Rights-based Legal Guarantee as Social Protection Framework

A Discussion on the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), India
Amita Sharma Joint Secretary Government of India Ministry of Rural Development

Disclaimer: The views expressed in this paper/presentation are the views of the author and do not necessarily reflect the views or policies of the Asian Development Bank (ADB), or its Board of Governors, or the governments they represent. ADB does not guarantee the accuracy of the data included in this paper and accepts no responsibility for any consequence of their use. Terminology used may not necessarily be consistent with ADB official terms.

Mahatma Gandhi National Rural Employment Guarantee Act, 2005

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Presentation Overview Policy Context Mahatma Gandhi NREGA: Objective Design Early Impact Way Ahead

Policy Context
• Close to 300 million people in poverty in India at less than a dollar a day. Unemployment and out of labour force days of rural agricultural labourers in India is 104 days ( 76 days for male & 141 days for female) Erosion of natural resources, growing poverty and unemployment have lead to fragmentation of land and increase in number of agriculture labourers from 7.08 million in 1881 to 121 million in 2008. The policy response to a situation of poverty and inequality has focused on inclusive growth focusing on basic education, health and food security. Greater concern for social security measures. Growing policy engagement with the Rights regime witnessed by the formulation of Rights based laws as policy instruments. The Right to Information Act, the Forest Rights Act 2009, and recently the Right to Education Act 2009 with the Food Security Bill (in the offing) Mahatma Gandhi National Rural Employment Guarantee Act ((MGNREGA) came in this context of inclusive growth and radicalization of State policy, foregrounding its obligation as a law.

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NREGA Objective • An Act to provide for the enhancement of livelihood security of the households in rural areas of the country by providing at least one hundred days of Guaranteed wage employment in every financial year to every household whose adults volunteer to do unskilled manual work

Right based Framework
• • • • • • • Adult members of a rural household willing to do unskilled manual work may apply for registration to the local Gram Panchayat, in writing, or orally and in return receive a Job Card. A Job Card is the basic legal document that enables a rural household to demand work Time bound Guarantee Employment has to be provided within 15 days of demand else unemployment allowance has to be paid by the State at its own cost. Local Employment Work within 5 km radius of the village or else extra wages of 10% paid Wage Payment – Wages to be paid according to the notified wage rate – Disbursement of wages on weekly basis and not beyond a fortnight Work site facilities Crèche, drinking water, first aid and shade at worksites No contractors and machinery

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Right based Framework
• • • • • • • • • • • Transparency & Accountability All information be proactively placed in public domain. Information demanded be given, free of cost. Social audits by village assembly (gram sabha) which go beyond RTI to fix accountability and seek correctives. Grievance redressal mechanisms Penalties for default Equity At least one-third of workers should be women Disadvantaged Groups (Scheduled Castes/ Scheduled Tribes/ Below Poverty Line/ Land reform beneficiaries/Small and marginal farmers) can work on their own land

Right based Framework
• Decentralized, Participatory Planning • Principal role of local bodies (Panchayat Raj Institutions) in planning, monitoring & implementation • Local village assembly Gram Sabha recommends shelf of projects • Village bodies (Gram Panchayats) to execute at least 50% of works • Labour Intensive Works • 60:40 wage and material ratio for permissible works • Bi-focal lens: work helps earn wages and create productive assets. • Natural resource regeneration addresses causes of chronic poverty: water, fodder, land

Design Strengths
• • • • • • • • For the wage seeker Self targeting- No specific eligibility criteria No pre-requisite skill Responsive to labour demand-May be availed of any time Local employment Flexibility-drop in drop out Assured wage rates Wages through institutional accounts. 88 million accounts opened in Banks and post offices. • Job Card as a Record of Rights. Data on work and wages • Access to records

Design Strengths
• • • • For the Government Legal framework Rapid universal scale Adequate budget resources. The budget support is Rs. 401 billion for 2010-1011 • Budget on demand. • Substantial cost of employment funded by Centre.
– 90 % borne by Central Government and 10 % by State Government – (100% of wages, 75% of material cost by Centre) – 6% administrative expenses by Centre

• Untied funds and the district plans for their use within overall legal norms • Incentive-disincentive structure: Central assistance for providing employment. Unemployment allowance at State cost

Challenges
Effectiveness of Instruments of Rights depends on • • The capacity of the people to demand their Rights Capacity of the administrative system to protect/enforce them.

