Cynics are fond of pooh-poohing decentralisation in India on the ground that all that is decentralised is corruption, and that that PRIs are incapable or at best, capricious decision makers. It is therefore important that we devote great thought to devising accountability mechanisms that ensure that this does not happen. The best point to start would be to analyse the reasons for such a widespread negative impression about PRIs. We then can proceed to examining the patterns of defective decision-making that manifest in PRI functioning and then conclude with devising a system that cures such infirmities.
There is no doubt that elected members at all levels have to be impartial, fair and exercise propriety in using the wide powers that they have. This working group's recommendations if accepted, would result in far-reaching changes that would substantially empower all tiers of PRIs. These powers could be classified into two broad categories, namely, regulatory power in the nature of performance of civic functions and developmental powers to plan, guide and undertake development. Examples of regulatory powers would be those relating to taxation, grant of license, enforcement of building regulations and abatements of nuisance. Such regulatory powers are exercised almost entirely by Grama Panchayats, as they are the sole bodies in the three tier PRI system that are entrusted with civic responsibilities. Developmental functions would include the entire gamut of public spending on schemes, beneficiary selection and promotional activities.
In a sense, it is easier to install accountability mechanisms to deal with aberrations in regulation as they invariably involve the disregarding of specific legal provisions and an empowered authority can ascertain and test facts against such provisions in determining whether regulatory powers have been wrongfully applied. However, to determine that development power, which includes provision of services, selection of beneficiaries and public spending for various plans and schemes has been misused, is a far more complicated thing. Here the testing of actions for legitimacy is not against well-defined rules and regulations, but against broad policy and wide criteria. Here rules and laws have less rigid application but concepts of fairness, impartiality, prudence and natural justice would come into play. Add to this that PRIs may have to exercise positive discrimination in favour of certain disadvantaged groups, and we have an additional yardstick of values by which proper exercise of power requires to be judged.
In the previous article it was pointed out that at the level of the Grama Panchayat, there can be no greater accountability than the Grama Sabha. But elements of direct democracy which are practicable at the Grama Panchayat level cannot be applied at the TP and ZP level. The clientele of these bodies are probably not as homogenous in terms of commonality of interest as a Grama Sabha. Thus while a particular focussed programme implemented by the ZP may not have any particular importance for the general public it may be vitally important for the target group concerned. Consequently, the need arises to have mechanisms that provide for upward accountability.
Ensuring Upward Accountability
Under the present dispensation, the Government has the power to cancel PRI resolutions if they are found to be unfair or unjust. As this power is delegated to officials, in practice it means executive control over the elected bodies. This is something that we consider fundamentally an inappropriate system and procedure. We thus need a system that is outside the pale of both executive government and PRIs, while still being proximate, quick and effective. This accountability mechanism could provide for different systems adapted to handle mistakes in exercising regulatory powers and developmental responsibilities. We recommend that two sets of institutions be provided for to ensure quick redressal of public grievances in the exercise of regulatory and developmental power.
In the current set up, the Executive Magistracy hears appeals against the exercise of regulatory powers. This arrangement has seen several changes in the past. Under the arrangements that preceded the 1983 Act, appeals against orders of Grama Panchayats in the exercise of their regulatory powers were heard by the Jurisdictional Assistant Commissioner (AC) and Sub Divisional Magistrate. This system was dispensed with under the 1983 Act, in favour of one where appeals against regulatory orders of the Mandal Panchayat were heard by committees of members of the Zilla Parishad. A corresponding committee based system, under which the Taluk Panchayat heard appeals against regulatory orders of the Grama Panchayat was put in place under the 1993 Act. However, this was subsequently amended, and the power to hear appeals was restored to the Assistant Commissioner.
