurate judgments. The availability heuristic, belonging to the rule of thumb category, is a common example. In this fallacy, the frequency of an event is overestimated based on how easy it is to recall its instances. Policies succumbing to the availability heuristic would divert limited resources towards one end as opposed to the other, because, say, the former may be receiving frequent media coverage. In the process, more relevant criteria may be neglected. Second, Kahneman and Tversky demonstrate the ‘planning fallacy’, in which decision-makers fall victim to misguided optimism, underestimate the costs and overestimate the benefits of a proposed course of action. Often such predictions do not align with completion times of similar projects in the past.
Problems, questions and existing efforts
Several factors have led to the present malaise where evidence is seldom the motivating force behind such decisions. Institutional and infrastructural arrangements to conduct research and evaluate proposed or operational policies are significant by their absence. Moreover, neither established institutional norms nor public discourse have sufficiently demanded evidentiary support for decisions that have wide-ranging consequences – from the economic and social cost flowing from the allocation of resources to the infringement of individual rights. This enables successive governments and bureaucratic organisations to bury commissioned studies and reports for political ends without much backlash.
The path of embarking on the evidence-based approach is not without obstacles; it raises some complex issues. With evaluative studies varying in quality, which ones should be relied on? In what manner should a set of studies on a particular issue be appraised? How can it be ensured that the results of these studies emanate from unbiased and critical analysis rather than lobbying or advocacy efforts? How will decision-makers deal with research that is not conclusive and yields multiple possible interpretations? Devoting efforts to unravelling these questions is essential to ensure that the case for evidence-based policymaking is not relegated to empty rhetoric.
Dinesh Mohan has challenged the purported success of the odd-even policy by the Delhi government because the latter has not disclosed the data used to arrive at the said conclusion. Howard White and Radhika Menon have argued for an evidence-based evaluation of Swachh Bharat Abhiyan’s supply-centred model to make India open-defecation free. Aparna Chandra has raised concerns about policies for judicial reform and flagged how “much of the policymaking in the area of judicial reform has been taking place without any systematic study of the actual operation of the judicial system”.
In the scrutiny of issues involving law, policy and administrative discretion, the argument against judicial overreach would be strengthened by an evidence-based approach to policy making. Such an approach will also assist courts in determining whether the public authority has applied its mind to the object of inquiry, by indicating the basis for a decision. In other words, not only can this uplift the quality of policymaking in India, it can be a way of maintaining the constitutionally mandated separation of powers between the organs of the state.
Sohini Chatterjee is a graduate of the National University of Juridical Sciences, Kolkata.