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POWERS, FUCNTIONS & RESPONSIBILITIES OF VARIOUS CONSTITUTIONAL BODIES

CONTENT
1. Election Commission of India 2. CAG: The Comptroller and Auditor General of India 3. Union Public Service Commission 4. National Commission for SCs and STs 5. Special Officer for Linguistic Minorities 6. Attorney General 7. Solicitor General of India 8. Finance Commission

1. ECI- The Election Commission of India

The Constitution of India has vested in the Election Commission (EC) of India the superintendence, direction and control of the entire process for conduct of elections to Parliament and Legislature of every State and to the offices of President and Vice-President of India.

Originally, the commission had only a Chief Election Commissioner. It currently consists of Chief Election Commissioner and two Election Commissioners. For the first time two additional Commissioners were appointed on 16th October 1989 but they had a very short tenure till 1st January 1990. Later, on 1st October 1993 two additional Election Commissioners were appointed. The concept of multi-member Commission has been in operation since then, with decision making power by majority vote.

1.1 Constitutional Provisions:


Art. 324: broadly speaks of the functions of EC and its composition. Art. 325: there shall be one general electoral roll for every territorial constituency for election to either House of parliament and State legislature. It establishes equality among citizens by affirming that no person shall be ineligible for inclusion in the electoral roll on the grounds of religion, race, caste or sex.

Art. 326: lays down adult suffrage as the basis of elections to the Lok Sabha and to the Legislative Assemblies of States. Art. 327: confers on Parliament the power to make provisions with respect to elections to federal and state legislatures Art. 328: confers on State Legislature the power to make laws with respect to elections to such legislature Art. 329: bars interference by courts in electoral matters. Notwithstanding anything said in the constitution i.e. validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies shall not be called in question in any court

No election to either House of Parliament or either House of the Legislature of a State shall be called in question except by an election petition. Any elector or candidate can file an election petition on grounds of malpractice during the election. In respect of elections to the Parliament and State Legislatures they can only be filed before the High Court and in respect of elections for the offices of President and Vice-President, such petitions can only be filed before the Supreme Court.

1.2 Composition and Conditions of Service:

1.

EC shall consist of the chief election commissioner and such number of other election commissioners, if any, as the president may from time to time fix (presently CEC + 2 ECs)

2. 3.

The appointment of the chief election commissioner and other election commissioners shall be made by the president The president may also appoint after consultation with the election commission such regional commissioners as he may consider necessary to assist the election commission

4.

The conditions of service and tenure of office of the election commissioners and the regional commissioners shall be determined by the president

5.

When any election commissioner is appointed, the chief election commissioner acts as the Chairman of the Election Commission

6.

The chief election commissioner and the two election commissioners draw salaries and allowances at par with those of the Judges of the Supreme Court of India

7.

The chief election commissioner or an election commissioner holds office for a term of 6 years from the date on which he assumes his office or till he attains the age of 65 years, whichever is earlier

8.

Election commissioner or a regional commissioner shall not be removed from office except on the recommendation of the chief election commissioner

Q: Are the commissioners and the CEC equal? In S.S. Dhanoa vs Union of India (1991), the SC held: The chief election commissioner does not appear to be primus inter pares, i.e. first among equals, but he is intended to be placed in a distinctly higher position In T.N. Seshan vs Union of India (1995), the SC held that the CEC and ECs are equal. CEC is given the power of recommending the removal of ECs with the intention of shielding them and not to use it against them. CEC cannot use it suo moto as he is an equal to them

The Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Act, 1991, as amended, provides that in case of difference of opinion on any matter, such matter shall be decided by the opinion of the majority. Thus the CEC cannot over-ride any decision of the commission by himself. As Chairman of the Election Commission he presides over the meetings, conducts the business of the day and ensures smooth transaction of business of the commission.

1.3 Independence of the Election Commission:


Article 324 of the Constitution has made the following provisions to safeguard and ensure the independent and impartial functioning of the election commission: 1. The CEC is provided with the security of tenure. He holds office for a term of 6 years from the date he assumes office or till he attains the age of 65 years, whichever is earlier 2. Art. 324(5) says that the CEC cannot be removed from his office except in like manner and on like grounds as a Judge of the Supreme Court i.e. he can be removed by the president on the basis of a resolution passed to that effect by both the Houses of Parliament with special majority, either on the ground of proved misbehaviour or incapacity 3. Any other election commissioner or a regional commissioner cannot be removed from office except on the recommendation of the CEC 4. The service conditions of the CEC cannot be varied to his disadvantage after his appointment

Some flaws:
1. The constitution has not prescribed the qualifications (legal, educational, administrative or judicial) of the members of the Election Commission 2. 3. The constitution has not debarred the retiring election commissioners from any further appointment by the government The administrative expenditure of the EC or the salaries, allowances and pensions of the CEC and ECs are not charged on the Consolidated Fund of India

