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In Conversation with Mr. Prashant Narang – Freedom of Profession, Judicial Overreach, Policy and Social Change

Mr. Prashant Narang is an advocate practicing in Supreme Court of India and runs Sentinel Law Office. He is also pursuing PhD from Center for the Study of Law and Governance at Jawaharlal Nehru University. Mr. Narang has wide experience in public policy and supports free enterprise. In recent conversation with IJLPP, he talks about challenges to public policy, right to profession, judicial over reach and free economy in India.

When we talk exclusively of Public Policy, there is criticism that policy is broader and goal oriented. It intends to bring social change but somehow fails to bring social change due to poor implementation. From your experience, where do you keep public policy in the space of social change?

PN: The road to hell is paved with good intentions. A policy is good only if it yields good outcome. Good intentions are not enough and not even relevant. Implementation is part of policy design. If a policy is not implemented properly, then most likely it is a flaw with the policy design. Many policies do not have stakeholders incentives aligned with desirable outcomes. While framing a policy, incentives must be evaluated.
Sometimes, a policy may be top-down and may have no connect with the ground reality. What people demand and need, a policymaker may have no clue. For instance, the Right to Education Act aims for better school infrastructure and teachers but does not focus on the quality of education. It does not see the wood for the trees. Empirical research points out that better infrastructure may be necessary but not a sufficient condition for learning outcomes.
You have been working on a research project related to the Right to practice any Profession or carry on occupation, trade or business. Can you elaborate about it and what is the objective for the research?
PN: Article 19(1)(g) guarantees the right to carry on trade and business. There is dearth of research on this topic as compared to any other Fundamental Right. Constitutional commentaries merely compile the ratio of various landmark cases and those often contradict each other. The question is: how the Court is supposed to review an economic restriction. There is no clear answer in the current literature. Only when we ascertain the correct norms of judicial review, we can then critically assess the jurisprudence on the subject.
You have also co-authored a report on the compliance of Street Vendors Act, 2014. You have highlighted different problems and what are the ways out in it. Last month the government has announced a mega pension scheme for the unorganized sector (Each subscriber under the scheme will receive minimum assured pension of Rs 3000 per month after attaining the age of 60 years.) How do you see such schemes helping street vendors?
PN: These welfare schemes do not answer the real problem: administrative recognition and respect for their right to vend on the street. Why not ease of doing business for street vendors?  They face uncertainty all the time. Government machinery harasses them, even if they have valid licenses. 
In late Eighties when the vendors approached the Supreme Court against delay/denial of licenses or harassment, the Court instead of reviewing the administrative inaction and harassment, made regulations and appointed committees.  The Supreme Court regulated street vending for 25 years in Delhi and Mumbai. A fair judicial review would have led to better municipal regulations.  
There is a central law in place now that prohibits any evictions until a survey is conducted. Not only the authorities have evicted the vendors without conducting any survey, courts have validated the executive breach of law. 
In follow up, how do you see the trend of judicial overreach impacting decisions of public importance?
PN: Anuj Bhuwania in his book ‘Quoting the People’ documents the abuse of public interest litigation. The reason is utter disregard for procedural propriety that law epitomizes.
In S.P. Gupta case, which fundamental right was violated for the Court to hear the matter under article 32? None.
What would you say to National Anthem case? Many people were attacked but isn’t it patriotic?
PN: National Anthem order was later reversed. The question is not whether it is good or bad. The question is whether it is proper or improper. Under which article of the Constitution could the judiciary hear such a matter? And pass such an order?
Law is first about procedure and competence.
Let’s differentiate between procedure and outcome. Scholars say, Vishakha case is salutary but I say no, we must begin our discussion on judicial outreach with Vishakha case. I wrote a critique of Vishakha case earlier. Ideally, Bhanwari Devi gangrape should have been a tipping point for criminal justice system reforms rather than the issue of sexual harassment at workplace. But that’s a separate story.
Did the Supreme Court itself enforce Vishakha guidelines within the Court? Not for 15 years. And look how they have handled a complaint against a sitting judge.
Does this make the entire procedure of “the Court made law” questionable as it is not enforced by the Court itself?
PN: My larger view is that a judicial decision is not to be judged by the outcome; it should be judged by reasoning and procedural propriety. All these cases were example of policy making and hence, violation of the separation of power principle.
These policy issues are polycentric issues better suited for the legislature to determine. The Court is supposed to apply a general norm to a specific dispute. If the Court is allowed to make specific norms, it will start making specific norms for specific disputes, something we see with the article 21 interpretation. The rule of law would go for a toss.
Will the procedural propriety not be too rigid and bind the Supreme Court in four walls of law when it may sometimes be required to consider public interest?
PN: An example of procedural propriety is locus standi. The Court diluted the rules of standing post-emergency. For good reasons. For instance, a prisoner may not be able to file a petition directly. There is an access barrier. But a next friend on his behalf may file it.
But not all cases had valid reasons for dilution of locus standi. Entire MC Mehta jurisprudence had no justification. I mean, it makes sense for the Court to allow the affected party or the locals to challenge the polluting factories and dams. But why someone in Delhi who has otherwise no connection to a dam or a factory or is hundreds of miles away from the affected site should be heard under article 32?
The Supreme Court ordered the public transport in Delhi including auto rickshaws to be switched to CNG. In addition, the Court stopped issuance of auto-permits. Not only was the order oppressive for the auto drivers, it forced people to buy more private vehicles. So, the judgment led to an exponential rise in the number of private vehicles in Delhi.
Normatively, one can ask: why the public transport in Delhi? Why not have CNG-run public transport in Chennai, Hyderabad, Mumbai as well?
There has been question on independence of Constitutional and Statutory bodies especially in current political discourse. How important you feel is to keep the judicial independence intact?
PN: There are two ways to infringe judicial independence: “carrot” and “stick”. We generally think in terms of the stick. For instance, appointment of judges during emergency era and supersession of judges.
NJAC judgment was a disappointment. It was not really an infringement of judicial independence. Remember, the bill was passed by a whooping majority in the parliament and not merely by the MPs of ruling party. Justice Chelameshwar who otherwise has been a champion of judicial independence voted for the NJAC.   
The threat to judicial independence comes from the “carrot”: post-retirement appointments. There is empirical evidence (paper by Aney, Dam & Ko) contending that the judges give favourable judgments anticipating post-retirement appointments. I think, judges must pro-actively make a declaration like Justice Chelameswar did: they will not accept any post-retirement post for two or three years.
India is a diverse country with huge disparity in income. There is classical economic argument that free economy causes this space to increase but you have been critical of such regulated economy. What is your view with the concept of laissez faire in our country?
PN: I ask, what is the alternative?. We tried socialism for 50 years, we failed. Global comparative case studies such as East and West Germany, North and South Korea showcase which model works better. It is indeed market economy.
A market economy ensures better access to education, telecom, healthcare and other goods and services than a planned economy. You may have an iPhone X and I may have a Nokia 105 phone. While there may be inequality in terms of value of mobile phones, there is equality in terms of access to telephony. You may have an LED bulb and I may an old-fashioned ligament bulb. But at least, we both have electricity and light. This is important. 
Socialism might give you perfect equality. No one would have a phone or electricity.
What do people prefer? People usually migrate to countries that rank high on economic freedom even if those countries rank low on economic equality and not to countries that would rank low on economic freedom but high on economic equality.
[This interview was taken by Pranav Tanwar (Consulting Editor, IJLPP) and Saurabh Pandey (Publishing Editor, IJLPP)]

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