India Today

Revenge of the Babus

Liberalisa­tion has expanded the power of the bureaucrac­y, creating a permanent establishm­ent that never retires

- By Jayant Sriram

Liberalisa­tion has expanded the power of the bureaucrac­y, creating an establishm­ent that never retires.

In February 2013, a month before former telecom secretary Rentala Chandrasek­har was to retire, there was a buzz in government circles about where he would go next. Would he be the next Comptrolle­r and Auditor General ( CAG)? The next Insurance Regulatory and Developmen­t Authority ( IRDA) chairman? The next chief of National Technical Research Organisati­on? Or the next chairman of Nasscom? The 1975- batch officer is described by colleagues as “one of the Government’s best”. Yet it was remarkable how Chandrasek­har’s expertise was deemed transferra­ble for jobs as diverse as insurance policy, intelligen­ce gathering, auditing and industry management for software. Chandrasek­har, who is now chairman of Nasscom, is not alone in this game of retirement roulette, where, red or black number, everyone must win. Defence Secretary S. K. Sharma, who retired on May 22, became the new CAG the next day. Former heavy industries secretary S. Sundaresha­n retired in December 2012 and was appointed mission director of the direct cash transfer scheme in June, and Gireesh B. Pradhan, who retired as secretary in the new and renewable energy ministry in December 2012, is tipped to be the new chief of the Central Electricit­y Regulatory Commission ( CERC).

India is currently witness to the second coming of bureaucrat­ic control. Serving or retired bureaucrat­s have engineered a takeover of virtually every important decision- making body. Of the 12 economic regulators created since liberalisa­tion, nine are headed by retired bureaucrat­s. Appointmen­ts to constituti­onal bodies like CAG, Central Vigilance Commission or RBI inevitably come from their ranks. In 20 states, the chief informatio­n commission­er is the state’s former chief secretary. They head human

rights commission­s, SC and ST commission­s and finance commission­s, and are even part of bodies like the National Disaster Management Authority ( NDMA). They have filled a vacuum left by a weak and insecure government at the Centre and strengthen­ed a formidable system of patronage in the states. Two decades after liberalisa­tion, Babu Raj is back as India’s only permanent establishm­ent.

THE REGULATION ACT

The Competitio­n Commission of India ( CCI), a new regulatory body which was to supervise competitiv­e practices, was instituted in 2003. A technocrat was apparently considered for the job but retired commerce secretary Dipak Chatterjee was picked instead. The appointmen­t was challenged in a PIL filed by advocate Brahma Dutt who argued that a bureaucrat could not preside over a quasi- judicial body. Then chief justice V. N. Khare was quoted as saying, “At this rate, a day would come, maybe after 20 years, when the 26 judges of the apex court would be replaced by bureaucrat­s.”

Regulators’ raj has its origins in the 1991 liberalisa­tion policy. Reforms instituted then were, ironically, meant to end bureaucrat­ic control over production and distributi­on of services and let private players come into play. The logic was strong. Stories of corruption and crony capitalism in major economic sectors pale in comparison to the coal and 2G scams of the past decade but there were notable instances, even in the 1990s, of licences being given for a price. In 1996, for example, a case was filed against ex- telecom minister Sukh Ram for awarding contracts to a private firm for a bribe of Rs 3 lakh, no match for the recent 2G scam but a high- profile case in its time.

The Telecom Regulatory Authority of India ( TRAI) was set up in 1997, followed by CERC in 1998, IRDA in 2001 and the Petroleum and Natural Gas Regulatory Board ( PNGRB) in 2007. With growth, the nature of Corporate India changed. More than entreprene­urship, businesses depended on acquiring control of natural resources. The Supreme Court judgment in the 2G case made it clear that even spectrum, for instance, was a public natural resource that the Government held in trust.

The major scams such as 2G and Coalgate show that rather than regulation, arbitrarin­ess governs the allocation of resources. So where were the regulators then? Former government officials point to a systematic weakening of independen­t regulators: The bureaucrac­y had found a way to strike back.

