Skip to main content

How state 'violates' MNREGA's legal provision of job for more than 100 days

By Anurag Singh, Sandeep Pandey*

Atma-nirbhar (self-reliant) India must perform on several fronts in order to vindicate itself on its adopted path in the current economic crisis coupled with crippling pandemic, two of which are Education and Employment. As a matter of considerable advantage, two recent historic social legislations offer a means to overcome the times of crisis -- Mahatma Gandhi National Rural Employment Guarantee Act (MNREGA), 2005 and Right to Education (RTE) Act, 2009.
MNREGA, with ultimate objective of poverty alleviation, provides for a demand driven legal guarantee of 100 days of employment with statutory provisions of allowances and compensation, which are provided in cases of failure to provide work on demand and delays in payment of wages for work undertaken. However, these provisions are not interpreted literally and purposively, on the contrary they are effected with a conservative and strait-laced attitude.
Section 3(1) of this Act enjoins the government to 'provide to every household whose adult members volunteer to do unskilled manual work not less than one hundred days of such work in a financial year in accordance with the Scheme made under this Act.' The words 'not less than' make it clear that hundred days of employment is the minimum entitlement which the Parliament provided for, leaving for the rest to the governments to endeavour as the resources permit.
But this 'minimum' guarantee is understood as 'maximum' both by the government and administration in particular and public in general. The yearly average number of days of employment provided per household has remained around 45-50 since 2016-17, when the scheme began to be implemented. 
It is not that the demand was not there. It is just that the bureaucratic machinery was not willing to honour the spirit of the Act. Demands remained unfulfilled and unemployment allowances, when demand was not met within 15 days, according to the Act were hardly taken seriously.
It is not the case that this 100 days of employment is never increased, but only in exceptional circumstances like natural calamities with last exercise in Kerala floods in January 2020. Here, we need to have a look at Section 3(4), which reads:
“The Central Government or the State Government may, within the limits of its economic capacity and development, make provisions for securing work to every adult member of a household under a Scheme for any period beyond the period guaranteed under sub-section (1), as may be expedient.”
The power to provide employment above 100 days depends on 'economic capacity and development,' i.e. it shall be increased regularly as the country moves towards economic prosperity and development else it will lead to uneven growth with islands of prosperity in the hinterland of misery. The country is not in the same economic position as it was in 2006, when the scheme was launched. 
Legislative intent of 25% 'minimum' entitlement under RTE Act is considered as 'maximum' both by education department and private educational institutions
It is only fair if its dividends are distributed to the less privileged. This should reflect in the increase in budgetary allocation under MNREGA, which has only seen a continuous decline. Budget 2020-21 also saw a dip of 13%. Although additional Rs 40,000 crore has been allocated for MNREGA in Atma Nirbhar Bharat Abhiyan Package, no decision till date has been taken to increase the minimum guarantee of 100 days of employment. 

Right to Education

The RTE Act, 2009 also met a similar fate. Much before the enactment, Supreme Court recognized Right to Education as fundamental right in Mohini Jain v State of Karnataka in 1992. Free and compulsory education till the age of 14 years was considered to be a fundamental right in Unni Krishnan, JP v State of Andhra Pradesh in 1993 wherein the court held that Article 45 had acquired the status of a fundamental right.
Consequently, it took a decade when Parliament enacted 86th Constitutional Amendment Act, 2002, which inserted Article 21A directing the State to provide free and compulsory education to all children of the age of six to fourteen years. It took another 8 years for Parliament to formulate a law known as Right of Children to Free and Compulsory Education Act, 2009 (RTE Act). Now if we look into Section 12(1)(c) of the said law, it reads:
"…to the extent of at least twenty-five per cent of the strength of that class, children belonging to weaker section and disadvantaged group….”
From the plain language, at least 25% makes it clear that the legislative intent of 25% is the 'minimum' entitlement but the same is considered as 'maximum' both by the education department and private educational institutions. 
State in India follows a system of registration and lottery in admissions under RTE quota wherein the seats available in each private school are capped and in case a student fails to secure seat in the desired school in the lottery, his claim of seeking education is altogether denied.
In Uttar Pradesh the Basic Education Department on its website used for admissions under Sec. 12(1)(c) of the Act shows 2,73,070 seats available, which is 25% of total seats with private schools, which itself is an underestimate as schools don't report the actual numbers. But this year only 59,656 students were allotted these seats, which is merely 22% of the available.
Even though third round of admissions are pending but it is unlikely that final allotments will be anywhere near the total mapped seats. 4,877 children were rejected in Lucknow alone for the reason 'seats exhausted.' Actual admissions secured will be even less as some schools like the City Montessori School in Lucknow don't honour these admissions. The entire process is a complete mockery of the the fundamental right of children guaranteed under the Constitution.
This is the clear violation of the Article 21A besides the RTE Act, where State is under obligation to provide FREE and compulsory education. For students who are unable to secure admission as part of the lottery under RTE Act, it becomes the constitutional duty of state to secure their admission in any of the other neighbouring private or public school, whatsoever.
Can a fundamental right of a child be decided by a lottery? Article 21A should determine content and parameters of the right to education, where state has a significant role to play.
In nutshell the State must honour the command of Parliament with literal and purposive interpretation of the statute, else the objectives of 'Justice: Social, Economic and Political,' 'Equality of status and opportunity' and 'dignity of the individual' flowing from Preamble shall remain on paper.
--- 
*Anurag Singh is LLB student at Lucknow University. Sandeep Pandey is Magsaysay award winning social-political activist

