Too legal to work

A highly legalised system of complaints redress may undermine, not enhance, accountability

To err is human, and government officials are human indeed. For that reason, Parliament's consideration of the right of citizens for time-bound delivery of and services bill is a welcome development.

The bill squarely addresses one of the two objectives of grievance redress systems basic fairness. When someone is unjustly denied something to which they are entitled as a matter of legal or constitutional right, it is crucial for government, as a condition of basic fairness and reciprocity, to facilitate the expression of complaints, and soon upon receiving a well-founded complaint, to fix the problem. Redress should operate in a rule-based way, so that it does not depend on wealth and influence, but rather on citizenship and humanity.

The bill would rightly require public authorities to adopt citizen's charters committing themselves to service standards, develop new procedures and centres for receiving complaints, respond to and redress justified complaints promptly, and facilitate appeals to designed authorities. Observers have noted areas in which the bill could usefully be amended. These include calls for better articulation with existing state and Central government redress systems, more deference to state public services, and more attention to state-level experimentation.

The second objective of redress systems is to make governments more accountable. Redress systems require government officials to answer for failings in specific transactions with particular service recipients. Their more significant impact on accountability, however, is often indirect. Complaints are "fire alarms" that policymakers can use to improve policies. The public is often in a better position to observe implementation problems than heads of department and other supervisors. So, it pays to incentivise public complaints and to use them in performance review, policy design, and public discussion. Complaints, used as fire alarms, crowdsource aspects of policymaking.

But does the bill take full advantage of the potential use of complaints and grievances? There is scope for more. In fact, the bill is so dependent on legal pressure to promote direct, transactional, retrospective accountability (with disciplinary hearings, penalties, and investigations vested with the authority of judicial proceedings) that indirect, policy-level, forward-looking accountability could suffer. For instance, the quasi-disciplinary nature of complaints hearings may compromise the use of grievance data for organisational learning, as these data may be the subject of confidentiality concerns. The reporting requirements imposed on public authorities only include data for complaints issued, complaints disposed of, and case pendency (Clause 46, part 2). There is no requirement to report on the subject matter of complaints, their geographic origin and their bureaucratic or functional focus. In other words, the bill as currently written does not require public authorities to identify gaps in service delivery, and may indeed make it difficult for them to do so.

The US Social Security disability benefits system, whose complaints system is highly legalised and contentious, generating hundreds of thousands of cases per year, has lessons for India. Legal scholar Jerry Mashaw has found that despite millions of dollars poured into the complaints and appeals system, most of the cases had "little discernible impact on administration", partly because they were so legalised.

A highly legalised system of complaints redress could have several unintended effects. The possibility of imposing significant penalties on bureaucrats, the ease of filing cases and the lack of penalties for frivolous claims could combine to create a temptation to use grievance redress systems as venues to advance personal agendas, as has been the case with PILs and the legal system in general. Like the courts, the system could become so backlogged that individuals could lose the incentive to file formal grievances. And emphasising time-bound limits, combined with the threat of penalties, could create an incentive for public authorities to skimp on quality when they deliver services. Incorporating quality standards, which are harder to make legally precise than time limits, into citizen's charters would take some time, but would be a useful exercise for authorities.

Overall, the bill is a step in the right direction. But it could be amended to promote policy-level accountability. First, the data public authorities collect and release could include more detail on the content and geographic location of complaints, and could be released to the public in a form that NGOs, the media and others might utilise. Detailed public release might help social accountability processes complement bureaucratic accountability. Second, public authorities could be asked to review the portfolio of complaints on a regular basis. Third, the government may want to reconsider the highly legalised nature of the complaints system if frivolous or politically motivated complaints begin to emerge in larger numbers, or if contentiousness begins to impair organisational learning.

The writer is senior economist, Development Research Group, World Bank, US

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