NREGA as a site of constitutional violations
By Rajendran Narayanan
The iconic Jantar Mantar in Delhi has served as a place of temporary encampment for lakhs of people over decades to strengthen India’s democratic traditions of questioning. But now, what remains in Jantar Mantar is just a small barricaded space of about 50 metres for people to congregate and register their dissent. It is in such a shrunken democratic space and, despite the deliberate maze of paperwork created by the Union government to get police permissions, in the presence of hundreds of armed police personnel, and jostling for space with other protest groups, NREGA workers from across the country protested in 2023 for over 60 days. The workers protested against the budget cuts in NREGA and against arbitrary technological interventions that have violated the right to work and wages.
NREGA is a significant departure from earlier public works programmes because NREGA provides a legislative framework for the right to work ; fructifying Article 21, the Constitutional right to life. As the Supreme Court of India has held in multiple cases, the ‘Right to Life’ is not restricted to a mere existence but also includes the ‘Right to Livelihood’[1] and the ‘Right to live with human dignity’[2]. The provisions of NREGA amount to justiciable rights – the right to work on demand, the right to unemployment allowance if work is not provided within 15 days, the right to payment of wages within 15 days, the right to minimum wages, essential worksite facilities, among others. In addition to the worker-centric rights, the Act envisages relief from ecological distress through the creation of long-term sustainable assets through water and soil conservation, drought proofing, renovation of water bodies, rural connectivity, etc. Despite the programme functioning at half its 100 day guarantee (average number of days worked per household has been around 45 days for the last five years), it has had a far reaching impact. Four broad positive aspects are: an increase in rural incomes, gender and caste effects, community empowerment, and quality asset creation.
Despite several benefits, a septic mix of a lack of political will, enabled by opaque digital technologies have subverted the Act in letter and spirit. There is a direct correlation between funds allocated for a public programme and its performance. The NREGA wages in most states are lower than state minimum wages. This effectively means that NREGA in most states are operating in violation of the constitutional right against exploitation. Insufficient funds lead to at least two more forms of violations. First, work demand of workers gets curbed and payment of wages get delayed beyond the mandated 15 day period. The budget allocation for NREGA as a percentage of GDP is less than 0.2% whereas it should at least be around 2% of the GDP even at current wage rates. Further, on average, over the past five years, one-fifth of each year’s allocated budget has been used to clear pending arrears from previous years. Owing to budget cuts, officials broadly resort to two kinds of rationing in work provision. First, give fewer days of work to many households. Second, give more days of work to fewer households. There is also substantial evidence suggesting that insufficient funds have led to delays in wage payments which, even the Ministry of Finance has acknowledged[3]. An analysis of 3.2 crore wage transactions showed that 42 percent of the wage payments were delayed beyond 15 days[4]. Indeed, even the Olympic games get completed in 15 days but the Union government’s responsibility of paying its poorest citizens within 15 days of completion of work remains elusive.
As per the Act, copies of muster rolls (attendance registers) must be available for inspection by anyone. In 2017-18, the Union government introduced electronic muster rolls (e-mr). The generation of such e-mr was made contingent on the completion of geo-tagging of schemes. Owing to differential powers given to computer operators at various levels of programme implementation by the Centre, an e-mr could only be generated at the panchayat level but print-outs of the same could only be done using the programme officer’s login at the block level. Adding to the woes of e-mr and supposedly to curb corruption, recently, the Union government mandated the usage of an app called National Mobile Monitoring System (NMMS) to record attendance of workers. Each worker’s photograph has to be geo-tagged and uploaded with time stamps twice daily at the worksite. Since there is no back-end authentication mechanism to match the worker’s id and her photograph, the app fails to meet the very aim of curbing corruption for which it was purportedly introduced. On the contrary, owing to technical glitches and network failures, thousands of workers say that despite working, their attendance has not been registered. So effectively people have been made to work without paying them.
Between 2006 to 2011, NREGA funds were given in advance to the Gram Panchayats (GP) for programme implementation and it was the GP’s responsibility to pay the workers on time. Between 2012-2015, the electronic funds management system (e-fms) was introduced, whereby funds were transferred directly to the workers’ accounts from the state government’s accounts. The GP did not receive any advance funds, and payments were made only after completion of works. 2016 marked the introduction of the National electronic funds management system (Ne-fms) whereby funds were transferred directly from the Union government’s account to the workers’ accounts upon completion of works. This phase also saw the proliferation of Aadhaar based payment systems (ABPS) in NREGA.
Payment of wages to workers can happen either through an account-based system or an Aadhaar based payment system (ABPS). Account-based system is a standard bank transfer using the worker’s name, her bank account number and IFSC code. In ABPS, the Aadhaar number of an individual becomes her financial address and money is sent to the person’s last Aadhaar linked bank account. For ABPS to work, not only must the worker’s job card and bank account be seeded with her Aadhaar, but the bank itself must be linked to the NPCI mapper through the bank’s Institutional Identification Number (IIN). The bank’s IIN becomes the channel through which the worker’s last Aadhaar-linked bank account is searched. There is a lot of pressure on field officials to meet targets of seeding job cards with Aadhaar. The complications to do so can be non-trivial resulting in officials deleting the job cards of many active and alive workers. In response to a question in the Lok Sabha, the MoRD reported, there was a 247% increase in job card deletions in FY 2022–23 compared to previous years. This is akin to decreasing the denominator to make a fraction look good.
Payment failures in account-based systems are easier to resolve locally but payment failures arising due to incorrect mapping of a bank’s IIN with NPCI and require interventions by multiple agencies for resolution. Workers and local officials are usually clueless. Misdirected and diverted payments are unique to ABPS. Misdirected payments occur when one person’s Aadhaar number gets linked to somebody else’s bank account. These are very hard to detect and can be found only through ground surveys as this information is not available online. Most workers are unaware which account their Aadhaar was linked last to as every financial institution in rural areas coerces linking workers’ Aadhaar without their consent leading to wages getting diverted to some account without the worker’s knowledge or consent.
Hundreds of worker testimonies have been recorded at Jantar Mantar describing how people have lost their work and wages due to these opaque and unaccountable technologies like NMMS and ABPS. Despite these, the NMMS app continues and from January 1, 2024 wage payments through ABPS have been made mandatory. As per the government’s own data, as on January 11, 2024, out of a total of 25.6 crore registered workers, only 16.9 crore workers are eligible for ABPS while all workers are eligible for account-based payments.
In summary, the right to work, the right to fair and timely wages are all being violated to various degrees.
[1] In Olga Tellis v. Bombay Municipal Corporation (1985 SCC (3) 545) the Supreme Court held that “An equally important facet of the right to life is the right to livelihood because no person can live without the means of livelihood.”
[2] In Maneka Gandhi v. Union of India (1978 SCC (1) 248) the Supreme Court held that “The right to live includes the right to live with human dignity and all that goes along with it…and also the right to carry on functions and activities as constitute the bare minimum expression of human self”
[3] https://drive.google.com/file/d/1VlEK2gSrbku24IclMLP8dE59AO1H0mDS/view
[4] http://libtech.in/wp-content/uploads/2023/08/MGNREGA_TechLab_WageDelays_CasteABPS_Aug29_2023.pdf
Rajendran Narayanan teaches in Azim Premji University, Bangalore and is associated with LibTech India. The views expressed are personal and do not reflect the views of the institution I am part of.
Featured Image Credit: The Telegraph