Right to information opens up government's records to public scrutiny, thereby arming citizens with a vital tool to inform them about what the government does and how effectively, thus making the government more accountable.
In a fundamental sense, right to information is a basic necessity of good governance.
The Right to Information Act has a non-obstante clause: Sec. 8(2): Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with subsection (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests
1 The most contentious issue in the implementation of the Right to Information Act relates to official secrets.
Thus OSA would not come in the way of disclosure of information if it is otherwise permissible under the RTI Act.
The Official Secrets Act, 1923 (hereinafter referred to as OSA), enacted during the colonial era, governs all matters of secrecy and confidentiality in governance.
The word secret or the phrase official secrets has not been defined in the Act. Therefore, public servants enjoy the discretion to classify anything as secret.
This tendency was buttressed by the Civil Service Conduct Rules, 1964 which prohibit communication of an official document to anyone without authorization.
The Official Secrets Act, 1923 is the main statute for fighting espionage activities which vitally affect the national security
spying, or entry into a prohibited place etc.
wrongful communication
harbouring spies
unauthorized use of uniforms, falsification of reports etc.
interference with the police or military, near a prohibited place.
The Unlawful Activities (Prevention) Act, 1967 was passed for the effective prevention of disruptive activities, whether they are in support of secession of a part of the territory of India, or in support of the secession of a part of the territory of India from the Union, or otherwise disclaim, question or disrupt the sovereignty and territorial integrity of India.
The National Security Act (NSA), subsequently enacted in 1980, essentially replaced the earlier Maintenance of Internal Security
1.1.0.1 Recommendations:
Chairmanship of Shri H. D. Shourie on Right to Information and Transparency, 1997 (hereinafter referred to as the `Shourie Committee')
The Official Secrets Act, 1923 should be repealed, and substituted by a chapter in the National Security Act
It is the Official Secrets Act that has been regarded in many quarters as being primarily responsible for the excessive secrecy in government.
The Shourie Committee recommended a comprehensive amendment of Section 5(1) to make the penal provisions of OSA applicable only to violations affecting national security.
The National Commission to Review the Working of the Constitution (NCRWC), while examining the Right to Information had the following to say:
In fact, we should have an oath of transparency in place of an oath of secrecy. 1.2 Exempted Organizations:
Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, ∗ Border Security Force (BSF), Central Reserve Police force (CRPF), Assam Riffles etc.,
The Commission feels that the Armed Forces should be included in the list of exempted organization
By including Armed Forces in the IInd Schedule, while national security is safeguarded, disclosure is still mandatory when public interest demands it.
1.3 The Central Civil Services (Conduct) Rules:
The Central Civil Services (Conduct) Rules prohibit unauthorized communication of information
The Central Civil Services (Conduct) Rules were formulated when the RTI Act did not exist
The Act also defines information to mean any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, log books, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.
With the emergence of an era of freedom of information, these Rules would have to be recast so that dissemination of information is the rule and holding back information is an exception 1.4 Implementation of the act
Rights and Obligations Under the Act:
Building institutions:
(a) Information Commissions
(b) Information Officers and Appellate Authorities.
II. Information and record-keeping:
(a) Suo motu declaration under Section 4.
(b) Public Interest Disclosure.
(c) Modernizing recordkeeping.
Capacity building and awareness generation:
Creation of monitoring mechanisms:
Information Commissions:
Central Information Commission (CIC) with a Chief Information Commissioner and four Information Commissioners
At least half of the members of the Information Commissions should be drawn from non civil services background
The Act provides for selection of CIC and SICs in a bipartisan manner, and involves the Leader of the Opposition in the process
Designating Information Officers and Appellate Authorities:
All Union Ministries/Departments have designated PIOs thus complying with the stipulation of designating PIOs.
Ideally the PIO should be of a suffciently senior rank to be able to access information and furnish it in an intelligible and useful manner.
Recommendations:
Section 12 of the Act may be amended to constitute the Selection Committee of CIC with the Prime Minister, Leader of the Opposition and the Chief Justice of India.
The Law Commission, in its 179th report (2001) recommended enactment of Public Interest Disclosure (Protection) Law
This Commission fully endorses the view and recommends a suitable legislation to protect whistle blowers.
Perhaps the weakest link in our information system is the total neglect of record keeping.
Land records are probably the most important public documents in any governance system.
1.5 Organising Information and Record Keeping:
Naturally, access to land records will constitute bulk of the requests for information under the Act at grass roots level.
Unfortunately, land records updating and maintenance has suffered great neglect after Independence.
The Act emphasises suo motu disclosure and stipulates publication of prescribed information by all public authorities.
In many subordinate offices/ agencies of GOI and State Governments, record keeping procedures often do not exist.
In respect of electronic disclosures, it is necessary to provide a single portal through which disclosures of all public authorities.
One important class of disclosures not covered under the Act is public interest disclosure.