Worker’s Rights Right to demand is a step toward empowerment but its exercise gets limited by • Workers’ inabilities to read write negotiate organise: difficult to use legal instruments to assert Rights • Hierarchical relationships

Capacity and structure of guaranteeing institutions
• Functions are the heaviest at the bottom/ GP level and the leanest at the top-Ministry level. • But control of funds on which the entire guarantee rests is inverse to the distribution of functions, resting maximally with the Centre and then at each lower level, with the GP having the least control over and access to funds. • Intricate network of dependencies. • Limited capacity of PRIs specially GPs to implement a time bound legal guarantee • Conflicts between different institutional authorities and responsibilities. Shared responsibilities and linked functions make fixing accountability difficult.

Dilemmas of the Delivery System
• The guaranteeing agency is the same as the implementing and adjudicating agency. As a result • The implementing agency has little incentive to acknowledge demand-dated receipt that can then be invoked against it for paying unemployment allowance. • Should the agency issuing the guarantee be separate from the one that has to fulfill it? • Implements the works also audits them • Has authority for grievance redressal, while may itself be defaulter. • Penalties are mild and imposing them procedurally protracted.

Conflict of Interests
Social audit • Social audit can be a powerful instrument for transparency and accountability only if the community is powerful enough to compel the local body/Govt to render accounts and to compel action on its findings • The gram sabha is to audit the Gram Panchayat, but the gram sabha is convened by the gram Panchayat. • The village community is highly stratified- socially and economically with conflicting interests. Dependent upon the Gram Panchayat for its functioning • Need for external facilitation to mobilize the workers, to activise the gram sabha, to interrogate and analyse information and evaluate the performance of the scheme and seek redressal for grievances.

Resolving Tensions: State Action as Trigger for Guarantee
• Social mobilisation of workers: • Proactive Opening works on a large scale- a work in every village • Focus on deprived groups, specially work on their land • Labour budgets• Anticipating labour demand and formulating a shelf of projects to meet it • Placing data on website for transparency • Helps in planning, timely funding and mobilising workers

Governance Reform for Improved Delivery Policy Innovations
• An independent Directorate for social audit in some States (Andhra Pradesh. Rajasthan ) • Devolution of greater financial sanction limits to GPs ( Madhya Pradesh, Karnataka) • Amendment in the State Panchayat Act to make PRIs accountable for their action under MGNREGA ( Tamil Nadu) • Strengthening village planning in local councils through greater women participation ( Meghalaya) • Involvement of self-help groups for workers’ facilitation(Kerala, Andhra Pradesh) • Grievance redressal rules in some States • ICT enabled help line for citizen access ( UP, Orissa) • Setting up Ombudsman( in process in all States) • A law is effective first, as an instrument for governance rather than just an instrument for individual assertion of rights.

Use of ICT: Transaction-based MIS for Transparency
• • Web enabled Household based database in public domain http://www.nrega.nic.in Workers’ entitlements: – Registration, Job cards, Employment demanded and Days worked, – Muster rolls, Unemployment allowance, Payments and compensations due. Work data: shelf of works, Work progress,Inventory of works/assets Financial data: Financial Proposals, Funds available/spent, Amount paid as wages, materials and administrative expenses, Grievances: Register grievances of workers and Track complaints and action taken Monitoring and Corrective Action: alerts for corrective action, Social Audit findings. 90 million Job Cards and 20 million muster Rolls are in public domain. Drillable to job card, work muster roll level. Worker access through icon, sound. ICT enabled end to end solution at GP level Partnership with UIDA for including NREGA workers Best Govt. website award

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Law as opportunity for Governance reform
Policy innovation

• Redressing grievances • District Ombudsman being set up as independent enquiry authority empowered to ,direct action for redressal and penalties including filing FIR against defaulters. • The Ombudsman does not have judicial powers. • However, it will provide an independent dedicated forum for people to lodge complaints and expect redressal • Generate greater awareness among people of their rights. • Tighten administrative systems to acknowledge Rights, ensure time bound guarantees, record maintenance

