Tuesday, February 10, 2009

NREGA, a Lok Adalat, and Administrative Law

This Saturday I attended the first ever Lok Adalat focusing on the National Rural Employment Guarantee Act (NREGA). It was held in Latehar, Jharkhand. The day began with thousands of poor people from across the district swarming into the Lok Adalat (held in the local stadium) looking for redressal to their NREGA grievances. By about 3:00 a crowd of a thousand or so marched through the main road chanting slogans like "The Lok Adalat has cheated us!", then there was a brief sit-down strike in the same road, a later meeting with the district collector in front of his office in the evening, and the next day with demands still not clearly met a return of the villagers back home. I thought the events of the day not only showed the widespread poverty and large rift between the government and the people in this area of India, but also both the inadequacies and potential of the law to help smooth this rift by helping create a functioning and responsive NREGA program. The administrative law questions NREGA confronts in its implementation are also of wider relevance to many other government programs.

Jean Dreze and Reetika Khera were amongst the leaders in both pushing the Jharkhand Legal Services Authority to create this Lok Adalat and then protesting its actual functioning. An op-ed of their take on the day's events and their ongoing demands can be found in this op-ed in yesterday's Prabhat Khabar (having trouble with link - request file from me). The worst problems of the day resulted because people in the district had earlier been misinformed that if they simply had a job card they could collect unemployment benefits under NREGA without applying for work. (Actually, they do have to apply for work, and then if it is not provided within 15 days then they will receive unemployment payments). Given this previous and widespread miscommunication (there were 21,000 complaints filed with the Lok Adalat, most concerning this issue) the authorities had agreed to treat such complaints as a request for work that must be fulfilled within 15 days, as well as providing a receipt for this work request. However, during the Lok Adalat no receipt ended up being given. Instead, varying stories were provided: that a work order (but no receipt) would be posted in their block or village, that they would be mailed a work order, or even that they would have to apply for work again in their block. Further confused and feeling they had wasted a day and much expense to attend the Lok Adalat with nothing to show the protests began. The primary demand now is that these receipts be sent in three days.
The Lok Adalat itself was ill-equipped to deal with the sheer number of people who came (despite smaller Lok Adalats being held in the days proceeding to try to reduce the numbers). There were 20 booths/benches which each had at least a lawyer, social worker, and government official not affiliated with NREGA (sometimes a magistrate). However, once proceedings began each bench was pressed by lines as dozens, or even hundreds, pushed forward with their complaints. Besides the primary complaint described above common complaints included no work being provided even when applied for, under-payment of wages, faulty muster rolls, and false entries on job cards (usually more days being marked on a job card than the worker actually worked, suggesting that an official was pocketing the difference).
Given the crush of people these complaints could not be adequately looked into or resolved. Further, even though a Lok Adalat is ideally suppose to be an arbitration where both sides of a dispute agree to a solution there was rarely a block representative present at the booth/bench. Therefore, instead either paperwork got pushed or at best an order was made to have the BDO investigate the complaint. However, since the BDO is in charge of implementing NREGA the BDO might be complicit in any corruption or at the very least not thrilled to have to admit that one of his or her junior officers is corrupt. Nor was there sufficient oversight. For example, three workers I talked with bounced around from bench to bench because they were trying to file their complaint that day itself (as they did not make the earlier deadline). It had been advertised that complaints could be made that day, but none of the Lok Adalat arbitrators they talked with knew how to do this, and there was no designated person for them to ask questions they did not know the answer to. It seemed only minimal training about NREGA had been given to these arbitrators.
So, what to make of all this? If nothing else the Lok Adalat made clear that there was widespread non-implementation and corruption associated with the Act in this district. (For a larger overview of the current state of implementation of NREGA across the country see this recent issue of Frontline or the Right to Food website's NREGA section.) There clearly needs to be some remedy to these NREGA problems in Latehar, and elsewhere in India. The Lok Adalat may yet prove to be a valuable part of a solution. After all, it raised awareness around NREGA considerably. The investigations it triggered about alleged corruption may yet pay off in helping reform the system locally. The attendance of many locally important dignitaries and officials reinforces NREGAs importance to lower officials. Future Lok Adalats could hopefully avoid the miscommunications that plagued this one making them a far more attractive grievance redressal mechanism.
