Professional Documents
Culture Documents
in India
Author(s): Navroz K. Dubash
Source: Economic and Political Weekly, Vol. 43, No. 40 (Oct. 4 - 10, 2008), pp. 43, 46-54
Published by: Economic and Political Weekly
Stable URL: http://www.jstor.org/stable/40278026
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Independent RegulatoryAgencies: A Theoretical
ReviewWithReferenceTo Electricityand Water in India
NAVROZK DUBASH
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experiment in watersuggestsan even morefundamental ques- neutrality and competency - as well as theexistenceofa single
tion:is independent the
regulation right mechanism for govern- correct answer, are problematic, as I discussfurther below.
anceinthewatersector? Second,thisapproachundulylimitsthe scope ofregulation.
Whatissuesdoes thisbriefreviewthrowup fordiscussionof Scholarssuchas Sunsteinsuggestthatthereare groundsforreg-
independent regulation in India?The case ofelectricity suggests ulatingin thepublicinterest whenvarious"substantive" values
thatregulatory independence from the executive is not easily such as social justice,diversity, or redistribution are involved
achievedbythestrokeofa pen. It also pointsto concernsover [citedin Morganand Yeung2007: 27]. Sunsteinnotesthatthe
howprocedures are implemented inpractice,something thecase choicesthatindividualsmakeas consumersmaynotbe equiva-
of waterpotentially shares.In bothelectricity and water,as crit- lentto thosetheymakeas citizens;as citizenstheymaywishto
icshavepointedout,theWorldBank'srolein promoting regula- livein a societythathas attributes thatcannotbe obtainedsim-
tory formation has led to an on
emphasis usingregulation as an plybybuyinggoods as a consumer. NotethattheMunnjudg-
instrument of financial reform, to the possible exclusion of other ment,although delivered in the context ofa privaterailmono-
concernssuchas equity,equal access, and environment (ibid). poly,suggests that pursuit of the "common good" is an over-
Most fundamentally, both cases suggest the challenge of arching rationale for regulatoryintervention, whichprovides
resolvingpotentialconflicts and trade-offs between social and legalspace forintervention beyond the narrow case ofmonopoly
economicobjectives. to include substantive values.
Whether, and how,regulators are structurally equippedto deal Ifsuchsubstantive valuesare tobe promoted intheregulatory
withtheseissueswas inadequatelyconsidered when regulatory process,however, then we have to move beyonda visionofregu-
- -
thoseforelectricity wereestablished, lators as a neutral technical to one capable of choosing
agencies in particular entity
and even now it has receivedonlyincompleteattention.7 With between alternative social values. This leads immediately to a
electricity regulation ripefora review,and waterregulation of
only discussion regulatorylegitimacy; since regulators are une-
nowbeingintroduced, itis appropriate thatwe takea fresh lookat lected,how do theyderivethe legitimacy to make alternative
theories and ideason thesubjectto understand howindependent socialchoices?One influential answer,givenbyProsser(1999)is
regulation canbe a toolforgovernance, as wellas itslimits. thatregulatory legitimacy is derived fromprocedural robustness,
which allows forsocial choices emergefromdeliberation
to
3 Theories of Regulation withinregulatory processes.I returnto thisthemebelow.
The literature on regulationis voluminous,and spans political Thepublicinterest viewofregulation is criticised foritsnaivete
science,law and sociology,as well as economics.Each ofthese aboutthegoodintents ofregulators, a critiqueparticularly devel-
traditions framesitsquestionsin different ways.One usefulway opedbytheprivateinterest theoriesthatfollow.Moreover, when
to cutacrossdisciplines, however,is to groupthetheoriesunder regulationextendsbeyondthevisionofneutral and competent
thecategories ofpublicinterest, privateinterest, and institution- regulators applyingwell-known principles to regulators as social
alisttheoriesofregulation[Morganand Yeung2007]. decision-makers, thepublicinterest viewofregulation raisesalso
concernsaboutlegitimacy and accountability.