Public Records Offices should be established as an independent authority in GOI and all States.
Right to Information would be honoured only if the information exists and when it exists, it is easily retrievable and intelligible.
1.6 Capacity Building and Awareness Generation:
The enactment of Right to Information Act is only the first step in promoting transparency in governance.
Suo motu disclosures
Recommendations:
All government functionaries should be imparted atleast one day training on Right to Information within a year
Awareness generation
Awareness campaigns may be entrusted to credible non profit organizations at the State level
They should design a multi media campaign best suited to the needs, in the local language.
1.7 Monitoring Mechanism:
This monitoring should be done at several levels within the public authority, for a group of authorities in a territory, for a whole state and the country.
A National Coordination Committee (NCC) may be set up under the chairpersonship of the Chief Information Commissioner
Need for a coordination mechanism
the State Information Commissions are independent of the Central Information Commission
Recommendations:
The CIC and the SICs may be entrusted with the task of monitoring effective implementation of the Right to Information Act in all public authorities.
Large number of PIOs.
Issues of Implementation
Facilitating Access:
Complicated system of accepting requests.
Insistence on demand drafts.
Single Window Agency at District Level
All these offices are often dispersed and most citizens would be unaware of their location. Under such circumstances it becomes difficult for an applicant to identify the Public Authority and to locate it.
Application to Non Governmental Bodies:
Recommendations
Organisations which perform functions of a public nature that are ordinarily performed by government or its agencies
Time Limit for Information Beyond 20 Years
The stipulation of making available 20-year old records on request should be applicable only to those public records which need to be preserved for such a period.
Mechanism for Redressal of Public Grievances
A successful example of this mechanism is the Public Grievances Commission (PGC) set up by the Delhi Government in 1997
PGC has become an elective single window authority which facilitates access to information and when required provides a platform for redressing the citizen's grievances as well
Application of the Act to Legislative and Judiciary
The Legislature and Judiciary are also covered by the Act.
The Legislatures and the Judiciary in India already operate within the public eye to a far greater extent than the Executive
As Woodrow Wilson once observed, Congress in session is Congress on exhibition; Congress in Committees is Congress at work
Most of the important legislative work is conducted in the Committees, away from partisan influences and transient emotions. Recommendations:
A tracking mechanism needs to be developed so that the action taken by the executive branch on various reports like CAG, Commissions of Enquiry and House Committees is available to legislators and public, online.
The working of the legislative committees should be thrown open to the public.
Introduction
India has taken several significant initiatives to improve the quality of governance
These include the 73rd and the 74th constitutional Amendments
The 97th constitutional Amendment which limited the size of the council of Ministers, the new Value Added Tax regime and the Right to Information Act etc.
Reorganising government - International experiences
The reasonably swift and efficient response of our administration to a series of major natural calamities e.g. the Tsunami in December 2004, and the earthquake in Jammu & Kashmir - demonstrates that in times of crisis we are able to marshal our resources effectively.
increasing lawlessness in several pockets of the country
a lot more remains to be done.
armed groups are resorting to violence with impunity
state apparatus is generally perceived to be largely inefficient,
The bureaucracy is generally seen to be tardy, inefficient, and unresponsive
corruption is all-pervasive
criminalization of politics
It is unlikely that a single design of the administrative machinery will fill all bills.
There is high degree of volatility in society on account of poor implementation of laws and programmes and poor delivery of public services leading to unfulfilled expectations.
The `non-negotiable' role of the state lies in four broad areas:
Public order, justice and rule of law.
Human development through access to good quality education and healthcare to every citizen.
Infrastructure and sustained natural resource development.
social security
We need to truly redesign government on the basis of the principle of subsidiarity.
Further de-regulation may be required to foster economic growth, and the state may need to withdraw from some of the commercial activities that it is currently engaged in.
Some de-regulation can reduce corruption, but other regulations may have to be put into place to fight corruption.
Models of Structural Reforms in Government
Three models of public administration reforms as distinguished by Romeo B. Ocampo.
Reinventing Government (Osborne and Gaebler), 1992
It should steer rather than row.
The government should empower communities to serve themselves rather than the government itself getting involved in community service activities.
The government should become more business-like, and try and earn what it spends on its various activities.
Create competition in public service delivery
The government should concentrate on prevention rather than cure, and learn to anticipate problems.
The government should decentralize its operations and learn to get its work done through participative management and teamwork rather than hierarchically through the orders of bosses
The NPM initiatives in the US cannot be considered an unqualified success particularly due to the perils of indiscriminate deregulation.
NPM in some form or other, is gaining currency in developing countries with the objective of improving public administration.
A 1999 survey indicated that in the last two decades, some 40% of the world's largest 123 countries had at least one major reform movement that was influenced by NPM,
NPM is not an alien system grafted on unwilling cultures nor is NPM a rigid formula
Re-engineering or BPR
fundamental rethinking and radical redesign of business processes to achieve dramatic improvements in critical contemporary measures of performance, such as cost, quality, service, and speed
BPR has been extensively applied in private business, but only to a limited extent in the public sector.
