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June 15, 2016

How Evidence-Based Policymaking Can Bolster Separation of Powers

Sohini Chatterjee builds a case for Evidence-based Policymaking in India, in this The Wire article, for the preservation of a distinction between the powers of the organs of the state. 

 

She argues that, "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...

 

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...

 

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'...

 

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..."

 

Read the full article here.

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