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By Jag Jivan
A new study being prepared by the Centre for Social Justice, Ahmedabad, “Economic Rights in India: Growing Distance from the Lower Judiciary”, has reached the drastic conclusion that the government’s modus operandi for “ensuring” socio-economic rights is to “pass a law and set up advisory bodies and an administrative chain of command to implement it”, but things fail to move because, often, “the same district official serves as the implementing and quasi-judicial body under a range of legislations.” The study, still in its draft stage, adds, “In the end, the claimant is faced with an over-burdened executive and a maze of bureaucratic red tape to traverse before she or he can contemplate approaching our equally backlogged higher judiciary.”
Pointing to how “the same district official serves as the implementing and quasi-judicial body under a range of such legislations”, the study examines a few laws which have proved crucial for the people to obtain their rights. Analysing filed under the National Rural Employment Guarantee Act (NREGA), Right to Education Act (RTE), and the forest rights Act (FRA), the study regrets, “When laws are passed guaranteeing socio-economic rights and setting up parallel mechanisms under them, not only is access to the lower judiciary barred, the higher judiciary also tends to narrow its writ jurisdiction, sending cases back to administrative grievance redressal bodies set up under the Act.” In fact, “parallel grievance redressal mechanisms” set up under special legislations have meant a “diminishing space for access to the judiciary for the implementation of socio-economic rights”.
The study says, the higher judiciary’s activist reading of socio-economic rights has already started to fade, with a new trend emerging – of legislating socio-economic rights in such a way that there is an increased distance between justice and its seekers. “Claimants must negotiate a forest of bureaucratic machinery before they can access the overburdened higher judiciary under writ jurisdiction. Access to the lower judiciary is effectively denied”, it underlines, adding, the net result is, “socio-economic rights in India are not significantly more accessible than in the past.”
Giving the example of the forest rights Act, 2006, to point towards how this is happening, the study says, “The grievance redressal mechanism under this Act allows two levels of appeal from the implementing authority, and an additional monitoring body at the state level. The gram panchayat convenes the gram sabha, which elects a forest rights committee. “The gram sabha determines rights under the Act and passes a resolution recognizing the same. Persons aggrieved with the resolution can petition the sub-divisional level committee (SDLC), and from the SDLC to the DLC (District Level Committee). The DLC’s decision on the record of forest rights is final and binding. One cannot petition the DLC unless the SDLC has been approached first.”
Then, there is also a State Level Monitoring Committee (SLMC) that, like the DLC and SDLC, is composed of officers of the departments of revenue, forest and tribal affairs. “There is a token presence of panchayati raj institute (PRI) members on these committees, since the officers remain in the majority, and the PRI members are awed by the other members of the committees”, the study points out, adding, “In case of contravention of provisions of the Act or Rules, the complainant must give notice to the SLMC, which should conduct an inquiry within 60 days and fine the guilty officer up to Rs 1,000. Only if such notice has been given and SLMC fails to conduct an inquiry can the court take cognizance of such contravention”.
The net result is that a large number of applications for implementing FRA are pending. As on December 31, 2012, in India, as many as 32,37,656 claims have been filed and only 12,79,076 (39.5%) titles have been distributed.
Cases filed for implement the Act suggest how this is happening, In the Jan Adhikar Sangh vs State of Gujarat, 2010, the petitioner alleged inaction on part of the government in not implementing the FRA correctly. A prayer was made to issue caste certificate to migrant workers that belong to Alech forest area. While the court found that grant of certificate in favour of member of a scheduled tribe is in the interest of the public, it asked the committee composed of taluka mamlatdar, taluka development officer and taluka forest officer to act as per the circular of the state government dated November 29, 1994 and grant certificate in favour of the petitioners “after verification and examination of evidence.”
In another case, Taraben Rusping Vasava vs State of Gujarat, the petitioners sought regularization of her occupation of forest land for personal cultivation. “The FRA came into force during its pendency. The court directed the petitioners to make a representation to the district collector under the Act, even as holding that if the decision adversely affects the petitioners, it would be open be challenged”, the study says. In a third case, Puitu Sijui vs the State of Jharkhand, the petitioners prayed for directions to the respondents to decide their claims for grant of pattas under the FRA. “The petition was disposed of, giving liberty to the petitioner to approach appropriate legal forum for redressal“.