Comments

TRENDING

Swami Vivekananda's views on caste and sexuality were 'painfully' regressive

By Bhaskar Sur* Swami Vivekananda now belongs more to the modern Hindu mythology than reality. It makes a daunting job to discover the real human being who knew unemployment, humiliation of losing a teaching job for 'incompetence', longed in vain for the bliss of a happy conjugal life only to suffer the consequent frustration.

Savarkar 'criminally betrayed' Netaji and his INA by siding with the British rulers

By Shamsul Islam* RSS-BJP rulers of India have been trying to show off as great fans of Netaji. But Indians must know what role ideological parents of today's RSS/BJP played against Netaji and Indian National Army (INA). The Hindu Mahasabha and RSS which always had prominent lawyers on their rolls made no attempt to defend the INA accused at Red Fort trials.

How lead petitioner was rendered homeless when GM mustard matter came up in SC

By Rosamma Thomas*  On January 5, 2023, the Supreme Court stayed a December 20, 2022 direction of the Uttarakhand High Court to the Indian Railways and the district administration of Haldwani to use paramilitary forces to evict thousands of poor families occupying land that belonged to the railways.  Justice AS Oka remarked that it was not right to order the bringing in of paramilitary forces. The SC held that even those who had no rights, but were living there for years, needed to be rehabilitated. On December 21, 2022, just as she was getting ready to celebrate Christmas, researcher Aruna Rodrigues was abruptly evicted from her home in Mhow Cantonment, Madhya Pradesh – no eviction notice was served, and nearly 30 Indian Army soldiers bearing arms were part of the eviction process. What is noteworthy in this case is that the records establishing possession of the house date back to 1892 – the title deed with the name of Dr VP Cardoza, Rodrigues’ great grandfather, is dated November 14

Buddhist shrines were 'massively destroyed' by Brahmanical rulers: Historian DN Jha

Nalanda mahavihara By Our Representative Prominent historian DN Jha, an expert in India's ancient and medieval past, in his new book , "Against the Grain: Notes on Identity, Intolerance and History", in a sharp critique of "Hindutva ideologues", who look at the ancient period of Indian history as "a golden age marked by social harmony, devoid of any religious violence", has said, "Demolition and desecration of rival religious establishments, and the appropriation of their idols, was not uncommon in India before the advent of Islam".

Tax buoyancy claims when less than 4% Indian dollar millionaires pay income tax

By Prasanna Mohanty  In FY18, the last year for which disaggregated income tax data is available, only 29,002 ITRs declared income above Rs 5 crore, while Credit Suisse said India had 7.25 lakh dollar millionaires (the wealth equivalent of Rs 8 crore and above) that year. Often enough, the Centre claims that demonetization in 2016 raised tax collections, improved tax efficiency, and expanded the tax base. Now RBI Monetary Policy Committee (MPC) member Ashima Goyal has also joined their ranks, attributing the “claims” of rising tax collections in the current fiscal year to “tax buoyancy” brought by the demonetisation . Do such claims have any basis in official records? The answer is unequivocal. The budget documents show the tax-to-GDP ratio (direct plus indirect tax) increased from 10.6% in FY16 (pre-demonetization) to 11.2% in FY17, remained there in FY18 (demonetization and GST fiscals), and then fell to 9.9% in FY20. In FY22, it improved to 10.8% and is estimated to drop to 10.7% in

Gandhian unease at Mahadev Desai book launch: Sabarmati Ashram may lose free space

