Constitutional bodies/ Functionaries

National commission for Scheduled Castes and National Commission for Scheduled Tribes

Originally, Article 338 of the Constitution provided for a special officer for SCs and STs to investigate all matters relating to the constitutional safeguards for the SCs and STs and to report to the president on their working. However, it was felt that a high level multi-member commission under Article 338 would be a more effective arrangement in respect to the constitution safeguards for SCs and STs than a single special officer as was originally provided.

Accordingly, the 65^th Amendment Act of 1990 amended Article 338 to provide for the establishment of a National Commission for Scheduled Castes (SCs) and Scheduled Tribes (STs).

However, consequent upon the 89^th Amendment Act of 2003, the erstwhile National Commission for SCs and STs has been replaced by

• National Commission for Scheduled Castes, and
• National Commission for Scheduled Tribes.
• In short, by the above amendment, the erstwhile combined national commission for SC & ST has been bifurcated into two separate bodies called as National commission for SC under Article 338 and national commission for ST under Article 338-A.

The Commission consists of a chairman, a vice-chairman and five other members. They are appointed by the president by warrant under his hand and seal. Their conditions of service and tenure of office are also determined by the president.

Functions:

1.      To investigate and monitor all matters relating to the constitutional and other legal safeguards for the SCs and STs and to evaluate their working;

2.      To inquire into specific complaints with respect to the deprivation of rights and safeguards of the SCs and STs;

3.      To participate and advise on the planning process of socio-economic development of the SCs and STs and to evaluate the progress of their development under the Union or a state;

4.      To make recommendations as to the measures that should be taken by the Union or a state for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the SCs and STs; and

5.      The discharge such other functions in relation to the protection, welfare and development and advancement of the SCs and STs as the president may specify.

Powers:

The Commission is vested with the power to regulate its own procedure. The commission, while investigating any matter or enquiring into any complaint, has all the powers of a civil court trying a suit and in particular in respect of the following matters.

1.      Summoning and enforcing the attendance of any person from any part of India and examining him on oath;

2.      Requiring the discovery and production of any document;

3.      Receiving evidence on affidavits;

4.      Requisitioning any public record from any court or office;

5.      Issuing summons for the examination of witnesses and documents; and

6.      Any other matter which the president may determine.

The Central Government and the State Governments are required to consult the Commission on all major policy matters affecting the SCs and STs.

The Commission presents an annual report to the president. It can also submit a report as and when it thinks necessary. The president also forwards any report of the commission pertaining to a state government to the state governor. All such reports are placed before the Parliament or state legislature, along with a memorandum explaining the action taken on the recommendations made by the commission. The memorandum should also contain the reasons for the non-acceptance of any of such recommendations.

The National Commission for SCs/National Commission for STs functions from the Headquarters at New Delhi and its various Regional Offices.

National Commission for Backward Classes (NCBC)

102nd Constitution Amendment Act, 2018 provides constitutional status to the National Commission for Backward Classes (NCBC).

It has the authority to examine complaints and welfare measures regarding socially and educationally backward classes.

Previously NCBC was a statutory body under the Ministry of Social Justice and Empowerment.

Background

Two Backward Class Commissions were appointed in 1950s and 1970s under Kaka Kalelkar and B.P. Mandal respectively.

In Indra Sawhney case of 1992, Supreme Court had directed the government to create a permanent body to entertain, examine and recommend the inclusion and exclusion of various Backward Classes for the purpose of benefits and protection.

In pursuant to these directions’ parliament passed National Commission for Backward Classes Act in 1993 and constituted the NCBC.

123rd Constitution Amendment bill of 2017 was introduced in Parliament to safeguard the interests of backward classes more effectively.

Parliament has also passed a separate bill to repeal the National Commission for Backward Classes Act, 1993, thus 1993 act became irrelevant after passing the bill.

The bill got the President assent in August 2018 and provided the constitutional status to NCBC.

Structure of NCBC

The Commission consists of five members including a Chairperson, Vice-Chairperson and three other Members appointed by the President by warrant under his hand and seal.

The conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members is determined by President.

Constitutional Provisions

Article 340 deals with the need to, inter alia, identify those "socially and educationally backward classes", understand the conditions of their backwardness, and make recommendations to remove the difficulties they face.

102nd Constitution Amendment Act inserted new Articles 338 B and 342 A.

The amendment also brings about changes in Article 366.

