THE IN­DE­CI­SION MAK­ERS

India Today - - THE BIG STORY - By Jayant Sri­ram and Ku­mar Anshuman THE BIG STORY

On Septem­ber 9, the Depart­ment of Tele­com ( DOT) re­ceived a sug­ges­tion from the Tele­com Reg­u­la­tory Au­thor­ity of In­dia ( TRAI): The re­serve price for 2G spec­trum, which had been un­suc­cess­fully auc­tioned twice be­fore, needed to be re­duced by up to 60 per cent to make it com­pet­i­tive. DOT did not act on the rec­om­men­da­tion. In­stead, it asked for a “clar­i­fi­ca­tion” on why prices should be cut.

TRAI’S re­ply, sub­mit­ted on Oc­to­ber 23, summed up the pol- icy paral­y­sis in DOT and, by ex­ten­sion, the en­tire bu­reau­cracy: “Per­haps a re-read­ing of the rec­om­men­da­tions will pro­vide the nec­es­sary clar­ity.”

This is symp­to­matic of the lethargy in de­ci­sion-mak­ing that per­vades the bu­reau­cracy. It is rooted in a fear of ret­ro­spec­tive pun­ish­ment: No of­fi­cial wants to take a tough call lest he in­vite the fate of Ashok Khemka, a Haryana bu­reau­crat who has been trans­ferred 41 times in 21 years, or P.C. Parakh, a for­mer coal sec­re­tary who is fac­ing a CBI probe years into a com­fort­able re­tire­ment. In a sea­son of scams and CBI in­ves­ti­ga­tions, when a mere Fear of CBI in­quiries and ar­bi­trary trans­fers grips the bu­reau­cracy in the wake of the case against for­mer coal sec­re­tary P.C. Parakh

sig­na­ture on a doc­u­ment is enough to launch a crim­i­nal in­quiry or anger a min­is­ter, no bu­reau­crat is safe. Their only way out, serv­ing of­fi­cials say, is to re­peat­edly ask for opin­ions and clar­i­fi­ca­tions—the bu­reau­cratic code for pass­ing the buck.

Now, the Supreme Court has come to their res­cue. In a land­mark judg­ment on Oc­to­ber 31, the court noted that po­lit­i­cal in­ter­fer­ence “is lead­ing to de­te­ri­o­ra­tion in the func­tion­ing of the bu­reau­cracy” and sug­gested fixed tenures to in­su­late them from it. The court, hear­ing a pe­ti­tion filed by 83 re­tired bu­reau­crats in Fe­bru­ary 2011, also said of­fi­cials should not act on ver­bal or­ders from po­lit­i­cal bosses. This, it said, would give bu­reau­cratic free­dom to take de­ci­sions.

POL­ICY PARAL­Y­SIS

It’s about time too, for pol­icy paral­y­sis has spread across eco­nomic min­istries. In April this year, the Na­tional High­ways Au­thor­ity of In­dia ( NHAI) had pro­posed a post­pone­ment of the pre­mium pay­ment it re­ceives from de­vel­op­ers for Build, Op­er­ate and Trans­fer ( BOT) projects. Pre­mium is a pay­ment of­fered by com­pa­nies dur­ing the bid­ding stage and ranges from Rs 3 crore to Rs 680 crore per year. The au­thor­ity had been un­der pres­sure since early 2012 as 25 com­pa­nies, in­clud­ing GVK, GMR and Larsen & Toubro, said they had failed to get clear­ances on time and were un­able to be­gin work. The reschedul­ing of pay­ments—to the tune of Rs 1 lakh crore—was to be de­cided be­tween the NHAI and the trans­port sec­re­tary but was sent in­stead to the fi­nance min­istry, Plan­ning Com­mis­sion and then to the law min­istry for an ‘opin­ion’. On Oc­to­ber 8 this year, it was fi­nally ap­proved by the Union Cab­i­net but was sent again to a five-mem­ber panel for fur­ther fine-tun­ing. In the mean­while, de­vel­op­ers are grow­ing tired of the in­de­ci­sion. Ear­lier this year, the GMR In­fra­struc­ture threat­ened to pull out of the Kis­hangarh-Udaipur-Ahmed­abad mega project that was worth Rs 6,000 crore.

