Mainstream, VOL LII, No 8, February 15, 2014
Conferring Rights on Citizens: Laws and their Implementation
Monday 17 February 2014, by
I. Policy Contradictions
The UPA Government at the Centre, dominated by the Congress party, has followed during the last nine years a dual policy. On one side, a policy of marketisation, privatisation, liberali-sation and globalisation which has led to growing inqualities and dispartities between the ‘haves’ and ‘have nots’, rapid urbanisation marked by a large number of slums and shanties with abominable conditions of living, rising consumerism and its concomitant hedonistic values destroying the moral fabric of the society and leading to rampant corruption as witnessed in the Commonwealth Games scam, IPL scam, 2G spectrum scam and coal scam. To mitigate, as it were, these unsavoury consequences of the policy of liberalisation, the government has taken, under the influence of the National Advisory Committee headed by Congress President Smt Sonia Gandhi, a number of legislative and administrative measures to ‘confer’ rights on the citizens—“right to get information” from public authorities, right to free education to all disadvantaged children under the age of fourteen, right of employment and of food security. There are inherent contradictions between these two sets of policies, one concentrating on ‘growth’ and the other on distribution of the fruits of growth to the disadvantaged by ‘conferring’ rights on the people. Recently Smt Sonia Gandhi categorically stated, while speaking to a reporter, that these rights given by the UPA (Congress) would help “it to get a third term after 2014 general elections. These measures to give to people rights are our USP!” She spoke as though she was the bountiful ruler and the people supplicants!
The contradictions have led to disturbing consequences—fall in the rate of growth, continuous spiral of inflation, fall in employment opportunities, acute disparities with billionaires flouting their wealth and rise in poverty in depressed sectors of the economy. Crimes like rape and murder have defaced India that adversely impacted tourism and the flow of foreign investment, widening external trade deficit and continuous fall in the value of the rupee vis-a-vis the dollar creating further fears of exacerbating inflation.
II. Resolving Contradictions
Social scientists and social thinkers, no less than the government, need to make an indepth analysis of the economic situation full of contradictions and suggest measures to resolve them. This has to be done with reference to the economy and society as a whole as well as to specific segments.
In resolving these contradictions, differences of approach of the Finance Ministry and the Reserve Bank of India came out in the open. The Finance Minister tried to pressurise the then RBI Governor, Subbarao, to reduce the interest rates to stimulate investment while the RBI resolutely resisted arguing that this could not be done in the face of inflationary pressures. The Finance Minister and Prime Minister showed little concern for the disastrous effects of inflation on the lives of the common people and did not announce comprehensive measures to effectively cut inflation.
The government is accused of working under ‘corporate’ pressures from abroad. The efforts on the part of the government to open more and more fields of the economy to foreign investment have not produced much visible result. For example, in the retail distribution field, the government expected to attract big multinational firms like Walmart and Tesco to open branches in India but this has not happened because the investment in the US seems to have become a more attractive proposition. The fact appears to be that while the US economy got out of the recession which struck it in 2008, India, which escaped it in 2008, seems to be landing in it in 2013 and the government seems to have no clue.
The Prime Minister has recently stated that ‘globalisation is irreversible’. But this does not mean that the government should helplessly allow the economy to go into drift in the face of the continuous spiral of inflation and deficit in the external balance of payments. Political parties and people have started accusing the government of lack of governance and ‘policy paralysis’. Most people fear that a Congress-led government, with a decreased majority in Parliament and subject to pressures of the so-called allies and supporting parties and several State governments run by the non-UPA parties, will not be able to last a year of its tenure. Assuming it will not call for general elections earlier, it will not be able to take any decisive steps towards the introduction of more so-called “economic reforms”.
As regards the policy of giving rights to the people, it is necessary to state that it is not the government that confers on the people the various rights. It is the Constitution of the Indian Republic which is the fountain-head of the fundamental rights of the citizens—rights like freedom of speech, expression, and assembly and right to peaceful life and liberty. Moreover the Directive Principles make it obligatory for the state to ensure to the citizens the right to an ‘adequate means of livelihood’ and promote a social order in which justice, social, economic and political will inform all institutions of national life; and the operation of the economic system would not result in concentration of wealth and means of production in a few hands to the detriment of the common people.
