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‘Law’ and ‘Policy’ are used interchangeably in layman's terminology but there is a defined line of distinction, they share an independent and interdependent bond to function smoothly. This article aims to explain and elaborate comprehensively on the given paradox of symbiotic co-existence by analysing a few case studies. Key players bridging the gap between the two terms, law and policy, are also discussed to back the matters of fact, analysis and interpretation. In the quest to clear the blurred distinction between the two terms, we also closely look at the working of organs of the government and understand the dynamics from a socio-legal angle i.e., the need for public policies and their constant revisions, how laws aid to their successful implementation, and how different organs contribute to the process.
Keywords: Law, Policy, Distinction, Independent, Interdependent, Case Study, Analysis, Organs of Government, Socio-Legal Angle
Emergency of Law:
The term Law has emerged from the Teutonic word ‘Lag’ meaning definite. Jeremy Bentham, the icon of modern legal orders, referred to laws as mighty instruments a society wants to achieve. Laws come in handy to strengthen and restructure an existing society to make it more secure, and spontaneous promise safety from one another. Dr Denis explains in his book Law in Modern Society that to ensure expectations of people are met within the boundaries of rule, constitutional and administrative laws have become important. Laws are not limited to state affairs, they act as a tool for regulating state functioning on an international platform, like the European Union laws, and World Trade Laws. Law is a product of society and has its individualistic features and relevance while also interacting and modifying with other social activities. Dr Denis also points out that binding power and the impactful presence of laws from the grassroots to the global level solidifies its need in the functioning of society. This need is not contemporary as traces of basic rules and regulations have been discovered with each civilisation unearthed. Laws are of varied types and work closely to contribute different kinds of social goods. While well interacting with other components of society, it neither bleeds nor stands out from their ambits, thus guaranteeing its individualistic and essential characteristics. (Denis Galligen,2006). In The Concept of Laws by H.L.A. Hart, he brilliantly studies society and laws and distinguishes between coerced obligations and mutually agreed-upon codes of conduct in society. He distinguishes between forced obedience and general acceptance (William and Mary Law Review, 1976)Hart says: The first condition is the only one which private citizens need satisfy: they may obey each 'for his part only' and from any motive whatever; though in a healthy society, they will often accept these rules as common standards of behaviour and acknowledge an obligation to obey them, or even trace this obligation to a more general obligation to respect the constitution. (H.L.A. Hart,1961). This shows that laws come naturally to society to balance its elements, but this balance is delicate and deals with sociology and willingness to follow the masses closely.
What are policies?
“Whatever governments choose to do or not to do” (Dye, 1992).
The term policy is derived from the English word meaning ‘Policies’ which meant Government or Civil Administration. Policy, as Micheal Howlett and Ben Cashore describe in their book Conceptualizing Public Policy, involves a technical and articulating process of matching actors’ goals and means. Policies are affected when a plan is put into action. These policies are context-specific and need not be necessarily professional. When governments realise their plans and formulate these policies, they then become ‘public’. When talking in the context of Public Policy, the government becomes a key player and not private individuals, this calls for professionalism and aid from key factors like the judiciary, administration, legislation and most importantly, a vacuum which calls for the formulation of public policies and general acceptance of people. The definition of Dye highlights the fact that Public Policies are highly dependent on the willingness of the government. Their chosen inactivity or course of action is considered deliberate. Policies are crucial for the functioning of an organisation, this is applicable irrespective of the scale of its operation. Policies ensure certain rules and regulations are followed, certain sets of rules are unchallenged, the objectives of the organisation are met and its overall smooth and efficient functioning. Policies devised by the government are done in a way to ensure the primary objective of a state is met while also ensuring a secure and comfortable living standard for all its citizens.