In early Oc­to­ber, Oil Min­is­ter Veer­appa Moily sent a strongly-worded let­ter to his of­fi­cials, ac­cus­ing them of dam­ag­ing in­vestor sen­ti­ment and risk­ing the min­istry’s cred­i­bil­ity. The let­ter was prompted by their rec­om­men­da­tion to ter­mi­nate a con­tract with Es­sar Group to de­velop Ratna and R-se­ries oil­fields in Mum­bai over tech­ni­cal is­sues. Sources in the min­istry say the of­fi­cials were afraid of sug­gest­ing any­thing that could be seen as a favour to a pri­vate firm. So, af­ter seek­ing views of fi­nance and law min­istries, they rec­om­mended that the oil­fields be trans­ferred to the state-run ONGC in­stead.

This sys­tem­atic break­down in de­ci­sion-mak­ing is a re­sult of, in part at least, bu­reau­crats’ fear of fac­ing a CBI in- ves­ti­ga­tion. “It used to be called the Be­hura syn­drome, the fear of go­ing to jail. Now it is just the fear of fac­ing a CBI probe that could go on for years,” says a se­nior of­fi­cer, re­fer­ring to for­mer tele­com sec­re­tary Sid­dharth Be­hura, who was jailed for 14 months for his al­leged role in the 2G spec­trum scam. Be­hura him­self has main­tained that al­lo­ca­tion of 2G spec­trum li­cences was cleared by the Prime Min­is­ter’s Of­fice be­fore he joined the tele­com min­istry and eight days into his new job, he was given ver­bal or­ders to ap­prove them.

If this in­deed is the case, then Be­hura stands in the com­pany of sev­eral of­fi­cers who be­came fall guys for de­ci­sions taken at the high­est level of the Gov­ern­ment. For­mer tele­com sec­re­tary Shyamal Ghosh is an ac­cused in the ad­di­tional spec­trum case that dates to 2002 when Pramod Ma­ha­jan headed the min­istry. He is ac­cused of caus­ing a loss of more than Rs 800 crore to the ex­che­quer by grant­ing un­due favours to cer­tain firms. For­mer

dis­in­vest­ment sec­re­tary Pradip Bai­jal, who served un­der Arun Shourie in 2002, is also fac­ing a re­newed CBI in­ves­ti­ga­tion in con­nec­tion with the dis­in­vest­ment of Hin­dus­tan Zinc. The lat­est on this dreaded list is Parakh. The for­mer coal sec­re­tary had cam­paigned for a trans­par­ent sys­tem of al­lot­ment of mines. In­deed, he has been com­mended, by Comptroller and Au­di­tor Gen­eral, no less, for blow­ing the whis­tle on the coal scam. Still, Parakh found CBI at his door af­ter he re­tired. “The agency’s ac­tions, such as go­ing to the me­dia be­fore a per­son is charge sheeted, will have a se­ri­ous im­pact. As it is, for many sec­re­taries, the prac­tice is to make a note and send it up—stat­ing sub­mit­ted for or­ders—with­out tak­ing a view on what is to be done,” Parakh told IN­DIA TO­DAY.

FIX­ING THE SYS­TEM The apex court’s rul­ing on fixed terms and ver­bal or­ders from min­is­ters will go a long way in re-oil­ing the bu­reau­cratic de­ci­sion-mak­ing process. If, that is, politi­cians give way. As it stands, most po­lit­i­cal par­ties are likely to op­pose the rul­ing, loath as they are to any curbs on their power to trans­fer of­fi­cials at whim. Politi­cians have mis­used this power as the cases of Khemka and Durga Shakti Nag­pal show. Nag­pal, then sub-divi­sional mag­is­trate of Uttar Pradesh’s Gau­tam Buddh Na­gar dis­trict, was sus­pended in July re­port­edly for go­ing af­ter the sand mafia. A month be­fore that, the Sa­ma­jwadi Party gov­ern­ment in the state had trans­ferred Himanshu Ku­mar, just a day af­ter he took over as divi­sional com­mis­sioner of Al­la­habad, al­legedly for the same rea­son.

