REGULATORY READJUSTMENTS TO NEOLIBERAL REFORMS

REGULATORY READJUSTMENTS TO

NEOLIBERAL  REFORMS

A Case Study of Partial Privatization and

Globalization of India's Telecom Sector

Mahendra Prasad Singh*[1]

Niraj Kumar**[2]

          Economic liberalization/privatization/globalization (ELPG), coming on the heels of political federalization, in India has brought about a sea change in the country’s mixed economy and predominantly union executive-driven political system. There have been some studies of the transformation of India’s centralized bureaucratic state into a federal regulatory state from an overview or macro-perspective (Rudolphs 2001; Singh 2003a; Singh 2003b). Case studies from micro-perspectives have been rare, if any ( Saez 2002; Desai 2006; Dubash 2003). This paper proceeds to fill this gap in the available literature by a critical survey of some primary and secondary sources pertaining to the telecommunication (telecom) sector of the national economy.

          In terms of entry No. 31 of the Union List, “Posts and telegraphs, telephones, wireless, broadcasting and other like forms of communication” come in the exclusive federal jurisdiction. With rather sparse legislation in this area during the British Raj (e.g. Indian Telegraph Act, 1885) information and telecommunications in general have been a sector of vigorous legislative action and allied bureaucratic and agency rules and regulations since the 1990s (TRAI 1997).These developments have produced a veritable telecommunication tectonic shift reminiscent of the Maruti (Car) and Tata Nano (Car) revolutions on the roadways since the mid-1980s and in 2007-08 respectively. It would be too much to say that by dint of these developments one can announce a fundamental change in the nature of the state in India comparable to the gradual transformation of the conventional bureaucratic welfare state into an “information state” as in the post-industrial West [and Japan] (Braman 2006).

          The term globalization is relatively new and more imprecise than other key concepts in the universe of discourse of this paper. Globalization has economic, political, cultural, information-technological, and migratory dimensions. We use the term here as a shorthand for neoliberal capitalist reforms in India, especially since 1991 when a paradigm shift of a sort was accelerated from Nehru’s democratic socialistic framework and Indira Gandhi’s democratic populistic framework by the P.V. Narasimha Rao — Manmohan Singh team in the Congress minority government formed in that year. The central question we raise in this paper is as to how are some aspects of neoliberal capitalist reforms affecting the generic national state, or more accurately, the federal state in relation to the provincial states, civil society, and market.

          A major effect of economic liberalization and globalization is the creation of a whole range of autonomous, and in some cases, semi-judicial regulatory authorities in various sectors of national and state economies.1 These regulatory authorities have replaced much of direct ministerial / bureaucratic control of the economy in the previous economic policy regime. They oversee and regulate, companies’ affairs, the extent of competitiveness in the corporate business sector, rate and quality of their service delivery to the consumers. The early Parliamentary enactments like Telecom Regulatory Authority of India (TRAI) Act, 1997, amended in 2000, did not grant much security of tenure to the regulator appointed by the Union Executive, but in subsequent Acts in some sectors of economy with longer history and greater complexity, the security of tenure is considerable and autonomy from political interference leaves less to desire. The regulators enjoying greater autonomy from the government are typically chaired by a person who has been a retired or serving judge of the Supreme Court and their members are seasoned experts in the sector of the economy concerned.  The Central Electricity Regulatory Commission has the status of a civil court, and most are aided by tribunals for settlement of disputes arising out of their orders, subject to the final appeal to the Supreme Court (Singh 2003: 219-20).