Article 338B provides authority to NCBC to examine complaints and welfare measures regarding socially and educationally backward classes.

Article 342 A empowers President to specify socially and educationally backward classes in various states and union territories. He can do this in consultation with Governor of concerned State. However, law enacted by Parliament will be required if list of backward classes is to be amended.

Powers and Functions

The commission investigates and monitors all matters relating to the safeguards provided for the socially and educationally backward classes under the Constitution or under any other law to evaluate the working of such safeguards.

It participates and advises on the socio-economic development of the socially and educationally backward classes and to evaluate the progress of their development under the Union and any State.

It presents to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards. The President laid such reports before each House of Parliament.

Where any such report or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the State Government.

NCBC has to discharge such other functions in relation to the protection, welfare and development and advancement of the socially and educationally backward classes as the President may, subject to the provisions of any law made by Parliament, by rule specify.

It has all the powers of a civil court while trying a suit.

How Does The New Commission Be Different From Its Earlier Version?

The new act has recognized that BCs also need development in addition to reservations. There are provision in the act for development of Socially and Educationally Backward Classes (SEdBCs) and the new NCBC’s role in the development process.

The new NCBC is entrusted with the additional function of grievance redress of backward classes.

Article 342(A) introduces greater transparency as its made mandatory to take the concurrence of Parliament for adding or deleting any community in the backward list.

Apart from list-inclusion and reservation, it requires comprehensive and holistic development and advancement of each community towards equality in all parameters of development and welfare.

Comptroller and Auditor General of India (CAG)

It is no denying the fact that a democracy can be worked best when the parliament exercises an effective control over the functioning of the executive. This control of the legislature over the executive is not as much stronger than it is exercised by it through its control of purse after all, no government can be practically carried on without finance being placed at the disposal of the executive to fund its various activities. But then, it is also equally significant that whatever the government spends, it is not only be properly authorized, but must also be spent in the manner and for the purposes, it has been sanctioned to it. To achieve this objective, the Constitution of India provides for another equally important functionary, totally independent from the executive influence, but acting as a friend and guide of the legislature so that as, remarked by Dr. Amedkar in the Constituent Assembly that not even a farthing is spent out of the public exchequer (Consolidated Fund of India and of the states) without proper authorization from the legislature. Hence, an office of CAG being created under the Constitution.

 (Article 148) of the Constitution provides for an independent office of the Comptroller and Auditor General of India (CAG) who is expected to function as the watchdog of public finance. He is the head of the Indian Audit and Accounts Department. Being the guardian of the public purse, he thus controls the entire financial system of the country at both the levels – the Centre and the state. His duty is to uphold the Constitution of India and laws of Parliament in the field of financial administration. This is the reason why Dr. B.R. Ambedkar said that the CAG shall be the most important Officer under the Constitution of India.

Appointment and Term of the CAG:

The CAG is appointed by the President of India by a warrant under his hand and seal. The CAG, before taking over his office, makes and subscribes before the president an oath or affirmation:

1.      to bear true faith and allegiance to the Constitution of India;

2.      to uphold the sovereignty and integrity of India;          

3.      to duly and faithfully and to the best of his ability, knowledge and judgment perform the duties of his office without fear or favour, affection or ill-will; and

4.      to uphold the Constitution and the laws.

He holds office for a period of six years or upto the age of 65 years, whichever is earlier. He can resign any time from his office by addressing the resignation letter to the president. He can also be removed by the president on same grounds and in the same manner as a judge of the Supreme Court.

Independence of CAG

The Constitution has made the following provisions to safeguard and ensure the independence of CAG:

1.      He is provided with the security of tenure. He can be removed by the president only in accordance with the procedure mentioned in the Constitution. Thus, he does not hold his office till the pleasure of the president, though he is appointed by him.

2.      He is not eligible for further office, either under the Government of India or of any state, after he ceases to hold his office.

3.      His salary and other service conditions are determined by the Parliament. His salary is equal to that of a judge of the Supreme Court.

4.      Neither his salary nor his rights in respect of leave of absence, pension or age of retirement can be altered to his disadvantages after his appointment.  

5.      The conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the CAG are prescribed by the president after consultation with the CAG.

6.      The administrative expenses of the office of the CAG, including all salaries, allowances and pensions of persons serving in that office are charged upon the Consolidated Fund of India. Thus, they are not subject to the vote of Parliament.

Further, no minister can represent the CAG in Parliament (both Houses) and no minister can be called upon to take any responsibility for any actions done by him.

