India a land of regulators?

Joginder Singh, IPS (Retd)
In the name of providing better services, and attending to the grievances of the affected citizens, a plethora of Inspectors Raj has been introduced as Regulators of various services.
First the Government makes laws which are impossible to enforce and then appoints some retired bureaucrats, ostensibly for enforcing and interpreting the same.
Over and above them, it appoints appellate Boards, to listen to the appeals for some perceived or imaginary injustice done to one party or the other. “Everything which is not forbidden is allowed” is a constitutional principle of English law. The converse principle “everything which is not allowed is forbidden” — applies to public authorities, whose actions are limited to the powers explicitly granted to them by law.
The jocular saying is that, in England, “everything which is not forbidden is allowed”, while, in Germany, the opposite applies, so “everything which is not allowed is forbidden”. This may be extended to France — “everything is allowed even if it is forbidden” — and Russia where “everything is forbidden, even that which is expressly allowed” While in North Korea it is said that “everything that is not forbidden is compulsory”.
In Azerbaijan it is said that “Everything is allowed after giving bribe or with the support of “uncle””. In India, the same position prevails as in Azerbaijan, plus if you have influence, or powerful friends and relative, you do not have to bribe.
Almost all regulators are the creation of the Government and are not independent bodies. It is for the simple reason that almost all regulators are retired Government officials, who have been given a placement, irrespective of their experience or knowledge of any subject. Most of them do not have any work on a regular basis. They have to wait, for clients or appellants to approach them.
Till so far, no Government has conducted any analysis or got inspection done, for the work load they have. For the last ten years, the retired bureaucrats had never so good till the change in the Government on May, 16th.
The jobs, which should have gone to younger people, in India whose young population below 35 is 65%, have been given, as regulators have gone to the people who had earned their pension and should have made place for the younger lot. The following list is only illustrative and not exhaustive and does not cover all the departments.
A system of patronage had always existed for powerful bureaucrats who managed to get themselves appointed, with the help of their IAS colleagues and other service friends to governorships or constitutional positions like CAG or RBI Governor. No Deputy CAG has ever been appointed as CAG.
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 a Former retired 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, were former bureaucrats before joining politics.
Organisations such as Union Public Service Commission (UPSC). NDMA and the Central Administrative Tribunal (CAT) are notorious for being post-retirement 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 Information Commissions, set up to enforce the RTI Act, 2005 had retired Chief Secretaries as ,the Chief  Information Commissioner were, whose main job, in service was to show the Government in a favourable light. 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 the Information Commissioners were retired bureaucrats. The study pointed to an upward trend. How did this come to be?
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 specialization Consider this. However, according to senior advocate, who challenged the creation for NCLT and NTT, the real reason is that these tribunals would provide an excellent source of post-retirement 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.”
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.
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.
In 2006, the Planning Commission published a report (Approach to Regulations: Issues and Options). The report highlighted 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, and selection procedures.
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. A Former regulatory body member say; “There has to be a method of making the members more accountable because the scope for misuse of power is enormous,”.
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.
Despite these regulators, scams have occurred in Telecommunication, and Coal Sectors, to name a few. But the things go on merrily, as if tomorrow did not exist. What for does the Government exist, if not to regulate or pass appropriate laws and rules.
The same money could have been spent on ensuring the enforcement of the laws or helping the States, wherever they need help, instead of just writing letters or giving meaningless advice galore.
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.
But the Government also broke a long-standing trend by appointing a bureaucrat, 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, who were technical people. The post was never advertised nor was a selection panel formed. The Then Chief Justice VN. Khare, on this issue once said; “At this rate, a day would come,  maybe after 20 years, when the 26 judges of the apex court would be replaced by bureaucrats.
The present Government, which has come on the slogan “Deliver or Perish” would and should take steps to put this kind of favouritism, and let the retired people enjoy their retirement. No post retirement jobs should be given. Infact, there are jobless jobs in the Government and the Regulators are one category. To tie the hands of the future Government, the present Government should pass a law accordingly.

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