In all, UP has trans­ferred an as­ton­ish­ing 800 IAS of­fi­cers in the past 16 months. In 2011, the Gu­jarat gov­ern­ment had sus­pended IPS of­fi­cer San­jiv Bhatt, who had ac­cused Chief Min­is­ter Naren­dra Modi of be­ing com­plicit in the 2002 ri­ots. At the Cen­tre too, the sys­tem to ap­point sec­re­taries has been weak­ened, and this has con­trib­uted to un­ease among of­fi­cers. In this sys­tem, a list of em­pan­elled of­fi­cers is sent to the Cab­i­net Com­mit­tee on Ap­point­ments. Then, the prime min­is­ter takes the fi­nal call. “But if the PM is weak or if it is a coali­tion gov­ern-

ment, the min­is­ter gets his favourite per­son,” says a for­mer sec­re­tary. In UPA 1, for in­stance, Road Trans­port and High­ways Min­is­ter T.R. Baalu was no­to­ri­ous for con­stantly shuf­fling per­son­nel; he changed the NHAI chair­man thrice in 2008 alone. In such a sce­nario, the wishes of min­is­ters are car­ried out with­out much chal­lenge.

UN­EQUAL LAWS

No won­der bu­reau­crats feel vul­ner­a­ble. “Any de­ci­sion they take re­sults in prof­its to one party and losses to another. If they are cho­sen for their abil­ity to take tough calls, some pro­tec­tion needs to be given to them,” says a re­tired of­fi­cial. Laws have only made it eas­ier for bu­reau­crats to be in­ves­ti­gated. It’s enough to show a signed or­der that is seen as favour­ing a par­tic­u­lar firm as pos­si­ble ev­i­dence of mis­con­duct. “It is al­most a case of as­sum­ing crim­i­nal­ity first and then work­ing back­wards,” as one bu­reau­crat puts it. That is not all. CBI in­ves­ti­ga­tions have re­placed an ear­lier sys­tem of de­part­men­tal in­quiries un­der which ac­tion could be taken against an of­fi­cer only till four years af­ter re­tire­ment. The pun­ish­ment would in­volve a fine or a cut in pen­sion. Crim­i­nal in­quiries, on the other hand, have no time limit and can re­sult in harsher pun­ish­ment.

How can hon­est bu­reau­crats sur­vive the sys­tem? In the wake of the FIR against Parakh, the Andhra Pradesh

IAS Of­fi­cers As­so­ci­a­tion passed a res­o­lu­tion de­mand­ing a se­ries of changes in laws. In par­tic­u­lar, they asked that pro­tec­tion un­der the Preven­tion of Cor­rup­tion Act, 1988—that gov­ern­ment’s sanc­tion is needed to pros­e­cute serv­ing of­fi­cers—be ex­tended to re­tired bu­reau­crats as well. “The Act says an of­fi­cial has com­mit­ted mis­con­duct if he has ob­tained ad­van­tage for any per­son with­out pub­lic in­ter­est. It doesn’t men­tion quid pro quo, or ex­change of money,” says for­mer cab­i­net sec­re­tary Prab­hat Ku­mar. “So who will de­ter­mine pub­lic in­ter­est? It should be the gov­ern­ment, not a CBI in­spec­tor.”

The as­so­ci­a­tion also de­manded pro­vi­sions in the Civil Ser­vices Per­for­mance Stan­dard and Ac­count­abil­ity Bill, which has been hang­ing fire with the Gov­ern­ment for years, to en­sure of­fi­cials are not hounded for tak­ing le­git­i­mate de­ci­sions. Th­ese mea­sures, if seen through, will help save the bu­reau­cracy from sink­ing into a morass. On its part, the Gov­ern­ment is push­ing ahead with a plan to in­tro­duce per­for­mance stan­dards. The cab­i­net sec­re­tariat has fixed Novem­ber-end as the dead­line for all min­istries and de­part­ments to ap­ply for ISO-9001, an in­ter­na­tional cer­ti­fi­ca­tion. “It works like an au­dit. If ev­ery­thing is above board and all de­ci­sion-mak­ing is as per in­ter­na­tional stan­dards, then there’s less chance of peo­ple get­ting called up for wrong de­ci­sions,” an of­fi­cial ex­plains.

The first step in fix­ing the sys­tem is the Supreme Court’s rul­ing to rid the bu­reau­cracy of un­war­ranted po­lit­i­cal in­ter­fer­ence. That said, it is not a sil­ver bul­let that will solve ev­ery­thing, says for­mer cab­i­net sec­re­tary TSR Subra­ma­nian. Not un­til, he says, the po­lit­i­cal par­ties re­alise that a non-func­tion­ing bu­reau­cracy can bring gov­er­nance to a stand­still.

RA­JKU­MAR/

www.in­di­a­to­day­im­ages.com

PRAMOD PUSHKARNA/

www.in­di­a­to­day­im­ages.com

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