Infrastructure of Rights
• Knowledge Resource Centres to be constructed a place at the village level where workers can apply, records be maintained and proper meetings and consultations take place • Technology for enforcing Rights • ICT with simple interface technologies using bio metrics can enable all stages of transactions of workers’ rights from registration, to issue of job cards work applications, issue of dated receipts, work allocation and delay in it if any, statement of unemployment allowances that may accrue. The same system can be used for recording work site processes such as attendance, measurements and payments. This will also help in equipping them with documents like dated receipts to press their claims for redressal • Financial Inclusion: Inadequate reach of institutional network and insufficient resources in the existing rural branches. • Efforts are on to expand the business correspondent model to unbanked areas

Work site innovations
• • • • • • • • • Improved work site management and earnings Work Time Motion studies to revise task rates for fair measurement and wage earnings. Training local persons as work-site mates for improved work management. Specially effective where women trained as work -site mates to measure and calculate( using calculators) work done. Helped restrain work site malpractices and just work earnings Strengthening the natural resource base of livelihood: Link with farm work: To augment agricultural productivity, MGNREGA work can be taken up on the individual land of SC/ST/BPL families/ small and marginal farmers. Convergence: Formulation of convergence guidelines between MGNREGA and other development programmes for Agriculture, fisheries, afforestation Water Resources, roads, Watershed Development hfor augmenting productivity Key principle: Projectisation of works Shared problem analysis, needs identification and planning Bundling inputs/ resources from different programmes:

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Monitoring, Evaluation & Feedback
Internal Monitoring • Periodic Reviews by MORD with States • Quarterly Performance Review Committee meetings • Regular visits by Area Officers & Ministry officials External Monitoring Performance Audit of NREGA implementation:  • First CAG audit  conducted in FY 2007‐08 in Phase I districts, final report submitted • MORD has  requested CAG to undertake the Performance Audit of implementation of  NREGA in Phase II districts, Audit Team of CAG  to take entry conference with Ministry to  proceed further in the matter .  Central Employment Guarantee Council:  • Regular Review Meetings with MORD • CEGC State visits in FY 2008‐09 to Jharkhand, Tamil Nadu, Orissa, UP, Maharashtra Concurrent Appraisals:  • Annual NLM visits to  NREGA phase I, II, III districts • 5 studies commissioned by Ministry FY 08‐09 • NREGA impact assessment on gender roles, SC/ST households, financial inclusion being  undertaken by NIRD • PIN • NSSO Survey in MP, Rajasthan and AP Parliamentary Standing Committee  Media reports

Knowledge Support
• Professional Institutional Network Over 84 partnerships with institutions, civil society organizations including IITs, IIMs, Agriculture Universities for appraisal and action research • Partnerships with 22 States for research, monitoring, capacity building for more effective implementation of the Scheme • Knowledge Network for best practice dissemination among District Programme Coordinators and NREGA functionaries. 1100 members at present

Towards Inclusive Growth
(FY 2006-07) 200 Districts Employment provided to households: PERSONDAYS [in Million] Total: SCs: STs: Women: Others: Average personday per household FINANCIAL DETAIL Budget Outlay (In Rs Billion): Central Release (In Rs Billion): Total available fund [including OB]: In Rs. Billion. Expenditure (In Rs. Billion) Average wage per day WORKS DETAIL Total works taken up (In Million): Works completed: Water conservation: Provision of Irrigation facility to land owned by SC/ST/ BPL/ S & MF and IAY benificiaries: Rural Connectivity: Land Development: Any other activity: (FY 2007-08) 330 Districts (FY 2008-09) 615 Districts (FY 2009-10) upto Feb, 10 619 Districts

21.0 Million 905 229.5 [25%] 329.8 [36%] 367.9 [41%] 345.6 [38%] 43 Days 113 86.41 120.74 88.23 Rs. 65 0.84 0.39 [54%] [10%] [21%] [11%] [4%]

33.9 Million 1435.9 393.6 [27%] 420.7 [29%] 611.5 [43%] 621.6 [43%] 42 Days 120 126.10 193.06 158.57 Rs. 75 1.79 0.82 [49 %] [15 %] [17 %] [16%] [3%]