1.4 Powers and Functions of the Election Commission:

1.4.1 Administrative Functions: 1. Art. 324(1) vests in the Commission the powers of superintendence, direction and control of the elections to the offices of the President and Vice-President, both Houses of the Parliament and both Houses of the State Legislature. 2. ECI appoints the following Chief Electoral Officer- ECI in consultation with State Government/Union Territory Administration nominates or designates an Officer of the said State/UT as the Chief Electoral Officer to supervise the election work in the State/UT District Election Officer- ECI in consultation with the State Government/ Union Territory Administration designates an officer of the said State/UT as the District Election Officer to supervise the election work of a district Returning Officer- ECI in consultation with State Government/Union Territory Administration nominates or designates an officer of the Government or a local authority as the Returning Officer for each assembly and parliamentary constituency. Returning Officer is responsible for the conduct of elections in the parliamentary or assembly constituency and may be assisted by one or more Assistant Returning Officers (again appointed by ECI) in the performance of his functions 3. 4. 5. 6. Electoral Registration Officer- ECI appoints the officer of State or local government as Electoral Registration Officer for the preparation of Electoral rolls for a parliamentary/ assembly constituency To prepare and periodically revise electoral rolls and to register all eligible voters To supervise the machinery of elections throughout the country to ensure free and fair elections To notify the dates and schedules of elections and to scrutinise nomination papers To register political parties for the purpose of elections and grant them the status of national or state parties on the basis of their poll performance 7. 8. To grant recognition to political parties and allot election symbols to them To act as a court for settling disputed relating to granting of recognition to political parties and allotment of election symbols to them 9. To enforce the Model Code of Electoral Conduct that is mutually agreed upon by the political parties

10. To prepare a roster for publicity of the policies of the political parties on radio and TV in times of elections 11. To enforce limits on expenditure on elections 12. It has the power to postpone or order re-polls or countermand elections in the event of rigging, booth capturing, violence and other irregularities

1.4.2 Advisory Functions: 1. To advise the President and the Governor on matters relating to the disqualifications of the members of parliament and members of the state legislature respectively. The opinion of the Commission as given to the President ot the Governor is binding. 2. Cases of persons found guilty of corrupt practices at elections which are dealt with by SC and High Courts are also referred to the Commission for its opinion on the question as to whether such a person is to be disqualified and, if so, for what period 3. To advise the president whether elections can be held in a state under Presidents rule in order to extend the period of emergency after 1 year 1.4.3 Quasi-Judicial Jurisdiction:

1.

The commission has the power to disqualify a candidate who has not lodged an account of his election expenses within the time and in the manner prescribed by law. The commission also has the power to remove/reduce the period such disqualifications ad any other disqualification under the law

2.

It has quasi-judicial jurisdiction in the case of settlement of disputes between the splinter groups of a recognised party

1.5 Electoral Reforms:

1.5.1 Model Code of Conduct EC first issued a Model Code of Conduct for political parties at the time of the fifth general elections, held in 1971. Since then, the Code has been revised from time to time and lays down guidelines as to how political parties and candidates should conduct themselves during elections. A provision was made under the Code that from the time the elections are announced by the Commission, Ministers and other authorities cannot announce any financial grant, make promises of construction of roads, carry out any appointments in government and public undertakings which may have the effect of influencing the voters in favour of the ruling party. Despite the acceptance of the Code of Conduct by political parties, cases of its violation have been on the rise. It is a general complaint that the party in power at the time of elections misuses the official machinery to further the electoral prospects of its candidates. The misuse of official machinery takes different forms, such as issue of advertisements at the cost of public exchequer, misuse of official mass media during election period for partisan coverage of political news and publicity regarding their achievements, misuse of government transport including aircraft/helicopter, vehicles.

1.5.2 Disclosure of Antecedents by Candidates In June 2002, the EC on the direction of the Supreme Court, issued an order under Article 324 that each candidate must submit an affidavit regarding the information of his/her criminal antecedents; assets (both movable and immovable) of self and those of spouses and dependents as well; and qualifications at the time of filing his/her nomination papers for election to the Lok Sabha, the Rajya Sabha and the State Legislative Assemblies. But political parties believed that the EC and the judiciary were overstepping their powers. At the all-party meeting, held on July 8, 2002, representatives of 21 political parties decided that the ECs order should not be allowed to be implemented. The Supreme Court again came out as a guardian of the citizens right to information. The Supreme Court made it clear that failing to furnish the relevant affidavit shall be considered as a violation of the Supreme Courts order and as such the nomination papers shall be liable to be rejected by the Returning Officer. Furnishing of wrong or incomplete information shall result in the rejection of nomination papers, apart from inviting penal consequences under the Indian Penal Code. The 2004 General Elections were conducted under these rules. The above order is an effective step to make democracy healthy and unpolluted. Citizens have every right to know about the persons whom they prefer as their representatives. The EC has directed all Returning Officers to display the copies of nomination papers and affidavits filed by candidates to the general public and representatives of print and electronic media, free of cost.

The party system is an essential feature of parliamentary democracy. However, there is no direct reference of political parties in the Constitution of India. The statutory law relating to registration of political parties was enacted in 1989 which was quite liberal. As a result, a large number of non-serious parties mushroomed and got registered with the Commission. Many of them did not contest elections at all after their registration. It led to confusion among electors as to whom to vote. To eliminate the mushrooming of parties, the EC had to take some rigorous steps: The Commission now registers a party which has at least 100 registered electors as its members and is also charging a nominal processing fee of Rs 10,000 to cover the administration expenses which it will have to incur on correspondence with the parties after their registration. In order to ensure that the registered political parties practice democracy in their internal functioning, the Commission requires them to hold their organizational elections regularly in accordance with their constitutions. The measures taken by the EC to streamline the registration of political parties have shown effective results.

1.5.4 Checking Criminalisation of Politics The EC has expressed its serious concern over the entry of anti-social and criminal persons into the electoral arena. It has set down norms and made recommendations to the government to curb the menace of criminalization of politics. The Commission has urged all political parties to reach a consensus that no person with a criminal background will be given the party ticket. The candidates to an election are also obliged to submit an affidavit in a prescribed form declaring their criminal records, including convictions, charges pending and cases initiated against them. The information so furnished by the candidates is disseminated to the public, and to the print and electronic media.