          The Telecom Regulatory Authority of India (TRAI) is less autonomous. It comprises a chairperson and no more than two whole- time members and no more than two part-time members. All are appointed for a term of three years by the Union Executive, avoiding persons having any conflict of interest, financial or otherwise, that may prejudice their function. Members, including the chairperson, may be removed for insolvency, conviction for moral turpitude, physical or mental incapacity, developing reasons for conflict of interest, and abusing power and position. The TRAI is empowered to make recommendations to the government regarding the working of the sector either suo motu or on request from the government. Its recommendations under section 11(a) of the Act are not binding on the government, on service providers they are. The Union Executive is also required under the provisions of the 2000 Amendment to the 1997 Act to set up an Appellate Tribunal consisting of a chairperson and not more than two members for a term of three years in consultation with the Chief Justice of India for dispute settlement on an application made by the “Central Government or a state government or a local authority or any person" "aggrieved by any direction, decision, or order made by the Authority" (Section 14A of the Act). The arbitration of the Appellate Tribunal is subject to the appeal to the Supreme Court. The TRAI itself is obliged to make an annual report to the Parliament. Thus the adjudicatory function is now separated from the regulatory function.

          The various regulatory reforms have come through a good deal of trial and error and experimentation. In some cases regulators were appointed because the government and the Parliament thought, in some cases on the basis of their own experience, that ministries and their bureaucracies could not be objective enough in dismantling a government monopoly and bringing in private players fairly, and in some cases courts intervened and ordered autonomous regulatory regimes as they thought that autonomy was greatly whittled down, despite claims to the contrary. However, in a sector like civil aviation the ministry has proceeded with reforms under its own control. Private participation in the previously state sector-dominated economy has brought enormously large investment to financially starved public sectors.

          However, the assessment of the regulatory regime has been mixed, often contradictory. Pradip Baijal, a former Chairman of TRAI, gives a rosy picture, a state of affairs also evident in the annual reports of the regulatory agency. Eighty per cent expansion of the sector in just 10 years since the reforms is juxtaposed against mere 1.9 per cent in the previous 50 years! (1948-98) (Baijal 2007). However, Ashok V. Desai in a pioneering systematic study on the role of the regulatory regime in telecom sector has a more critical and reconstructive evaluation. He concludes, “The most striking feature of the regulatory system is the relationship between the regulator and the government. The two had considerable friction in early years. The friction went down in later years, and the two worked remarkably in tandem in 2001-03. But in the process, the regulator became very mindful of the government’s interest. It was not a case of complete regulatory capture by the government; but in the case of the access deficit charge and the USF [Universal Service Fund], the regulator implemented the government’s intentions”(Desai 2006:135-36).

          The regulatory regime in the telecom sector was the third to be set up, first by Union Executive decision and finally by an Act of Parliament, after such bodies as Security and Exchange Board of India (SEBI) in 1988 and Insurance Regulatory and Development Authority (IRDA) post-1991. The Central Electricity Regulatory Commission was put in place in 1998. More are being contemplated. In the case of TRAI commissioners have been either serving or retired bureaucrats or Fellows or Directors of research institutes with close ties with the parties in power. The Chairman too is recruited from the same catchments area and with the same background.

          The TRAI is mandated with four basic functions, among others, under the parliamentary statute establishing it:

1.       Ensuring interconnectivity between competing telephone operators with the choice of subscribers to select any.

2.       Ensure free competition and prevent monopolistic tendencies by practices such as predatory pricing, etc.

3.       Dispute settlement among the competing operators.

4.       Fix and administer uniform service obligations by and large (TRAI 1997).

          Partial privatization of the telecom sector showed immediate good result. A mere 2 per cent annual growth in the sector in the preceding half a century rose to 6 per cent in one year only — 2006-07. In the assessment of one observer at close quarters the impact was spectacular and sustained: “Aggressive action by the newly appointed regulator in 1997 and actions of future regulators, sometimes supported by the government changed all that with both public and private players in this network becoming very aggressive competitors for overall benefit of the country, its economy and particularly for the consumer. From almost nil presence in 1998, and 15 per cent in 2003, private sector now runs 65 to 70 per cent of its network and their total investments during the last decade are now gradually approaching the investments made by the public sector incumbents during the last 60 years”(Baijal 2008).

          This observer goes on to point out that the trend of reforms also shows that the growth of the private sector has been supplementary rather than predatory to the public sector. If anything, competition has made the public sector more efficient and tariffs in various segments of the telecom networks have gone down by a whopping 90 per cent, the lowest in the world. The growth in the sector has also been inclusive at least in urban India (teledensity in Delhi exceeding 90 per cent), and rural areas are also not totally excluded (Baijal 2008:18).

