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Haryana internet to smoking, bans are India’s go-to tool because it has a weakness

It is relatively obvious why an authoritarian regime might resort to banning things, but why should a democratic one like India proceed down this path?

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Haryana recently shut down internet and mobile SMS services in 17 districts in response to farmer protests. In the name of a State prerogative, this drastic approach limits the freedom of myriad individuals who seemingly carry on such activities—internet use and protest—in a legal manner and without threat to the State. Was the internet blackout necessary?

The use of bans or prohibitions is not new in India. It is relatively obvious why an authoritarian regime might take such an approach, but why should a democratic one like India proceed down this path?  The simple answer is that it is a pragmatic regulatory strategy for a State with limited capacity.

Bans are a standard plan

In November last year, Tamil Nadu promulgated an ordinance to ban online gaming and betting after a spate of related suicides. In doing so it followed in neighbouring Andhra Pradesh’s footsteps.

When States face daunting regulatory challenges, some choose to sit back and let their citizens make their own choices, while others take a nuanced and finely tuned approach, one that mediates between concerns about society, freedom and the economy using some combination of coercive power and market principles. Still others proceed with a particularly blunt instrument: A total lockdown, which is a form of ban on economic and social activity.

In Delhi, there have been bans on fireworks during Diwali and bans on vehicles that have engines of a certain capacity. There have also been legal prohibitions on the sale of alcohol near the highway, on engineering correspondence courses, and on smoking in public places. If anything, the ban is a modal part of the Indian State’s standard repertoire.


Also read: Internet shutdowns cost India over Rs 20,000 crore in 2020


A strategy that worked

A State that is coercively weak may be strong in other ways. A smart State might recognise its own coercive weakness and account for this when considering how to implement its various governance projects. The essence of this recognition and strategies to make up for it constitutes what scholars call “regulatory pragmatism”. When engaging in regulatory pragmatism, a State will be flexible—rather than legally doctrinaire or dogmatic—and craft an approach that is specifically adapted to the context. Such a State will also prize effectiveness and durability over all other goals and typically take into account on-the-ground realities of its own capacity and the needs of populations targeted by particular regulations.

Even though surprising given their blunt, coercive impact, bans are in reality often pragmatic in India. In a chapter I wrote for Madhav Khosla and Devesh Kapur’s book Regulation in India: Design, Capacity, Performance, I explored the Supreme Court’s use of outright prohibitions as a way of managing the regulatory process through a sclerotic bureaucracy.  The Court uses bans because it cannot effectively do anything else.

For instance, much of the developed world regulates air pollution, at least in part, by requiring cars to meet emission standards through regular checks. This strategy is used in India as well, but it has been wholly ineffective in part because decentralised authority invites corruption. Making it work properly would require significantly more State capacity than India has to ensure tests are conducted properly and the conductors of the tests do not take bribes for passing. In contrast, an outright ban on vehicles with engines of a certain capacity or those using diesel fuel is much easier to manage with limited capacity. If those cars exist on the streets, the State and society both know that the company making them or importing them is to blame and it is relatively easy to bring such powerful actors into line. The State’s strategy has largely worked.


Also read: It’s 2021 and the Indian bureaucracy remains the greatest impediment to progress


Another example of this is distance-learning, which a remarkable percentage of the world is involved in right now. States with significant capacity have developed the tools and strategies necessary to ensure that those who learn outside a physical classroom can nevertheless be credentialed in a reliable manner.

India faced this very issue not long ago with respect to engineering correspondence courses, many of which were seen as deficient in terms of minimum standards for education. The State’s initial response was to put universities conducting substandard correspondence courses on notice to reform their curricular practices. However, this failed because universities just sought ex post facto approval for actions already taken and students continued to earn degrees in manners that were insufficient. In the end, the Supreme Court issued a blanket ban on engineering correspondence courses and required all students to prove their merit through testing. Here, again, the State’s strategy has worked. And there are many other situations in which a similar approach has been effectively employed by India.


Also read: India has wide grounds for internet shutdowns but minimal safeguards – 2019 saw its result


Bans will stay, until…

Many of us recoil at such broad prohibitions, not least because they smack of authoritarian tendencies. But despite the draconian veneer, the fact remains that bans—regardless of whether it is the bureaucracy or the courts that initiates them—have usefully been employed in service of priorities articulated by a democratic regime.

Someday, the Indian State will have the capacity for nuance and abandon such blanket prohibitions altogether. When it does so, it might profitably use market principles to augment behaviour. But that day is not today. Given this, we must ask ourselves whether we would prefer regulatory pragmatism, which actually furthers the policies and laws made by democratically elected representatives, or wishful thinking that leads to regulatory failure.

The author is an Assistant Professor of Global Affairs & Political Science at the University of Notre Dame. Views are personal.

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5 COMMENTS

  1. There is substance in the argument of the author. In addition, there is also a need for people to get educated and be aware of what is good for them, for the community and the country. But if govt regulates everything, it will turn out to be over-regulated country. We have seen this enough in this country till now. There are many examples.

  2. A very sensible and realistic view on this subject. We all know this in India, even though the left of centre political parties protest vehemently when any government other than theirs, impose these restrictions. We understand these protests as political in nature and usually ignore them as being part of the democratic process. We also tend to ignore wokes like Greta and such others as being brainless twits, as they do not know what they say. Once again thank you for this article.

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