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 districtswarming into the Lok Adalat (held in the local stadium) looking for redressal to their NREGA grievances. By about3:00 a crowd of a thousand or so marched through the main road chanting slogans like "The Lok Adalat has cheatedus!", then there was a brief sit-down strike in the same road, a later meeting with the district collector in front of hisoffice in the evening, and the next day with demands still not clearly met a return of the villagers back home. Ithought the events of the day not only showed the widespread poverty and large rift between the government and thepeople in this area of India, but also both the inadequacies and potential of the law to help smooth this rift by helpingcreate 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 tocreate this Lok Adalat and then protesting its actual functioning. An op-ed of their take on the day’s events and theirongoing demands can be found in this op-ed in yesterday’s Prabhat Khabar (having trouble with link - request filefrom me). The worst problems of the day resulted because people in the district had earlier been misinformed that ifthey 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 receiveunemployment payments). Given this previous and widespread miscommunication (there were 21,000 complaintsfiled with the Lok Adalat, most concerning this issue) the authorities had agreed to treat such complaints as a requestfor work that must be fulfilled within 15 days, as well as providing a receipt for this work request. However, duringthe Lok Adalat no receipt ended up being given. Instead, varying stories were provided: that a work order (but noreceipt) would be posted in their block or village, that they would be mailed a work order, or even that they wouldhave to apply for work again in their block. Further confused and feeling they had wasted a day and much expense toattend the Lok Adalat with nothing to show the protests began. The primary demand now is that these receipts be sent The Lok Adalat itself was ill-equipped to deal with the sheer number of people who came (despite smaller LokAdalats being held in the days proceeding to try to reduce the numbers). There were 20 booths/benches which eachhad 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 withtheir complaints. Besides the primary complaint described above common complaints included no work beingprovided even when applied for, under-payment of wages, faulty muster rolls, and false entries on job cards (usuallymore days being marked on a job card than the worker actually worked, suggesting that an official was pocketing the Given the crush of people these complaints could not be adequately looked into or resolved. Further, even though aLok Adalat is ideally suppose to be an arbitration where both sides of a dispute agree to a solution there was rarely ablock representative present at the booth/bench. Therefore, instead either paperwork got pushed or at best an orderwas made to have the BDO investigate the complaint. However, since the BDO is in charge of implementing NREGAthe BDO might be complicit in any corruption or at the very least not thrilled to have to admit that one of his or herjunior officers is corrupt. Nor was there sufficient oversight. For example, three workers I talked with bounced aroundfrom bench to bench because they were trying to file their complaint that day itself (as they did not make the earlierdeadline). It had been advertised that complaints could be made that day, but none of the Lok Adalat arbitrators theytalked 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-implementationand corruption associated with the Act in this district. (For a larger overview of the current state of implementation ofNREGA across the country see this recent issue of Frontline or the Right to Food website’s NREGA section.) Thereclearly needs to be some remedy to these NREGA problems in Latehar, and elsewhere in India. The Lok Adalat mayyet 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. Theattendance 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. Herecivil society in coordination with the government and workers audit the program at a local level. By providingtransparency 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 governmentofficials, and potentially lok adalats will eventually be enough for decent implementation of NREGA – it will justtake 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 theNREGA? My understanding is that if you have a complaint – let’s say days are being incorrectly marked on your jobcard – that you can approach a block level official or if that doesn’t work a district level official (here the problembeing these officials might be corrupt themselves). Alternatively, you could theoretically go directly to a magistrate toenforce the law (although this almost never happens, if at all). The problem is that to pursue any of these options youneed some savy, and at least with the magistrate it would help a great deal to have a lawyer. Yet, those who useNREGA obviously don’t have the money for this and legal aid services are either unknown to them or would likely Instead, a system that adequately monetarily rewards complainants if they win their complaints might begin to bringthe system into check. Although contingency fees are technically illegal in India, my understanding is that they arestill widely used in practice. If this process was formalized and awards were adequate (i.e. sufficiently beyond justwhat was owed the complainant) then lawyers would have the incentive to find and bring cases for lack ofimplementation of NREGA. Much civil rights litigation in the United States is financed because if the litigation issuccessful healthy lawyer fees are paid. You would just have to figure out at what level to incentivize which elementsof non-implementation of the act. There are obvious potential downsides to this proposal – I for one never trustanswers 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 beingimplemented in your panchayat you can complain to a block level official, and theoretically if that doesn’t work, youcan complain to a district level official. The difficulty is the people you are complaining to are the same ones incharge of implementing the program. It needs to be easier to trigger an independent investigation of corruption or justwidespread non-implementation, and then have an apparatus to actually perform an investigation and prosecution. InBrazil prosecutors of the Ministerio Publico are given almost judge-like protections from political interference and awide 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 toensure they have a wide mandate to enforce laws. I’ve argued recently that the US attorney general should not beappointed by the President, but elected to make him more independent. I know less about how the Attorney Generaland Advocate General offices work in India, or other prosecutors within the system. However, I get the sense thatthey are generally fairly beholden to political leaders (even if they are not suppose to be legally) and certainly don’thave enough independence or political power to take on a wider mandate. Further, even if they did they do not haveoffices resourced with adequate full-time lawyers to be able to carry on this function of making sure the law is I’d be interested to hear what others thoughts were about how to enforce these implementation problems. Althoughthis is a long post (apologies) I just wanted to provide this link (scroll down about half way) to a map that shows theworld’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 getthrough NREGA – is 90 Rs, or about $2. It seems to me the most pressing legal problems in India that have thebiggest potential of making a positive difference in people’s lives are administrative law problems like this one

Source: http://knowledge.nrega.net/1014/2/Tuesday.pdf