Do pro-people legislations actually work for the poor?

This piece came in Infochange India in February 2010

http://infochangeindia.org/201002158160/Governance/Features/Do-pro-people-legislations-actually-work-for-the-poor.html

Do pro-people legislations actually work for the poor?


By Pradeep Baisakh

After three years of fighting for his right to unemployment allowance under NREGA, and to find out under the RTIA why the allowance has been withheld and the erring authorities not been penalised, Kailash Nayak has got nothing. And to top it all, he has gone missing and the police claim they cannot trace him

On August 6, 2008 Kailash Nayak, a daily labourer from Talaganda village in Ganjam district of Orissa, set out for home around 8.30 pm after visiting the Indira Colony market 3 km away. But he did not arrive at his home and has been missing since then.

A First Information Report (FIR) was lodged in the nearest police station and the matter is before the superintendent of police, head of the district police force. But there is no trace of Kailash. Has he been kidnapped or murdered or has he secretly joined the Maoist cadres? And why should any of this happen to a poor daily labourer?

The answer may lie in two important legislations that were passed recently and whose intention is to empower Kailash not making him disappear mysteriously.

NREGA and RTI: Two pro-people legislations

The National Rural Employment Guarantee Act (NREGA) and the Right to Information Act (RTIA) are considered almost revolutionary legislations intended to change the lives of common people.

NREGA guarantees 100 days of employment every year to every rural household in the country. The remarkable feature of the law is the provision of disbursement of unemployment allowance to the willing work seeker if s/he is not provided employment within 15 days of application for work. (See the law: http://rural.nic.in/rajaswa.pdf). The Act also has a grievance redressal mechanism by which the aggrieved work seeker can approach different officials in the hierarchy who are mandated to dispose of his/her grievance in a time-bound manner.

Similarly, the RTIA provides for supply of information to citizens of the country by public authorities in a time-bound manner and an independent authority is placed to hear the grievances. (See the law: http://rti.gov.in/rti-act.pdf ).

These are the first laws in the country that explicitly provide for penalising officials who violate its mandate. This is done to ensure that the government system does not take these laws for granted but makes them deliver. The RTIA got the President’s assent on June 15, 2005 and NREGA on September 5, 2005. Both are revolutionary in that they usher in an era of transparent and accountable governance, provide financial security to poor rural people of the country, and help, by implication, to address problems of starvation deaths, malnutrition, distressed migration etc.

Mixed results are reported on the functioning of these two path-breaking laws in the last four years of their operation, but the case of the missing Kailash makes you wonder whether they actually work for the poorer class of society.

The travails of Kailash

Kailash Nayak addressing the press in Bhubaneswar in June 2007

In July 2006, Kailash Nayak, a dalit, applied for work under NREGA under the block development officer (BDO) of Jagannath Prasad block, Devendranath Khandingkal (since deceased). About 250 people from nearby villages also applied for work under NREGA during the same period. Fifteen mandated days passed, but no work was provided to the villagers, so they applied for unemployment allowance under the same authority. When nothing came of this, Kailash went a step further and filed an appeal in the jurisdiction of the then district collector, Sanjay Kumar Singh. Still failing to get any justice, he put his case to the Grievance Cell of the chief minister, Naveen Patnaik.

A local NGO, Gram Vikas, helped him all through in fighting for his legal rights. The grievance cell of the CM wrote in November 2006 to the district collector to provide him a job in a month's time. The CM’s order passed from the collector to the BDO and then to the sarpanch. But Kailash and the 250 other work seekers did not get any job or unemployment allowance.

In June 2007 he attended a workshop on NREGS in Bhubaneshwar, the state capital, which rekindled his hopes. Inspired by the discussions there and the media attention he got during the workshop, he wrote an application to the then state project coordinator, NREGA, R N Dash (who is the secretary-cum-commissioner, Panchayati Raj department) about his right to get a job and unemployment allowance. Social activists who handed over his application to Dash, the seniormost bureaucrat in the state for NREGA matters, were assured that his case would be heard in 15 days as per the law. But two-and-a-half years have passed and there has been no action on Kailash’s application.

During the same time, Kailash took recourse to another strong law, the RTIA, and asked for information from the public information officer (PIO) of the block and the office of the collector, on the progress made on his application for unemployment allowance. Under the RTI law, he should have got the information he sought within 30 days, but he got no response from the block office, though the district level officials had forwarded the RTI application to the block.

As provided for under the law, Kailash next filed a complaint with the state information commission (SIC), an independent body under the RTI law to penalise erring officials who violate the RTI law. But the SIC started hearing his case only a year after he filed the appeal! The first hearing was in July 2008. The second hearing was fixed for November 2008, but in the meantime, Kailash went missing (on August 6, 2008).