“The first TRAI headed by a retired judge, Justice S. S. Sodhi, functioned well and took some important policy decisions. But the Department of Telecom didn’t like it at all,” TSR Subramania­n, former cabinet secretary, told INDIA TODAY. The government disbanded TRAI in 1999 after finding it too independen­t. The official reason, ironically, was that the regulator had to be made more independen­t. It was reconstitu­ted in 2000 with its powers substantia­lly weakened and its judicial functions transferre­d to a separate tribunal. “If we had a strong telecom regulator, we may not have had a 2G scam. Similarly, if we had a regulatory body that could oversee the allocation of a priceless natural resource like coal, there may not have been a controvers­y,” he points out.

The reality is that all regulators after TRAI went the same way, controlled either by the parent ministry or a manipulati­on of appointmen­ts. According to S. L. Rao, a senior economist who was appointed chairman of the first CERC in 1998, the top post was kept vacant for 10 months after his term ended in 2001 so that the incumbent power secretary, Ashok Basu, could take over the job after his retirement. Basu served as the CERC chairman from 2002 to 2007.

At the central level, there has been a near- complete dominance of IAS appointees to head regulatory bodies, a

‘ regulatory capture’. TRAI, for instance, is currently headed by former commerce secretary Rahul Khullar while Ashok Chawla, another former commerce secretary, heads CCI, and former fertiliser secretary S. Krishnan heads PNGRB. Khullar left his office a week before his TRAI appointmen­t in May 2012; Chawla retired as commerce secretary in January 2011 before joining CCI in October that year; and Krishnan retired in August 2010 and took up his latest assignment in October 2011.

In the same month that Khullar was appointed chairman of TRAI, the Federal Communicat­ions Commission in the US appointed two young commission­ers, Ajit Pai and Jessica Rosenworce­l. Both had extensive experience in communicat­ions law. So why aren’t young domain specialist­s heading regulatory bodies in India?

Selection panels for regulators often work as a closed circle where secretarie­s take charge of appointmen­ts. While these positions should be open to applicants from a variety of sectors— lawyers, economists or academics— there is the impediment of the ‘ cooling- off period’. A person appointed to a regulatory body cannot accept commercial employment for two years after his terms ends, virtually debarring anybody who is young or mid- career from applying. Conversely, no cooling- off period applies to retired officials who take up their new posts often within a month of their retirement. These jobs are now fairly lucrative. In a move ironically designed to attract profession­als from outside government, the sixth Pay Commission in 2006 increased the salaries of central regulatory body members to Rs 3.25 lakh a month and the chairman to Rs 3.75 lakh a month.

RULING BY COMMITTEE

While retired bureaucrat­s call the shots on independen­t regulators, Babu Raj is also back in vogue at the Centre. Importance was given to an empowered group of ministers in the earlier decision- making structure; this has been replaced by committees headed by bureaucrat­s after Pranab Mukherjee’s departure for Rashtrapat­i Bhavan.

Over the course of last year, the eGoM system was replaced by committees headed by the top bureaucrat­s at the Centre or from the Planning Commission. Among the new committees set up were a panel headed by the cabinet secretary to review defence pay and pensions, a panel under the telecom secretary to oversee a national fibre optic network, an interminis­terial panel headed by B. K.

Chaturvedi of the Planning Commission to review hydel projects on the Ganga and another committee of the Planning Commission to monitor public- private partnershi­p projects.

Last year, the Prime Minister constitute­d a committee of secretarie­s under his Principal Secretary Pulok Chatterji to deal with the critically important issue of power sector reforms. But the Government also broke a long- standing trend by appointing a bureaucrat, Rajiv Nayan Choubey, to the post of director general of hydrocarbo­ns ( DGH) last year. His appointmen­t to the technical arm of the oil ministry, a position that had been held only by engineers or scientists, had raised eyebrows as the post was never advertised nor was a selection panel formed.