NPM
A shift from focus on inputs and procedures alone to include outputs and outcomes.
Steering functions
Shift towards greater measurement in terms of standards
devolving authority, providing flexibility;
ensuring performance, control, accountability;
Preference for `lean', flat' specialised and autonomous organizational forms
improving the management of human resources;
optimizing information technology;
Widespread substitution of hierarchical relations by contractual relations
developing competition and choice
improving the quality of regulation;
Much greater use of market or market-like mechanisms
Provide responsive service.
Much stronger emphasis on efficiency and individual initiative.
Greater ability to discharge government functions effectively
Origins of NPM
Also called as Market-based public administration, managerialism, reinventing government, and post-bureaucratic model. Several developing countries like Ghana, Malaysia, Thailand, and Bangladesh.
Growth can be traced to the relatively minimalist, non-interventionist state ideology of the late 1970s and early 1980s
the basic approach of NPM was later adopted by a number of countries that did not necessarily share this ideology.
NPM sought to bring management professionalism to the public sector without necessarily discarding the active role and welfare goals of the state.
Most countries have been selective in incorporating those elements of NPM that they felt were best suited to their individual administrative milieu, economic and social condition, and governance
Believes in downsizing..., deregulation, and employee empowerment in the public sector;
Public Administration in the USA Robert McNamara
`managerialism' in the US Department of Defense when he became Defense secretary under President Kennedy
When he joined the government, he found that the three services Army, Navy, and Air Force pursued their own agendas with little coordination and much rivalry
using techniques like project evaluation and review (PERT) and critical path method (cPM) to cut costs and delivery times
This managerial culture gradually spread to several other departments of the federal government.
A welfare state is expensive. The average percentage of state expenditure to GDP in the West is around 40%.
Reagan :
In the 1980s, President Reagan rode to power on the slogan of cutting down the big, bad, wasteful state.
The Grace commission, set up in 1982, was a major initiative of President Reagan for securing government reform as desired by the private sector.
President clinton launched his own reinventing initiative called National Performance Review (NPR).
shift the federal government's focus from red tape to results by reinventing and redesigning government systems
Link between Governance and Growth - IMD (International Institute for Management Development) (2006), developed a system for ranking nations on `competitiveness'.
Its four components are:
economic performance,
government efficiency,
business efficiency, and
infrastructure.
World Bank's Recommendations for Improving Governance Capacity - The World Bank came out with a number of prescriptions for increasing governance capacity A two-part strategy for increasing the effectiveness of the state.
1. Part one requires narrowing the gap between the demands on a state and its capabilities to meet these demands, through greater selectivity in the state's priorities.
Redefining of priorities for State action:
Establishment of a foundation of law and prevention of lawlessness;
macro-economic stability
investment in basic social services
protection of the vulnerable segments of society
protection of the environment
creation of alternative providers of infrastructure, social services, etc.
Self-restricting rules that precisely specify the ambit of a policy, and make it irreversible or costly to reverse, can be harnessed.
2. Part two requires increase in the capability of the state to manage collective actions efficiently by recharging public institutions.
Strengthening of the state's institutional capability
Provide incentives to public officials to perform better
create an independent judiciary
Deliver needed services by subjecting the state's services to increased competition from agencies both within and outside the state.
Give people voice in the affairs and activities of the state,
Devolve authority from the central government to regional and local governments,
Ensure broad-based public discussion of key policies and priorities
Global Lessons
Political Commitment
Focusing on the Core Functions of Government: Right-sizing, Outsourcing
There are many ways of outsourcing.
contracting with private vendors of services;
franchising;
subsidizing private bodies to carry out government activities;
vouchers to most needy buy, e.g. medicine, from a list of approved outlets, etc.
corporatizing even a not-for-profit government service offiers some advantages
It sends a clear message to its management that the service is to operate on economic lines
Since it is a corporation, it has a different legal structure than a government department
It would have flexibility in terms of raising financial resources
The golden share device, to the award of a management contract to a private party without relinquishing government ownership
Privatization is not a panacea for improved governance performance.
Competition in Delivery of Public Services - Dismantling Monopolies
Administrative reform commission with a constitutional mandate
Ownership of change across the entire public service is important
Decentralization, Delegation and Devolution
Strengthening Accountability Mechanisms
Public-Private Partnerships
Performance Management System (PMS)
Process Simplification - Deregulation
Empowering the Citizen-customer
Promotion and Diffusion of Good Governance Practices
Policy Evaluation and Regulatory Impact Assessment
Governance Indices
Existing structure of Government of India
The Constitutional Provisions
The Executive Power of the union vests in the President and is exercised by him either directly or through officers subordinate to him in accordance with the constitution (Article 53)
Article 74 provides that there shall be a council of Ministers with the Prime Minister as the Head to aid and advise the President who shall, in the exercise of these functions, act in accordance with such advice.
