Policy and Law: What Each Is

In one line

A law tells you what you must do and a court will enforce it; a policy tells you what the government intends to do and ordinarily no court will.

In the wording a student can write in an exam: a law is a rule enacted by a competent legislature or made under its authority, binding on those to whom it applies and enforceable by a court. A policy is a statement by the executive of the objectives it intends to pursue and the means by which it intends to pursue them. A policy is not ordinarily enforceable, but it is not without legal effect: it may structure a statutory discretion, generate a legitimate expectation, be annexed to a binding instrument, or be adopted by a court as a standard.

Why the distinction is the module

MU prints the module heading as "Policy and Law", and almost every question in it names a policy rather than a statute: the forest policy, the water policy, the role of government, the appropriate policy. A candidate who cannot say what a policy is will describe its contents and never answer the question that matters, which is what difference it makes.

There is a second reason. Indian environmental protection is unusually policy-heavy. The subjects with the strongest statutes, water and air pollution, are the ones where enforcement is weakest; the subjects with the strongest results, forest cover and renewable capacity, have been driven by policy and by court order at least as much as by statute. A student who assumes that law does the work and policy is decoration has the Indian position backwards.

The four differences

Source. A law comes from a legislature, or from a delegate exercising a power the legislature conferred. A policy comes from the executive, in a Cabinet decision, a Ministry resolution or a document issued by a department.

Form. A law is enacted through a prescribed procedure and published in a prescribed way. A policy has no prescribed form: the National Forest Policy 1988 was issued as a resolution of the Ministry, and the National Environment Policy 2006 was approved by the Cabinet.

Effect. A law binds. A policy states an intention, and an intention can be changed by the body that formed it, without anybody's consent.

Enforcement. A breach of law has a consequence, whether a penalty, an injunction or the setting aside of an act. A breach of policy ordinarily has none, and the remedy for a policy not implemented is political.

Where they meet

Four places, and this is the analytical content of the chapter.

A policy can be the reason for a law. The National Forest Policy 1988 preceded no statute of its own, but the Forest (Conservation) Act 1980 and the Supreme Court's orders under it have been applied in the light of it. The Air Act 1981 recites the Stockholm decisions in its preamble. Policy is frequently the stated reason a statute exists.