45.1 Million 2163.2 633.6 [29%] 550.2 [25%] 1035.7 [48%] 979.5 [45%] 48 Days 300 299.40 373.97 272.50 Rs. 84 2.78 1.21 [46%] [20%] [18%] [15%] [1%]

49.0 Million 2513 737.9 [30%] 540.3 [22%] 1210.5 [49%] 1224.8 [48%] 51 Days 391 335.07 488.03 335.07 Rs. 90 4.10 1.64 [51%] [16%] [17%] [14%] [2%]

Gender Equity
Independent Impact Assessment of NREGA Main findings Women’s new found identity & economic empowerment Taking the wages directly through their accounts Increased spending of earnings from NREGA on food, consumer goods, education of children and offsetting debts Work availability in villages increased post NREGA Decision-making power for women increased post NREGA with additional income Fixed working hours an incentive, work easily available Breaking caste and community issues, socio-economic benefits Easy access to credits Efforts initiated for convergence with Self Help Groups, literacy, health-HIV Awareness through ASHA, ICDS

NREGA: Regenerating Natural Resources for enhancing productivity and adaptation to climate change
Works related to water and land: 83%
Flood Control and Protection

9% 6%

4%

Water Conservation and Water Harvesting Provision of Irrigation facility to Land Owned by SC/ST/BPL/ IAY Beneficiaries Rural Connectivity Land Development Others

25% 9% 1%

14% 16% 16%

Drought Proofing (Afforestation & Plantation) Micro Irrigation Works
24 Renovation of Traditional Water bodies (incl. desilting of tanks, ponds)

Resilience in-built in NREGA
• Resilience is in-built in NREGA activities as they lead to
– – – – – Food security Livelihood security Water security Ecological Security Flood risk reduction

• Focus on rural communities and resource base • NREGA Works are likely to improve resilience and adaptive capacity of the production systems, farmers and communities • NREGA programs need to be assessed for their ability to build resilience, reduce vulnerability of production systems and communities

NREGA: Positive Trends & Findings
• Increase in Agriculture Minimum Wages and wage earned per day and annual income. (Source: IIM Lucknow, NDUAT Faizabad) Bargaining power of labour has increased Earnings per HH has increased from Rs 2795 in 2006-’07 to Rs 3150 in 2007’08 to Rs 4060 in 2008-’09 Financial Inclusion: 8.8 crore accounts opened Distress migration has reduced in many parts (Source: Disha, NFIW, IHD, CSE) “Green Jobs” created as nearly 70% works relate to water conservation, water-harvesting, restoration, renovation and desilting of water bodies, drought-proofing, plantation & afforestation NREGA is used as a supplementary income source during non-agricultural seasons (Source: IIM Ahmedabad) Productivity effects of NREGA reported - Improvement in ground water (Source: ASCI, IHD) - Improved agricultural productivity & cropping intensity (Source: ASCI, IIT Roorkee) - Livelihood diversification in rural areas (Source: IIM Shillong, CSE, IHD) Reduction in water vulnerability index, agriculture vulnerability, livelihood 26 26 vulnerability index (Source: IISc)

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Factors critical to NREGA’s effectiveness • It is a law. That makes all the difference to the inherited design • The law creates obligations on the State recognizing the Right to demand work. • The law is backed by budget resources • Budget is responsive to development needs rather than being predetermined and inflexible allocations that restricts needs. • Political will and political contestations push NREGA to deliver. • Even if penalties may not have been invoked the possibility that they can be invoked, is a propellant for implementation. • Space for Policy innovations make MGNREGA a dynamic law responding to challenges of implementation

Implementation Challenges that persist
• Lack of awareness about rights and entitlements and Workers’ inability to submit written applications and negotiate rights. • Gaps in delivery systems: Act out-steps existing arrangements -legacy mind-set: welfare provisioning Vs. Accountability to guaranteeing Rights -Capacity of local bodies and administrative agencies -Poor coverage of Banks and Post Offices -Infrastructure, including e-connectivity • Local participatory community planning and technically feasible integrated perspective plans • Making assets more durable and productive without disturbing the 60:40 ratio through convergence