Article 77 provides for the conduct of Government Business:
77 (3) The President shall make rules for the more convenient transaction of the business of the Government of India, and for allocation among Ministers of the said business.
Exercising powers vested by virtue of Article 77, the President has made the The Government of India (Allocation of Business) Rules
The Rules stipulate that the business of the Government of India shall be transacted in the Ministries, Departments, secretariats and Offices specified in the First schedule to these rules.
The manner in which the officers are required to help the Minister in discharge of his/her executive functions is governed by the Government of India (Transaction of Business) Rules
These Rules also provide for the constitution of the following standing committees of the cabinet
Cabinet committees on Economic Affairs, on Management of Natural calamities, on Parliamentary Affairs, etc.
The Structure of a Department :
The work of Government of India is distributed into different Ministries/ Departments.
A department is responsible for formulation of policies of the government in relation to business allocated to it and also for the execution and review of those policies.
For the efficient disposal of business allotted to it, a department is divided into;
wings,
divisions,
branches and
sections.
Secretary - The secretary is the administrative head of a Department and in a Department, the structure may comprise special secretaries, Additional secretaries, Joint secretaries, Directors, Deputy secretaries, under secretaries and section Officers. He is the principal adviser of the Minister on all matters of policy and administration within his Ministry/ Department
Special Secretary/Additional Secretary/Joint Secretary - When the volume of work in a Ministry exceeds the manageable charge of a Secretary, one or more wings may be established with Special Secretary/Additional Secretary/Joint Secretary, incharge of each wing.
Director/Deputy Secretary - Director /Deputy Secretary is an officer who acts on behalf of the Secretary. He holds charge of a Secretariat Division and is responsible for the disposal of Government business dealt within the Division under his charge.
Under Secretary - An Under Secretary is in charge of the Branch in a Ministry consisting of two or more Sections and in respect thereto exercises
Each Department may have one or more attached or subordinate offices :
Attached and Subordinate offices -
Where the execution of the policies of the government requires decentralisation of executive action and/or direction, a department may have under it executive agencies called `Attached' and `Subordinate' offices.
Attached offices are generally responsible for providing executive direction required in the implementation of the policies laid down by the department to which they are attached.
They also serve as repository of technical information and advise the department on technical aspects of question dealt with by them.
Subordinate offices generally function as field establishments or as agencies responsible for the detailed execution of the policies of government. They function under the direction of an attached office,
Besides, the attached and subordinate offices there are a large number of organizations which carry out different functions assigned to them.
Constitutional Bodies
Statutory Bodies :
Autonomous Bodies: Memorandum of Associations etc., but the Government's control exists since these are funded by the Government of India.
Public Sector Undertakings:
Reforms since Independence
In 1952, a special Reorganisation unit was constituted to economise on state.
`work study' techniques - In 1954, a central Organisation and Management (O&M) Division was set up in the cabinet secretariat.
The main purpose of establishing these divisions was to streamline procedures and improve efficiency.
The Government created the Department of Administrative Reforms within the Ministry of Home Affairs, in 1964.
During 1966, the First Administrative Reforms commission undertook a comprehensive task of examining the machinery of Government of India and its procedures of work.
The three-tier system in the ministerial set-up, comprising Cabinet Ministers, Ministers of State and Deputy Ministers, may continue.
The Fifth central Pay commission laid emphasis on downsizing of the government. The Expenditure Reforms commission (2000)
Does this need to be done;
Does this need to be done by government;
Does this need to be done by the union Government;
If it is to be done by the union Government, which ministry/ department/ organisation is best suited for doing it.
The sixth central Pay commission (2008) :
It introduced the concept of running pay bands.
Government will have the flexibility to remove layers by removing specific grade pay.
Strengths and Weaknesses of the Existing Structure - Strengths
Time Tested System adherence to rules and established norms
These have ensured stability both during crises as well as normal times.
Stability
This has contributed to the maturing of our democracy.
Commitment to the Constitution political neutrality
The well laid down rules and procedures of government have upheld the neutrality of the civil services and prevented politicisation of government programmes and services.
Link between policy making and its implementation:
promoted the concept of cooperative federalism.
A national outlook amongst the public functionaries:
This has contributed to strengthening national integration.
Weaknesses :
Undue emphasis on routine functions:
Often, functions which are best carried out by the state or local Governments or could easily be outsourced continue to be retained with the union Government.
Proliferation of Ministries/Departments - weak integration and coordination:
compulsion of coalition politics has led to illogical division of work
Absence of team work:
An extended hierarchy with too many levels:
Risk avoidance:
Fragmentation of functions:
divide and subdivide functions making delivery of services inefficient and time-consuming.
