Opposition to Nripendra Misra’s appointment is not Misplaced

What is this controversy regarding the appointment of IAS Nripendra Misra as Principal Secretary of Prime Minister Narendra Modi?

The controversy arises from the fact that Narendra Modi wants to appoint Nripendra Misra as his Principal Secretary. But the Law stops him from doing that.

Section 5(8) of the TRAI Act bars those who have held the position of Chairperson of TRAI from subsequently being appointed to any position in the government.

Nripendra Misra has been the member of TRAI regulator (Telecom Regulatory Authority of India). He retired as Chairman of Telecom Regulatory Authority of india (TRAI) in 2009. The rule book says that once the Regulator is out of the post of regulator, he/she cannot ever be employed as a government official.

Within two days of coming to power, on May 28, the BJP brought an ordinance to change the rules of the Telecom Regulatory Authority of India which barred its chairman from taking up any future appointments. The amended TRAI Section will be,

“The Chairperson and the whole—time members shall not, for a period of two years from the date on which they cease to hold office as such, except with the previous approval of the Central government, accept —
(a) any employment either under the Central Government or under any State Government; or (b) any appointment in any company in the business of telecommunication service.

The amendment will pave the way for Mishra’s appointment.  The BJP Leader and Finance Minister Arun Jaitley Defends his party’s Government’s plan, saying,

“The Prime Minister has right to choose his staff. This is sheer politics by the opposition and the Congress. Just because they are upset over the leader of opposition post in the Lok Sabha and Income Tax notice, they are doing this,”.

“When we chose Nripendra Misra, we realised that We wanted the TRAI bill to be fair. The Prime Minister feels that if he wants to hire a former regulator, this law should be in parity with other laws. All government laws regarding regulators must have parity.”

But the ordinance need to be validated by Parliament to survive. In other words the ordinance requires ratification. If BJP had majority in both houses of Parliament, there would be no controversy as then it shouldn’t have to solicit support from other parties. But since BJP doesn’t have majority in Rajya Sabha hence it has to resort to some confidence building. Political rivals like Congress, TMC and others are likely to oppose the ordinance.

The government introduced the amendment to TRAI rules in Lok sabha yesterday.

So who among the two, the Government and the opposition, has a justified stand?

On surface of it, the BJP’s assertion that the PM has a right to choose his Principal secretary , looks valid. The defence that the PM wants to appoint an upright and honest bureaucrat to the post of Principal Secretary , looks valid as well. But there are strong reasons as to why the ordinance is being opposed.

As you know, TRAI is regulatory body. Its work is to arrive at a price point of telecom services, which is beneficial to the customers and agreeable to the Service providers. Such is the work profile of a TRAI regulator that as a regulator he has to keep deliberating with the service providers. Over time such interactions create close contacts between the service providers (those in telecom businesses) and the TRAI Regulator. The Law requires the Regulator out of the post of regulator, not to be employed as an government official for at least two years; and not to be employed forever as a government official, for the simple reason that : Such an appointment if made can result in undue favours to certain players or can result in changing of some Government policy to give undue benefit to a certain player.

We must understand one thing: A TRAI Regulator is not an implementor. He/she is a regulator who can simply make recommendations on tariffs etc. It’s an appellate tribunal as well. In short , while as a regulator he’s neither making laws, nor he’s implementing laws. He is simply making recommendations to the Government. The Central Government is free to act on the recommendations or reject them.  

Imagine what can happen, if the same regulator gets one of the top executive posts within the Government. And remember why BJP chose Nripendra Misra? As it realised that they wanted the TRAI bill to be fair. That’s now they want the regulator’s help in framing the Law. Which is not a good Thing.

The parties like Congress are opposing the ordinance on various grounds. But I think the spirit of the legislation, explained above is a better logic than any of those.

The ordinance aimed at amending the recruitment conditions is not good. Especially for transparency.