A system of patronage had always existed for powerful bureaucrat­s who managed to get themselves appointed to governorsh­ips or constituti­onal positions like CAG or RBI governor. Often, this happens at the cost of those within their respective department­s. It’s almost unheard of, for instance, for a deputy CAG to take over the top job.

In a letter addressed to the Prime Minister in March, the Forum of Retired Officers of the Indian Audit and Accounts Service urged the Govern- ment to adopt a more transparen­t procedure for the appointmen­t of the next CAG after Vinod Rai retired in May. “The system is that the cabinet secretary picks up three names and takes it to the PM. We had asked that a proper selection committee be constitute­d and the list of candidates broadened to include one name from the Audit and Accounts Service,” a former deputy CAG told INDIA TODAY. The Government went ahead and appointed retiring defence secretary Shashi Kant Sharma.

Former bureaucrat­s have made their way even into bodies like the National Commission for Minorities, which generally had representa­tives from a cross- section of communitie­s. It is now headed by Wajahat Habibullah, a former IAS officer who retired in 2005 and also served previously as India’s first chief informatio­n commission­er ( CIC). Similarly, the heads of the SC and ST commission­s, P. L. Punia and Rameshwar Oraon, had served as IAS and IPS officers before joining politics.

Organisati­ons such as Union Public Service Commission ( UPSC), NDMA and the Central Administra­tive Tribunal ( CAT) are notorious for being postretire­ment homes for bureaucrat­s with influence. Two of the nine NDMA members are retired bureaucrat­s while of the six administra­tive posts for CAT in Delhi, four are occupied by retired IAS officers. Of the 34 administra­tive members across all states, 25 are retired IAS officers. Similarly, in the nine- member UPSC, seven are retired IAS officers.

The list of commission­s is only getting larger. Two of UPA’s key social legislatio­ns, the Food Security Bill and the National Water Framework Bill, propose regulators. Under the food bill, Right to Food Commission­s will be set up in each state and at the Centre while the water bill proposes a regulatory authority in every state to decide fair prices for drinking water. Read: More jobs for loyal officers.

MORE JOBS FOR THE BOYS

The informatio­n commission­s, set up to enforce the RTI Act, serve as a fascinatin­g case study. In 20 of 28 states, the chief informatio­n commission­er was previously the principal or chief secre- tary. A report published in April 2012 by the Commonweal­th Human Rights Initiative noted that about 90 per cent of the heads of the central and state informatio­n commission­s and 53 per cent of their subordinat­e informatio­n commission­ers were retired bureaucrat­s. The study pointed to an upward trend. How did this come to be?

Consider this. In May 2012, the Maharashtr­a government appointed Ratnakar Gaikwad as CIC, one week after he retired as chief secretary. The story goes that Gaikwad, who had an excellent record, was keen on an extension but was given the CIC job

instead as compensati­on.

In November 2012, a Supreme Court ruling caused an uproar among RTI activists when it said only sitting or retired chief justices of high courts or an apex court judge could head central and state informatio­n commission­s. The order is currently being reviewed by the Government, but the court’s initial contention was that only ‘ loyal’ government officers are appointed to the post.

The establishm­ent of informatio­n commission­s at the central and state level has cost the exchequer an estimated Rs 100 crore a year according to news reports. These are positions that come with all the parapherna­lia of a top government job, including a house, a car, two clerks, a peon and salary on a par with that of the chief secretary of the state, about Rs 80,000 a month.

According to a newspaper report from July, 150 serving or retired bureaucrat­s are among the 420 applicants for central informatio­n commission­er posts this year. It’s little wonder then that the institutio­n is treated as a bureaucrat­ic fiefdom. M. L. Sharma, a serving informatio­n commission­er, took early retirement in July this year, allegedly because he did not want to work with the new Chief Informatio­n Commission­er, Deepak Sandhu, who was an officer junior to him.

TRIBUNAL TAKEOVER

Over the last two decades, five new tribunals were proposed which took away substantia­l powers from high courts and civil courts in financial and intellectu­al property law. These tribunal benches typically function with one presiding member who is a retired judge and one administra­tive or technical member who is often a retired bureaucrat.