Except in the case of a few committees and boards, there has been considerable weakening of the autonomy conceived at the time of their formation.
Core Principles of Reform :
Over the years, the weaknesses listed in the previous chapter have become stronger and the strengths have been diluted.
The union Government should primarily focus on the following core areas:
Defence, International Relations, National security, Justice and rule of law
Human development through access to good quality education and healthcare to every citizen
Infrastructure and sustainable natural resource development
social security and social justice
Macro-economic management and national economic planning
National policies in respect of other sectors
The principle of subsidiarity should be followed to decentralise functions to state and local Governments.
Subjects which are closely inter-related should be dealt with together:
Separation of policy making functions from execution:
Coordinated implementation:
Well defined accountability:
fragmented decision making leads to a culture of alibis for non- performance
Flatter structures - reducing the number of levels and encouraging team work:
Appropriate delegation:
Criticality of operational units:
The Structure at Apex :
Government in the pre-Independence period was primarily concerned with enforcement of law, collection of taxes, defence and administration of justice
After Independence, the constitution provided the framework for a democratic welfare state with the Directive Principles providing the essence of good governance
In general, there was a wide expansion in the role, function and structure of government.
This expansion was necessitated because of the following reasons:
to fulfil the mandate given by the Directive Principles
to attend to special problems of a region or a particular section of the society.
to expand the reach of government.
to provide a fillip to the economy.
to meet the emerging challenges.
Economic liberalization, the span of the regulatory role of the government gets reduced while that of facilitating role is enhanced government need not row the ship but merely steer it.
Independent Departments of Government (other than Ministries) :
Department of Atomic Energy
Department of space
cabinet secretariat
President's secretariat
Prime Minister's Office
Planning commission
Recommendations :
The Government of India should primarily focus on the core functions
Government at all levels should be guided by the principle of subsidiarity.
There is need to carry out a detailed analysis of the functions/activities in each Ministry/Department
Rationalising the Size of Government
The issue of overstaffing in government was examined by the Fifth central Pay commission.
Accordingly, it recommended a freeze on recruitment after abolition of 3.5 lakh vacant posts, across the board
The commission is of the view that an optimum size of government workforce is essential for its effective functioning.
In 1947, the council of Ministers comprised 16 members including the Prime Minister and Deputy Prime Minister.
In order to restrict the size of the council of Ministers to a reasonable limit, the constitution (Ninety-first Amendment) Act, 2003, provided that the strength of the council of Ministers shall not exceed 15% of the number of Members of Parliament in the lok sabha.
As can be seen, there has been significant proliferation of the Ministries and Departments in the Government of India since Independence.
Energy is now being handled by at least four different departments i.e. the Ministry of Power, coal, Non-conventional Energy sources, Petroleum and Atomic Energy
In the UK, there is a single secretary of state (cabinet Minister) for Transport and a single secretary of state for Energy.
Suggested Ministries and Departments
It would also be unrealistic to expect for curtailment in the size of the council of Ministers in an era of coalition politics.
Instead, a more pragmatic approach would be to retain the existing size of the council of Ministers but increase the level of coordination among the departments by providing for a senior cabinet Minister to head each of the 20-25 closely related Departments.
First or coordinating Minister (or any other suitable nomenclature) and would coordinate and provide the overall lead for the entire group of departments.
In the new dispensation, a Ministry would mean a group of departments whose functions and subjects are closely related and is assigned to a First Minister or coordinating Minister for the purpose of providing overall leadership and coordination.
Ministry of Energy could include the following Ministries/Departments:
New and Renewable Energy, Petroleum and Natural Gas, Power Recommendations
The concept of a Ministry would have to be redefined.
Individual departments or any combination of these could be headed by the Coordinating (or First) Minister, other Cabinet Minister(s)/ Minister(s) of State.
Recasting the Allocation of Business Rules
Recommendations :
There is need to recast the Allocation of Business Rules to make them more focussed on the goals and outcomes of each Ministry/Department
The Allocation of Business Rules should first provide a Statement of the mission of the department
There is need to bring greater uniformity in the description of the roles and functions of various Ministries/Departments.
Ministries/Departments should maintain a master list of all laws pertaining to the subjects dealt with in that Ministry/Department instead of mentioning them in the Allocation of Business Rules.
Instead of naming the individual PSUs and autonomous organizations under each Ministry;
the Rules should merely have a generic entry to the effect that all PSUs and Autonomous Organizations whose functioning is directly related to subject(s) of the concerned Ministry would be under its jurisdiction
However, in cases where activities of a PSU or an autonomous organization relates to more than one Ministry/Department, then it may be advisable to list out such PSUs under a particular Ministry/ Department.
Ministries and Departments to Primarily Focus on Policy Analysis
Policy Analysis in Government :
There are two broad tasks of the government.
Formulating policy in pursuance of objectives that the political leadership specifies,
Implementation of that policy.