It is clear from what is stated in Parts III and IV of the Constitution that it is not a question of conferring rights on citizens but of the duty of the state to fulfil its obligations as defined in the Constitution. It is not as though the ‘rulers’ are conferring rights on the ‘ruled’ as a matter of favour for which the ruled should feel indebted to the government and re-elect it for the third time to ‘rule’.
In this paper it is proposed to briefly analyse the measures taken to confer rights on the people as mentioned above and examine the extent to which the various legal and adminis-trative measures to ‘confer’ rights on the people have actually worked out in practice.
III. Right to Information Act
The Act, enacted in 2005, intends to provide for a practical regime of right to information to citizens to secure access to information under the control of public authorities in order to promote transparency and accountability of the working of the public authorities. It envisages the constitution of Central and State Information Commissions which citizens can approach for securing information.
That such on Act became necessary is a measure of distrust between the public adminis-tration and citizens for whom it exists. It was natural that such a distrust should exist during British rule. Suppressing the freedom movement was necessary to ensure the continuity of British rule. Matters relating to such measures had to be kept confidential. But after the attainment of independence such confidentiality had lost its raison d’ètre. The Indian Republic, brought into existence under the Constitution, is based on the concept of supremacy of the people and accountability of the government and public administration to its citizens. This implies that the administration should be an open book and confidentiality could exist only to the extent it was absolutely necessary in a few matters such as those relating to the defence and security of the country. Even in such matters, confidentiality has to be limited and should not be used to cover up wrong actions and misdeeds of the public authorities. After all, we promised unto ourselves a Welfare State and not a Police State as it existed under British rule.
But these assumptions proved wrong. Even under British rule large initiatives were taken to set up a railway network and nationwide postal service, a well-organised District Administration all over the country, mapping up all land through surveys, establishment of universities and educational institutions, public hospitals and health services, large irrigation dams and canals like the Sakkar barrage and Ganga-Yamuna canal. All this could not have been accomplished without the participation of the people. On the other hand, the promise of the end of the Police State was not kept after independence by elected governments and the confidentiality clause was used to hide the misdeeds of politicians in power and some civil servants colluding with them. People increasingly felt that matters of pubic interest were kept hidden. The feeling against the government was fuelled by social workers like Anna Hazare who went on fast and activists like Aruna Roy who mobilised public opinion in the country against misuses of power in administration while executing the public works programme. They insisted that people had the right to know the expenses incurred and cases of their misuse and demanded information regarding the actions of the public authorities. The government had to respond to these agitations. The Maharashtra State was the first to pass an Act giving the right to information to the people followed by a Central legislation on the subject. The Central Right to Information Act was passed on October 12, 2005.
Some argue that the Act has became an effective tool to make the public authorities and government accountable to the people and fight corruption. The following are a few examples: (1) The assets of Ministers, bureaucrats and judges have been made public. (2) The amounts spent by Ministers and officers on foreign trips have been made public. (3) The selection process of the UPSC and State PSC and IITs has come under public scrutiny in order to ensure fair play. (4) Some scams have been exposed. However, it should be pointed out that the audit reports of the CAG under Shri Vinod Rai exposed huge scams like those related to 2G spectrum, coal blocks and Commonwealth Games. The credit goes to the CAG rather than the effect of actions under the RTI Act. Smt Aruna Roy has claimed that the Act has changed the power equation between Indian citizens and the government. It has became a tool for the people to exercise their authority. It has forced local authorities, State governments and the Central Government to disclose information to them earlier denied. It has ended the culture of exclusion and secrecy and replaced it by openness and inclusion. She has, however, admitted that the lack of political will and bureaucratic resistance tend to threaten the needed action under the Act.
