Former Telecom Regulatory Authority of India (Trai) Chairman Nripendra Misra was on Wednesday appointed principal secretary to the prime minister, but only after the President of India signed an ordinance changing the appointment rulebook. The move came as a shock to the bureaucracy, which was united in the view that it would be a big blow to the autonomy of regulators, not only at the Centre but also in states.
Misra's appointment would have been in violation of a provision in the Trai Act that makes a chairman of the regulator 'ineligible' for further employment under the central or a state government, so the government moved an ordinance to circumvent the law. Confirming this, a retired top Trai official, asking not to be named, told Business Standard the law was clear that "no former chairman or member of the Authority can take up a position in the government after ceasing to be in that office".
Misra, whose appointment order was delayed till the President signed the ordinance, himself refused to comment on the issue.
At present, he is also a member of the executive council of the Vivekananda International Foundation (VIF), a New Delhi-based think-tank founded in 2009 "under the aegis of the Vivekananda Kendra". The Vivekananda Kendra was founded in 1972 by former Rashtriya Swayamsevak Sangh general-secretary (sarkaryavah) Eknath Ranade. VIF has several former intelligence officials, diplomats and retired army generals among its trustees and executive council members. According to the think-tank's website, the newly-appointed national security advisor, Ajit Doval, is its director. Others in the council include former home secretary Anil Baijal.
In Misra's defence, some bureaucrats pointed to the Trai Act, which says the law applies only to those chairmen and board members who have either resigned from the body or have been removed from office. On this, Constitutional expert Rajeev Dhavan said the law was clear: Misra's appointment was illegal.
The ordinance, therefore, had become imperative.
"Nripendra Misra is no doubt a distinguished civil servant. However, on reading sub sections (2), (7), and (8) of Section 5 of the Trai Act, Mr Misra is regrettably ineligible for further employment with the central government," said Dhavan, adding: "There is no doubt that Mr Misra is not eligible to be principal secretary."
However, it appears the government was determined to have its way, so it decided to change the law.
"There were only three ways out of this imbroglio: One, the government moves an ordinance and gets Parliament to pass it (though this might be difficult as the ruling Bharatiya Janata Party and its allies do not have a majority in the Upper House); two, the government waits for someone to move court and then takes a decision on the basis of what the court rules; and three, the incumbent himself bows out saying he won't like to be complicit in any illegality," said a retired bureaucrat who is also a regulator.
The Ordinance has to be ratified by both Houses of Parliament within six weeks of it being placed on the table of the House. The question of how the government would get the ordinance to pass muster in the Rajya Sabha remains to be seen. The next session of Parliament begins next month.
Section 8 of the Trai Act, 1997 (amended in 2000), says: "The chairperson or any wholetime member ceasing to hold office as such, shall - a) be ineligible for further employment under the central government or any state government."
While this is what the official physical copy of the Manual on Trai Act, 1997 (2014 edition), has to say, the website of the regulatory authority shows a glaring discrepency.
The Trai site describes the provision on employment in Section 5 of the Trai Act in this manner: "The Chairperson, or any other (wholetime) member ceasing to hold office as such, shall be eligible for further employment under the central government or any state government."
Other government websites, including those of the Telecom Disputes Settlement & Appellate Tribunal (TDSAT) also cite the Act to say former Trai chairmen and members are "ineligible" to hold future government offices.
Through the day, senior Trai officials did not respond to phone calls or email query on the issue of eligibility of former chairmen or members holding government offices or on the discrepancy in modifications made in the Trai Act on its website. Department of Telecommunications (DoT) Secretary M F Farooqui could not be contacted for his comment.
However, bureaucrats said the Constitution of India made some initial provisions regarding ineligibility of certain categories for further employment, either under the Government of India or under state governments, with respect to the Election Commission and the UPSC. These provisions were adopted in the Trai Act for the telecom regulator's chairmen and full-time members for the same reason, an expert said.
These conditions are meant to ensure these functionaries work without fear or favour and their decisions are not influenced by the inducement of further employment under the government.
The Supreme Court subsequently ruled that appointment to another constitutional office, such as that of a governor or minister, did not constitute employment under the government and was not barred. Every other category of employment under the government was, however, prohibited. "Presumably, the same principle would apply to Trai, whose chairmen and members would be eligible, after ceasing to hold office, only for constitutional posts (the post of principal secretary to the PM, even with the rank of a minister, does not fall in this category)," according to a person familiar with the rulebook.
"The law and telecom minister (Ravi Shankar Prasad, who holds both charges) will have a hard time defending himself on this (the ordinance) in Parliament," said a secretary to the government.
He clarified this restriction did not apply to the Competition Commission of India (CCI) and the Securities and Exchanges Board of India (Sebi), largely because these were regulators with oversight over the private sector. There, chairmen have to go through mandatory cooling-off periods before they could accept employment with the private sector.
"The Trai Amendment Act was enacted in 2000. Shri Arun Jaitley and I were members of a committee that drafted the amendment, if I remember correctly," former finance secretary EAS Sarma said in reply to an emailed query.
"The independence of regulatory authorities is pivotal to any economic reform strategy. That is the reason why regulators are given a fairly high status but precluded from accepting any post-retirement appointment from the government. This applies to all regulatory authorities and Trai as well," he said.
"In my view," Sarma added "it is highly undesirable for any government to dilute this salutary provision. If the new government at the Centre is trying to do it through a legislative amendment, it should know it will be sending a negative and undesirable signal on its lack of commitment to the fundamental concept of the autonomy of the regulatory system. I hope it will desist from it."
In a telephone interview, jurist and Congress spokesperson Abhishek Manu Singhvi said: "In view of the relevant section of the statutory provision, the proposed appointment is illegal." The Congress is preparing to oppose the ordinance.
REWRITING THE RULEBOOK
Section 5(8) of the Trai Act (as available on the website of TDSAT) says
- The chairperson or any wholetime member ceasing to hold office as such, shall
- (a) be ineligible for further employment under the Central government or any state government; or
- (b) not accept any commercial employment, for a period of one year from the date he ceases to hold such office
- The chairperson and the wholetime members shall not, for two years from the date on which they cease to hold office as such, except with the previous approval of the Central govt, accept
- (a) any employment under the central govt or state govt; or
- (b) appointment in any company in the business of telecommunication service