In the UK, the Performance and Evaluation unit has been set up in the government to tackle areas selected by the Prime Minister where policies spread across a number of departments and where delivery mechanisms are divided between different parts of the government.
Policy Making to Policy Planning
Policy planning is an improvement on policy making and came into vogue in the 1960s.
Policy planning takes into account the present national and international scenarios as also the likely future contingencies in a given area of interest,
provides a menu of choices enabling the organisation, whether it is the government or any category of enterprise, to prepare itself in advance to meet those situations.
Whereas, policy making is working out the response when one is face-to-face with a situation.
Policy planning is of help in shaping events along directions conducive to best results while policy making caters to a current requirement in an existing context.
There is all the difference between dealing with a looming crisis by anticipatory action and reacting to a crisis that has already occurred in short, between pre-proofing and pre-fighting.
Policy-Making in India :
The union Government at present has about 55 ministries
The existing structure in Government of India combined with the allocation of powers and functions severely constrains the policy making role at the apex level.
This is because Ministers as well as secretaries to government, both at the Government of India and state levels, have multiple and demanding responsibilities pertaining to a wide range of policy, administrative and implementation activities.
The time they can devote to each of these functions is seriously limited and they often do not find sufficient time to reflect on important policy and strategic issues
Recommendations :
The general principles to govern the extent of delegation from Departments to their attached and subordinate offices (executive agencies) may be incorporated in the Transaction of Business Rules.
Policy analysis, planning, policy making and strategic decisions
Budgeting and Parliamentary work
Monitoring of implementation through systems and procedures
Coordination, Recommendation, Evaluation
Attached and subordinate offices should serve as the executive agencies of the ministries and concentrate on the implementation of Government policies and programmes
Executive Agencies - Position in India
In India, while some agencies or structured as Departments of Government, some have statutory backing and others or registered as a company, cooperative, trust or a society.
At present, micro-management is the culture in the ministries.
The commission is of the view that each union Government Ministry should scrutinize the activities and special purpose bodies of the Ministry.
Mere creation of executive agencies is not an end in itself. What is equally important is to ensure that the right balance between autonomy and accountability is struck
Recommendations :
Each Ministry should scrutinize the functions/ activities of the ministry check whether these activities/functions are critical and can only be carried out by government agencies.
Other functions/activities should be carried out by the executive agencies of the department.
The right balance between autonomy and accountability while designing the institutional framework of executive agencies.
Internal Reorganisation of Ministries
Bureaucracies everywhere, have generally been structured on principles of hierarchy, top down authority and control.
Based on the experiences in the private sector, management theory today focuses on various attempts to break free from the traditional bureaucratic structure.
The new watchwords are teams (preferably cross-functional), lateral communications, the minimization (if not outright removal) of hierarchy, and the sparse use of rules
In several Ministries, in place of section Officers attached to a section, a Desk Officer system is in place
Thus there are six levels in most Ministries and if one were to include the dealing hand (usually an Assistant/UDC/LDC), the number of levels actually comprises seven.
Simplification of Governmental Processes
Government organizations are bureaucratic. - The term `bureaucratic' often carries a negative image and denotes red tapism, insensitivity and the rule bound nature of an organization. When Max Weber propounded `bureaucracy' as a form of organization he meant organizations structured along rational lines, where:
offices are placed in a hierarchical order
operations are governed by impersonal rules thereby reducing discretion.
officials are given specific duties and areas of responsibility
appointments are made on the basis of qualifications and merit
Strengths :
Record keeping
Accountability
An elaborate system of paper based records helps in pin-pointing responsibility for each decision made in a Government Department.
Institutional memory
A robust record maintenance system helps in the creation of an institutional memory of past policies and precedents that can guide future decision making.
Inbuilt Redundancy Self-Correction
Multiple levels enables repeated scrutiny which in turn enables correction of errors and omissions.
Insulates Individual Functionaries from Extraneous Influences
The present office procedures enable individual functionaries to record their independent views on the files
Weaknesses :
Multiple Layers Lead to Inefficiency and Delays
Fuzzy Delegation
vague and/or inadequate delegation encourages `reverse delegation' of work to higher levels
especially at the level of under secretary/Deputy secretary/Director/Joint secretary.
Focus on File Management at the Expense of outcomes
Reactive Rather than Proactive Approach
Absence of Team-based Working
Recommendations :
Each Department should lay down a detailed scheme of delegation at all levels so that the decision making takes place at the most appropriate level.
Shift from process compliance to outcomes
Shift from a reactive to a proactive approach
Innovative approaches through multi-disciplinary work teams
Shift from an ad-hoc application of precedents to systematic classification and transparent use of past records
The scheme of delegation should be updated periodically and should also be `audited' at regular intervals.
The Secretary of the concerned Department should have the flexibility to create inter-displinary teams
Coordination Mechanisms - Cabinet Committee and GoMs :
At present, the following cabinet committees have been constituted:
Cabinet committees on Accommodation, Economic Affairs, Management of Natural calamities, Parliamentary Affairs, Political Affairs, Prices, Security, Appoinments, etc.