3.1 Public InterestTheories
Writings on regulation have theirlongesthistoryin theus. The 3.2 Private InterestTheories
intellectualjustification forregulation appearedinan earlyjudg- Privateinterest theoriesofregulation beginwitha critiqueofthe
mentoftheus SupremeCourt,Munnvs StateofIllinois,which publicinterest view as politicallynaive.Theyquestiontheopti-
dealtwithwhethera legislativeassemblycould limittheprices misticassumptionthatsimplybecause a case can be made for
chargedbyprivaterailwaycompaniesforstorageofgrainbeing promoting the publicinterest, regulatory actionswillindeeddo
transported by those railways. In this frequently cited judgment, so. They suggest, instead, that regulators emergeto servethe
thecourtruledthatwhen"...onedevoteshis property to a use in privateinterests ofindividualsor organisedgroups.Iftheyalso
whichthepublichas an interest, he,ineffect, grantstothepublic servethe publicinterest,thenthatis merelya fortunate side-
an interest in thatuse, and mustsubmitto be controlled bythe effectofservingprivateinterests. Thereare manyvariationsof
publicforthe commongood..." [TouroLaw Centre2005]. The theprivateinterest view,includinga Marxistperspective which
is
judgment significant because it provides a basis for state con- sees regulatory agencies as a sort of franchise on public power
troloverprivateproperty whenthepublicinterest is involved. handedoutbythestateto privateinterests [Moran2002].
The mostcommoninvocationofregulationin thepublicinter- Perhapsthe best knownelaborationof the privateinterest
estis thatofregulating monopolies.Fromthisperspective, regu- approachis thetheoryofregulatory capturemostcloselyassoci-
lationis a substitute forcompetition, wherecompetition is not ated withGeorgeStigler(1971).Stiglerarguesthat"as a rule,
possibleforreasonsofnaturalmonopoly,8 forprovision ofpublic regulationis acquiredbytheindustry and is designedand oper-
goods, or to address externalities. From this startingpoint, the ated primarily for its benefit." Indeed, "... theproblemofregula-
of
goal regulation is clear: to increase allocative efficiency. tion is the problem of discovering when and whyan industry (or
the of
However, practice regulation is seldom that straightfor- other group of like-minded people) is able to use the state for its
ward, for at leasttwo reasons. First,perspective regulation rests purposes."9 An interesting variant of the capture theory (which
on neutraland competent regulatorsreliablychoosinga single precededStigler'swork) suggeststhat regulatory agenciesgo
correctanswer to regulatoryproblems.Both assumptions - through a life-cycle, characterised by an early pioneering spirit,
weekly DSQ
& Political
Economic October 4, 2008 47
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also takestheargument further and arguesforexplicitefforts to languageof "transaction cost"economics.10 The taskofregula-
for
compensate inequalities power in or information across dif- tion was understood as the
narrowly limiting scopeforarbitrary
ferentstakeholder groups. Not surprisingly, the main problem administrative action (such as expropriationor politically
withthistheoryis thechallengeof implementability, bothcon- motivated tariff setting),therebycreatingconditions favourable
ceptual and practical.Conceptualchallenges with implementing to investment.
this approachincludethe difficulty of developingcriteriato Thekeyinsight ofthepaperwas thatwhilemuchattention had
determine whichinterests shouldbe considered,how to weigh been paid byeconomiststo regulatory incentives - howregula-
them,and how to decide among them. Practicalchallenges torscoulduse theirtoolsto set incentives forefficient perform-
includemanagingthepotentialriskofdeadlock,and implement- ance- toolittlehadbeenpaid tothe"mechanisms thatsocieties
inga moreproactiveformofstakeholder regulation whichcom- use toconstrainregulatory discretion and resolveconflicts ..." In
for
pensates existinginequalities. other words,regulatory governance.Understanding these mech-
Institutional theoriesshare the commonaim of bringing anismsrequiredexploringissuessuchas theseparationofpow-
morerealismto understanding regulatory processesthaneither ers betweendifferent branchesof government, the extentto
public interest or private interest theories. Public interest theo- which the judiciary could be counted on as a disputeresolution
in as
riesare naive seeingregulators straightforward agents of forum, whether bureaucracies were strong weak, and other
or
the publicinterest,do not provideany answers to situations features of the larger political environment within which
wherethemeansoflimitingmonopolypower are unclear, and regulation operated.Notably, Levy and Spillerconcluded thatthe
provideno basis forpursuingsubstantive aims throughregula- model of independent regulatory agencies was onlyappropriate
tion.Privateinterest theoriesswingtoo farin theoppositedirec- in a limitedset of contexts,and in othercontexts,the use of
tion,and tautologically equate regulationwithcapture,though contracts,or continuedpublic ownershipand control,were
theyprovidea usefulcorrective to thenaïvetéofthepublicinter- moreappropriate.