The government has often argued that the Act has led to ‘policy paralysis’. The government has been reluctant to disclose notings on files. Judges have been reluctant to disclose their assets. Political parties have been reluctant to be brought under the ambit of the Act. Eternal vigilance of the citizens is needed to curb these attempts to escape the provisions of the Act.
It is not as though the working of the Act has been smooth. It leaves much to be resolved. There are far too many glitches in the implemen-tation of the Act. In States, several posts of Information Commissioners are vacant Conse-quently thousands of cases are pending. Very little budgetary provision was made during the first five years after the Act was passed. In cases where the departments concerned should have suo moto offered information to the citizens, misleading, confusing, incomplete, delayed and wrong information is given. Moreover there is lack of proper mechanisms for the implemen-tation of the penal orders passed by the Information Commissioners. This has taken a heavy toll on the effectiveness of the Act. Punitive action against officers who fail to carry out orders of the Information Commissioner and appeal authorities is stymied. The State Infor-mation Commissioners do not use their powers to compel the government to follow their Acts. They simply pass the blame on the government. In some cases activists who brought up cases under the Information Act were killed. In Maharashtra State alone nine RTI activists were killed and 44 attacked in the last eight years. Gujarat comes second with 34 attacks including three murders. Delhi, Bihar, Uttar Pradesh, Haryana, Andhra Pradesh and Karnataka follow with ten reported attacks. The culprits have not been brought to book.
IV. The Right of Children to Free and Compulsory Education (RTE) Act
This Act was enacted in 2009 to ensure free and compulsory education to all children between the ages of six and 14. It was not as though conferring such a right on citizens by the Union Government was necessary. Such a right was already there under the Constitution. What was necessary was for the government to perform its duty as laid down under Article 41 of the Constitution to make provision for securing the right to education. Article 45 of the Constitution specifically states that the state shall endeavour to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children until they complete the age of 14 years. It is the state which failed in performing its duty. The Constitution recognises the limits of the economic capacity of the state in performance of its duty. But it is the government headed mainly by the Congress which failed to accord high priority to education in its plans and programmes. The Kothari Commission prescribed that six per cent of the national income should be devoted to education. In actual reality, it is hardly one per cent. But instead of making adequate provision for education, the Union Government has a enacted a law ‘to confer right of education’
The State and local governments like Munici-palities and Zilla Parishads have not paid adequate attention to the improvement of the quality of their schools and ensuring good quality of teaching staff and necessary infrastructure. As a result a number of private schools have proliferated and families even from the poor strata of society, whose children are entitled to get free education in these schools, prefer to pay huge fees to send their children to private schools. Many of the newly proliferated private schools are English-medium schools. Children even from poor families with illiterate parents are sent to these schools with the parents bearing the financial burden. The fever of English-medium schools has caught on from even the primary stage. Imposing the English medium on children whose parents speak to them in the mother tongue is a bizarre contradiction and even a monstrosity vitiating the very purpose and process of education.
The new Act makes it compulsory for the private schools—even those receiving no government grant—to provide 25 per cent free seats to disadvantageously placed families. The government claimed that all these years, the poor were exploited by private schools by charging them higher fees. Now the government has come as a Good Samaritan for the poor giving them free seats in private schools. But at whose cost? The private schools which get no government grants would have to bear the burden. The government promises to reimburse the private schools to a limited extent. The promise still remains on paper. The Act was introduced without fully studying the impli-cations and process of implementation of the various provisions of the Act. The State govern-ments have yet to make any actual financial provisions, putting the private schools in a state of financial jeopardy. The government brazenly suggested that the private schools should approach private donors without considering for a moment its implications.
Apart from the uncertainty in the release of grants there is the question regarding eligibility. Only the primary school entrants under 25 per cent free grants would be entitled for partial reimbursement. But what about the situation where the nursery schools are the entry point? The Act does not cover these schools, leaving the entire burden of free seats in the nursery schools on private institutions. This is the surest way of pushing them into financial jeopardy. It has been suggested that that the Act should cover the pre-primary stage schooling which has become universal. But there is no response from the government so far and no action too.
