MGNREGA Ombudsman a Forlorn Scarecrow: Issues and Ways Forward in Karnataka Sanjiv Kumar S Madheswaran ISBN 978-81-942744-6-9 © 2019, Copyright Reserved The Institute for Social and Economic Change, Bangalore Institute for Social and Economic Change (ISEC) is engaged in interdisciplinary research in analytical and applied areas of the social sciences, encompassing diverse aspects of development. ISEC works with central, state and local governments as well as international agencies by undertaking systematic studies of resource potential, identifying factors influencing growth and examining measures for reducing poverty. The thrust areas of research include state and local economic policies, issues relating to sociological and demographic transition, environmental issues and fiscal, administrative and political decentralization and governance. It pursues fruitful contacts with other institutions and scholars devoted to social science research through collaborative research programmes, seminars, etc. The Working Paper Series provides an opportunity for ISEC faculty, visiting fellows and PhD scholars to discuss their ideas and research work before publication and to get feedback from their peer group. Papers selected for publication in the series present empirical analyses and generally deal with wider issues of public policy at a sectoral, regional or national level. These working papers undergo review but typically do not present final research results, and constitute works in progress. Working Paper Series Editor: A V Manjunatha MGNREGA OMBUDSMAN A FORLORN SCARECROW: ISSUES AND WAYS FORWARD IN KARNATAKA Sanjiv Kumar1 and S Madheswaran2 Abstract Ombudsman is potentially a low-cost, time effective accountability institution and can substantially improve the quality of MGNREGA implementation by plugging leakages and suggesting improvements. It is definitely a low-hanging fruit and the government could easily inject life in this institution. From perusing the records and a cursory review of the literature, the authors have not so far come across any published academic research or systematic evaluation of the functioning of the MGNREGA ombudsman in Karnataka or anywhere in India; hence, this rapid study tries to assess the practice of ombudsman in Karnataka to explore its effectiveness in grievance redressal and reduction of corruption and enhancing the transparency and accountability in MGNREGA implementation. The policy implications and suggestions are highlighted for improving the efficacy of the programme. Introduction Mahatma Gandhi National Rural Employment Generation Act (MGNREGA)is one of the largest right- based workfare programmes, reaching out to 50 million households and spending almost half a per cent of GDP, and has been studied from different perspectives and many researches and observers have flagged awareness and enforcement of rights as its weaker links. A rights-based programme like MGNREGA should essentially have a credible mechanism and contrivances to enforce workers’ right. MGNREGA has an internal grievance redressal system and a vigilance mechanism along with social audit and ombudsman etc. Mere enactment and statutory conferment of rights may not be sufficient to ensure realisation of those rights and their enjoyment. It may require not only awareness of the rights but also awareness of how to enforce them. Establishment of an ombudsman is one of the key institutions facilitating enforcement of the right of guaranteed employment. Section 27(2) of the MGNREG Act, 2005 envisages, ‘without prejudice to the provision of sub- section (1), on receipt of any complaint of improper utilisation of funds granted under this Act in respect of any scheme, if the central government was, prima-facie satisfied that there was a case, it may cause an investigation into the complaint made, by any agency designated by it and if necessary, order stoppage of release of funds to the scheme and institute appropriate remedial measures for its proper implementation within a reasonable period of time.’ And under this provision, the central government has issued its instruction on ombudsman. Accordingly in Karnataka at the district level, an ombudsman has been appointed and a multi-member ombudsman appellate authority at the state level has been established. Instructions on ombudsman define 'ombudsman' to mean any person appointed under clause 3 of the instructions and includes the deputy ombudsman. A committee chaired by the Chief Secretary selects and recommends and the state government may appoint one or more persons, but 1 Additional Chief Secretary, Government of Karnataka. The views in this paper are personal. 2 Professor, Centre for Economic Studies and Policy (CESP), Institute for Social and Economic Change. not more than three persons, as the ombudsman in a district. It provides norms for the appointment, tenure, removal and remuneration of the ombudsman. It declares that the ombudsman shall be independent of the jurisdiction of the Central or State Government. It provides for technical and administrative support, powers and duties etc. of ombudsman. It prescribes procedures for redressal of grievances and illustrates grounds on which complaints shall be filed. It states proceedings of the ombudsman shall be summary in nature and he shall not be bound by any legal rules of evidence and may follow such procedure that appears to him to be fair and proper. In any proceeding before the ombudsman, if the facts reveal a case of illegal gratification, bribery or misappropriation and the ombudsman is satisfied that the case is fit for further investigation by a criminal court, the same is referred to the authority competent to sanction criminal prosecution. It further requires that the summary report of cases disposed of by the ombudsman will be reported to the State Employment Guarantee Council and will also form part of the annual report and will be placed in the Legislative Assembly. From the record and cursory literature review, the authors have not so far come across any published academic research or systematic evaluation of the functioning of the MGNREGA ombudsman in Karnataka or anywhere in India; hence this rapid study tries to assess the practice of ombudsman in Karnataka to explore its effectiveness in grievance redressal and reduction of corruption and enhancing transparency and accountability in MGNREGA implementation. A Brief Review of Literature on MGNREGA Ombudsman MGNREGA is far from perfect, but a lot more effective than any other existing scheme in benefitting the poor (Mookherjee, D, 2014). Corruption and leakages in MGNREGA are a serious concern. One of the key tools for eliminating corruption and addressing the grievances of the poor beneficiaries of MGNREGA is the institutionalisation of ombudsman at the district level and a multi-member MGNREGA Ombudsman Appellate Authority at the state level. I have tried to do a brief review of the literature on MGNREGA ombudsman and find that there is hardly any academic research and scholarly papers published on the subject. Sarojini Sharan (1971) examined the concept of ombudsman in India and concluded that the institution of ombudsman has been successful only in geographically small countries where the ombudsman is able to establish personal rapport with the citizens. She further avers that in India, with all-pervasive rampant corruption and maladministration and a consequent spate of grievances, the time taken by the ombudsman will be similar to the prolonged court proceedings, and red-tapism may grip even the ombudsman’s office. To buttress this, she quotes Gellhorn Welter of the Norwegian expert commission on Administrative Procedure, who said that the system of ombudsman is a safeguard against the possibility of excess but not a weapon against abuses believed to be widespread. Subhashini, Sumit and Waghmare (2015) examine the legislative and judicial outlook of the institution of ombudsman in India and conclude that in India, the ombudsman emerged to tackle the problem of maladministration, inefficiency and corruption, but with passage of time, the corruption grew to such an extent that now the institution of ombudsman is considered largely ineffective for addressing corruption. 2 Sukhtankar and Vaishnav (2014-15) emphasise that corruption is endemic and increasingly becoming a salient issue in India spawning enormous interest in media and academia. They find that there is very little evidence to support the idea that greater transparency, information, and community- based efforts may reduce corruption on their own. Steven and Steven (2008) in their study suggest that in Belgium, the ombudsman functions as a ‘change agent’ and provides early warning of problems in public administration. They further find that the profile of complainants before the ombudsman is skewed; and that the socially disadvantaged are less likely to use the institution. Ellen Ehmke (2016) assessed the quality of access and adequacy of benefits in MGNREGA public works and observed that there was an additional mechanism to redress grievances through a special MGNREGA ombudsman in every district, who can be called upon by individuals as well as groups of workers, who can file complaints on all aspects of the scheme. Bhalla (2012) developed a ‘Corruption Index’ for MGNREGA and tried to analyse why it was higher in some states than others and concluded that the index so developed indicates leakage and corruption in MGNREGA. Ravallion (2012) does not agree with his view and asserts that Bhalla