estperspective. Forthesereasons,I suggestthatan institutional-
istperspective is a usefulstarting pointforconsidering regulator 4.2 Delegation and Regulatory Creation
agenciesinIndia.Fromthisbriefreviewofa fewleadingtheories A moreoverarching framework withinwhichto understand reg-
ofregulation, it emergesthatwithan effort at realismcomesa ulatorygovernanceis theissueofdelegation.Regulation is char-
greaterattention tothewiderweb ofstakeholders thatsurround acterisedby the delegationof authority fromelectedbodiesto
a regulator: thatregulatory space theoriesexplicitly call atten- "non-majoritarian" institutions,that is, those that exercise
tiontoactorsthatsurround theregulator; thatresponsive regula- authority but are not directlyaccountableto the people. The
tionemphasisesinteraction betweenregulator, regulated,and problem, then,is toexplainwhyelectedbodieswouldvoluntarily
otherstakeholders; and thatstakeholdertheoriesstartby pre- chooseto delegateauthority, and withwhatconsequences.The
sumingthatregulators shouldbe designedto servetheinterests problemis further madecomplexbytheneedto considerwhere,
ofstakeholders. Whilethereremainmanyunansweredquestions in fact,authority does residepriorto delegation.As Anantand
abouthowto practically engagestakeholders, theliterature sug- Singh (2006) note with referenceto the Indian Constitution,
gestsa commonattention totheimportance oftheirrole. whenthereis a "weak"separationofpowers,theproblemis not
onlyone oflegitimate delegation, butalso effective delegation.
4 RegulatoryGovernance Typicalanswers to the problemof why delegationoccurs
The abovediscussionsuggeststhatregulators have to takeon a includegovernments' desireto signalcrediblecommitment (for
significantly expanded role, indeed, as Prosser (1999) puts it,be example, by handing over tariff decisions they promise not to
"governments in miniature". This is at a considerable distance interfere in), overcome information asymmetries (specialised
fromthevisionof regulatorsas narrowlyfocusedentitiesthat bodiesmaydo betterat unearthing information), and avoidtak-
derivetheirlegitimacyfromtechnicalexpertiseand political ingblameforunpopularpolicies(byblamingdecisionson "inde-
neutrality alone,as withthesimpleversionofthepublicinterest pendent"regulators)[Thatcherand Sweet2002]. These are all
theory. requiresexploringfurther
It how regulatorsfitWithin, functional explanations(thatis, theexistenceoftheregulator is
and are shapedby,largergovernancestructures, and howregu- explainedbythefunction itis meantto perform) consistent with
latorsoperatewhentheyare viewedas a governancestructure. thetransaction costframework ofLevyand Spiller.
In thissection,I discusshow the conceptofregulatory govern- However,thereare other,moresociologically orientedexpla-
ance arosefromthe imperative of protecting investorinterests, nationsto explaintheproblemofdelegation.Sociologists argue
and also howtheconcepthas progressively been broadened,so thatinstitutions suchas independent regulators spreadbecausea
thatit can equallybe understoodto focuson questionsof the perceptionis createdthrougha complexprocessofsocial con-
accountability and legitimacy ofregulation tothepublic. struction thatregulationis thebestsolutionto a particular type
ofproblem.Onceconstructed, regulators maybecreatedthrough
4.1 An InvestorPerspective an epidemicofborrowing, oftenforsymbolicreasons[Thatcher
The term"regulatory was
governance" popularisedbyLevy and and Sweet 2002]. The result is thatregulationas a formofgov-
Spiller(1994) in a path-breaking paper. The paper was significant ernance becomes more legitimatethanothers,and indeed,can
forintroducing regulatory economists to issues that had hitherto favour one set of actors over another.Moreover,institutional
beenthedomainofpoliticalscientists, and fordoingso usingthe designbycopying- "isomorphism" insociologicalterms- can
weekly DSQ
& Political
Economic October 4. 2008 49
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has emphasised formula-based,predictableregulationthat 5.2 The Search forWorkable Substantive Principles
achieves the goal of efficiency enhancement.13 In practice, An important precondition forregulationas a meansofgovern-
however, this approach has provedproblematic, conceptually ance is for the policyprocessto determine thesubstantive princi-
and practically. ples(or outcome-oriented goals) thatwill guideregulators. There
On theconceptualplane,Stewart(1975)notesseveralobsta- are twopartstothetask.
