No single law can address the issue of regulators’ accountability, but a start could be made with a committee of MPs monitoring their functioning — the practice in the United Kingdom.
In his Independence Day address, Prime Minister Manmohan Singh outlined a legislative framework to monitor the work of regulatory authorities and make them more accountable. The Planning Commission has presented a framework under the Regulatory Reform Bill that seeks to rein in regulators while granting them effective autonomy. In order to address the subject comprehensively, it is important to identify the regulatory framework and the nature of the products delivered by such regulatory authorities.
The first set of regulatory agencies is the independent regulators constituted under various statutes. The regulations or orders emanating from regulatory authorities empowered by a statute are a comparatively recent phenomenon. However, they are very critical, since they mostly operate in the economic sphere. The prime minister's observations regarding the monitoring of the performance of regulators with a view to making them more accountable is laudable, as it is indeed the need of the hour. In his speech, the prime minister cautioned that the autonomy of regulators should not be compromised. Recognising the need to review the functioning of the regulators, the Planning Commission circulated a paper giving the broad framework of regulatory reforms. The main criticism of the proposal is that it offered an all-purpose prescription to improve the overall health of the regulators.
The mandated functions and responsibilities of the regulatory authorities are diverse in nature and, therefore, the details attempted in the draft Bill may throw up serious anomalies. Perhaps, the draft should highlight essential guidelines and include certain common minimum features. The framework for finalising such regulations in terms of transparency, public consultation and government guidelines where necessary could be highlighted. All other details in the Act should be left to the ministries concerned and to the respective regulatory bodies to notify, through subsequent orders and regulations.
There are three criteria that need to be addressed while determining the framework of an oversight authority or an oversight regulatory process: First, that the regulators are responsible to Parliament for their effective working; second, that the regulatory authorities are subject to a quasi-judicial review with the final appeal lying before the Supreme Court; and third, that there should be close cooperation among the concerned ministries and departments to achieve the broader objectives as envisaged under the law.
At present, regulators are accountable only through an annual report which they submit to the legislature. Unfortunately, these reports mostly go unread. There is a need to strengthen legislative oversight. While the regulators' autonomy and decision making powers are sacrosanct and need to be protected, accountability in terms of the quality of work and performance can be brought under legislative oversight. In case the regulators are required to appear before a committee of legislators, the committee could selectively make such proceedings open to the public and invite the opinions of experts on the subject-matter placed before the committee. Both judicial oversight and legislative review of the performance of regulators may be adequate to achieve the objectives that the prime minister has set out.
The second set of regulations is enactments made by the state and Central ministries and departments. These acts and rules affect a large section of society. The conference of chief ministers convened by the then prime minister in 1997 identified the need to fast-track the reform process, because the archaic administrative structure, multiplicity of laws and time-consuming mandatory clearances was weighing down the public delivery system. Both the Centre and the states have generated a plethora of laws and norms, and by one estimate there are over 2,500 Central statutes and 25,000 state laws in force.
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There is no count of the executive instructions and subordinate legislations issued by the various ministries and departments. It is not surprising that even a few colonial-era laws are surviving, with no sunset provision or review to make them null and void. There are more than 700 Appropriation Acts passed by Parliament which have no relevance to the present-day context.
A review of all such laws and rules was undertaken in 1998 with the help of the 15th Law Commission. Certain time-bound measures were suggested, including an up-dated compilation of rules and regulations at the level of Centre-state interface and repeal of 1,300 laws. A high-powered standing committee was constituted for the purpose of overseeing implementation of the commission's recommendations. So far, about 400 laws have been repealed and the remainder is under examination.
Stock-taking of the existing acts and rules was only the first step of regulatory reforms. It was expected that an institutional mechanism would be put in place towards producing high-quality regulations based on the touch-stone principles of legitimacy, efficacy, transparency and accountability. To accomplish this enormous task, an oversight body to provide structured directions to the regulatory regime of the country is needed. Such a body already exists in many developed countries.
In order for it to be effective, it should be located in the prime minister's office, vested with powers to independently coordinate, review and approve all regulatory policies and thus function as a focal point for quality regulation and good regulatory governance in the country. Such an oversight institution would provide a comprehensive regulatory management system through which regulations are developed, enforced and adjudicated, thus supporting the broader objectives of efficiency, transparency and accountability in governance.
Accountability of regulators cannot be addressed by a single piece of legislation. In the United Kingdom, there is a Committee of Parliamentarians which monitors the functioning of various regulators. Perhaps this can be experimented with in our country as the first immediate step for regulatory oversight.
The author is former Chairman of Telecom Regulatory Authority of India and presently, Director, Public Interest Foundation. He can be reached at: nmisra@rediffmail.com