Over-Ruled: Why Maximum Governance Must Start With Minimizing Certain Rules

The Huffington Post

Content from the Brookings Institution India Center is now archived. After seven years of an impactful partnership, as of September 11, 2020, Brookings India is now the Centre for Social and Economic Progress, an independent public policy institution based in India.

Some time ago, I missed my grandfather’s funeral because an airline’s manager hid behind rules. No, I wasn’t asking him to break any rules, but he didn’t let me fly despite there being empty seats, my pleading to please charge me any price he wanted, and my being at the airport almost 1.5 hours before the scheduled departure. In my case, the impact was emotional, but in other cases, silly, inconsistent, or just plain bad rules can mean lives lost.

After getting a call from my family with the sad news, I called up the airlines to try and get a ticket – only one airline had a routing that would allow me to reach on time. They said they were sold out, but why not try at the airport. There, the airport manager said not everyone had checked in, but that he couldn’t share the airline’s position until the flight closed. We don’t do wait-listing, he shared. But after waiting and waiting, when half a dozen people hadn’t checked-in well past the official flight closing time, he said, “No, no, now ticketing and the flight are closed.” Catch 22! He can’t know what seats might be going empty until the end, but can’t give me a seat after the flight closes, which is too late.

“We often ignore silly or outdated rules… However, when faced with too many “bad rules” we risk becoming casual in following many other rules.”

The specifics of the myriad “rules” the manager threw at me are too long to go into, but the episode exemplifies far deeper problems of bad rules. This is before getting into a debate over what makes a bad rule. (A case in point are the overly complex, over-burdening or unduly specific rules and regulations that industry must face, which gives impetus to people skirting around them, if not corruption.)

Rules that miss the mark
Growing up, I used to wonder why there were so many fancy, palatial “farmhouses” around Delhi. Turns out these were mere exploitations of loopholes in the prevailing Land Ceiling Act, and I’m sure everyone involved knew that while they may have had a few plants growing there, they violated the spirit of the law. We often ignore silly or outdated rules as just an inconvenience to be ignored – for example, when a newly constructed six-lane highway has a straight stretch with a posted speed limit of just 40 km/hour. However, when faced with too many “bad rules” we risk becoming casual in following many other rules.

Rules are important for society, but it doesn’t always require an expert to recognize bad rules. A senior IAS officer was giving a guest lecture for my class, and shared how e-governance programs in his state had cut down the times for many government services from weeks or months into days. I asked him, instead of just speeding up processes via digitization, can we not improve them? After all, as Peter Drucker reminds us:

“There is nothing quite so useless as doing, with great efficiency, that which should not be done at all.”

I gave the example of the need for a character certificate for a passport. A neighbour asked my father to write one for their young boy. What is he going to write? No, he hasn’t broken any windows playing cricket? Even for adults, how many people will write anything that would disqualify the applicant (let alone the fact that this is highly subjective)? What is the point of the reference – is the writer taking a personal guarantee for the applicant? No. It is heartening to read that, at long last, the Government is streamlining verification procedures for passport applications, and steps are being taken to replace gazetted officer affidavits with self-attestation in some procedures. Still, one has to wonder, what the value is of a ₹20 stamp paper for signing up for non-subsidized gas cylinders – the cost of obtaining and processing this ₹20 stamp paper is many times higher.

“Turns out, all [IAS] officers are required to file affidavits that they are alive to be eligible for specific benefits!”

On hearing this story, the IAS officer said, “I have a better example.” Turns out, all officers are required to file affidavits that they are alive to be eligible for specific benefits (much like pensioners have to do)! In 2008-09, he was away on study leave, and only filed the 2010 affidavit on returning. The official taking the form said, “OK, that covers 2010, but you don’t have the affidavit for being alive in 2009 filed.”Our valiant officer tried to explain, to convince, and even spoke to the chief secretary, but everyone just gave up, saying those were the rules.

Rules should guide us, not constrain us

Instead of resigning ourselves to bad rules, can we not challenge and fix them? Let’s start with the principle that rules are there to help us, and not constrain us. If we see a rule leading to obviously poor outcomes, shouldn’t that raise alarm bells that improvements and updates are needed? This also suggests having processes (with their own rules and transparency!) on how to update if not revoke rules where appropriate. Unfortunately, our fear that judgment or discretion might possibly be abused makes it easier to simply disallow that, regardless of benefits.

Discretion can be good, but empowering people to exercise judgment can be a double edged sword. To do it right, we need them to be knowledgeable, transparent, and accountable. However, many times it is a no-brainer, such as the passenger itinerary required to enter an airport, with the rule meant to limit people entering the terminal. Airports wanted a piece of paper to validate passengers. I once opened my laptop, showing a pdf copy of my ticket confirmation, and said my printer didn’t work. The guard insisted on a printout. I asked, but would I not print out the exact same thing you can see on the screen? He just turned away, saying those were the rules. Airports finally do allow electronic confirmations to enter, but they were years behind the railways.

“If we see a rule leading to obviously poor outcomes, shouldn’t that raise alarm bells that improvements and updates are needed?”

Another suggestion for better rules is to not over-specify things along the hierarchy of decision-making. A commander in a war only gives CI (Commander’s Intent), for example “capture that hill”. The details of how, with what weapons and so on are left to other officers. Similarly, we should distinguish between laws and regulations. The former should be simple and more about principles and CI. In the US, the Clean Air Act wasn’t about any specific pollution emission number, but simply providing the authority for the Environmental Protection Agency to regulate pollutants harmful to health.

Unfortunately, many Indian laws (acts) lay down specifics too tightly. For example, the Electricity Act (2003) specifies compounding penalties in rupees for theft of power by category of consumer, instead of just giving guidance and principles to be followed for penalizing theft. Specifics that aren’t updated can often become plain silly. For example, the Indian Penal Code (over 150 years old) has Section 427, which reads, “Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” If this was 50 rupees back then, that’s worth a lot more today, maybe thousands of rupees. Today, 50 rupees would mean breaking a tea-cup. I’m sure that wasn’t the intent of the law.

By properly laying down principles (intent) through laws, and then separate regulations, we are more likely to be able to allow appropriate (and updated) regulations, or even judgment as required. Otherwise, we might diligently follow the rules, but find we have missed the original intent or even ended up with a bad but predictable outcome.

“[A] suggestion for better rules is to not over-specify things along the hierarchy of decision-making.”

Fixing bad rules is one thing, but how did they come to be? I offer some theories. For starters, people making rules are those in power. By commission or omission, they might miss impacts on “others”. Making rules top-down bypasses a lot of wisdom and ground realities unbeknownst to many “experts”. Additionally, rules are rarely evaluated, forget regularly or routinely. Evaluation isn’t just to overcome problems or even inflation, but because technology, needs, and societal norms change over time (we even have laws from the 1800s in force!) But evaluation requires reflection and the willingness to recognize limitations or even flaws of rules. That can be perceived as rocking the boat, or “not my department.” Perhaps we need such a department, one that examines the efficacy, efficiency, and equity of rules, and then tries to improve them.

I can offer just one basic rule for them: let’s strive for simplicity and common sense.

This article first appeared in The Huffington Post on February 16, 2016. Like other products of the Brookings Institution India Center, this is intended to contribute to discussion and stimulate debate on important issues. The views are those of the author.