Another redressal mechanism that the Act provides for and has been used across the country is the social audit. Here civil society in coordination with the government and workers audit the program at a local level. By providing transparency public shaming can act as a strong force in remedying implementation problems or corruption and ensuring workers demand their rights under the act. If needed FIRs can be filed against corrupt officials.
There is an argument to be made that social audits, the active engagement of civil society and concerned government officials, and potentially lok adalats will eventually be enough for decent implementation of NREGA – it will just take time and hard work. However, I think it's worth brainstorming other potential solutions. Two come to my head, again simply in the spirit of brain storming (not advocating):
1. Suing government. How do you structure incentives for people (and their lawyers) to enforce provisions under the NREGA? My understanding is that if you have a complaint – let's say days are being incorrectly marked on your job card – that you can approach a block level official or if that doesn't work a district level official (here the problem being these officials might be corrupt themselves). Alternatively, you could theoretically go directly to a magistrate to enforce the law (although this almost never happens, if at all). The problem is that to pursue any of these options you need some savy, and at least with the magistrate it would help a great deal to have a lawyer. Yet, those who use NREGA obviously don't have the money for this and legal aid services are either unknown to them or would likely provide sub-par services.
Instead, a system that adequately monetarily rewards complainants if they win their complaints might begin to bring the system into check. Although contingency fees are technically illegal in India, my understanding is that they are still widely used in practice. If this process was formalized and awards were adequate (i.e. sufficiently beyond just what was owed the complainant) then lawyers would have the incentive to find and bring cases for lack of implementation of NREGA. Much civil rights litigation in the United States is financed because if the litigation is successful healthy lawyer fees are paid. You would just have to figure out at what level to incentivize which elements of non-implementation of the act. There are obvious potential downsides to this proposal – I for one never trust answers that involve throwing lots of lawyers at a problem, but one thing you can't help but notice about the current implementation of NREGA is how few lawyers are involved right now.
2. Pitting government against government. Currently, if you have a complaint against how the program is being implemented in your panchayat you can complain to a block level official, and theoretically if that doesn't work, you can complain to a district level official. The difficulty is the people you are complaining to are the same ones in charge of implementing the program. It needs to be easier to trigger an independent investigation of corruption or just widespread non-implementation, and then have an apparatus to actually perform an investigation and prosecution. In Brazil prosecutors of the Ministerio Publico are given almost judge-like protections from political interference and a wide mandate – including just enforcing social and environmental legislation. In the United States at the state level, attorney generals are elected making them directly accountable to voters while giving them enough political power to ensure they have a wide mandate to enforce laws. I've argued recently that the US attorney general should not be appointed by the President, but elected to make him more independent. I know less about how the Attorney General and Advocate General offices work in India, or other prosecutors within the system. However, I get the sense that they are generally fairly beholden to political leaders (even if they are not suppose to be legally) and certainly don't have enough independence or political power to take on a wider mandate. Further, even if they did they do not have offices resourced with adequate full-time lawyers to be able to carry on this function of making sure the law is enforced.
I'd be interested to hear what others thoughts were about how to enforce these implementation problems. Although this is a long post (apologies) I just wanted to provide this link (scroll down about half way) to a map that shows the world's countries based on who makes less than $2 a day. As you can see India is the center of that world. Incidentally, the minimum wage – the wage that all those thousands of people in Latehar were struggling to get through NREGA – is 90 Rs, or about $2. It seems to me the most pressing legal problems in India that have the biggest potential of making a positive difference in people's lives are administrative law problems like this one concerning NREGA.
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