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A Call towards Centralized Appointments & Selection

Analysing Draft Amendment in Electricity Act, 2020


The Electricity Act, 2003 after being amended in 2003, 2007, attempted to be amended in 2014 and 2018 respectively, again was floated as a draft containing some major changes and reform packages in the electricity sector as on April 17, 2020, ironically inviting public comments during the times when the world is struggling in handling pandemic situation and country like India already being in a state of power surplus, through renewable energy.



Apart from proposing for providing a bigger platform to renewable sector, changes in tariff policies and cross-subsidies, settling up of Electricity Contract Enforcement Agency and an aggressive push towards the model of DISCOM privatization, the draft puts forward major structural changes, between the division of power between Central and State Government, regarding regulatory function, concerning appointment and selection.

Since Electricity is a subject matter of Concurrent list (III), entry no. 38, whereby the state government and central government have jurisdictions over the subject matter. But as per the new draft, it proposes to scrap Section 85 of the Electricity Act, 2003 completely, which empowers with the powers of selection and appointment to SERC members and states that “Constitution of election Committee to select members of State Commission” whereby the state government for making selection of the quorum of the state commission will constitute three-member selection committee, which will consist of a Judge of the High Court, as a Chairperson, the chief secretary of the concerned state, the Chairperson of the authority or the chairperson of the central committee, as members, and the selection committee finalize within three months, from the date of any such reference or vacancies being made.

Whereby, the new draft introduces us to proposed changes, it presents consolidated selection procedure via Section 78 of the draft, stating “Constitution of Selection Committee to recommended members”. Here, all the power lies with Central Government, to select members of the appellate tribunal, members and Chairperson of the central commission, electricity contract enforcement authority, state commission, and joint commissions, by constituting a panel of one chairperson, who served or is serving as

  1. Supreme Court Judge, to be nominated by the Chief Justice of India,

  2. A Member, who is a secretary in charge of the ministry of the Central Government, nominated by the Central Government,

  3. A member who is holding the position of chief secretaries of two state governments as per 78 (2)

  4. A member, who is a secretary in charge of the ministry of the Central Government dealing with power.

The change in appointment of High Court Judge might have been affected due to Madras High Court decision, 2018 on SERC appointment, which can be considered as a welcoming step.

Section 78 also concentrates all the power of appointment to the central government, whereby the state government is only given the power to refer to the selection committee for the pending or upcoming vacancy, as per proposed section 78 (5).

Another aspect of appointment and selection mechanism is the proposed draft, which directs towards working of SERC even when the posts of members are vacant, as stated under Section 82 (7). In cases of JERC, where the other state can regulate them, this arrangement is again dubious as entrusting the functions to another state, in case of a vacancy. The government has to mention the mechanism of the functioning and clear the work structure between the states and its responsibilities, for avoiding any confusions and conflicts over jurisdictions.

The intention behind the move for centralizing the appointment and selection might be for creating streamlining and uniformity of the process, but the state government will ultimately become a stand looker, by having no say in the appointment of chairperson and members for the concerned state regulatory commissions. It will also question the constitutional right given, where the state will not be able to appoint its own SERC members.

This stand can also influence the appointments politically and will restrict power in one cluster, which may result in professional and selection bias, thus compromising transparency mechanisms. This calls for a dire need for the government to look into electricity bills, before making it a law.

ABOUT THE AUTHOR

Tanwi Pareek is an Academic Associate at Adani Institute of Infrastructure Management.

They can be contacted at tanwi.pareek@aii.ac.in or https://www.linkedin.com/in/tanwi-pareek-1041b873/

Edited By: Swathi. Ashok. Nair

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