The Union Government, which has enacted the law, has left the implementation entirely to the States. But the State administration from State Secretariat level to the level of local government is in a state of confusion leaving the private schools to the mercy of their arbitrary dictates issued from time to time. Piecemeal action, rather than a comprehensive integrated action, is what is taking place. This is inevitable when Acts are passed in a hurry with the sole concern for political gain.
A survey showed that 25 per cent of the quota has not been filled as stipulated under the RTE even in the State schools. The picture is particularly dismal in the urban centres. For example, according to a recent survey in the Brihan Mumbai Corporation area, not a single admission was given under the RTE. Pune fulfilled only 50 per cent.
At the altar of equality, the selection procedures based on ‘merit’, followed by several schools over the years, have become illegal. The admissions made by schools at any stage on the selective basis are banned. One of the well-known schools from Pune, ‘Jnan Prabodhini’, selcted ‘merited’ students based on tests for their admission to the fifth standard. The school claimed that the very objective for which it was established was to select merited or gifted students and give them education to make them future leaders of the society in various fields of life. However, the local education officers cancelled their admissions as repugnant to the new Act. The school appealed to the High
Court which turned it down declaring that the admissions made by them were null and void. The school intends to appeal to the Supreme Court which in principle has already upheld the constitutional validity of the Act.
The Act, palpably meant to be ‘children’- or ‘student’-friendly, has banned any terminal examination till the eighth standard. Students would automatically be promoted. It is widely reported that this has led to students not taking their studies seriously. Consequently they have problems in facing examinations from the ninth standard onward, since they are ill-prepared. Such complaints have come not only from the institutions and teachers but from the parents themselves. But the ‘authorities’ have rushed through the Act assuming they know the best. When practical problems such as those mentioned above arise in course of the implementation of the Act, the Centre chooses not to hear and puts the entire responsibility on the State Government, local government and the school authorities.
Those who engineered the Act went on the assumption that the school authorities, teachers and even parents are inimical to children and throw unnecessary stress on them. All disciplinary procedures are a taboo under the Act. Education of children of course has to be a joyful and creative experience for children. But studious habits and discipline should be inculcated from the childhood. If these are given a go-by, the students will suffer in later life and the society will degenerate.
The Act has laid down a high standard of infrastructure facilities for schools like well-constructed buildings, class rooms, office rooms, toilets, ramps for disabled students, furniture, drinking water facility, playground with boundary wall etc. as well as proper student-teacher ratio (less than 30 at the primary level and 35 for secondary). The authorities accuse the private schools of amassing money starving their schools of the necessary infrastructure facilities. But they forget that the worst culprits in this respect are the government, municipal and local board schools. In fact, the authorities, instead of imposing the Act, should have first made adequate provisions for the schools. That would have been a sound beginning of educational reform. But the government wants to get only ‘credit’ for its achievements and not carry out real reform. In a recent survey in Pune it was found that 95 per cent of the schools in Pune district do not comply with the ten infra-structure parameters under the RTE Act.
There is no adequate administrative machinery in the Education Department to deal with the various provisions of the Act and monitor their implementation.
V. Right to Employment
The State of Maharashtra was a pioneer in introducing the scheme of guarantee of employment on public works in rural areas. The scheme was at the initiative of late V.S. Page, a prominent politician, who became the Speaker of the Maharashtra State Assembly. The scheme provided employment in rural areas and was widely appreciated. Other States were free to follow the example of Maharashtra. But the UPA in government overlooked this by introducing the Mahatma Gandhi Rural Employ-ment Guarantee Act (MGNREGA) 2005 and promising 100 days work each year to every rural household. It was stipulated that wage payments should be made within 15 days of work. It was believed that the scheme was responsible, to a great extent, in bringing the Congress back to power with a decisive mandate in the 2009 general elections and hence was looked upon as a key welfare legislation.
