India's legal institutions have not been able to systematically identify violations of the law and credibly threaten punishment.
The first decade of the 2000s witnessed what perhaps can best be described as a revolution in the way the Government of India declared it would implement its laws. From the Right to Information Act (RIA) to the National Rural Employment Guarantee Act (NREGA) to the Right to Education Act (REA), the story was the same. The government switched from policies where implementation was left to the discretion and whims of bureaucrats and budgets to ones where citizens were given a right to — and could demand — information, work, schools, or other entitlements. Ordinary Indians were to be empowered to hold the government accountable.
And yet this change to a “rights-based approach” was at best only a partial success. For instance, there have been almost no claims in court by anyone denied their rights under the Mahatma Gandhi National Rural Employment Guarantee Act, although certainly this programme has not been trouble free. Most Indians, especially the poorest — but even those better off — simply find it too difficult to enforce their rights on their own, especially in backlogged and hard-to-reach courts.
India is still missing the needed legal infrastructure. Its legal institutions have not been able to systematically identify violations of the law and credibly threaten punishment. As a result, Indians may be excused if they think their laws frequently look more like a vision statement for the country than something that will be reliably enforced.
Rethinking accountability revolution
Recognising this larger implementation problem, the National Advisory Council (NAC) recently suggested that all government entitlements should have a grievance redress mechanism. In its note on the Draft National Food Security Bill released in January, the NAC proposes creating District Grievance Redressal Officers, who would be the enforcement “lynchpin” of programmes that fall under the proposed Bill, such as the Public Distribution System or the Integrated Child Development Scheme. These young professionals, drawn from outside the ranks of the bureaucracy for non-renewable five-year terms, would be given wide powers to investigate implementation failures under the Bill, fine those responsible, and compensate those improperly denied benefits.
This proposal is a promising start, and shows how independent sources of accountability might better ensure compliance with the law. Yet, these proposed District Grievance Redressal officers have powers that are at the same time too narrow and too wide. They are too narrow in that these officers should also be able to investigate similar implementation problems in other social welfare programmes not covered under the proposed Bill, like the REA or the MGNREGA. They are too wide because giving the same person the power to investigate, prosecute, and determine the guilt of officials creates a conflict of interest and an undesirable concentration of power. Instead, these officers should focus strictly on bringing complaints and allow an independent judge to decide their merit.
To tackle the implementation gap, the States can also build on the current Lokayukta system. Lokayuktas have been created in over a dozen States from Bihar to Karnataka, where they investigate complaints of corruption and recommend to the government that offending officials be censured. However, the office's effectiveness is too often dependent on the individual personality of the Lokayukta, and is hampered by a lack of resources, the inability to investigate without a formal complaint, and the office's non-binding recommendations. The States should consider stripping Lokayuktas of their power to give non-binding recommendations (which are of limited value anyway), and instead empower them with robust prosecutorial powers.
The Lokayuktas could be drawn from a combination of retired judges, as they are now, and younger professionals brought in from outside the bureaucracy selected through a competitive examination. Their mandate and manpower should be expanded so that they not only investigate corruption, but broader breakdowns in the implementation of law. If a Lok Pal were ever created by Parliament (a bill to create such a parallel central institution has been pending in varying forms for over 40 years), it could play a similar role in the Centre.
The idea of creating strong independent prosecutors to ensure policy implementation has already met with success elsewhere in the world; most notably Brazil's much lauded Ministerio Publico system. Brazil, which has also had an implementation gap problem, gave its Ministerio Publico, or public prosecutors, wide powers in 1988 to enforce the law and the Constitution, essentially turning it into a “fourth branch” of the government.
These local, State, and national-level prosecutors in Brazil are chosen through a highly competitive examination, drawing upon the country's best law graduates, and each prosecutor is given significant individual autonomy to decide which cases to pursue. They have become well-known for spearheading efforts to implement everything from environmental law to social policy. As the threat of prosecution by their office became increasingly credible this created a new culture of accountability throughout the government.
But does not the real failure in accountability in India lie at the feet of the courts? If the courts were efficient, accessible, or in general just worked better, no independent prosecutorial agencies would be required as people would bring cases on their own to enforce the law.
Certainly, the courts need reform, whether it is better courtroom management, new blood among judges, or sufficient resources to deal with heavy caseloads. Also, certain types of complaints, such as the improper denial of a BPL card or petty corruption, might be better dealt with by independent welfare tribunals or ombudsmen. The Office of the Ombudsman in Kerala provides one model of how appointing an adjudicator of enough stature to rise above the morass of local politics can help tackle low-level maladministration or corruption within the local government. Yet, focussing strictly on reforming the courts, or even creating new adjudicators, despite the need, misses the point.
People only go to court when there is enough incentive to do so. However, if one was denied ration for a month or is a victim of corruption, the courts are likely to just compensate you for whatever you were denied or, perhaps, just a bit more. The delays and appeals present in any court system, especially in India, combined with the expected low returns makes bringing a complaint an unappetising proposition. Additionally, most Indians are intimidated by the judiciary and are uncertain of their rights. Instead, dedicated prosecutors are needed who can help identify breakdowns and then see complaints through the judicial system to their natural end.
Unleashing the “Fourth Branch”
In India, effective prosecutorial power will likely grow from existing offices, like the Lokayuktas, in combination with the creation of new institutions to tackle more discrete implementation failures, like the proposed District Grievance Redressal Officers. Such a piecemeal approach is not necessarily a weakness. Indeed, it gives the States and the Central government the ability to experiment with different enforcement approaches.
Still, this experimentation should be unified by a few general principals. These should include having truly independent prosecutors that come from outside the existing bureaucracy, as well as avoiding conflicts of interest by carefully separating prosecutorial from adjudicating powers. If India can develop these robust prosecutorial agencies to help rein in its bureaucracy, those fighting against corruption and for the rule of law will finally have the reinforcements they deserve.
(Nick Robinson is an Assistant Professor at Jindal Global Law School and a Visiting Fellow at the Centre for Policy Research.)