          Under the new regulatory regime scarcity, waiting periods, high charges have considerably either disappeared or gone down. However, powerful operators like Mahanagar Telephone Nigams often bypassed the TRAI or ignored its orders on arguable grounds. The TRAI found the Department of Telecommunication in the Ministry of Communications and Information Technology in the Government of India hostile to it. The government proceeded to promulgate an ordinance in 2000 preparatory to an amendment to the concerned law. The entire membership save one was dismissed. The amendment provided for an appellate tribunal, subject to an appeal to the Supreme Court only (excluding now the High Courts whose conflicting interpretations have emasculated the regulator) and obliged the government to consult TRAI on all licenses in deference to judicial rulings. The move was aimed at bringing about some order out of chaos and providing greater autonomy to the regulator (Desai 2006: 115-18). Yet the semi-judicial status enjoyed by some regulators eluded the TRAI. The world’s fourth largest telecom network after China, USA, and Russia deserves a better deal. TRAI has recommended from time to time comprehensive reforms on licensing, access to service providers, and users’ service and satisfaction. It should have a greater autonomy from political interference.

          It is difficult not to agree with the diagnosis of Ashok V. Desai that the restrictively narrow power granted by the government to the TRAI has “led on the one hand to encroachment by judicial bodies on the regulator’s sphere of operation and on the other to making the regulator complicit in government’s policies, both good and bad.” Desai surmises that despite the expansion of the sector, the “weak and fractured regulatory regime” could not carry out its mandate to prevent concentration of ownership; of the corporate houses that got 17 licenses in 1996, six ended up holding 66 out of 84 licenses in 2002, and concentration continued unabated since that year” (Desai 2006 :141).Desai’s passing observation on the regulatory regime in general is that Indian regulatory authorities by and large have been ineffective due to the obsolete role of government persisting, weak design of the authorities created, and multiplicity of agencies. To quote Desai at some length:

          “The government has tendency to set up too many regulators without thinking about industry boundaries. In the financial market, for instance, there are already five regulators: Reserve Bank of India for banks, Department of Company Affairs for Companies, Securities and Exchange Board of India for stock markets, Insurance Regulatory and Development Authority for insurance and Forward Markets Commission for non-financial forward markets. The proliferation of regulators creates problems of coordination and turf” (Desai 2006: 158).

Desai’s proffered suggestion is the creation of more autonomous regulatory regime and opening up of industry to local competition by delicensing “last-mile operations.” Desai does not, however, pause to even cursorily examine the consequences of a unified and overloaded regulatory regime nor, for that matter, offers an alternative scheme of a smaller number of authorities nationally apportioning regulatory spheres or roles.

          Moreover, there is the market and global side of the problem that Desai overlooks. The recent global credit crisis has demonstrated again that our regulatory structures are not properly aligned to the imperatives and opportunities of global financial market. D.N. Ghosh,  concurs with Desai on the point of “split regulation,” but directs attention to the phenomenon of market-captivated regulators as against Desai’s complaint against state-captivated regulators. In order to deal with the adverse effects of global financial crises. Ghosh recommends that the central bankers devise a unified regulatory regime that “does not shy away from interventionist regulation”(Ghosh 2007).

          The Second Administrative Reforms Commission (India, Republic, April 2009: ch. 6) has also examined the existing regulatory regime set up since the early 1990s and underlined the need for creating an effective regulatory framework. It suggests greater uniformity in the terms of appointment, tenure, and removal as also the degree of autonomy among the various regulatory authorities. Their chairmen and members for all such authorities should be empaneled by a selection committee for appointment by the governments. The composition of the selection committee should be provided for in the respective Acts on the patterns of the Central Electricity Regulatory Commission Act, 1998. Parliamentary accountability of the regulatory regime should ensured through the respective departmental parliamentary standing committee.

