It is well known that the Indian state suffers from a serious crisis of implementation capability. So deep is this crisis that it cannot even reliably perform the most routine tasks like moving money and getting employees to show up at work.

So, it is hardly surprising that rights laws have fallen prey to this crisis. Ironically, the push for rights-based laws emerged precisely out of the state’s limited capability to implement welfare programmes and a deep scepticism about its ability to correct this failure without additional checks and balances. Many commentators have interpreted the rights laws as a moment in state building. Yet it is precisely this low capability that has resulted in poor implementation. And far from solving the problem, rights laws have served to amplify the urgent need to resolve this crisis.

The roots of this capability crisis lie in the Indian bureaucracy’s hierarchical structure and guideline-driven culture. To understand the problem, last year, a group of Accountability Initiative researchers documented the time use of implementing officials. Our analysis is restricted to the use of Block Education Officers (BEO) but this experience is representative of most local officials. Here is what we found. The block is a place of frenzied activity. Officers spend much of their day in routine tasks—visiting schools, attending meetings, completing paper work and dealing with visitors.

Seems reasonable? Except that these daily tasks are rarely planned. Block officials usually start their day with phone calls from their district bosses informing them of new “government orders" received and the tasks they have to perform. And because the bureaucracy privileges hierarchy, tasks are assigned with little consultation. So timelines are unrealistic and last-mile implementation constraints—transportation problems and banking delays, to name a few—are not given adequate consideration. Faced with these constraints, even the most well-intentioned officer finds it hard to get the job done. Worse, it serves to legitimize inaction as officials always have a ready excuse.

But the more egregious consequence of this haphazard task allocation is that officials rarely do what they are hired for. The primary responsibility of a block officer is to provide academic support to schools. But in the rush to meet orders, this is the last thing they actually do. During our study, Bihar’s BEOs were busy implementing orders to organize camps for uniform and scholarship distribution. In Himachal Pradesh, BEOs were busy managing exams while Andhra Pradesh’s BEOs were implementing teacher recruitment orders. And so you have a delivery system designed to respond to orders rather than delivering services.

Complex decision-making structures add to the problem. Although BEOs are expected to monitor schools they have no real authority to take action. Rather, they function, in their own words, as “post officers" who gather information and forward it on to higher authorities. This can cause serious delays in responding to school-level problems as decisions travel through the bureaucratic labyrinth. In one case, it took four months for a school to get a junior engineer to approve construction plans. In another case, a school had waited more than six months for news on teacher appointments.

It is in this world of haphazard orders, hierarchical work flows and low staff capacity that the rights laws have been instituted. No surprise then that the implementation experience of rights laws is no different from schemes of the past. Vacancies are high. According to the 2013 Comptroller and Auditor General report on the Mahatma Gandhi National Rural Employment Guarantee Act, vacancy rates across nine states for the Gram Rozgar Sevak, who assists the panchayat in implementing the scheme, ranged from 20% in Uttar Pradesh to 93% in Punjab. The Right to Education (RTE) Act suffers a similar fate. Vacancy rates amongst block resource coordinators is as high as 68% in Haryana. That the Indian state finds it so difficult to hire staff is a matter of serious concern and it is surprising that this has rarely made headlines.

Of course, getting people in is only the first step. The bigger challenge is to ensure they do their job. Rights laws were designed for a new kind of governance. One based on principles of participation, transparency and accountability to citizens rather than rules and hierarchy. This needs a system that empowers implementing officers to take leadership, interact with communities and experiment with different approaches to respond to accountability provisions. But the hierarchical culture of the bureaucracy has prevented this from taking root. Rather than consult implementing officials and work collectively to understand these transitions, rights have been operationalized through a new set of rules designed by senior bureaucrats that local officials are ordered to implement. It is striking that the response I always receive when I ask block education officers if RTE is different from previous education schemes is about “rules"—rules about school committees, infrastructure, enrolment but no one has ever considered the implications of a “right". The irony is that when this very same hierarchical bureaucracy has invested in implementing officials—consulting them in making rules and identifying approaches to problem solving —the results have been significant.

In one of his earliest speeches as prime minister, Manmohan Singh promised the country a reformed government. “No objective in this development agenda can be met if we do not reform the instrument…. This will be my main challenge". But rather than deliver on this promise, his government simply went on to draft new laws. And in this the rights laws offer an important lesson for the new government: you cannot legislate your way out of state failure.

Yamini Aiyar is a senior research fellow and director of the Accountability Initiative of the Centre for Policy Research.

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