1.5.5 Limits on Poll Expenses To get rid of the growing influence and vulgar show of money during elections, the EC has fixed legal limits on the amount of money which a candidate can spend during the election campaign. These limits are revised from time to time. The EC, by appointing expenditure observers keeps an eye on the individual accounts of election expenditure made by a candidate during election campaign. The contestants are also required to give details of expenditure within 30 days of the declaration of the election results. Apart from this, the EC is also in favor of holding the Lok Sabha and the Assembly elections simultaneously, and to reduce the campaign period from 21 to 14 days. This, they feel, will lead to trim down the election expenditure.

1.5.6 Use of Scientific and Technological Advancements

i. EVMs: EC has been trying to bring improvements in election procedures by taking advantage of scientific and technological advancements. The introduction of electronic voting machines (EVMs) is one of the steps in that direction by reducing malpractices and also improving the efficiency of the voting process. On an experimental basis, the EVMs were first tried in the State of Kerala during the 1982 Legislative Assembly Elections. In June 1999 Assembly elections, Goa became the first State to successfully use EVMs in all its Assembly constituencies. In the 2004 Lok Sabha elections, the machines were used all over the country. It is a major initiative taken by the EC to make the electoral process simple, quick and trouble-free. It has saved money, solved several logistical issues and also contributed to the conservation of environment through saving of paper. Another major advantage of these machines is that the counting of votes becomes more fast and accurate. ii. IT:

EC has not lagged behind in making use of Information Technology for efficient electoral management and administration. It launched a website of its own in 1998. This is now a good source to have accurate information about elections, election laws, manuals and handbooks published by the Commission.

iii. Computerization of Electoral Rolls: With a view to prevent impersonation of electors at the time of voting and to eliminate bogus and fictitious entries into electoral rolls, EC took a bold step in 1998 to take a nationwide programme for the computerisation of electoral rolls. The printed electoral rolls as well as CDs containing these rolls are available to the general public for sale national and State parties are provided these free of cost after every revision of electoral rolls. The entire countrys electoral rolls are available on its website. Karnataka became the first State to prepare electoral rolls with the photographs of voters in the 2008 elections.

iv EPICs: In an attempt to improve the accuracy of the electoral rolls and prevent electoral fraud, the Election Commission in August 1993 ordered the issuance of electors photo identity cards (EPICs) for all voters. During the 2004 Assembly elections, it was mandatory for people possessing EPICs to furnish it at the time of voting. The distribution of EPICs, on the part of Election Commission, was a major step to reduce electoral malpractices. Only genuine voters were listed in the rolls with the issuance of voter identity cards.

1.5.7 De-criminalization of politics For preventing persons with criminal background from becoming legislators, the Commission has made a proposal for disqualifying (from contesting election) a person against whom charges have been framed by a Court for an offence punishable by imprisonment of 5 years or more. There is a provision of disqualification once a person is convicted and sentenced to imprisonment of two years or more. The Commissions proposal is for disqualification even prior to conviction, provided the court has framed charges. As a precaution against foisting false cases on the eve of election, it has been suggested that only those cases in which charges are framed six months prior to an election should be taken into account for that election.

1.5.8 Political parties reforms The political parties should be legally required to get their accounts audited annually. The audited accounts should be put in public domain. There should be transparency in the fund raising and expenditure of political parties. Income tax exemption for donations should be given only for those political parties which contest election and win seats in the Parliament/State Legislature. 1.5.9 Misuse of religion for electoral gain The Commission has proposed that the provision in that Bill should be considered for avoiding misuse of religion by political parties.

1.5.10 Amendment of law to make `paid news an electoral offence The Commission has been proposed amendment in the Representation of People Act(RoPA) , 1951, to provide therein that publishing and abetting the publishing of `paid news for furthering the prospect of election of any candidate or

for prejudicially affecting the prospect of election of any candidate be made an electoral offence with punishment of a minimum of two years imprisonment.

1.5.11 Negative/neutral voting In the ballot paper and on the ballot unit, after the particulars relating to the last candidate, there should be provisions for a column `none of the above to enable a voter to reject all candidates if he so desires.

1.5.12 Ban on transfer of election officers on the eve of election In the case of general election, there should be a ban against transferring any election related officer without the concurrence of the Commission for a period of six months prior to the expiry of the term of the House.

1.5.13 Punishment for false affidavit by candidates RoPA, 1951 provides that furnishing false information in the affidavit filed by the candidate is an offence punishable by imprisonment up to six months or with fine. There is no clear provision for follow-up action in the event of candidates filing false affidavits. EC has recommended that RoPA, 1951 should be amended to provide that any complaint regarding false statement in the affidavit filed by the candidates in connection with the nomination paper shall be filed before the Returning Officer (RO) concerned within a period of 30 days from the date of declaration of the election and that it shall be the responsibility of the RO to take proper follow-up action. Alternatively, complaint can lie directly to the Magistrate Court.

Summing Up
Over the years, EC has conducted a number of laudable electoral reforms to strengthen democracy and enhance the fairness of elections. These reforms are quite adequate and admirable. Undoubtedly, the election machinery, under the aegis of the EC, deserves credit for conducting elections in a free and fair manner. However, our system is still plagued by many vices. To win votes, political parties resort to foul methods and corrupt practices. Such maladies encourage the anti-social elements to enter the electoral fray. The problem is not lack of laws, but lack of their strict implementation. In order to stamp out these unfair tendencies, there is a need to strengthen the hands of the EC and to give it more legal and institutional powers. The EC must be entrusted with powers to punish the errant politicians who transgress and violate the electoral laws.

2. CAG: The Comptroller and Auditor General of India


The Constitution of India provides for an independent office of the Comptroller and Auditor General of India (CAG). He is the head of the Indian Audit and Accounts Department. He is the guardian of the public purse and controls the entire financial system of the country at both the levels- the centre and state. His duty is to uphold the Constitution of India and the laws of Parliament in the field of financial administration.

