Friday, Oct 24, 2014

Freedom from whom?

There's controversy over whether Nripendra Misra could be appointed to the post of principal secretary to PM. There's controversy over whether Nripendra Misra could be appointed to the post of principal secretary to PM.
Posted: May 30, 2014 12:10 am | Updated: May 30, 2014 8:20 am

By: Madhav Khosla

A mere two days after the new government was sworn in, controversy arose over whether the proposed principal secretary to the prime minister — Nripendra Misra — could be appointed to the post. Misra is a former chairperson of the Telecom Regulatory Authority of India (Trai) and the Trai Act, 1997, provides that chairpersons are “ineligible for further employment under the Central government or any state government”. To remedy matters, an ordinance amending the Trai Act was swiftly promulgated. Many have criticised this move as violating institutional norms and enabling political interference with independent regulators. The government’s actions trigger important questions. The answers, however, are not entirely straightforward, primarily because the legal and political character of bodies such as the Trai remains unclear.

When does the complete independence of public institutions matter? Independence is clearly essential for judicial or quasi-judicial bodies. This category includes courts and tribunals, such as the Telecom Disputes Settlement and Appellate Tribunal. These bodies are checks on executive and legislature action. Any interference with them violates the separation of powers, and the way their autonomy should be secured (administrative independence, financial independence etc) is a key issue in public law. It is the reason why we endlessly debate how Supreme Court judges should be appointed or whether bureaucrats should be allowed to sit on tribunals. Another instance where independence matters is in bodies that operate outside the legislature and executive but are not judicial in character. These are only a select few — the most prominent example is the Election Commission, which oversees the process which will determine the composition of the legislature and the executive. Accordingly, it cannot function under the executive or the legislature.

Bodies like the Trai are more delicately placed. They undoubtedly operate within a zone of autonomy. A person appointed to head Trai has a fixed statutory term, he is required to resign from government service before taking over, he can only be fired for cause, and until this ordinance he could not be further employed in government. The rationale for such safeguards is that the day-to-day functioning of the regulator should be immune to the pressures of politics. Regulatory decisions, like in the field of telecom, should be motivated by economic and technocratic expertise, and all modern administrative states try to provide some degree of insulation from politics.

This aspiration towards independence in daily functioning does not, however, fully delink these bodies from the executive. In any parliamentary system, they should be viewed as ultimately accountable to the executive, which is responsible to the legislature. Indeed, the legal existence of such bodies is only made possible by Article 53 of the Constitution which permits the Union’s executive power to be exercised not merely by the president but also continued…

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