Meghalaya Social Audit Act is a flawed piece of legislation

Thma U Rangli Juki (TUR) has opposed the implementation of the Meghalaya Community Participation and Public Services Social Audit Act, 2017 in its present form.
“We believe that for this act to have any value and legitimacy amongst the citizens, it cannot and should not be implemented in the present form,” TUR leader Angela Rangad said in a statement issued here on Thursday.

She said that the Act which should ensure ‘community participation’ was legislated without any ‘community participation’ or pre-legislative consultation.

Six months after the Bill was passed, the government decided to hold a small ‘consultation’ with select group of CSOs in the presence of Chief Minister Mukul Sangma, K.N.Kumar, IAS, B. Dhar IAS (nominated – rtd), she said while stating that TUR was also one of those invited to the said meeting.

The TUR also stated that the State Social Audit Council which is supposed to oversee and plan for Social Audit is not an independent body, because all the members of the council are government nominees.

“The appointment of Toki Blah, a retired IAS officer, as the chairperson of Social Audit Council by the government without any announcement of vacancy, or criterion of appointment goes against the very principle of independence and transparency,” Rangad said.

Meanwhile, the TUR demanded that the Act needs to be amended in a consultative process to ensure that the Act creates an independent body to ensure Transparency, Accountability & Participation.

“The rules for the implementation of the Act need to be framed in a consultative and transparent manner,” she said.

She was also of the view that the Principal Act needs to comply with the Auditing standards set by the Comptroller & Auditor General of India standards about its independence and formats of audit.

“Traditional institutions as well as Sixth Schedule institutions need to be made a party to this Act in order to ensure its effectiveness and legitimacy,” she added.

Rangad also said that TUR is going to further suggest clause by clause amendments towards making this act functional and pro-people and for this official consultations have to be carried out soon so that amendment can be introduced in the winter session of the Legislative Assembly. (from Shillong Today)

Comments and Suggestions by Thma U Rangli Juki (TUR)  on THE MEGHALAYA COMMUNITY PARTICIPATION AND PUBLIC SERVICES SOCIAL AUDIT ACT, 2017

1. An important legislation like THE MEGHALAYA COMMUNITY PARTICIPATION AND PUBLIC SERVICES SOCIAL AUDIT ACT, 2017 came into being without any element of Community Participation through Pre-Legislative consultation about its intent and content. Some of the remarks we make about the Act are due to this ‘failure’ on the part of the government to take the people and community into confidence about the law.

2. This legislation seeks to create a framework and structures to do “Social Audit” through “community Participation”. As its preamble puts it:

“to review delivery of public services and implementation of government schemes and programmes through a participatory social audit by government and the stakeholders; by ensuring timely review and concurrent course-correction in the delivery of schemes and programmes, to achieve realization of desired development outcomes”

To read the Act with this objective in mind we need to put it to test on the following standards

a) How does the Act define community of “stakeholders”?
b) How does the Act envisage “Social Audit”?
c) Is the Audit conducted by a body independent of institutions delivering the services?
d) How are Public Services defined?
e) How are entitlements of Citizens vis-a-vis Public services envisaged?
f) How does the Act take into account the cultural and political history of people’s institutions?
g) Does it make the citizen’s lives better on a day to day basis and does it allow the citizens to seek remedies for denial of their entitlements or get provide redressal for their grievances?

3. The Act in the present form does not define many important terms. In any law it is the definitions which create the basis on which its implementation and scope can be tested. For instance in this Act, lack of definition creates an act without teeth. Some of these terms which have not been defined are public services, concurrent course-correction, Social Audit, ‘Concurrent Audit’, public grievances, Civil Society Organizations.

4. On the question of independence of this process one has ones doubts.

The Act provides for the constitution of a State Social Audit Council to oversee the implementation and monitoring of this Act

Members: 

  • Chairperson who will be an ‘eminent person’ with experience in the development sector
  • Representatives from Line Departments and Districts
  • Representatives from Village Councils
  • Representatives from CSOs

Apart from the ‘Life Time appointment” to this council because the act does not even specify the period for which this appointment has been made there are several issues with the provisions for a State Social Audit Council. These cannot be rectified in the Rules because rules have to be subordinate to the Principal Act.

This council which is to oversee this entire process is fully filled by government nominees without any independent opinions and voices calling into question its independence to conduct and oversee the Audit process. This is shocking because the Meghalaya Lokayukta Act has a process of Search & Selection with the participation of Leader of Opposition as well as the judiciary. Without rectification of this important criterion, this Act fails on the criterion of Independence taking away the legitimacy of its intent.