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Way Ahead
Building capacity of workers to articulate and demand their rights • Basic literacy skills in the workers so that they can script and interpret their opportunities and Rights. The Adult Education Programme of the Government should primarily target the MGNREGA workers. • Organising Workers for better negotiation; into SHGs for weaning towards economic activity Planning appropriate works. • Estimating labour demand • Designing Works appropriate in terms of seasonality of labour, and the time of the year. • Workers’ participation in planning and social audits • Need to integrate planning abilities and appropriate technologies with the planning process prescribed in the Act. • Strengthening convergence process for leveraging NREGA for sustainable development: natural resources, productivity, human development,( health, education) risk cover( life, health), skill set

Way Ahead
• • • • • • • • • • • • • • Administrative Strengthening GP: a mini-secretariat, with a strong contingent of staff trained in the tasks to be performed Physical infrastructure including ICT enabling Professional support at each level to increase Improved quality of training Fund Management: difficulty in estimation of employment required Limited capacity to generate employment restricts capturing full demand and generating full hundred days/maximum need of work Circumstantial exigencies Labour season crosses over two fiscal years National Employment Guarantee Fund (NEGF). This could be an opportunity for creating a new institutional mechanism for holding fund and fund release Creating more inclusive fora for community participation MGNREGA has stimulated first ever serious debate on social audit that holds potential for further reform However, space within law to be created to allow wide public participation

Leveraging NREGA for Sustainable Development through Convergence
• From mere wage employment to sustainable rural livelihoods • From unskilled to skilled labour through knowledge & technology input, training & capacity building in productivity increases, water-use efficiency, backward–forward linkages • NREGA as Platform for rural development innovations

Dialogic process of policy making
A Balancing Act Law gives space to multiple actors often in conflict. These conflicts are legitimate assertions of different interpretations of the Act • The Central Employment Guarantee Council is an institutional mechanism for such a dialogue among different • Working groups headed by Council members, with representatives from civil society, professional institutions, State Governments to discuss and recommend reform on various policy and operational aspects of the Act. (i) Planning and work execution (ii) Transparency and accountability (iii) wages (iv) Need of special groups and equity (v) works on individual land and convergence (vi) capacity building. Testimony to the creative, self reflexive dynamic nature of MGNREGA.

Significant lessons that emerge from MGNREGA
• A framework of Rights- based Law is effective because a law belongs to people and not to Government. Government is itself subordinate to law. Normal hierarchical relationship between Government as provider and public as recipient get displaced • Laws should be seen as opportunities for making administrative systems strong and accountable • Decentralization, facilitates direct accountability for outcomes of decisions Also widens stakeholder participation • Necessary to delineate structural integration of different institutions, with a unitary point of overall power and accountability to take over riding decisions to enforce the law

Significant lessons that emerge from MGNREGA
• Assured budget commitments are important for implementing schemes to ensure Rights. However, just a large budget commitment is not enough. Design and procedure of fund transfer is critical and how this seeks to manage a balance between efficiency with accountability, financial support with discipline, local freedom with central regulation. Legal frameworks should permit operational flexibility. Procedural matters should not be confused with rights or with the substantive content of law. Procedures should be flexible; end-goals non- negotiable. The osmotic process of local innovation and policy and law is a unique feature of MGNREGA. It enables the normative framework to be both regulatory and responsive to the dynamic changing situation on the ground,

Significant lessons that emerge from MGNREGA
• Strong and independent grievance redressal mechanisms are to be integral to the design. The issue is what ought to be their nature? Administrative bodies with powers to decide and direct but not really to coerce, and so really exercising a moral force? Or should they be judicial with powers of a court to summon, award judgments and punish? Social Audit, RTI and ICT as vehicles for transparency and public accountability Development laws should allow a collaborative policy making through space to multiple stakeholders and corresponding procedural flexibility. Conflict becomes the means of forcing issues and co-creating change. This can hold the potential of transforming governance A law guaranteeing rights should be grounded firmly on the basis of the concept of equality. This makes the quality of opportunity offered a significant issue. Need to rationalise programmes for integrating strategies and resources into Rights based laws

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