          It is necessary to add here that the new institutional experimentation with the emergent regulatory regime cannot be oblivious of the principles of representative democracy and parliamentary-federal governance under the Constitution of India. The claims of political democracy and capitalist development must be reconciled. It is a reflection of the times that when the state has failed and the imperative of market economy are readily advocated and accepted in the contemporary discourse in the Indian political economy. If uncritical statism has landed us in the developmental wasteland, market fundamentalism in due course may lead to greater distortions of the concepts of rights and justice enshrined in Parts III and IV of Constitution. Deep down our constitutionalism is wary of breakdown of both political and economic orders. This is evident in the emergency provision on the national, state, and financial fronts (Articles 352, 356, and 360). The ultimate accountability of the regulators to the Parliament under judicial and public scrutiny cannot be wished away. This would amount to whittling down democracy vis-a-vis capitalism. If excess of democracy via its distortions has proved to be the Waterloo of the state-led economy in some decades past, market fundamentalism can be a greater disaster in the long run, if democratic and developmental imperatives are not critically and constructively harmonized both at the levels of the nation and federation and 'glocalization' (globalization and localization).2

          Under the 1997 Act both the regulatory and adjudicatory functions were fused in the TRAI itself. The 2000 amendment to the Act set up the Telecom Dispute Settlement and Appellate Tribunal (TDSAT), a sector specific specialized body for the purpose. In the comparative literature on autonomous regulatory agencies, there are, broadly speaking three main methods of dispute resolution in the telecommunication sector these two are relatively more formal, and the rest are informal. The formal methods include court-based adjudication, and regulatory-based adjudication, and the informal ones consist of arbitration, mediation, and negotiation. The Indian system is, by and large, based on the regulatory-based adjudication( Prasad 2011). Appeal against the award of the TDSAT may be made within ninety days in the Supreme Court of India only when a point of law is involved. The amended Act provides for a tribunal consisting of a chairperson and two members. The chairperson must be a serving or retired judge of the Supreme Court or a Chief Justice of a High Court. The two members must have been either a Secretary to the Government of India for at least two years or experts in the fields of technology, telecommunications industry, commerce, or administration. The tribunal decides by majority and its deliberations are treated as judicial proceedings and orders as decrees of a civil court.

          A study of the structure and working of the TDSAT has found that it is sound in as much as it is a collegial body with security of tenure and insulation from "the whims and fancy of political masters." "In the matter of funding of its activities, however, this body still has to look up to the government, which certainly is a drag to an extent on its independence" (Prasad 2011: 74-75).

                The above-mentioned study concludes that the "telecom statute in India does not provide any preeminent role to the Minister in matters falling within the jurisdiction of the regulator or the telecom tribunal” (Prasad 2011:76). Yet it is difficult not to feel that the regulator is less fortified against political interference and excess. It is amply demonstrated by the 2-G spectrum allocation scam that surfaced towards the end of the year 2010.

          The report of the Comptroller and Auditor General of India (CAG) has revealed that the Department of Telecommunications (DOT) under the Telecom Minister (Dravida Munnetra Kazhagam) in the Congress-led United Progressive Alliance government allotted 2-G spectrum licenses to certain private companies at throwaway prices disregarding the government allocation rules, ignoring the advice of the Prime Minister, ministries of law and finance, as also the recommendations of the TRAI. These irregularities cost the national exchequer a presumptive loss of Rs. 1.76 lakh crores, making the 2-G scam presumably the biggest case of political corruption in independent India. The CAG report rued: "The role of TRAI would also appear to have been reduced to that of a hapless spectator as its recommendations were either ignored or applied selectively” (Mahaprashasta 2010).