CAG helps the parliament/state legislatures hold their respective governments accountable. He is one of the bulwarks of the democratic system of government in India; the others being the SC, the ECI and the UPSC. It is for these reasons Dr. B R Ambedkar said that the CAG shall be the most important Officer under the Constitution of India and his duties are far more important than the duties of even the judiciary.

2.1 A Brief History


The role of the CAG evolved in British India with Lord Canning initiating a major administrative drive before the Mutiny of 1857. In May 1858, for the first time, a separate department was set up with an Accountant General, who was responsible for accounting and auditing the financial transactions under the East India Company. After Mutiny, the British Crown took over and passed the Government of India Act 1858. This laid the foundation stone of Imperial Audit. Sir Edward Drummond took charge in 1860 as the first Auditor General and the term 'Comptroller and Auditor General of India' was first used in 1884. Under the Montford Reforms of 1919, the Auditor General became independent of the government. The Government of India Act 1935 strengthened the position of the Auditor General by providing for Provincial Auditors General in a federal set-up.

Why Comptroller? In the 15th century, the word Controller developed the alternate spelling Comptroller as a result of an association between the first part of the word, cont, and an unrelated word count and its variant, compt. Many people pronounce comptroller like controller but both are acceptable. But the word Comptroller has a different meaning-someone who maintains and audits business. Comptrollers are controllers but controllers are not comptrollers.

Comparison with UK: In India the institution of CAG only audits the accounts after the expenditure is committed. It does not have control over the withdrawal of moneys as in UK where the name Comptroller is justified since no money can be drawn from the public exchequer without the approval of the CAG

2.2 Constitutional provisions


Art. 148: broadly speaks of the CAG, his appointment, oath and conditions of service Art. 149: broadly speaks of the Duties and Powers of the CAG Art. 150: The accounts of the Union and of the States shall be kept in such form as the President may, on the advice of the CAG, prescribe. Art. 151: Audit Reports:- The reports of the Comptroller and Auditor-General of India relating to the accounts of the Union shall be submitted to the president, who shall cause them to be laid before each House of Parliament.

The reports of the Comptroller and Auditor-General of India relating to the accounts of a State shall be submitted to the Governor of the State, who shall cause them to be laid before the Legislature of the State.

2.3 Independence of the Institution of CAG


For effective functioning of this important institution of the CAG it is paramount to ensure independence. There are several provisions enshrined in the Constitution to safeguard CAGs independence: 1. He is appointed by the President by a warrant under his hand and seal and his oath of office requires him to uphold the Constitution of India and the laws made there-under 2. He is provided with a security of tenure and can be removed by the President only in accordance with the procedure mentioned in the Constitution (same as a judge of SC) 3. He is not eligible for further office, either under the Government of India or of any state, after he ceases to hold his office

4.

His salary and other service conditions though determined by the Parliament cannot be varied to his disadvantage after appointment

5.

His administrative powers and the conditions of service of persons serving in the Indian Audit and Accounts Department shall be prescribed by the President only after consulting him.

6.

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

2.4 Duties and Powers of the CAG


2.4.1 Sources of the Audit Mandate of CAG Constitution- The existence and mandate of the Comptroller and Auditor General of India emanates from Articles 148 to 151 of the Constitution. Article 149 stipulates the Duties and Powers of the Comptroller and Auditor General Statute- DPC Act, 1971 (Duties, Powers and Conditions of Service Act) lays down the general principles of Government accounting and the broad principles in regard to audit of receipts and expenditure Regulations- Regulations on Audit and accounts as framed and notified in the official Gazette . Scope of audit: Within the audit mandate, the Comptroller and Auditor General is the sole authority to decide the scope and extent of audit to be conducted by him or on his behalf

2.4.2 Duties He audits the accounts related to all expenditure from the Consolidated Fund of India, Consolidated Fund of each state and UT having a legislative assembly He audits all expenditure from the Contingency Fund of India and the Public Account of India as well as the Contingency Fund and Public Account of each state He audits all trading, manufacturing, profit and loss accounts, balance sheets and other subsidiary accounts kept by any department of the Central Government and the state governments. He audits the receipts and expenditure of all bodies and authorities substantially financed from the Central or State revenues; government companies; other corporations and bodies, when so required by related laws

2.4.3 Functions He audits all transactions of the Central and state governments related to debt, sinking funds, deposits, advances, suspense accounts and remittance business He audits the accounts of any other authority when requested by the President or Governor e.g. Local bodies He advises the President with regard to prescription of the form in which the accounts of the Centre and states shall be kept He submits his audit reports relating to the accounts of the Centre to the President, who shall, in turn, place them before both the houses of Parliament He submits his audit reports relating to the accounts of a State to the Governor, who shall, in turn, place them before the state legislature He ascertains and certifies the net proceeds of any tax or duty and his certificate is final on the matter He acts as a guide, friend and philosopher of the Public Accounts Committee of the Parliament He compiles and maintains the accounts of state governments. In 1976, he was relieved of his responsibilities with regard to the compilation and maintenance of accounts of the Central government due to separation of accounts from audit

He submits 3 audit reports to the President- audit report on appropriation accounts, audit report on finance accounts and audit report on public undertakings

