A number of statutory regulatory authorities have emerged in India since the 1990s. Statutes that have established regulators focus broadly on: (a) the design of the apex decision-making body (board or authority); (b) the substantive powers of the regulator, and; (c) accountability mechanisms such as audits, accounting and reporting. Such statutes are usually ‘thin’ on guidance to regulators on how to conduct their administrative functions. Consequently, statutory regulatory authorities are bound by the same principles of administrative law as other government agencies, as defined by the judiciary from time to time. However, independent regulators perform their functions in ways that are distinct from government departments.
First, statutory regulatory authorities concentrate legislative (regulation-making), executive (monitoring and supervision) and judicial (issuing orders) powers in contrast to the normal structure of government departments.1 This structure potentially violates the principle of separation of powers and affects the design of statutory regulatory authorities. Second, the frequency and volume of regulation-making is significantly higher due to the responsibility of regulators to react to dynamic market requirements. Third, there is an independent and specialised appellate mechanism against the regulatory actions of most regulators.
1 See generally Financial Sector Legislative Reforms Commission, ‘Report of the Financial Sector Legislative Reforms Commission’, 2013, https://dea.gov.in/sites/default/files/fslrc_report_vol1_1.pdf.