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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. There’s controversy over whether Nripendra Misra could be appointed to the post of principal secretary to PM.

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 by officers subordinate to it. The fact that such bodies have some relationship with the political executive and are not entirely insulated from politics is also evidenced by the fact that the government can broadly set the political course of a regulator through appointment, that it can indicate its disapproval of regulatory actions without incurring contempt, unlike in the case of the higher judiciary, that it can enact delegated legislation and so forth.

If such bodies are understood to formally function in the limited political sense described above then changing post-retirement benefits is less problematic than we might imagine. Checks and balances, after all, are meant to be external rather than internal to the executive. The state should be able to determine the kind of autonomy such institutions are granted and how it may be protected. Post-retirement restrictions of the kind amended do not, for example, exist for members of the Competition Commission. The original rationale for the Trai restriction was the dominance of Bharat Sanchar Nigam Limited in the telecom sector and the concern that the regulator might be unduly influenced by this state actor. Given how the sector has evolved, this particular rationale no longer holds, and there is no reason why the rules regarding autonomy cannot similarly evolve.

But if indeed such bodies lack full independence, we might ask what checks exist on the misuse of their powers. The short answer is judicial review. All administrative decisions are subject to review by the relevant tribunal, as well as by the high court and Supreme Court under their writ jurisdiction. It is the principles of constitutional and administrative law that safeguard against the naked operation of vested political interests. If, on the other hand, we envisage a regulatory environment where we place a greater degree of emphasis on independence and autonomy — and argue that bodies like the Trai are not part of the executive — we need an account of how that can be reconciled with cabinet responsibility and parliamentary government. In either instance, clarity on the somewhat ambiguous status of bodies like the Trai would shed light on issues like ministerial accountability for the actions of independent regulators, and enable a regulatory environment in which the chain of accountability is no longer a matter of speculation.

The writer, a lawyer and political scientist at Harvard University, is author of ‘The Indian Constitution’

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