One flaw noticed in the course of the implementation of the Act was the delay in payment of wages. Wages, amounting to 25 per cent of wage payment across the country, have been delayed over 15 days. Of this Rs 125 crores, the day of payment was delayed by more than 90 days. The Union Minister for Rural Development, Jayram Ramesh, has proposed an amendment to the Act according to which if the payment is not made within the stipulated period a compensation at the rate of one-fourth to half of the total wages (depending on the number of days) will be given to the beneficiary. The State will have to take responsi-bility of their functionaries and in case of delay at any step, the compensation amount will be recovered from the responsible functionary agency.
This is another example of the Union Government introducing a scheme, that too through legislation, which legitimately belongs to the Sate governments and for whose implementation the Union Government is entirely dependant on the State machinery of administration. The States, many of which are run by the ‘Opposition’ parties, rightly object to such an initiative by the Central Government as an intrusion into the sphere of the State and is thus inconsistent with the constitutional principle of federalism.
It is also doubtful weather a law was needed in a matter which is no more than just one scheme for administrative action as a part of the programme of rural development.
One criticism of the implementation of the Act is the poor quality of the assets created. This was bound to happen when employment guarantee schemes were not integrated with rural development programmes as a whole.. The Union Government now wants linking of the MGNREGA with the Pradhan Mantri Gram Sadak Yojana (PMSGY) as well as with the programme of construction of rural godowns and even provision of public toilets.
The weakness in the implementation of the scheme is its poor administrative infrastructure. The existing administrative infrastructure has been found to be inadequate and unable to ensure good quality progress and timely payment of wages. The scheme provides for only six per cent of the scheme for administrative expenses and that has been found inadequate.
Maintenance of assets, created under the scheme, also leaves much to be discard. This is what happens when a separate employment scheme is tagged on to the regular programmes of rural development.
It could be argued that expansion of a compre-hensive rural development programme would generate more income and employment. A separate scheme of employment on rural works was hardly appropriate.
Academicians V.M. Dandekar and Neel-kant Rathi in the path-breaking book on Poverty in India had recommended such a scheme for the poor. They had recommended a works programme to generate employment, since unemployment and underemployment widely prevailed in the rural areas. But even at that time a view was held that the focus should be on a comprehensive programmes of agricultural and rural development which would generate income and employment on a sustainable basis. A separate ad hoc works programme hardly goes with a long-term approach and process of development.
The MGNREGA, it is a argued, has created problems for the agricultural economy by artificially jacking up wage rates and making it difficult to get labour since it is diverted to easy work under the MGNREGA scheme. On the other hand, some activists have pressed for increase in the wage rates under the NREGA scheme applying the provisions of the Minimum Wages Act.
There have been complaints of large-scale leakages and corruption in the implementation of the NREGA programme. These have not been adequately dealt with.
VI. Right to Food Security
The idea of subsidised distribution of food, especially for the disadvanged, that is, those below the poverty line, has been there since the days of scarcity of food during World War II, when a system of rationing of foodgrains at less than market level prices was introduced. The rationing system was, from the beginning, marked by corruption in the form of bogus ration cards and diversion of food meant for public distribution to the market which allowed the shopkeepers to resort to profiteering at the cost of the common man. In the early days after independence when food was scarce, the public distribution system, despite its shortcomings and defects, continued. However, after India started producing sufficient and even surplus foodgrains, the raison d’ètre for distribution through rationing ceased to exist. Yet in the name of welfare, public distribution continued for several years. Some States like Tamilnadu did well in running the public distribution system run on an enduring basis. In more recent times. Dr Raman Singh, the Chief Minister of Chhattisgarh, earned the name of ‘chavalwala baba’ for a successful scheme of rice distribution specially for the tribal areas.
However, superseding the initiative of several State governments, the Union Government, in order to take credit, decided to give the Right to Food Security to the people through legislation. Though this was an election promise of the ruling Congress party given in 2004 and again in 2009 when it came to power, it took concrete steps only in 2013 to introduce food security as a right to the people. It tried to rush through an ordinance just before Parliament was scheduled to meet and met with wide criticism.