Some of these GOMs have been empowered to take decisions on behalf of the cabinet whereas the others make recommendations to the cabinet.
Large number of GoMs has resulted in many GoMs not being able to meet regularly to complete their work
The commission feels that more selective use of the institution of Group of Ministers would perhaps lead to more effective coordination
Coordination Role of the cabinet secretariat
The cabinet secretariat plays an important role in coordination of inter-Ministerial matters.
Whenever inter-Ministerial coordination is required, the concerned Ministries seek the assistance of the cabinet secretariat.
The inter-Ministerial problems are dealt in the meetings of the Committees of Secretaries (CoS)
The cabinet secretariat is seen as a useful mechanism by the Departments for promoting interMinisterial coordination since the cabinet secretary is also the head of the civil services
The secretaries therefore consider it necessary to keep the cabinet secretary informed of significant developments whenever necessary.
The Transaction of Business Rules also require them to keep the cabinet secretary informed of developments, from time to time, specially if there are any departures from these rules
Other coordination Mechanisms - Formal and informal mechanisms
The formal mechanisms may include inter-Ministerial committees and working groups
The ARC has suggested a flexible, inter-disciplinary team based approach which would inherently serve to improve coordination.
This will reduce the need for inter-Ministerial coordination at the apex level
There will always be issues and problems for which high level inter-Ministerial coordination would be required.
The extent and quality of coordination would depend on the skill of the coordinator and the spirit with which the members participate.
To achieve the necessary coordination, a secretary should function as a member of a team rather than as a spokesperson of his/her Department's stated position.
Furthermore, effective functioning of the existing mechanism should be adequate to meet the requirement of inter-Ministrial coordination.
Reducing paperwork Business Process Re-engineering
For every function an organization performs and every service or information it provides, there should be a step-by-step analysis of each process to ensure its rationality and simplicity.
The commission recommended:
updating the websites at regular internals
There is need to ensure that the existing coordination mechanisms like the Group of Ministers, and Committee of Secretaries function effectively
Unresolved issues concerning States which require inter-Ministerial coordination in Government of India, should be placed before the Committee of Secretaries (COSs) and then to the Union Cabinet for resolution.
Creating an effective Regulatory Framework
The commission classified the functions of Government as:
self preservation,
supervision and resolution of conflicts,
social and economic development, and
regulation and provision of goods and services.
These can be also classified as;
Regulatory functions
Service providing functions
Developmental functions
Regulatory Functions
According to Thomas Jefferson, government is created to secure the inalienable rights of all citizens - i.e., the right to life, liberty and the pursuit of happiness. If everyone were to be allowed to pursue complete freedom for doing whatever he wants and to pursue his happiness, then it may lead to a situation where rights and freedom of other persons are affected. This necessitates the regulatory role of the government
Attaining `optimum regulation' is a challenging task, as a balance has to be achieved between individual's freedom and society's interest.
In India, as stated earlier, the regulatory role of government stems from the provisions of the constitution which empower the union and state legislatures to make laws on various subjects.
Article 19 of the constitution empowers the state to impose reasonable restrictions
there is a plethora of laws and rules in the form of municipal laws and byelaws, laws governing vehicular traffic, law
The constitution as well as the laws enacted by Parliament have established the institutions and mechanisms to enforce the laws and rules
Article 53(1) of the constitution regulates the exercise of the executive powers of the union.
Further, Article 53(3) authorizes Parliament to confer by law such functions to `authorities'.
International agencies have rated India as a relatively over-regulated state
The commission in its Twelfth Report on `citizen centric Administration' emphasized the following aspects of regulation:
Regulation only where necessary:
Regulation to be effective:
Self regulation is the best form of regulation:
Regulatory procedures to be simple, transparent and citizen friendly
Involving citizens' groups, professional organizations in the regulation activities.
Statutory Independent Regulatory Agencies :
The concept of independent regulations took birth in the USA
The basic premise of the establishment of these agencies is that a market based economy needs to be regulated to ensure a level playing field and to safeguard public and national interest.
Other factors were increasing complexities and technologies required handling by experts;
Public interest is best served by insulating decision making in certain issues, from political interference.
In India, the initiation of the process of economic liberalization necessitated certain measures to boost the investor competence and to safeguard public interest
led to the setting up of several independent statutory regulating agencies in sectors such as Power, Telecom, Financial services, Insurance etc.
There is one more category of regulators self Regulatory Authorities. - Functions of self-Regulatory Bodies may include:
issues of professional education: development of curriculum, setting up of teaching standards, institutional infrastructure, recognition of degrees etc. and
matters connected with licensing, and ethical conduct of the practitioners.