As for the RTE Act, 2009, the study says, it has created a parallel monitoring and grievance redressal mechanism — the National Commission for Protection of Child Rights (NCPCR) and the State Commissions for Protection of Child Rights (SCPCR), who carry out the monitoring function under the Act by making inquiries. They also receive complaints on behalf of children whose rights have been violated and following inquiry, recommend proceedings for prosecution or approach the High Courts and Supreme Court for orders and directions.
The grievance redressal mechanism is such that orders of the local authority can be appealed before NCPCR or SCPCR. They “carry out both monitoring and grievance redressal functions”, and there is “no possibility of appeal to an intermediate, district level body exists”. The result is that, according to an RTI query filed in March 2012, at the end of two years since the Act’s implementation, the NCPCR received 2,850 complaints regarding the RTE Act and was able to resolve only 24 per cent, i.e. 692 cases.
As for NREGA, 2005, the study recognises that it lays down a “more strenuous framework for grievance redressal” compared to similar such Acts. The complaints against implementation of the Act by the gram panchayat go to the programme officer at the block level. The latter must dispose of the complaint within seven days, failing which he is liable to be punished for contravention of provisions of the Act with fine of Rs 1,000.
The district program coordinator (DPC) hears complaints and appeals against orders of the programme officer. In case he receives prima facie evidence of financial irregularities under the Act, he can ensure that an FIR is filed. The DPC must prepare monthly reports regarding complaints received and addressed, which will go to the state and put up on the website. “This reporting obligation does not exist under other Acts”, the study points out.
“In case a violation is found, the concerned authority can impose penalty for contravention of the Act and must provide for grievance redressal within 15 days. Action taken on complaints must be placed before panchayats at the appropriate level. This is an important accountability measure that does not exist under other legislations. Appeals against the orders of the DPC go to the state commissioner, NREGA, the divisional commissioner, NREGA and the state grievance redressal officer and must be disposed of within a month”, it adds.
The study further says, “The Act also provides for the setting up of ombudsman appointed by the state government on the recommendation of a selection committee. The ombudsman is supposed to be independent of the government, though the Act does not guarantee this through specific measures. He has the power to conduct inquiries, hear complaints and redress grievances and take disciplinary and punitive actions. He must dispose of matters in between 15-45 days, depending on the complexity of the issue.”
However, there is a weakness here, the study underlines. An ombudsman must recommend disciplinary action against the erring officer to the chief secretary or the secretary of the department handling NREGA, who alone has the power to initiate legal action or discipline such officer. “The ombudsman cannot directly hand out punishments”, it stresses, adding, “The award of an ombudsman is supposed to be final and binding, but in clarifications, the government has carved a vague exception to this rule, where on the emergence of new facts/ reasons/evidence, the ombudsman may consider a review upon hearing the parties.”
While the ombudsman system ought to be replicated under other Acts as well, and it should be made be operational in all state, which is not the case as of today, the study also says that there is “very limited room for appeal against the ombudsman order. The grievance redressal mechanism does not leave scope for a civil appeal”.
The study notes some of the glaring loopholes or lapses in design of several legislations, aimed at providing socio-economic rights:
A new study being prepared by the Centre for Social Justice, Ahmedabad, “Economic Rights in India: Growing Distance from the Lower Judiciary”, has reached the drastic conclusion that the government’s modus operandi for “ensuring” socio-economic rights is to “pass a law and set up advisory bodies and an administrative chain of command to implement it”, but things fail to move because, often, “the same district official serves as the implementing and quasi-judicial body under a range of legislations.” The study, still in its draft stage, adds, “In the end, the claimant is faced with an over-burdened executive and a maze of bureaucratic red tape to traverse before she or he can contemplate approaching our equally backlogged higher judiciary.”
Pointing to how “the same district official serves as the implementing and quasi-judicial body under a range of such legislations”, the study examines a few laws which have proved crucial for the people to obtain their rights. Analysing filed under the National Rural Employment Guarantee Act (NREGA), Right to Education Act (RTE), and the forest rights Act (FRA), the study regrets, “When laws are passed guaranteeing socio-economic rights and setting up parallel mechanisms under them, not only is access to the lower judiciary barred, the higher judiciary also tends to narrow its writ jurisdiction, sending cases back to administrative grievance redressal bodies set up under the Act.” In fact, “parallel grievance redressal mechanisms” set up under special legislations have meant a “diminishing space for access to the judiciary for the implementation of socio-economic rights”.
The study says, the higher judiciary’s activist reading of socio-economic rights has already started to fade, with a new trend emerging – of legislating socio-economic rights in such a way that there is an increased distance between justice and its seekers. “Claimants must negotiate a forest of bureaucratic machinery before they can access the overburdened higher judiciary under writ jurisdiction. Access to the lower judiciary is effectively denied”, it underlines, adding, the net result is, “socio-economic rights in India are not significantly more accessible than in the past.”