clesto usingeconomiclogicas a determining ruleforregulation: First,the broad substantiveguidelineshanded down to
applied economics is an art that often producesmultiple, not sin- regulators fromthelegislature needtobe defined, anddoneso in
gle answers;preferences over alternative choices do not remain an open and transparent fashion. Atthe moment, theElectricity
fixedbychangeovertime,leadingto questionsaboutwhichset Act2003, forexample,providesa longlistofregulatory tasks,
ofpreferences decisionsshouldbe based on; distributional con- butdoes notset clearpriorities forhow competing prioritiesare
cernsare inadequately addressed; and economic analysis leaves to be met.14
no space for"processvalues"on whichlegitimacy depends. In Second,keepingin mind that regulatorydiscretioncannot
herinsightful of
analysis largerregulatory trends,Morgan(2003) entirely be legislatedaway,theliterature suggeststheneedfora
arguesthatcompetition, or the prioritisation of market logic, robust set of procedures that allow discretion to be legitimately
castsa "shadow"oversocialcitizenship, bywhichshe means the in
applied keeping with substantive principles. One interesting
aspirationto growingequalityand fairnessin the social and to
approach defining these principles suggestthattheproce-
is to
economicspheres. duralistapproach(interest representation through robustpartici-
Froma practicalviewpoint,the experienceof the uk, the pation) can onlyworkunder conditionsof certainminimum
benchmark forregulatory reforms, is usefulto consider.The first socialwelfarerights.Then implementing theserights - suchas
uk electricity StephenLittlechild, -
is knownforformu- the rightto water,a livelihood,etc thenthemselves become
regulator,
latinga price-setting formula linkedto theretailpriceindexthat partoftheregulatory objective[Prosser1999].
purportedto automatically promoteefficiency while reducing Arguments againstimplementing substantive goals- suchas
discretion. In practice,however,theformulahas had ensuringreasonablypricedaccess to waterand electricity -
regulatory
tobe modulatedforpoliticalreasonssuchas ensuringthatcom- throughregulatory processare based on the perceivedlack of
paniesreceivean acceptablerateofreturnon assets.As a result, legitimacy ofunelectedregulators. However,as discussedabove,
regulators have had to returnto scrutinising the internalfunc- regulatorsalreadymake these decisions;theysimplydo so in
tioningofutilities, re-introducing regulatory discretion [Thomas non-transparent ways and withoutclear substantive guidance.
2005].Inanotherexample,theregulator has beenforcedtograp- Acknowledging thisdiscretionary and substantive roleofregula-
plewithsocialissuessuchas theinterests oflow-income groups. torsand providingthem guidancewould be a step forward.
Thus,thecountry's Utilities Actof2000 makesconsumerprotec- Moreover,with appropriateproceduralsafeguards,regulatory
tiontheprimary dutyoftheregulator[Owen2004]. Overtime, processescouldbe potentially morelegitimate thanparliamen-
theonsetofprivatisation intheuk has had theironicresultofthe taryones, in that theycould providegreaterscope forcon-
emergence ofan explicitbodyofpublicservicelaw wherenone sideration ofall interests and issues.15 Thisargument is strength-
existedbefore[Prosser2000]. ened in thecontextofmanydevelopingcountries, suchas India,
Similarlessonson theblurring of economicand social objec- whereparliamentary processesare notseen as highlylegitimate
tivesemergefroma closescrutiny ofIndianelectricity regulators oreffective.
[Dubashand Rao 2007].Whiletheregulatoris legallymandated In closingthissection,it is important notto givetheimpres-
to reducecross-subsidies (a higherpricepaid byone consuming sion of scholarlyconsensuson the issue of whetherand how
class to reducepricesforanother),in practice,regulators make regulators shouldbe guidedby substantive values,and thelink
politicaljudgments about whether and how much to do so. There between procedural values (good processes) and substantive
is also substantialevidencethatinsteadof followingthe man- values (good outcomes).Thereremainsconsiderable debateon
dated cost-plusformulaeto determinetariffs, theyuse various howto ensureregulatory consistency and legitimacy whilesteer-
creativemeans to keep tariffswithin politicallyacceptable ingclearofunrealistically rigidand rule-bound regulation. What
bounds.Despitethesetensions,nothinganalogousto the uk's is clear,however,is thatrobustprocedures are an important part
of a
emergence body public of service law has, as yet, occurred ofthe regulatory story,and that there needs tobe space for debate
inIndia. and discussionon substantivevalues forregulationthatgoes
Thisdiscussionsuggeststhattheimplicit assumption reg- beyondtheapplicationofeconomiclogicalone.