FIR yielded little result

When Kailash did not turn up for some days his wife Bauri Nayak and other family members filed a first information report (FIR) at the local Tarasingh police station. Not satisfied with the action of the inspector-in-charge, Niranjan Patra, Bauri Nayak made a complaint to the superintendent of police of Ganjam district, Nitinjeet Singh. The local daily Anupam Bharat reported Inspector Patra as saying: “Kailash is a fraud. He was cheating the villagers. The villagers might have killed him. Investigation is on...” (Anupam Bharat, August 28, 2008).

Kailash’s family and local social activists fighting his case allege that Inspector Patra was not doing enough to trace Kailash. The inspector told a visiting four-member fact-finding team headed by Rajkishor Mishra, state adviser to the Right to Food Commission of the Supreme Court, that he has made all possible efforts to search for Kailash. He and his staff have searched jungles, hills and everywhere and asked people about his whereabouts but with no success. He said he had given Kailash’s photograph and details to the Criminal Intelligence Gazette, which circulates details of missing persons to all police stations. Sources suggest that the inspector was prompted to make these attempts only after being directed to do so by SP Nitinjeet Singh.

Regretting the inaction of the administration, Joe Madiath of Gram Vikas, the NGO that guided Kailash in his fight says, “Kailash Nayak, who took a rights-based approach for himself and for the most marginalised people in a remote part of the state, has disappeared without trace. Almost nothing is done to conclusively prove anything either way. It is a sad affair.”

Block officials furnish false information

Since the hearing of Kailash’s RTI appeal by the state information commission would have resulted in a penalty on officials in the Jagannath Prasad block, the officials started playing their own game to wriggle out of the situation. In the first hearing, for which Kailash was present, the Commission ordered the BDO, the first appellate authority, to inquire and furnish the information to Kailash immediately. Before the second hearing, the BDO did submit its inquiry report to the Commission where it claimed that the information sought by Kailash had been provided. A scrutiny of all the documents of the case suggests, prima facie, that the BDO has furnished misleading information to the Commission taking advantage of the fact that Kailash is missing and there would be nobody to counter the BDO’s claim.

In a supplementary submission made to the Commission on March 19, 2009 by the group that has been fighting Kailash Nayak’s case, it was alleged that there is some discrepancy between the interim order of the Commission given to the BDO on July 18, 2008 and the inquiry report submitted by the BDO on September 20, 2008.

The submission reads “…On one hand the State Information Commission (SIC) order reads that the Public Information Officer (PIO) was not in a position to explain the facts, whereas the Inquiry report of the BDO says that on the same day of the hearing, information was handed over to Kailash Nayak in the Commission office…”

The supplementary submission makes other allegations: “According to the order the BDO should have completed the inquiry by August 18, 2008, but it did so on September 20, 2008.” It goes on to point out that in the second hearing of the case on November 5, 2008, nobody from the block was present despite the orders of the SIC, which has the power of a civil court to issue summons. The submission infers, “Have the authorities taken advantage of the fact that Kailash is missing and there is none to represent him and therefore the whole case has been taken lightly? Has the Commission also been taken for granted by the concerned authority of the block? Can the officials take a court’s order for granted like this?”

Do pro-people legislations work for the poor?

Section 25 of NREGA provides for penalty of up to Rs 1,000 for any authority who fails to discharge his/her responsibility under the law. But none of the above-mentioned officials -- BDO, collector, state project director of NREGA -- all of whom have taken the law for granted, have been penalised. Already three-and-a-half years have passed since the application for work was made, but the so-called progressive and strong provisions of the law have not worked for Kailash: no work, no unemployment allowance, no penalties for the erring authorities yet. Even the intervention of the chief minister’s Grievance Cell could not make the law work!

And what can be said about the RTIA, another path-breaking law? In the final hearing on May 12, 2009, the SIC refused to take note of the formal allegation of furnishing of false information by the block authorities, on the grounds that an activist has no locus standi to argue for Kailash without authorisation from him! It did not say how a missing man can authorise anyone to argue his case. It could have fixed responsibility on the officers for failing in their duty, but it chose not to. Justice, already delayed for Kailash, was finally denied and the case was disposed of.

A compendium prepared by Anish Vanaik on NREGA-related violence suggests that in several other cases in the country activists who have been spreading awareness about NREGA have been eliminated by vested interests such as the contractor-official-politician nexus. The murders of Lalit Mehta in Jharkhand in May 2008, Narayan Hareka in Orissa in May 2008 and Kamlesh Yadav also in Jharkhand in June 2008 have made news. Nobody can tell for sure what fate Kailash has met with but his activism had certainly created unease in some official and unofficial quarters who had taken the law for granted.

The authorities at every level, from the panchayat to the chief minister’s Grievance Cell and the state information commission, knowingly or unknowingly, have done their bit to defeat the objectives of the well-intentioned laws and a poor person’s fight to get his rights.

(Pradeep Baisakh is a development journalist based in Orissa)


Infochange News & Features, February 2010