2.4.4 There are the following limitations on the powers of CAG: Its report is post-facto i.e. after the expenditure is incurred and has only prospective value in improving systems and procedures Secret service expenditure is outside the purview of the CAG and he cannot call for particulars of expenditure incurred by the executive agencies, but has to accept a certificate from the competent administrative authority that the expenditure has been so incurred Since the legislation, the government has increased its participation with the private sector through the PPT (public-private-transfer) and BOT (build-own-transfer) model. However the rules have not undergone a significant change and CAG does not have the power to audit PPP (Public Private Partnership) investments. There is no provision for auditing of funds that are given to an NGO and elected local bodies. Today when NGOs have become a conduit for a multitude of government schemes. CAG presently does not have the full authority to audit the PRIs and ULBs. In most states, the Examiners functioning under the Finance Department audit the accounts of local bodies. DRDAs (District Rural Development Authority) today are managing large sums of money for rural development yet they also are outside the purview of CAG audits

In light of the above limitations and changes in the Indian polity such as increasing role of civil society and NGOs, liberalisation of the economy, PPP mode of investments the DPC Act, 1971 must be reviewed to bring in greater accountability and transparency in every sphere that touches public life. CAGs work should go beyond the question of whether government funds are being spent appropriately to ask whether programs and policies are meeting their objectives and the needs of society

2.5 Types of Audit performed by CAG


i. Regulatory Audit: It is an audit to ascertain whether the moneys spent were authorised for the purpose for which they were spent and also that the expenditure incurred was in conformity with the laws, rules and regulations

ii. Supplementary Audit: CAG takes up supplementary audits in PSUs, even after the commercial audits are done by the auditors appointed by the CAG, for detection of leakages.

iii. Propriety Audit: It focuses on whether the expenditure made is in public interest or not i.e. it moves beyond mere scrutiny of expenditure to question its wisdom and economy in order to identify cases of improper expenditure and waste of public money

iv. Efficiency Audit: Efficiency audit as the name suggests answers the question whether the money invested yields optimum results. The main purpose of the efficiency audit is to ensure that the investment is prioritized and channelled into its most profitable utilization

v. Performance Audit: Performance audit answers whether the government programmes such as NREGA have achieved the desired objectives at the lowest cost and given the intended benefits. It generally does not get into the merits-demerits of a particular policy/scheme rather looks into the effectiveness with which the scheme is implemented and any deficiencies thereof

vi. Environmental Audit: This is a relatively new area of concern for the CAG keeping in mind the challenges facing India with respect to conservation and management of the environment. More than 100 audits on environmental issues like bio-diversity, pollution of rivers, waste management have been conducted by the CAG to identify critical issues and suggest possible solutions by involving all stakeholders

2.6 Recent Issues


i. Mode of Appointment The present selection process for the CAG is entirely internal to the Government machinery; no one outside has any knowledge of what criteria are applied, how names are shortlisted and how a final selection is made. Thus presently there is a lack of clarity on the criterion, the definition of field of choice, the procedures for the selection of this high constitutional functionary. In most of the other countries there is no scope for the head of the Supreme Audit Institution to be chosen at the discretion of the Government. It is desirable that India adopts the international practice of appointing head of Supreme Audit Institution to be independent of the discriminatory power of the Executive. Another related issue is that of the appointment of IAS officers as the CAG. In the last 48 years since 1966 only one IAAS officer has been chosen while all other postings went to senior civil servants. From the viewpoint of IAAS this looks like the systematic exclusion of that service and the virtual absorption of the post of CAG in the IAS cadre. This perception has had a demoralising effect on the IAAS cadre. Whether that feeling is right or wrong, it exists; and it is bound to have some effect on the commitment, zeal and courage with which the audit function is performed. The answer to it is not to exclude the IAS, nor to reserve the post exclusively for the IAAS, but to ensure that the appointment processes are such as to leave no room at all for a sense of unfairness or suspicions of impropriety; and that the selected person, from wherever he or she be drawn, is of such unquestionable suitability as to command respect both within and outside the audit department. The field of choice should certainly be wide, and should include the IAAS, other central accounts services (civil accounts, railway accounts and defence accounts), the IAS, and a limited number of accounts, finance and management experts from outside the government. ICAI (Institute of Chartered Accountants in India) Code of Ethics states that an auditors independence has two aspects- independence in fact and independence in appearance. The appointment of former secretaries as CAG may compromise the independence of this institution because of apparent/perceived conflict of interest.

Recent Example: There are 2 PILs have been filed in the SC against the appointment of former defence secretary Shashi Kant Sharma as the new CAG. Before being appointed the CAG, Mr. Sharma had served in key positions in the defence ministry that involved decision making powers over purchases including the Augusta Westland Chopper deal and the

Tatra trucks deal. His appointment is thus being questioned in the context of conflict of interest and also that it goes against the code of ethics of auditors.

2.7 Recommended Mode of Appointment


There is a need to frame a transparent selection procedure based on definite criteria and constitute a broad-based nonpartisan selection committee, which after calling for applications and nominations would recommend the most suitable person for appointment as CAG. There needs to be an institutionalised process of selection for the post of CAG, a selection committee as seen in the appointment of CVC (involving PM, Leader of Opposition and Home Minister) and the Chairman of the NHRC may be considered. The above steps could go a long way in ensuring that an outstandingly able person of great independence and integrity is selected to this high constitutional office.

2.8 Should the CAG go into policy decision?

In the recent past CAGs reports on 2G, Coal blocks allocation, Delhi Airport PPP have made the Government very uncomfortable with the audit findings. In order to defend its position, some members of the ruling party have raised questions about CAGs jurisdiction and observed that he has exceeded his mandate. What is the veracity of such criticism? The CAGs role should be viewed in the context of our constitutional scheme under which the executive is accountable to Parliament. CAG is an essential instrument for enforcing the accountability mechanism as the CAGs reports on governments stewardship of public finance are required to be placed in Parliament and state legislatures under Article 151 of the Constitution. To enable him to discharge this responsibility, without fear or favour, he has been given an independent status under Article 148 analogous to that of a Supreme Court judge.