Issues :
Defining the term `Independent Regulators' -`The creation, design and consequences of independent regulatory agencies represent a classic example of delegation to non-majoritarian institutions.
They are organizationally separate from governments and headed by unelected officials
The role of these independent regulators include :
fostering competition in the sector
establishing standards and codes
It helps to maximize benefits for consumers and for the economy as a whole.
In the post-economic liberalization period, a large number of independent regulatory mechanisms have been set up in India.
E.g.: (TRAI), Electricity Regulatory commissions (ERCs) and the IRDA, Competition commission
Another way of categorizing the Regulators would be to distinguish between
general regulators such as the competition commission and
the subject specific Regulators which include TRAI, IRDA etc
Proliferation of Regulatory Authorities
A large number of Regulators have been set up in recent times by the government to whom certain functions previously performed by the government have been transferred
There is also an increasing perception that a number of regulators are being set up on an adhoc basis by different Ministries, sometimes with overlapping jurisdictions leading to lack of coordination and issues of turf
United Kingdom (UK) for example, this issue was examined by the `Better Regulation Task Force'
Before establishing a new independent regulator, a Department should carry out a landscape review of the delivery of the policy objective
This should explore whether another regulator could take on the new function, or whether a number of regulators could be subsumed within the new function.
Department should carry out regular end-to-end reviews of their policy delivery areas to assess which bodies continue to deliver their policy objectives effectively
Interface with Government
Since Regulators have been hived off from Government departments for the purpose of carrying out government policies, a close link between the two is essential while respecting the autonomy and independence of the Regulators.
some aspects of this interface are - Appointment and approval of members, Provisioning of funds, Facilitation of Parliamentary interface, Capacity building
Regulation of PSUs, Issue of policy directives, Audit and vigilance, Coordination with other depts, Periodical reports
Accountability
A Regulator can retain its legitimacy and credibility only if it is accountable for how it uses the powers that have been delegated to it by the legislature.
Accountability can best be ensured by adhering to the following broad principles
The independent regulator should be backed by a statute.
There should be a clear well-defined mandate for the Regulator.
Relationship with the legislature, executive and the judiciary should be clearly defined.
The procedure for appointment and removal of Regulators should be clearly laid down in law.
Decision making should be transparent.
Mechanisms for superceding such agencies should also be defined in law.
Another aspect of accountability is accountability of the Regulator to stakeholders and citizens.
In India the regulatory bodies in general have the following features that are relevant to their accountability:
They have been constituted on the basis of statute
Their decisions can be appealed against before a specified appellate authority in most cases.
The accounts of regulator are audited by the Comptroller and Auditor General.
They are legally bound to prepare an annual report and submit to the Government who in turn lays it before each House of Parliament.
The respective statutes have mandated that regulators shall ensure transparency while exercising their powers and discharging their functions.
The chairmen, Members and officers of regulators are deemed to be public servants
In practice, Parliamentary oversight of the Regulators in India has been through occasional appearance before the Parliamentary committees and the Departmental consultative committees combined with laying of annual reports and other papers before Parliament.
Parliamentary committee for Regulators may not be feasible given the widely varying mandate and area of operations of the regulators
ARC is of the view that there should be independent evaluation of the work of these Regulators, based on pre-specified parameters
Uniformity in structure and Powers
There are significant variations in the size and composition of the governing boards, manner of appointment, removal of chairmen/members, tenure, provision of appeals, sources of finance, interface with the government etc.
Given the growing importance of regulation in several critical sectors of economy, governance relating to regulatory institutions has assumed an important role and in order to focus on regulatory reform and governance, a separate Department of Regulatory Affairs may be created.
A cost-benefit analysis of any proposal for regulation should be there, done directly by a department or by an independent Regulator, this is now the norm in most of the developed countries
Recommendations
Setting up of a Regulator should be preceded by a detailed review to decide if the Regulator would be better placed to deliver the policy objectives of the department concerned
Each Ministry/Department should evolve a `Management Statement' outlining the objectives, roles, and the guidelines governing their interaction with the government.
There is need for greater uniformity in the terms of appointment, tenure and removal of various regulatory authorities considering these have been set up with broadly similar objectives and functions and should enjoy the same degree of autonomy.
The appointment of the Chairman and Board Members for all such regulatory authorities should be done by the Governments after recommendation by a Selection Committee.
Legal provisions regarding removal of Board Members should be made uniform while at the same time ensuring sufficient safeguards against arbitrary removal.
Parliamentary oversight of regulators should be ensured through the respective Departmentally Related Standing Parliamentary Committees.
A body of reputed outside experts should propose guidelines for periodic evaluation of the independent Regulators.
Each statute creating a Regulator should include a provision for an impact assessment periodically by an external agency.
Once the objective of creating a level playing field is achieved, the intervention of the Regulators could be reduced in a phased manner ultimately leading either to their abolition or to convergence with other Regulators.
There is need to achieve greater uniformity in the structure of Regulators.