The system of the Assistant Commissioner hearing appeals against regulatory orders of the Grama Panchayat has its clear merits. First, the AC is outside the PRI system, and is therefore well suited to hear appeals as an impartial authority; something that the Taluk Panchayat cannot do, because the Adhyaksha of the concerned Grama Panchayat could be a member and an interested party. Second, the AC is vested independently with statutory powers including powers to deal with public nuisances. The official thus is in a position where he or she could independently enforce his or her order, again something that the Taluk Panchayat cannot do. Third, under the Land Revenue Act, the AC handles revenue appeal cases that deal with cases of change of khata and ownership in the revenue records. The disputed issues that arise in such cases closely parallel those that often arise in disputes relating to change of Panchayat Khatas. As the AC is familiar with the pattern of such disputes, he can deal with them easier.
The only issue that remains is whether the process of hearing appeals against orders that are made in exercise of regulatory functions should be handled by a judicial authority such as the jurisdictional civil judge, or exclusively by an independent judicial authority. Such an arrangement is in place in Kerala. However, we feel that the system of handling appeals by the AC has stood the test of time and need not be changed.
The institution of Ombudsman
While the existing system is adequate to hear appeals from decisions taken in exercise of regulatory authority, there is need for another institution to investigate misdemeanours in the field of administrative activity. With greater devolution and decentralisation there will be a need to investigate independently complaints made by individuals, groups and even the Government relating to defective administration by local bodies. The Ombudsman system is expected to provide a convenient and relatively low-cost mechanism to deal with complaints of mal-administration. The work of the Ombudsman is essentially investigative in character and such investigation can be conducted according to appropriate principles decided by the Ombudsman itself. The Ombudsman can go into the reasonableness of a decision as also investigate complaints relating to action or inaction. In looking at matters relating to internal administration, which need not necessarily affect only the individual's interest, the Ombudsman system goes beyond the limits of a judicial process.
Would there be duplication of work between the Ombudsman and the Lok-Ayukta?
Under Section 7 of the Lokayukta Act 1984, the Lokayukta is empowered to take action against several specified persons, including "public servants". As defined in section 2 (12) (e) of the Act, "Public Servants" include members of "local authorities, which is a term broad enough to include PRIs. Section 7 also states that subject to the provisions of the Act, the Lokayukta may investigate "actions" of Public Servants. Section 2 (1) of the act defines "Action" broadly, as "administrative action taken by way of decision, recommendation or finding or in any other manner and including willful failure or omission to act".
A reading of the law would therefore give the impression that the Lokayukta could as well be the instrument of upward accountability of PRIs in place of the Ombudsman, and it is not our intention to dispute that. However, we feel that the Lokayukta Act itself does not do away with the possibility of the setting up of separate accountability mechanisms, in order to deal with focused areas requiring attention. Section 8 of the Lokayukta Act, which speaks of matters that are not subject to investigation, includes cases or complaints involving a grievance in respect of any action where the complainant has recourse to another remedy. We believe that this section gives scope to the Government to provide for a specialised agency such as the Ombudsman to deal with the issues of upward accountability of PRIs.
We also stress that the institution of Ombudsman would be distinct from the Lok-Ayukta, in terms of its procedure and focus. Whereas the latter predominantly focuses on corruption and punishes it after the event, an investigation by the Ombudsman would be more in the nature of an ongoing check on PRI administration and it would be empowered to check wrong doings at the initial stages themselves. In addition, the Lok-Ayukta is already overworked and in practice has predominantly dealt with issues of corruption in a quasi-judicial manner. On the other hand, we propose that the Ombudsman will take care of the citizen's grievances relating to due process being disregarded in rendering a service or deciding on a claim. The Ombudsman would have the advantage of easy and almost informal access to the lay public, through the prescription of simpler procedures. Additionally, the Ombudsman would have the inherent power to observe the functioning of administration and suggest reforms. It would therefore be a predominantly administrative body. We therefore envisage that the Ombudsman will be complementary to the Lok-Ayukta. The Lok-Ayukta's jurisdiction over PRIs will not be affected by this.
For detailed recommendations made by the working group, visit this page.
For detailed recommendations made by the working group, visit this page.
Reinventing Rural Governance Series:
- I - Accountability & Transparency
- II - Ensuring Upward Accountability