Even at the district level (section 9(1)) It is the DC who is the District Social Audit Coordinator. A Deputy Commissioner cannot serve as a District Social Audit Coordinator. It compromises on independence at a fundamental level. In addition, there is a requirement of a full time official who can be dedicated to this responsibility.

 It is said that Social Audit Facilitators will be ‘empanelled’ by the District Social Audit Coordinator and they should be NGOs and SHGs. This distinction between the citizen/beneficiaries and facilitators (who are empaneled) takes away the participatory nature of intent of the Act. This is top down. Moreover facilitators should not be Auditing their own village.

An independent process like social audit should be coordinated by an independent entity not a State Department

5. To ensure Delivery of Public Services it requires a non post facto non post mortem grievance redressal mechanism indicating timelines for works and delivery of services with penalties attached to non compliance to this time frame so as to ensure efficiency and transparency in the functioning of implementing agencies/field actors/staff. From scholarships, to nondelivery of health care, licenses, Disability certificate, rations etc. are immediate grievances which cannot wait for two years of the social audit roster or be a “representative sample” to be audited once a year on an arbitrary decision of the District Social Audit Coordinator.

We had already submitted a PEOPLE’S DRAFT OF THE RIGHT OF CITIZENS FOR GRIEVANCE REDRESS AND SERVICE GUARANTEE IN MEGHALAYA BILL, 2013 Unfortunately, there was no response to it from the government.

There Object was

“to lay down an obligation upon every public authority to publish citizens charter stating therein the time within which specified goods shall be supplied and services be rendered and provide for a grievance redressal mechanism for non-compliance”

This act does not even define what Public Services means? What the entitlement vis a vis the said public services means? In the Draft we had submitted the definition of public service was very clearly defined:

“service” means all the goods and services, including functions, obligations, responsibility or duty, to be provided or rendered by a public authority”

6. People in Meghalaya start their participation in the structures of democratic governance through constitutionally mandated ‘traditional institutions”. The legitimacy and sense of ownership of these institutions (however flawed) is much more than the structures created by the development administration. For instance, VEC which is imagined as the General Council of the village has in practice become merely a committee of the Dorbar in Khasi & Jaintia Hills. Even in its conception it excludes young men and women of the village because only male and female heads of the household are member of VEC.

The General Council or Dorbar Shynrang Bad Kynthei where all adults of the village are the ones who shall participate in the exercise needs to written down.

7. On the question of the key event the Act envisages for its implementation – the “public Hearing’- it has not been clearly sketched out making it seem that the event is more for the Public to Hear and listen to the Facilitators and the development administration rather than their active participation in the whole process. Also what happens during the period between Public hearings. What happens to grievances, where do the people go for the denial of their entitlement. The Act is silent on that.

8. If any case of corruption is found in the process of Social Audit will it be a grievance or a legal action? How does the institution of Lokayukta Come into this whole process?

9. Moreover, the Act is still structured in a rural context and does not have much to say about the Urban reality of Meghalaya. In absence of institutions of self governance in the Urban Areas how will the Social Audit be Conducted?

These are just some of the glaring lacunae in this act. Thus we suggest:

  1. The Principal Act needs to be amended as soon as possible in a consultative process to ensure that the Act creates a framework that ensures an independent Social Audit process to ensure Transparency, Accountability & Participation. The rules for the implementation of the Act needs to be framed in a consultative and transparent manner.
  2. The Principal Act needs to comply with the Auditing standards set by the Comptroller & Auditor General of India standards about its independence and formats of audit.
  3. Traditional Institutions as well as sixth Schedule institutions need to be made a party to this Act in order to ensure its effectiveness and legitimacy.
  4. At the Village level the Social Audit General Council needs to be all the adults residing in that village.
  5. As soon as possible either this act needs to be amended to include timelines, citizen charters, obligations of public authority, penalties for non compliance in delivery of Public Services. Better still the government should legislate THE RIGHT OF CITIZENS FOR GRIEVANCE REDRESS AND SERVICE GUARANTEE IN MEGHALAYA Act.
  6. State level Social Audit Council needs to be reconstituted with proper search and selection process which ensures independence of the Council. For a format of such a search & selection committee Lokayukta Act can be a model. Till such a process is instituted and legislated appointments to this have to be kept in abeyance.
  7. Rules for the Act (as amended in light of public consultation) should be made after a proper field-testing in of procedures, system, formats of audit.
  8. If any case of corruption is found under this Act, the case should be automatically sent as a FIR to the office of the Lokayukta to fix responsibilities and take action against the culprit(s).

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