             The 2-G spectrum allocation scam has turned into a major row between the government and the opposition that practically paralyzed the winter session of the parliament in 2010. The opposition demanded a probe or enquiry by a Joint Parliamentary Committee (JPC) whereas the government argued that the Public Accounts Committee (PAC) of the parliament was already seized with the problem. The Prime Minister offered to appear before the PAC, even though he is not required to do so under the rules, which in case of a JPC is mandatory. Repeated negotiations led to no consensus on the matter. When the opposition appeared determined to continue the agitation in the Parliament and in the streets to the extent of forcing a mid- term election on the government, the latter blinked and offered to convene a special session of the Parliament to discuss the matter, and threw  hints that it might be prepared to set up a JPC as well. The JPC was finally formed. On the other hand a Public Interest Litigation in the Supreme Court resulted in the order of the court to the Central Bureau of Investigation (CBI) to begin inquiry into the case and report directly to it over the head of the government. In the mean time, the PAC also completed its probe but submitted a fractured report by last-minute realignment among parties engineered by the ruling coalition. The avalanche of scams such as those relating to the Commonwealth Games, the Adarsh Housing Society (Mumbai) meant for war widows but cornered by the high and mighty in the army, civil services and politics, a number of cases relating to judges, etc, besides the 2-G scam made 2010 the year of corruption in the high places. These developments, including the Nira Radia Tapes (a corporate lobbyist successfully seeking the allocation of telecom ministry to A. Raja of DMK) draw attention to the growing crisis of democracy in India in transition from the License-Permit-Quota Raj to crony capitalism. Unless democratic institutions, civil society, and social movements intervene, democracy in India appears to be in peril.

           While concluding, we would like to relate our case study of TRAI to the larger debate on competing models of constitutionalism in comparative politics. Broadly speaking two such models may be delineated in constitutional political theory:  1. the British constitutionalism a la Albert V. Dicey (Dicey 2008) ; and  2. the US constitutionalism a la The Federalist authored by Alexander Hamilton, James Madison, and John Jay (Hamilton, Madison, and Jay 1987).  Through the maize of common law, the parliamentary law, and constitutional conventions in the United Kingdom, Dicey brought out three fundamental premises of the British constitution, namely, parliamentary sovereignty, rule of law, and constitutional conventions. In the British scheme of things the parliament is supreme. Neither the Crown nor the Court can sit in judgment over the wisdom of the Parliament. The court can at the most, interpret the law of the constitution in terms of the meaning and intent of the laws made by the parliament and review administrative decisions. The situation remains unchanged in theory despite the British membership of the European Union, Sottish parliamentary devolution, and the creation of the Supreme Court outside the House of Lords since 2009. In the absence of a written basic law there is no constitutional limitation on the Parliament. It is another matter that the British Parliament always respects common laws and now pays obeisance to the laws of European Union. The executive too is perpetually responsible to the Parliament, and ultimately to the people. All in all, the British constitutional principle is essentially predicated on parliamentary majoritarianism.

              The US constitutionalism, on the other hand, detests the ‘tyranny of the majority’ and can be best described as consensual federal democracy. The three leading makers of the American constitution who authored The Federalist borrowed the theory of horizontal separation of powers between the executive, the legislature, and the judiciary from Montesquieu and John Locke, and created their own theory of vertical division of powers between the federal and the state governments. Altogether, separation of powers and division of powers combined to create the system of checks and balances that is the hallmark of the American constitutionalism.

            Where does the Indian constitution stand in this regard? It is our argument that Indian constitution holds the middle ground between the foregoing two models. In the Constituent Assembly there were strong advocates of parliamentary sovereignty in the final analysis in H. V. Kamath, R. N. Singh, and P. S. Deshmukh. Not that they were unaware of the implications of fundamental rights and federal division of powers between the Union and States that entail judicial review of parliamentary enactments and executive orders, which obviously spell some limitations on the supremacy of the parliament ( India, Republic, Constituent Assembly Debates, hereafter CAD, Book No. 4, 2003: 1644-1666).3 Yet in the all too important matter of constitutional amendments they clearly thought the Parliament would have the last word. Ambedkar also implied that the Indian constitution was in a way, two in one, federal in normal conditions and unitary in constitutional emergencies, when the Union Parliament substitutes the State Legislatures (India, Republic, CAD, Book No. 2, 2003:33-44). Rajendra Prasad, if at all, in his final presidential remarks in the Constituent Assembly showed a somewhat greater understanding and appreciation of the autonomous agencies created under the federal constitution (India, Republic, CAD, Book No. 5, 2003: 984-995). The text of the constitution in its actual provisions clearly reflects these understandings of the leading lights of the Constituent Assembly.