that
ulationinIndiacan and shouldbe a single-minded instrument of
economic is both misplaced and unworkable. 5.3 Substantive Values to Tangible Social Outcomes
applying logic
Seeking to exclude social objectivesonly drives the consideration The concernsthatmotivatea socialagendain regulation include
of these objectivesunderground. As Prosser (1999) puts it, "No issues of access to electricity and water; appropriate pricingfor
singlelogic can or should form a basis for their [regulators'] low-income groups; attention to quality of service issues, includ-
and
decision-making they should not be seen as of
capable imple- ingspecial provisions such as those that permit the use ofpre-
menting a mandate of simplyapplyinggovernment guidance." paid meters; and relatedsocial issues such as the of
rights labour
Instead, the aim should be development ofan explicit framework employed in the electricityand water sectors. Given thelimited
withinwhichsocialchoicesare madeintheregulatory process. experience with regulation in the developing world, thereis a
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notes 7 The onlyattemptto do so is containedin a Plan- 12 Forone, partialeffortto spell out a governance-
ningCommissiondiscussionpaper 'Approachto based analysisofregulation,see Minogue2001.
i Thereis, however,a reasonableamountofwork Issuesand Options'
RegulationofInfrastructure: 13 Oftenassociatedwiththisis theviewthatsocial
on techniquesand methodsthroughwhichnew released in 2006 and available at http://plan-
IRAsexercisetheirpowers,suchas on alternative objectivesare best served throughminimalist
ningcommission.nic.in. regulation,throughallowing marketforcesto
regulatoryapproachesto tasks such as price 8 A naturalmonopolyoccurswhenit is less costly drivedown pricesto everyone'sbenefit[Smith
setting,andcontrolling entryand exit.Thiswork, forone ratherthanmanyfirms toproducea com- 2000].
whichis notthe focusof thispaper,is comple-
butby no meansa substituteforatten- modityforreasonsof economiesof scale. Under 14 In contrast,the UtilitiesAct of Britainclearly
mentary such conditions,forcingmanyproducerswould statestheprimary interest ofregulators is topro-
tiontothepoliticaleconomyofregulation.
losses,so it is betterto simply
lead to efficiency tecttheinterestofconsumers, withtheriderthat
2 Notably, as correctlypointedoutbyM H Zerah,an allow a single firm,but regulatethe price it whereverappropriatethisis to be done by pro-
authorandreviewer, thisreviewislargelyrestricted
charges. motingcompetition [Owen2004].
to theAnglo-Saxon traditionthatfocuseson dis- theevidenceamassedtosupportthecap-
9 Notably, 15 Wood (2005) argues forcefully that"confusing
tinctregulatory agencies,as opposedtoa quitedif- ture theoryrestsheavilyon studiesof IRAs as
ferentmainlandEuropeantradition thatexamines
democratic governancewithvotingshouldsimply
opposed to otherformsof regulation(e g, envi- be unacceptable".She suggeststhatlimiting dis-
the function of regulationwithoutassumingthe ronmentalor health regulationfromwithina cussions of democracyto votingalone exclude
need fora separateregulatory commission. This
government department). sensibleand fullconsideration ofgovernancein
paperis restricted to theAnglo-Saxon of
tradition
10 More recentworkseeks to updatethe Levyand decision-making processessuchas regulation.
independent regulatoryagenciesbecauseitsintro-
ductionin Indiais a faitaccompli.However, exam- Spillerapproachand applyittoAsia (Cubbinand 16 However,it mustbe notedthatLevyand Spiller
Stern2005; Sternand Cubbin2005). are muchmorenuancedinlimiting theconditions
iningotherinstitutional traditionswould yield
11 I havetriedtoreconstruct thisprocesselsewhere, underwhichregulatorscan workthanwerethe
importantinsightson alternativeinstitutional inDubashand Rajan (2000). designersofregulation in India.
forms forregulatory tasks.
3 In additionto stateregulators, thereis a central
regulator thatis responsibleforissues thatcross
stateborders,
4 Forcomment
suchas electricitytransmission.
reform
and discussionon electricity
Economic&PoliticalwEEKLY
in India and worldwide,see Dubash and Singh andPolitical
UnboundBackVolumesofEconomic Weekly 1976to2007areavailable.
from
(2005). Fora briefreviewofthehistory ofIndia's
electricity sector,particularlyduringthe 1990s, Writeto:
see Dubashand Rajan(2000). Circulation
Department,
5 I am gratefulto E A S Sarma forstressingthese
pointsinhisreviewofthisarticle.Forfurther per- Economicand PoliticalWeekly
spectivesalongtheselines,see Sarma(2004). AtoZIndustrial
320-321, Estate, Kadam
Ganpatrao Lower
Marg, 400013.
Parel,Mumbai
6 See, forexample,Rao 2004, PrayasEnergyGroup
2003, Godbole2000, Mahalingam2005, Dubash
Circulation@epw.in
and Rao 2007.
weekly B3S
&Political
Economic October 4, 2008 53
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