The word audit has not been defined in either the Constitution or in the CAG Act, 1971. We have so far been going by 150 years of history, tradition, existing provisions and international practice. The CAG has not formulated his own policy in the above reports and has only gone by policy prescriptions recommended internally at various levels within the government. It is within the mandate of CAG to comment on a policy in cases wherein-

The financial implications of a policy were not gone into at all before the decision was made The assessment of financial implications was quite clearly wrong The numbers were correct but the reasoning behind the decision was questionable

Further, the CAG is bound by the oath of office to uphold the Constitution of India and thus is bound to comment on policy matters that seem unconstitutional. If the government were to formulate a scheme or policy that selectively confers benefits from public funds on an individual or a group to the exclusion of others, it is the CAGs duty to point this out. Thus the CAG was well within his mandate to comment on the above policy decisions.

Another criticism has been of the Notional and Presumptive loss figures as claimed in the reports. There is a genuine dilemma here. If the reports were to make a bland statement that an alternative procedure would have yielded more revenue to the government or would have meant less discretionary patronage, it would give no indication of the financial dimensions of the decision or the importance of the matter. Putting a number on it brings this home. On the other hand, when a number is mentioned, the discussion tends to focus on it and not on the issues involved. There is no

easy way out of this dilemma. All that one can say is that the notional number should e carefully estimated, making the assumptions and methodology clear. This is what the CAG has done. He has not claimed that his figures are definitive. The assumptions can be questioned, the methodology can be questioned, the resulting number can be debated; what cannot be questioned is the procedural or substantive lapse to which the figure points.

3. Union Public Service Commission


UPSC is an independent constitutional body and is the central recruiting agency in India authorized to conduct examinations for appointment to the various civil services of the Union. Articles 315 to 323 in Part XIV of the Constitution contains elaborate provisions regarding the composition, appointment and removal of members along with the independence, powers and functions of the UPSC.

3.1 A Brief History


Indianization of the superior Civil Services became one of the major demands of the political movement compelling the British Indian Government to consider setting up of a Public Service Commission for recruitment to its services in the territory. The first Public Service Commission was set up on October 1st, 1926. However, its limited advisory functions failed to satisfy the peoples aspirations and the continued stress on this aspect by the leaders of our freedom movement resulted in the setting up of the Federal Public Service Commission under the Government of India Act 1935. Under this Act, for the first time, provision was also made for the formation of Public Service Commissions at the provincial level.

The Constituent Assembly, after independence, saw the need for giving a secure and autonomous status to Public Service Commissions both at Federal and Provincial levels for ensuring unbiased recruitment to Civil Services as also for protection of service interests.

With the promulgation of the new Constitution for independent India on 26th January, 1950, the Federal Public Service Commission was accorded a constitutional status as an autonomous entity and given the title Union Public Service Commission (UPSC).

3.2 Composition
UPSC has been established under Article 315 of the Constitution of India. The Commission consists of a Chairman and ten Members appointed by the President of India. The Constitution, without specifying the strength of the commission has left the matter to the discretion of the President.

Further, no qualifications are prescribed for the Commissions membership except that one-half of the members should be such persons who have held office for at least 10 years either under the Government of India or under the government of a state.

The Constitution has authorized the President to determine the conditions of service of the Chairman and other Members of the Commission. Accordingly, the terms and conditions of service of Chairman and Members of the Commission are governed by the Union Public Service Commission (Members) Regulations, 1969.

The Commission is serviced by a Secretariat headed by a Secretary. The expenses of the Union or a State Public Service Commission, including any salaries, allowances and pensions payable to or in respect of the members or staff of the

Commission, shall be charged on the Consolidated Fund of India or, as the case may be, the Consolidated Fund of the State.

The Chairman and Members of the Commission hold office for a term of 6 years or until they attain the age of 65 years, whichever is earlier. However, they can relinquish their offices at any time by addressing their resignations to the President. The President can appoint one of the members of the UPSC as an acting chairman in the following circumstances when the office of the chairman falls vacant or when the chairman is unable to perform his functions due to absence or some other reason

3.2.1 Removal of Chairman or a member The President can remove the chairman or any other member of UPSC from the office under the following circumstances: a) If he is adjudged an insolvent

b) If he engages, during the term of his office, in any paid employment outside the duties of his office c) If he is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body

The President can also remove the chairman or any other member of the commission for misbehaviour. However, in this case, the President has to refer the matter to the SC for an enquiry. If the SC after the enquiry upholds the cause of removal and advises so, the President can remove the chairman or the member. The advice so tendered by the SC is binding on the President. Here the term misbehaviour refers to- interest in any contract or agreement made by the Government of India or the government of a state or participation in any way in the profit of such contract or agreement or in any other benefit

3.3 Independence of UPSC


The Constitution has made the following provisions to safeguard and ensure the independent and impartial functioning of the UPSC: 1. The chairman or a member of the UPSC can be removed from office by the President only in the manner and on the grounds mentioned in the Constitution. Thus, they enjoy security of tenure. 2. The conditions of service of the chairman or a member, though determined by the President, cannot be varied to his disadvantage after his appointment. 3. The entire expenses including the salaries, allowances and pensions of the Chairman and members of the UPSC are charged on the Consolidated Fund of India and are not subject to the vote of Parliament. 4. The chairman of the UPSC on ceasing to hold office is not eligible for further employment in the Government of India or any state 5. A member of the UPSC is eligible for appointment as the Chairman of UPSC or a State Public Service Commission but not for any other employment in the Government of India or any state 6. The chairman or a member of UPSC is not eligible for reappointment to that office for a second term

3.4 Functions of UPSC


The Union Public Service Commission has been entrusted with the following duties and role under the Constitution: 1. 2. 3. 4. Recruitment to services & posts under the Union through conduct of competitive examinations; Recruitment to services & posts under the Central Government by selection through interviews; Advising on the suitability of officers for appointment on promotion as well as transfer-on-deputation; Advising the government on all matters relating to methods of recruitment to various services and posts;

5. 6.