Policy is a matter of authoritative allocation of values, they are the operational statements of prescriptive intent. (Kogan,1975). As described by Stephen J. Ball in his book Politics And Policy In Making In Education, policies project the values of an ideal society. This relation shows that policymaking is closely related to sociology and works in order to keep social efficiency in place. This also means discontinuities, compromises, omissions and exceptions are taken into consideration. Therefore, it can be concluded that policymaking involves careful consideration of contextual social values to a) ensure a general acceptance from everyone and b) to cover all exceptions, omissions and drawbacks so that further policies can be drafted to work around them in order to achieve the desired utopia.
Interdependency between the two:
For Policies to function, the government needs to make laws. Laws make Policies enforceable, this means with proper rules and laws in place, policies become eligible to judicial review. In the Indian context, the Legislature is assigned the task of making laws and policies to govern the nation, these laws and policies are then enforced by the executive branch of government; finally, the judiciary interprets these laws and ensures they are followed by people regularly. (Constitution of India). These assigned roles can better be understood by analysing some case studies.
Protection of Women Against Various Forms of Violence Since its independence, the Union of India has been faced with a critical challenge regarding the status of women in its society. As Justice K. Rama Swamy said, “Half of the Indian population is women too. Women have always been discriminated against, have suffered and are suffering discrimination in silence. Self–sacrifice and self-denial are their nobility and fortitude, and yet they have been subjected to all equities, indignities, inequalities, and discrimination.” The constitution of India guarantees equality of opportunity to men and women alike (Article 15), a state policy. Despite this guarantee, women are still subjected to brutality, discrimination, and extortion. To ensure this state policy is practiced by the general public, certain laws like the Equal Remuneration Act, 1976 (Law that guarantees equal pay, irrespective of the gender of the employee), the National Commission for Women Act, 1990, Commission of Sati Prevention Act, 1987, Dowry Prohibition Act, 1961, and, Muslim Women’s (Protection of Rights on Divorce) Act, 1986. These laws exist despite personal laws in place. (Monika, 2006).
Environment Protection Laws The Constitution of India provides provisions that state that the state must protect and conserve its environment and safeguard the forest and wildlife in the country. Similar guidelines have been placed in the DPSPs as well as the Fundamental Rights of the country. Still, the environment that we live in has been widely contaminated (Pandey, 1987). As stated by Jain in Environmental Policies; Laws And Legislation in India, “Environmental Law is a collection of legal principles, rules and regulations dealing with interaction of individuals in their natural surroundings. It governs human involvement in the land, waters, and air around us, including any impact upon the atmosphere, organic and inorganic matter, living beings, and less tangible concepts such as socio-economic, health, and cultural impacts. Environmental law ranges from widespread regulatory systems developed by governments to common law principles, relating to liability for releasing substances into the environment, either intentionally or negligently, that result in foreseeable harm to one's neighbours. In India, it covers everything from pollution to forests and wildlife, dams, irrigation and electrical projects.” The Air (Prevention and Control of Pollution) Act, 1981; the Wildlife Protection Act, 1972, Indian Forest Act, 1927; and the Factories Act, 1948. (Divan,2022). Some of these laws are colonial legalities that were enshrined in the Indian Constitution, considering their relevance.
Conclusion
From the above case studies and definitive definitions of the terms ‘law’ and ‘politics’ individually, we can conclude our initial claims of them being independent and interdependent. It is not always necessary for the government to put laws in place when ; policy is drafted, similarly, not every law drafted is done so to bring tangibility to a formulated policy. Examples of these can be Beti Bachao, Beti Padhao and Swach Bharat Abhiyaan, which are the two most popular policies of the government which were practised despite dedicated laws in place.
BY: Rijuta Joshi
References
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Jain, R., Upadhyaya, N., Sharma, R. and Upadhyaya, R., 2019. Environmental Policies, Laws and Legislations in India. International Journal of Advanced Scientific Research and Management.
Divan, S. and Rosencranz, A., 2022. Environmental Law and Policy in India: Cases and Materials. Oxford University Press.
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