Giving the example of the forest rights Act, 2006, to point towards how this is happening, the study says, “The grievance redressal mechanism under this Act allows two levels of appeal from the implementing authority, and an additional monitoring body at the state level. The gram panchayat convenes the gram sabha, which elects a forest rights committee. “The gram sabha determines rights under the Act and passes a resolution recognizing the same. Persons aggrieved with the resolution can petition the sub-divisional level committee (SDLC), and from the SDLC to the DLC (District Level Committee). The DLC’s decision on the record of forest rights is final and binding. One cannot petition the DLC unless the SDLC has been approached first.”
Then, there is also a State Level Monitoring Committee (SLMC) that, like the DLC and SDLC, is composed of officers of the departments of revenue, forest and tribal affairs. “There is a token presence of panchayati raj institute (PRI) members on these committees, since the officers remain in the majority, and the PRI members are awed by the other members of the committees”, the study points out, adding, “In case of contravention of provisions of the Act or Rules, the complainant must give notice to the SLMC, which should conduct an inquiry within 60 days and fine the guilty officer up to Rs 1,000. Only if such notice has been given and SLMC fails to conduct an inquiry can the court take cognizance of such contravention”.
The net result is that a large number of applications for implementing FRA are pending. As on December 31, 2012, in India, as many as 32,37,656 claims have been filed and only 12,79,076 (39.5%) titles have been distributed.
Cases filed for implement the Act suggest how this is happening, In the Jan Adhikar Sangh vs State of Gujarat, 2010, the petitioner alleged inaction on part of the government in not implementing the FRA correctly. A prayer was made to issue caste certificate to migrant workers that belong to Alech forest area. While the court found that grant of certificate in favour of member of a scheduled tribe is in the interest of the public, it asked the committee composed of taluka mamlatdar, taluka development officer and taluka forest officer to act as per the circular of the state government dated November 29, 1994 and grant certificate in favour of the petitioners “after verification and examination of evidence.”
In another case, Taraben Rusping Vasava vs State of Gujarat, the petitioners sought regularization of her occupation of forest land for personal cultivation. “The FRA came into force during its pendency. The court directed the petitioners to make a representation to the district collector under the Act, even as holding that if the decision adversely affects the petitioners, it would be open be challenged”, the study says. In a third case, Puitu Sijui vs the State of Jharkhand, the petitioners prayed for directions to the respondents to decide their claims for grant of pattas under the FRA. “The petition was disposed of, giving liberty to the petitioner to approach appropriate legal forum for redressal“.
As for the RTE Act, 2009, the study says, it has created a parallel monitoring and grievance redressal mechanism — the National Commission for Protection of Child Rights (NCPCR) and the State Commissions for Protection of Child Rights (SCPCR), who carry out the monitoring function under the Act by making inquiries. They also receive complaints on behalf of children whose rights have been violated and following inquiry, recommend proceedings for prosecution or approach the High Courts and Supreme Court for orders and directions.
The grievance redressal mechanism is such that orders of the local authority can be appealed before NCPCR or SCPCR. They “carry out both monitoring and grievance redressal functions”, and there is “no possibility of appeal to an intermediate, district level body exists”. The result is that, according to an RTI query filed in March 2012, at the end of two years since the Act’s implementation, the NCPCR received 2,850 complaints regarding the RTE Act and was able to resolve only 24 per cent, i.e. 692 cases.
As for NREGA, 2005, the study recognises that it lays down a “more strenuous framework for grievance redressal” compared to similar such Acts. The complaints against implementation of the Act by the gram panchayat go to the programme officer at the block level. The latter must dispose of the complaint within seven days, failing which he is liable to be punished for contravention of provisions of the Act with fine of Rs 1,000.
The district program coordinator (DPC) hears complaints and appeals against orders of the programme officer. In case he receives prima facie evidence of financial irregularities under the Act, he can ensure that an FIR is filed. The DPC must prepare monthly reports regarding complaints received and addressed, which will go to the state and put up on the website. “This reporting obligation does not exist under other Acts”, the study points out.
“In case a violation is found, the concerned authority can impose penalty for contravention of the Act and must provide for grievance redressal within 15 days. Action taken on complaints must be placed before panchayats at the appropriate level. This is an important accountability measure that does not exist under other legislations. Appeals against the orders of the DPC go to the state commissioner, NREGA, the divisional commissioner, NREGA and the state grievance redressal officer and must be disposed of within a month”, it adds.