Duties and Powers of the CAG

The Constitution (Article 149) authorizes the parliament to prescribe the duties and powers of the CAG in relations to the accounts of the Union or of the states and of any other authority or body. Accordingly, the Parliament enacted the CAG’s (Duties, Powers and Conditions of Service) act, 1971. This Act was amended in 1976 to separate accounts from audit in the Central government.

The duties and functions of the CAG as laid down by the Parliament and the Constitution are:

1.      He audits the accounts related to all the expenditure incurred by the Central and state governments.

2.      He audits the accounts of bodies and authorities financed from the Central or state revenues like Corporations, companies and so on.

3.      He audits the accounts of any other authority when requested by the president or governor, for examples, the audit of local bodies.

4.      He advises the president with regard to prescription of the form in which the accounts of the Centre and the states are to be kept.

5.      He submits his audit reports relating to the accounts of the Centre to president, who in turn places them before both the Houses of Parliament. These audit reports are:

          i.    Audit Report on appropriation accounts

          ii.   Audit Report on finance accounts

          iii. Audit Report on public undertakings  

6.      He submits his audit reports relating to the accounts of a state to governor, who in turn places them before the state legislature. 

7.      He ascertains and certifies the net proceeds of any tax or duty.

8.      He acts as a guide, friend and philosopher of the public accounts committee of the Parliament.

9.      He compiles and maintains the accounts of state governments. 

The Constitution of India visualizes the CAG to be comptroller as well as Auditor General. However, in practice, the CAG is fulfilling the role of an Auditor-General only and not that of a Comptroller. In this respect, the CAG of India differs totally from the CAG of Britain who has powers of both Comptroller as well as Auditor General. In other words, in Britain, the executive can draw money from the public exchequer only with the approval of the CAG.

Attorney General of India

It is quite possible that owing to the multifarious responsibilities of the Union government under the mandate of a welfare state, it may likely to indulge in various kinds of legal disputes before a Court of law, either with private individuals or with other units of the federation. Similarly, before the central government actually finds itself indulged into any kind of such litigation, it seeks to take a legal advice from a legal expert before proceeding ahead with a particular matter under its concern. Hence, the office of Attorney General has been created under the Constitution for the Union Government and a corresponding functionary called as Advocate General at the state level.

The President is to appoint a person who is qualified to be appointed as a Supreme Court Judge to be the Attorney-General for India [Art. 76(1)]. He holds office during the President's pleasure, and receives such remuneration as may be determined by him [Art. 76(4)].

The Attorney-General gives advice to the Government of India upon such legal matters as may be referred to him from time to time by the government and performs such other duties of a legal character as may be assigned, to him by the President from time to time [Art. 76(3)]. He also discharges the functions conferred on him by or under the Constitution or any other law [Art. 76(3)].

According to the rules made by the President, the Attorney-General, in addition, is required to appear on behalf of the Government of India in all cases in the Supreme Court in which the Government of India is concerned: also, he represents the Government of India in any reference made by the President to the Supreme Court under Art. 143. The Government of India may also require him to appear in any High Court in any case in which the Government of India is concerned.

In the performance of his duties, the Attorney-General has the right of audience in all courts in India [Art. 76(3)1. He has the right to take part in proceedings of either House of Parliament, or their joint sitting, and any parliamentary committee of which he may be named as a member, but he does not have a right to vote under this provision [Art. 88]. He enjoys all the privileges which are available to a Member of Parliament

In Britain, the appointment of the Attorney-General is 'political' in nature in the sense that it is conferred on a successful barrister who is a supporter of the party in power. He has some-times been a member of the Cabinet though "it is generally regarded as preferable that he should remain outside the Cabinet as the Government's chief legal adviser. O. Hood Phillips observes in this regard:

“The better opinion is that the Attorney-General should not be in the Cabinet because of his quasi-judicial functions with regard to prosecutions, and also because it is desirable to separate the giving of advice from those who decide whether to act on the advice. Indeed it must be open to question in view of his unfettered discretion to refuse to initiate proceedings and his power to terminate criminal proceedings whether the appointment should be non-political.”

According to the practice followed in India so far, the Attorney-General is appointed on the basis of professional competence and not on political considerations. He is a non-party man who is invariably, appointed because of his legal competence as a lawyer and not for his political affiliations or leanings and thus, he is not a member of the Cabinet as such.