Disciplinary cases relating to different civil services; and Miscellaneous matters relating to grant of extra ordinary pensions, reimbursement of legal expenses etc.

3.5 Recruitment Rules and Disciplinary Matters


In accordance with Article 320 of the Constitution, Recruitment Rules of all Group A and Group B" posts in various Ministries/Departments of Government of India are required to be framed in Consultation with the Commission. Consultation with the Commission is also necessary for framing/amending Recruitment Rules for certain categories of posts under the Employees State Insurance Corporation, The Delhi Municipal Corporation, The New Delhi Municipal Council, Employees Provident Fund Organisation etc. under the relevant Acts made by Parliament in pursuance of the provisions of Article 321. Under Article 320(3) of the Constitution the Commission are required to be consulted on the quantum of penalties in disciplinary cases affecting a person serving under the Government of India in a civil capacity.

3.6 UPSC and CVC


Since the emergence of CVC, the role of UPSC in disciplinary matters has been affected. Both are consulted by the government while taking disciplinary action against a civil servant. Here, UPSC being an independent body has an edge over CVC which got statutory status in 2003. Recently, in order to ensure speedy finalisation of disciplinary matters and to avoid possibilities of difference of opinion between UPSC and CVC, it has been decided as a policy to prescribe only one consultation- either with CVC or UPSC. However, in disciplinary cases wherein UPSC is not required to be consulted, the consultation with CVC would continue to be made.

3.7 Extension of Functions to Local Bodies


Article 321 also empowers the Parliament to extend the functions of the Public Service Commission to any local authority or other body corporate constituted by Law or by any public institutions.

3.8 Binding nature of the advice of the Commission


A convention (not mandated by the Constitution) has been established by the Government of India, that in the following classes of the cases referred to the Commission, the recommendations made by them shall be accepted, save in exceptional circumstances. a. b. c. d. Quasi-judicial cases. Selection for appointments of candidates. Appointment of a candidate on a higher initial pay than that of a minimum pay of the posts. Claims of expenditure incurred by the Government servants in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty.

3.9 Exemptions:
In order to exempt some posts which for reasons of National Security or some other reasons may not be required to be referred to the Commission for their advice, the Union Public Service Commission (Exemption from Consultations) Regulations were issued on September 1, 1958, under Article 320(3)(a) and (b) of the Constitution. These Regulations are amended or revised as and when the need arises. The following matters are kept outside the purview of UPSC: a) While making reservations of appointments or posts in favour of any backward class of citizens

b) While taking into consideration the claims of scheduled castes and scheduled tribes in making appointments to services and posts

c)

With regard to the selections for chairmanship or membership of commissions or tribunals, posts of the highest diplomatic nature and a bulk of group C and group D services

d) With regard to the selection for temporary appointments for not more than a year

The President can exclude posts, services and matters from the purview of the UPSC. The President can also, in respect to the all-India services and Central services and posts may make regulations specifying the matters in which it shall not be necessary for UPSC to be consulted. All such regulations shall be laid before the Parliament which can amend or repeal them.

3.10 Mechanisation - Project Sampera


The Commission have recently undertaken a project called "SAMPERA" (Screening and Mechanised Processing of Examination and Recruitment Applications). A simplified single sheet common application form for all the examinations has been devised which will be scanned by using OMR/ICR technology. The implementation of this project will mainly help in high speed scanning of data from forms eliminating manual entry. Other benefits will be accurate and faster generation of Admit Cards, Attendance lists with photo replica and signature facsimile of each candidate, and Error-free list of doubtful cases. The main aim of this project is to cope with the increasing volume of applications through innovations and mechanised handling so as to reduce the processing time and send communications faster to minimised errors. The cases of impersonation/malpractices will also be eliminated and wasteful expenditure will be reduced.

3.11 Suggestions for rejuvenating UPSC


1. To serve as a Think-tank on personnel issues: It should go beyond the recruitment role to answer evolving issues relating to civil services and their role in a rapidly changing society. 2. Association of Research Institutes and Universities in the functioning of UPSC: Services are often out of touch with new developments in technology and knowledge. UPSC should liaison with such institutions to conduct regular specially designed courses for administration 3. Need of Decentralisation on the pattern of US: The increase in work of the commission has been manifold, it currently handles more than 14 lakh applications and scrutinises and advises in regard to 650 Recruitment Rules of different services/posts. There is a need of decentralization to effectively align with this increase in workload 4. Keep in sync with changing times: UPSC so far has worked with remarkable competence, impartiality and integrity. However a new world based on openness, accountability and delivery has emerged. UPSC needs to be in sync with these changes

4. National Commission for Scheduled Castes and Scheduled Tribes


The National Commission for SCs is a constitutional body in the sense that it is directly established by Article 338. Originally, Article 338 of the Constitution provided for the appointment of 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. He was designated as the Commissioner for SCs and STs and assigned the said duty.

4.1 Chronology of major changes


1978: Govt. set up a non-statutory, multi-member commission for SCs and STs through an executive resolution, the Office of the Commissioner for SCs and STs also continued to exist. 1987: Govt. modified the functions of the commission and renamed it as National Commission for SCs and STs.