The study further says, “The Act also provides for the setting up of ombudsman appointed by the state government on the recommendation of a selection committee. The ombudsman is supposed to be independent of the government, though the Act does not guarantee this through specific measures. He has the power to conduct inquiries, hear complaints and redress grievances and take disciplinary and punitive actions. He must dispose of matters in between 15-45 days, depending on the complexity of the issue.”
However, there is a weakness here, the study underlines. An ombudsman must recommend disciplinary action against the erring officer to the chief secretary or the secretary of the department handling NREGA, who alone has the power to initiate legal action or discipline such officer. “The ombudsman cannot directly hand out punishments”, it stresses, adding, “The award of an ombudsman is supposed to be final and binding, but in clarifications, the government has carved a vague exception to this rule, where on the emergence of new facts/ reasons/evidence, the ombudsman may consider a review upon hearing the parties.”
While the ombudsman system ought to be replicated under other Acts as well, and it should be made be operational in all state, which is not the case as of today, the study also says that there is “very limited room for appeal against the ombudsman order. The grievance redressal mechanism does not leave scope for a civil appeal”.
The study notes some of the glaring loopholes or lapses in design of several legislations, aimed at providing socio-economic rights:
There is often no time limit or process prescribed for completing the process of grievance redressal. Where time limits are mentioned, officers have no reason to comply, because there are no consequences for failure to do so.
Copies of awards of authorities do not reach the aggrieved on time, thus making it difficult for them to file appeals within the limitation period. This often results in failure to achieve justice.
The quasi-judicial authorities under these Acts can act on a discretionary basis since they are not given guidelines regarding the basis of decisions. Directions on procedure to be followed may or may not be adequately detailed under the Act.
Some of the Acts allow authorities to reject claims without giving reasons or the claimant the opportunity of being heard, especially in the case of denial.
The biggest problem with these frameworks is that they allow the executive to be a judge in its own cause. The first rule of providing access to justice is that an independent third party be the judge of the cause. These frameworks thus completely contradict this fundamental principle and allow the executive to view its own lapses indulgently.
These legislations create toothless, fictional bodies to the extent that the same person with limited resources is named the grievance redressal and implementing body. Appellate authorities have no real way of ensuring that their directions are followed, with fine amounts being paltry and prosecution requiring executive sanction. At the least, the fine amount could be proportional to the damage caused.
The tendency of creating paper dragons is especially problematic because it creates a forest of bureaucratic red tape that claimants must traverse before they can approach the judiciary. Often the lower judiciary is made completely inaccessible. Exceptions to this rule are vague, if at all they are made.
Often, poor and uneducated claimants are required to proceed against people in power in their own villages (gram panchayat), before powerful bureaucrats that are probably in cahoots with the panchayati raj institute members. They must travel great distances and engage with people and a language they do not understand. This makes access to justice remote, unless civil society steps in to aid the process.
Copies of awards of authorities do not reach the aggrieved on time, thus making it difficult for them to file appeals within the limitation period. This often results in failure to achieve justice.
The quasi-judicial authorities under these Acts can act on a discretionary basis since they are not given guidelines regarding the basis of decisions. Directions on procedure to be followed may or may not be adequately detailed under the Act.
Some of the Acts allow authorities to reject claims without giving reasons or the claimant the opportunity of being heard, especially in the case of denial.
The biggest problem with these frameworks is that they allow the executive to be a judge in its own cause. The first rule of providing access to justice is that an independent third party be the judge of the cause. These frameworks thus completely contradict this fundamental principle and allow the executive to view its own lapses indulgently.
These legislations create toothless, fictional bodies to the extent that the same person with limited resources is named the grievance redressal and implementing body. Appellate authorities have no real way of ensuring that their directions are followed, with fine amounts being paltry and prosecution requiring executive sanction. At the least, the fine amount could be proportional to the damage caused.
The tendency of creating paper dragons is especially problematic because it creates a forest of bureaucratic red tape that claimants must traverse before they can approach the judiciary. Often the lower judiciary is made completely inaccessible. Exceptions to this rule are vague, if at all they are made.
Often, poor and uneducated claimants are required to proceed against people in power in their own villages (gram panchayat), before powerful bureaucrats that are probably in cahoots with the panchayati raj institute members. They must travel great distances and engage with people and a language they do not understand. This makes access to justice remote, unless civil society steps in to aid the process.
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