One of the first steps of the Narendra Modi government has become a stumble. As it hastened to appoint a principal secretary of the prime minister’s choosing, the government overlooked the fact that the candidate, Nripendra Misra, as a former chairman of the Telecom Regulatory Authority of India (Trai) was ineligible to join the government in any position because Section 5(8) of the Trai Act, 1997, explicitly forbids it.
Then, instead of waiting to amend the act in Parliament, and explaining why it felt the legal bar on post-retirement jobs was too sweeping, the government issued an ordinance, so that Misra could report to work. The episode frames a seeming impatience with legal requirements in a case that involves an individual rather than an urgent point of principle. It could have anyway been settled in the government’s favour as soon as Parliament convenes.
The Trai Act was brought in by the NDA government and was intended to guard regulatory independence from the lures of commercial employment and government service. There could be a case that it is unnecessarily strict about post-retirement work, considering that other regulators like Sebi and the Competition Commission are not subject to such a ban. A longer cooling-off period could be contemplated, instead, to make sure that the regulator’s actions in office remain scrupulously unmotivated by a later stint in government. But the Modi government did not make this argument to the legislature. It invoked an emergency power given to the executive to meet an emergent situation, for an individual appointment. The previous government was criticised for relying on the ordinance route to push through its pet legislation like the food security bill, given the gridlock in Parliament. In fact, the use of ordinances was the highest in the mid-’90s by the unstable coalitions in government. In this case, given the Modi government’s emphatic majority in Parliament, it could have easily achieved the same end, if it had followed due process in the House.
The Modi government has barely begun work, and it is too soon to judge its approach towards institutions. But given the power it commands in the legislature and the top-down nature of the executive, it is especially important that the government allays suspicions about the way it will use its enormous power, and conveys its respect for institutional checks and balances.