Dear all, Those of you monitoring the implementation of the National Rural Employment Guarantee Act, 2005 (NREGA) may have already read the order issued by the Government of India (GOI) establishing an Ombudsman's office at the district level to deal with grievances related to the implementation of the NREG Scheme. The Ministry of Rural Development has issued a seven page order establishing the Ombudsman framework. This order issued on 7th September 2009 may be accessed at: <http://nrega.nic.in/Ombudsman_Order.pdf> http://nrega.nic.in/Ombudsman_Order.pdf
There is a major contradiction between the spirit of NREGA and some portions of this order. For example, it is well known that transparency in the execution of works under the NREGS is a cherished value under the statute. The Ombudsman order also reiterates this value in the second para: "And whereas transparency and accountability are the cardinal principles underlying the implementation of the Act" (i.e. NREGA) In keeping with this spirit the Ombudsman order states that the Ombudsman will place on the NREGA website an annual report of activities of his/her office. Similarly all 'awards' i.e., decisions made by the Ombudsman in the course of settling grievances and investigating complaints made under the Act, will be placed on the NREGA website. Given the fact that the NREGA website contains a wealth of implementation data, there is much hope that these promises will be lived up to. However later at para 8.2.2 relating to the duties of the Ombudsman under Chapter III is somewhat problematic. The order states as follows: "To maintain confidentiality of any information or document coming into his knowledge or possession in the course of discharging his duties and not disclose such information or document to any person except with the consent of the person furnishing such information or document; provided that nothing in this clause shall prevent the Ombudsman from disclosing information or documents furnished by a party in a complaint to the other party or parties, to the extent considered by him to be reasonably required to comply with the principles of natural justice and fair play in the proceedings." There is no reference to the Right to Information Act (RTI Act) in this order. Going by the definition of the term 'public authority' in section 2(h) of the RTI Act the Ombudsman's office will eminently qualify as one. In other words this office will have the same obligations as any other public authority such as appointing public information officers, appellate authorities and doing their proactive disclosure, in addition to providing data for the annual report of the relevant Information Commission. The requirement on the Ombudsman to keep information confidential is worrisome. Access will be provided only to parties to a dispute at the discretion of the Ombudsman. Guidelines are required here. Information about complainants must not be provided as that can lead to harassment from the vested interests. Section 8(1) of the RTI Act contains provisions that can provide such a protection. But there is no connection made with the RTI Act anywhere in this order. Similarly after an award has been made all documents and not merely the awards of the Ombudsman should be accessible to any person under the RTI Act subject to the severability clause of section 10. As this is merely an order made by the executive it cannot supersede the provisions of a parliamentary statute. The implementation of some of the paras contained in the Ombudsman's order can create confusion when people start applying for records generated by this office. This could lead to further increase in the burden of many Information Commissions already groaning under the heavy weight of pendency of appeals and complaints. It is important for all of us working on RTI and NREGA to advise the Government of India to study the probably contradictions pointed out above and resolve them by making RTI Act as the guiding authority for grant of access to information to any party. There could be more contradictions. There are problems with other portions in the Ombudsman's order such as the possibility of allowing advocates to represent parties in disputes - underprivileged wage labourers would rarely be able to match the resources of vested interests fattened on the funds siphoned off from NREGA who would hire lawyers to represent them. Similarly the provision that the order of the Ombudsman shall be final without an appeal before any court is troublesome to say the least. But there is enough jurisprudence in India to make this office subject to the writ jurisdiction of the High Courts and the Supreme Courts. However a less expensive and cumbersome and less time-taking mode of appeal must be provided for. Perhaps there are many more issues that NREGA experts are able to raise in relation to this order. It would be useful to have suggestions from readers on the nature of action that must be suggested to the Ministry of Rural Development to improve the provisions of this order to bring it in line with the statutory requirements of transparency under the RTI Act. Please do share your thoughts with me and other readers. Thanks Venkatesh Nayak Programme Coordinator Access to Information Programme Commonwealth Human Rights Initiative B-117, I Floor, Sarvodaya Enclave New Delhi- 110 017 tel: 91-11- 2686 4678/ 2685 0523 fax: 91-11- 2686 4688 website: www.humanrightsinitiative.org alternate email: <mailto:[email protected]> [email protected] [Non-text portions of this message have been removed]
