9 September 2017
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Recent orders by the Supreme Court and Delhi High Court direct governments to strengthen in-built transparency, accountability and grievance redress mechanisms of rights based welfare legislations
The Court Orders
As India faced back-to-back drought years, a Public Interest Litigation on the shoddy state of implementation of drought relief measures and welfare programmes was filed in the Supreme Court in 2015.[1] Over the course of the hearings, the Supreme Court narrowed down on the lack of functioning of the inbuilt accountability mechanisms in the two rights based legislations, the National Food Security Act (NFSA),which provides for subsidized food grains, and the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), which provides for employment for wages. In the NFSA the Supreme Court pulled up governments on the lack of State Food Commissions to oversee the correct implementation of the Act, as well as setting up internal grievance redress systems and conducting social audits. It continues to hear the matter on the MGNREGA, including why social audits are not being conducted.
Earlier this year, a petition was filed by Delhi Rozi Roti Abhiyan, against the 2nd February 2017 notification by the Ministry of Consumer Affairs, Food and Public Distribution making aadhaar mandatory for receiving the entitled to food grains under the National Food Security Act. Again, over a series of hearings, the most recent High Court order on 1st September 2017, focuses on the lack of grievance redress rules for Delhi under the NFSA, the lack of an internal grievance redress mechanism and the lack of social audits.
Where is this coming from?
The fact that two litigations on disparate issues, crippling droughts, and widespread exclusion through an imposed aadhaar architecture have led to orders on following existing legal provisions, deserves to be understood better.
First, this is a comment on the strength of these legislations, both emerging from peoples’ campaigns, which have detailed procedures for a transparency and accountability framework. Secondly, it shows the complete lack of political and administrative will to actually follow and enforce any of these mechanisms. The fact that the Courts are monitoring not the effectiveness of these platforms, but whether at all they exist or not, is a sorry state of affairs. Thirdly, leaving aside the major issues that plague welfare programmes, such as under budgeting and exclusion of citizens, the iterative process for reform can only come through setting up a regular, dependable, enforceable system of redress.
This was well understood by the people’s campaigns, and therefore there has been immense effort to draw up a transparency and accountability framework that is applicable across welfare programmes and schemes.
Existing Precedents
To this extent, we have the precedent of the MGNREGA and social audits. While the concept owes its origins to Civil Society Organisations, it is the job of government to conduct them. Over the years, the Ministry of Rural Development, tasked with conducting social audits for the MGNREGA, has formed several consultative committees, to arrive at a clear articulation on what this would entail. The most recent such exercise was the outcome of a task force set up by the Ministry with the office of the Comptroller and Auditor General, and with representatives from State Governments and Civil Society Organisations.[2] Social audit standards, detailing out everything from the required institutional architecture to the minutiae of evidence collection, have been issued, which are applicable December 2016 onwards[3].
While there have been major gains in the codification of social audits, what the Supreme Court has rightfully picked on, is the lack of this process happening on the ground. Even though it is a statutory requirement in the MGNREGA and NFSA, which taken together, have an average annual budget of Rs. 1.5 lakh crore (Rs. 1500 billion), yet, we have no national figures of the discrepancies found and amount recovered through social audits.[4]
There is also considerable understanding on desirable grievance redress system. This is encapsulated in the proposed Citizens Right to Grievance Redress Bill, 2011 advocated for by the National Campaign for Peoples Right to Information. There are also a series of draft rules developed by Court appointed Food Commissioners at the Central and State level. Again, while there are statutory provision in the MGNREGA for imposing fines on erring officials, and in NFSA for well laid processes, we have no national, or state wide public figures on the complaints filed, the time taken for their redress, penalties imposed, citizen satisfaction with redress and so on.
Nonetheless, what these recent court orders reaffirm is that there is no magic transformation that is going to happen. Reform will come through the tedious, iterative, non-glamorous process of activating bureaucratic procedures, which compel action. With these recent Court orders to buttress the legal provisions, there is hope that some of these processes move forward.
[1]https://static.swarajabhiyan.org/content/news/prod/251/sa%20backgrounder%20sc%20drought%20case.pdf
[3] http://nrega.nic.in/netnrega/writereaddata/Circulars/1948Social_Audit_.pdf
[4] Apart from this vertical deepening of understanding, there has also been a horizontal expansion of the application of social audits, in the National Social Assistance Programme, Indira Awas Yojana, Pradhan Mantri Gram Sadak Yojana, and schemes under the Juvenile Justice Act.