THE INDECISION MAKERS
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.
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.
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.