By Rajiv Shah  A simmering apprehension has gripped the Gandhians who continue to be trustees of the Sabarmati Ashram: the “limited freedom” to express one’s views under the Modi dispensation still available at the place which Mahatma Gandhi made his home from 1917 to 1930 may soon be taken away. Also known as Harijan Ashram, a meeting held for introducing yet-to-be-released book, “Mahadev Desai: Mahatma Gandhi's Frontline Reporter”, saw speaker and after speaker point towards “narrowing space” in Gujarat for Gandhians (as also others) to express themselves. Penned by veteran journalist Nachiketa Desai, grandson of Mahadev Desai, while the book was planned to be released on January 1 and the meeting saw several prominent personalities, including actor-director Nandita Das, her scholar-mother Varsha Das, British House of Lords member Bhikhu Parekh, among others, speak glowingly about the effort put in for bringing out the book, exchanges between speakers suggested it should be rele

Why no information with Assam state agency about female rhino poaching for a year?

By Nava Thakuria   According to official claims, incidents of poaching related to rhinoceros in various forest reserves of Assam in northeast India have decreased drastically. Brutal laws against the poachers, strengthening of ground staff inside the protected forest areas and increasing public awareness in the fringe localities of national parks and wildlife sanctuaries across the State are the reasons cited for positively impacting the mission to save the one-horned rhinos. Officials records suggest, only two rhinos were poached in Kaziranga National Park and Tiger Reserve since 1 January 2021 till date. The last incident took place probably in the last week of December 2021, as a decomposed carcass of a fully-grown (around 30 years old) female rhino was recovered inside the world-famous forest reserve next month. As the precious horn was missing, for which the gigantic animal was apparently hunted down, it could not be a natural death. Ironically, however, it was not confirmed when

Civil rights leaders allege corporate loot of resources, suppression of democratic rights

By Our Representative  Civil rights activists have alleged, quoting top intelligence officers as also multiple international forensic reports, that recent developments with regard to the Bhima Koregaon and the Citizenship Amendment Act-National Register of Citizens (CAA-NRC) cases suggest, there was "no connection between the Elgaar Parishad event and the Bhima Koregaon violence." Activists of the Campaign Against State Repression (CASR) told a media event at the HKS Surjeet Bhawan, New Delhi, that, despite this, several political prisoners continue to be behind bars on being accused under the anti-terror the draconian Unlawful Activities (Prevention) Act. Addressed by family members of the political prisoners, academics, as well as social activists, it was highlighted how cases were sought to be fabricated against progressive individuals, democratic activists and intellectuals, who spoke out against "corporate loot of Indian resources, suppression of basic democratic

Kerala natural rubber producers 'squeezed', attend to their plight: Govt of India told

By Rosamma Thomas   Babu Joseph, general secretary of the National Federation of Rubber Producers Societies (NFRPS) at a recent discussion at Mahatma Gandhi University, Kottayam, explained that it is high time the Union government paid greater heed to the troubles plaguing the rubber production sector in India – rubber is a strategic product, important for the military establishment and for industry, since natural rubber is still used in the manufacture of tyres for large vehicles and aeroplanes. Synthetic rubber is now quite widespread, but styrene, which is used in making synthetic rubber and plastics, and also butadiene, another major constituent of synthetic rubber, are both hazardous. Prolonged exposure to these even in recycled rubber can cause neurological damage. Kerala produces the bulk of India’s natural rubber. In 2019-20, Kerala’s share in the national production of rubber was over 74%. Over 20% of the gross cropped area in the state is under rubber cultivation, with total

Bangladesh 'rights violations': US softens stance, fears increased clout of China, India

By Tilottama Rani Charulata*  In December 2021, in addition to the Rapid Action Battalion (RAB), the United States imposed sanctions on seven former and current officers of the force, alleging serious human rights violations. Benazir Ahmed and former RAB-7 commander Miftah Uddin Ahmed were banned from entering the US. RAB as an institution was also canceled the support it was getting from the US and its allies. At the same time, those under the ban have been notified of confiscation of assets held abroad. The anti-crime and anti-terrorism unit of the Bangladesh Police, RAB is the elite force consisting of members of the Bangladesh Army, Bangladesh Police, Bangladesh Navy, Bangladesh Air Force, Border Guard Bangladesh, Bangladesh Civil Service and Bangladesh Ansar, and has been criticized by rights groups for its use of extrajudicial killings and is accused of forced disappearances. The government of Bangladesh has been insisting about lifting the ban on RAB, but the US had till recen