           Indian constitution as it has gradually evolved has moved away from these constitutional moorings that appear enamored of the British Parliamentary and Commonwealth parliamentary federal traditions as exemplified by Canada and Australia. Despite the combination of parliamentarism with federalism in Canada and Australia, the judiciary in spite of its powers to review of parliamentary laws shows deference to the will of the parliament generally. In India the courts behaved with judicial restraint in a way reminiscent of Canada and Australia in the Nehru era, but by the early 1970’s moved into activist grooves. After some initial hiccups in the late 1960’s ( Supreme Court’s judgment in the Golak Nath v. State of Punjab,1967, and the twenty-fifth constitutional amendments, both enacted in 1971), the Supreme Court ended up establishing its power of judicial review, not only of laws and executive orders but also of constitutional amendments. This made the constitutional courts in India the first courts in the world to invent and exercise this power. In effect parliamentary supremacy over constitutional amendments was turned from an exclusive power of the aggregate legislatures into a power shared with the judiciary, the latter having the last word. This was a step forward from a majoritarian democracy to a consensual democracy. Moreover beginning with the 1989 Lok Sabha elections and the transformation of the one-party dominant system into a multiparty system, the process of federalization of the predominantly centralist tenor of politics in India gathered momentum. In addition, the shift from socialistic pattern of society to business liberalism in 1991 also reinforced the trend of political federalization and greater space for market and civil society institutions. It is in this new ambience of institutional politics that the profusion of independent regulatory authorities, including TRAI must be placed, interpreted, and explained. Without truly independent regulatory authorities under the constitution, subject to final appeal to the Supreme Court  constitutional democracy in India would appear to be vulnerable  to crony capitalism. The ultimate appeal, of course, rests with “We, the people of India….” as the sovereign constituent power in the ringing declaration of the Preamble to the constitution of India.

Notes

1.       It may be noted here that there have been predecessors of these agencies in law or constitution, e. g. the Reserve Bank of India under a 1934 Central Act and Finance Commission of India, Election Commission of India, Comptroller Auditor General of India (CAG), Attorney General of India and union and state public service commissions under the constitution. These agencies are purposely created with a certain degree of autonomy from both the union and state executives. They report to the Parliament.

2.       This plea for representative democratic demand on capitalism whether private or state — must, however, be made in pragmatic rather than ideological spirit. Recently, the Government of India Department of Telecom (DOT) rejected TRAI’s recommendation that all service providers be provided with subsidies from Universal Service obligation Fund (USOF) for their rural rollouts for more inclusive telecom policy implementation. USOF, whose present balance has crossed Rs. 15,000 crores, is created out of the payment of 5 percent of their annual revenues by all telcos to this Fund. Presently, the DOT subsidies the highest bidders for setting up additional towers (8,000 in 2007, proposed 11,000 in 2008) to take mobile services to every part of the country. The TRAI is motivated by providing a level playing field to all companies, whereas the DOT claims that the fair competitiveness “has been maintained by giving equal opportunities to all service providers to participate in a transparent bidding process.” The Economic Times, New Delhi, 22 February 2008: 6.

3.       There was an amendment to article 304 of the draft constitution (it finally became article 368 in the final text of the constitution) standing in Nehru’s name to the effect that the Parliament should have the exclusive power to amend the constitution by simple majority for the first five years of the Republic after the commencement of the constitution for the sake of flexibility and adaptability of the basic law. Finally, the amendment was not moved. However, the post-independence actions of Nehru and Indira Gandhi as prime ministers clearly showed the former to be ambivalent between parliamentary supremacy and judicial supremacy and the latter to be a warrior in favour of parliamentary supremacy. Space does not allow here to go into details and documentation.

 References

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*[1]        Formerly Professor of Political Science, University of Delhi and now  Honorary Senior Fellow, Centre for Muliilevel Federalism, Institute of Social Sciences, New Delhi.

**[2]          Assistant Professor of Political Science, Maharaja Agrasen College, University of Delhi.