The Food Security Bill was then brought before Parliament on a priority basis. Several Chief Ministers, specially Narendra Modi, the Gujarat Chief Minister, wrote to the Prime Minister pointing to several deficiencies in the Bill and asking him to call a meeting of the Chief Ministers before the matter was finalised by Parliament. This was an eminently reasonable suggestion since public distribution was always handled by the State governments. But the suggestion did not prevail and the Bill was placed before Parliament. The BJP, the Opposition party, having criticised the legislation as vote security (not a food security) Bill, did not oppose the Bill which was unanimously passed.
The Bill sought to provide 5 kg of foodgrains, per person per month covering 75 per cent of the rural population and 50 per cent of the urban population, that is, 67 per cent of India’s total population, wheat at Rs 2 per kg and coarse gram at Rs 1 per kg and rice at Rs 3 per kg.
The Prime Minister described the measure as an example of the UPA Government’s people-oriented approach of governance. UPA Chairperson Sonia Gandhi made her rare participation in the debate making an impassioned plea to the Opposition for support. She dismissed the problems of finding resources for the scheme stating that it was the business of the government to raise the needed resources. The Opposition fell in line without pushing amendments. Both the government and Opposition had to face the 2014 Lok Sabha elections in the first half of 2014.
However, in Parliament the Members of Opposition as well as economists like Ashok Gulati raised several points regarding inadequacies of the Bill (1) The scope of the Bill in terms of coverage of population provided for, was less than 90 per cent coverage in Chhattisgarh with a full meal at Rs 5. Some members pressed for universal coverage. (2) The amount of 5 kg per person per month was inadequate. The average consumption of cereals in the country is 10.7 kg. That means consumers will have to go to the market for more than half their needs. (3) The amount of 5 kg cereals per person cannot solve health and nutritional problems. Clean drinking water, better sanitation and nutritious items of food like milk, fruits, vegetables, oil, eggs, fish and meat are also essential. All these food items will have to bought from the open market. (4) The cost of ensuring food security would place enormous fiscal burden on an economy already suffering from a huge fiscal deficit. The food subsidy, being already high, will increase by Rs 33,000 crores of additional outlay. There will also be additional financial burden on the States for implementing the scheme. (5) The rising fiscal deficit will add to the inflationary spiral which has already gone out of control making life miserable for the common man. (6) Administrative problems involved in implementation of the scheme have not been properly spelt out. The government’s efforts to procure and store foodgrains required under the scheme would need to be augmented. The implementation of the scheme would depend on the distribution system which mainly consists of private retail trade. Except in a few States, an effective public distribution system does not exist. Entrusting food security to such a system would lead to leakages and corruption.
According to the Global Hunger Index of the world, hungry people are estimated at 842 million of which 210 million are in India. No doubt food security for India’s hungry is essential. But it is doubtful whether the Food Security Act will adequately meet the problem.
The various rights ‘conferred’ by the Congress Government were clearly aimed at securing political gains. The Prime Minister and the President of the Congress party, buoyed by its record of conferring rights on people, recently claimed that the Congress would come back to power for the third time, winning the 2014 Lok Sabha elections. This sense of confidence received a setback when the Congress made a poor show in the recent Assembly elections. It lost Rajasthan where it was rejected after a landslide victory for the BJP and could not snatch back Madhya Pradesh and Chhattisgarh. In the national Capital it could not even cross the single digit number. Obviously the common people do not feel benefited by these ‘rights’. On the other hand corruption and inflation seem to have taken a heavy toll of their daily lives.
Merely putting rights on the statute book does not satisfy the people. The rights should actually be enjoyed in daily lives. That requires effective implementation of laws regarding the so-called ‘rights’ conferred by the government on the people.
Dr P.R. Dubhashi, IAS (Retd.), Padmabhushan awardee, formerly Secretary to the Government of India and Vice-Chancellor, Goa University, is currently the Chairman, Bharatiya Vidya Bhavan, Pune Kendra. He can be contacted at e-mail: email@example.com