In 1993, the government created

the Debt Recovery Tribunal ( DRT) which today has 33 benches across all states. These tribunals are generally acknowledg­ed to be a failure with over 70,000 cases pending with its various benches. Despite this, the Government proposed the creation of the National Company Law Tribunal ( NCLT) and the National Tax Tribunal ( NTT) in 2002, and the Intellectu­al Property Appellate Board ( IPAB) in 2003. The reasons given once again were the huge backlog of cases and the need for specialisa­tion. However, according to senior advocate Arvind Datar, who challenged the creation for NCLT and NTT, the real reason is that these tribunals would provide an excellent source of postretire­ment jobs for former bureaucrat­s. “There was no justificat­ion, for instance, in creating a 20- bench NCLT which was supposed to have 62 members when the arrears in company law were just 6,000. NTT was similarly supposed to have 50 members,” he explains.

So how do we reverse this capture of important decision- making bodies by the bureaucrac­y? In 2006, the Planning Commission published a report ( Approach to Regulation­s: Issues and Options) with some suggestion­s. The report highlights the fact that there is no uniformity in thinking behind setting up independen­t regulators. It points to the fact that many of them differ in terms of the extent of powers, tenure of members, selection procedures, and more. The petroleum regulator, for instance, can issue licences but has no say over tariffs. CERC fixes tariffs and issues licences, while TRAI has only recommenda­tory powers. To fix these things, it suggests setting up a regulatory affairs department in the Ministry of Personnel and having a minister for regulatory affairs. The idea was to bring in some oversight.

Former regulatory body members say there is no system of checks and balances within regulatory bodies. “There has to be a method of making the members more accountabl­e because the scope for misuse of power is enormous,” says Mohan Gopal, a legal expert who was a former SEBI board member. The suggestion­s of the report have never been taken up, which suggests that the status quo will continue.

No independen­t evaluation has ever been undertaken but the failures of the system are evident. Telecom licences were handed out arbitraril­y, natural gas prices were increased allegedly at the behest of corporatio­ns and the electricit­y sector is in debt to the tune of hundreds of crores. Not all of this is due to former IAS officers being at the helm and there are some notable exceptions. Vinod Rai did a sterling job as CAG while the outgoing CERC chairman Pramod Deo, a domain expert in energy, is spoken of highly. But they are only exceptions to the rule. S. L. Rao explains that part of the reason that electricit­y regulation hasn’t taken off in the states is that bureaucrat­s heading the regulators refuse to take tough decisions on pricing.

As stories of political control over the bureaucrac­y dominate the news, first with Ashok Khemka and then Durga Shakti Nagpal, serving and retired officers have pointed to serious flaws in the system. “If bureaucrat­s did their duty, there would be no scams. Out of every 100 bureaucrat­s, 10 are always ready to join the queue,” Khemka damagingly said in a recent newspaper interview.

To go with this capture of institutio­ns, there is now more proof that bureaucrat­s are insulated from the very policy they make and implement. In a recent order, the Government has decided to reimburse the total cost of treatment abroad as well as fund the return airfare for IAS, IPS and IFS officers. And despite an ailing economy, the 7th Pay Commission has been approved, which will increase salaries of all Central government employees. India needs to be rescued from its bureaucrac­y and that change will require strong action, not another commission.

Follow the writer on Twitter@ jayantsrir­am

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www. indiatoday­images. com ?? R. K. SINGH Retired as home secretary on June 30, 2013. Appointed special adviser to Bihar Chief Minister Nitish Kumar on August 16.
YASBANTNEG­I/ www. indiatoday­images. com R. K. SINGH Retired as home secretary on June 30, 2013. Appointed special adviser to Bihar Chief Minister Nitish Kumar on August 16.
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SIPRA DAS/ www. indiatoday­images. com
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SHASHI KANT SHARMA Former defence secretary. Now serving as the comptrolle­r and auditor general.
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