1990: 65th Constitutional Amendment provides for the establishment of a high-level multi-member National Commission for SCs and STs in place of the single Special Officer for SCs and STs. 2003: 89th Constitutional Amendment bifurcated the combined National Commission for SCs and STs into 2 separate bodies, namely the National Commission for SCs (under Article 338) and the National Commission for STs (under Article 338A)

4.2 National Commission for SCs:


It came into existence in 2004 and consists of a chairperson, a vice-chairperson and three other members. They are appointed by the President by a warrant under his hand seal and their conditions of service and tenure of office are also determined by the President

4.2.1 Functions and Duties of the Commission: 1. To investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under this Constitution or under any other law and to evaluate the working of such safeguards. 2. 3. To inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes. To participate and advise on the planning process of socio-economic development of the Scheduled Castes and to evaluate the progress of their development under the Union and any State; 4. To present to the President, annually and at such other times as the commission may deem fit, reports upon the working of those safeguards; 5. To make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Castes; and 6. To discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes as the President may specify. 7. The Commission, while investigating any matter, has all the powers of a civil court trying a suit and in particular in respect of the following matters. 8. The Union and every State Government shall consult the Commission on all major policy Scheduled Castes matters affecting Summoning and enforcing the attendance of any person from any part of India and examining him on oath; Requiring the discovery and production of any documents; Receiving evidence on affidavits; Requisitioning any public record or copy thereof from any court or office; Issuing commissions for the examination of witnesses and documents; Any other matter which the President may by rule, determine;

4.2.2 Report of the Commission The commission presents an annual report to the president. It can also submit a report as and when it thinks necessary. The President places all such reports before the Parliament, 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 such recommendations. The President also forwards any report of the Commission pertaining to a state government to the state governor. The governor then places it before the state legislature.

4.3 National Commission for STs


The National Commission for Scheduled Tribes (NCST) was established by amending Article 338 and inserting a new Article 338A in the Constitution through the Constitution (89th Amendment) Act, 2003. It consists of a chairperson, a vice-chairperson and three other members. They are appointed by the President by a warrant under his hand seal and their conditions of service and tenure of office are also determined by the President

4.3.1 Functions and Duties of the Commission 1. To investigate & monitor matters relating to safeguards provided for STs under the Constitution or under other laws or under Govt. Order, to evaluate the working of such Safeguards. 2. 3. To inquire into specific complaints relating to Rights & Safeguards of STs; To participate and advise in the Planning Process relating to Socio-economic development of STs, and to Evaluate the progress of their development under the Union and any State; 4. To submit report to the President annually and at such other times as the Commission may deem fit, upon/ working of safeguards, measures required for effective implementation of Programmers/ Schemes relating to Welfare and Socio-economic development of STs; 5. 6. To discharge such other functions in relation to STs as the President may specify; The Commission would also discharge the following other functions in relation to the protection, welfare and development & advancement of the Scheduled Tribes 7. 8. Union and every State Govt. to consult the Commission on all major Policy matters affecting Scheduled Tribes For Investigation and Inquiry, the Commission is vested with powers of a civil court having authority to: Summon and enforce attendance of any person and examine on oath; Discovery & production of any documents; Receive evidence on affidavits; Requisition any public record or copy thereof from any court or office; Issue Commissions for examination of witnesses and documents; and Any matter which President, by rule, may determine.

4.3.2 Report of the Commission The commission presents an annual report to the president. It can also submit a report as and when it thinks necessary. The President places all such reports before the Parliament, 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 such recommendations. The President also forwards any report of the Commission pertaining to a state government to the state governor. The governor then places it before the state legislature.

4.4 Constitutional Safeguards for SCs & STs


4.4.1 Educational & Cultural Safeguards Art. 15(4):- Special provisions for advancement of other backward classes (which includes SCs and STs); Art. 29:- Protection of Interests of Minorities (which includes SCs and STs); Art. 46:- The State shall promote, with special care, the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes, and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation

Art. 350:- Right to conserve distinct Language, Script or Culture & instruction in Mother Tongue.

4.4.2 Social Safeguards

Art. 23:- Prohibition of traffic in human beings and beggar and other similar form of forced labour; Art. 24:- Forbidding Child Labour.

4.4.3 Economic Safeguards Art.244:- Provisions of Fifth Schedule shall apply to the administration & control of the Scheduled Areas and Scheduled Tribes in any State other than the states of Assam, Meghalaya, Mizoram and Tripura which are covered under Sixth Schedule. Art. 275:- Grants in-Aid to specified States (STs&SAs) covered under Fifth and Sixth Schedules of the Constitution.

4.4.4 Political Safeguards Art.164(1):- Provides for Tribal Affairs Ministers in Bihar, MP and Orissa; Art. 330:- Reservation of seats for SCs and STs in Lok Sabha; Art. 337- Reservation of seats for SCs and STs in State Legislatures; Art. 334:- 10 years period for reservation (Amended several times to extend the period.); Art. 243:- Reservation of seats in Panchayats. Art. 371:- Special provisions in respect of NE States and Sikkim

4.4.5 Service Safeguards Under Art.16(4),16(4A),164(B) Art.335, and Art. 320(40)

5. Special Officer for Linguistic Minorities:


Originally, the Constitution of India did not make any provision with respect to the Special Officer for Linguistic Minorities. Later, the States Reorganization Commission, 1953 made a recommendation in this regard. Accordingly, the 7th Constitutional Amendment Act of 1956 inserted a new article 350-B in Part XVII of the Constitution. The article contains the following provisions: There should be a Special Officer for Linguistic Minorities. He is to be appointed by the President of India It would be the duty of the Special Officer to investigate all matters relating to the safeguards provided for linguistic minorities provided under the Constitution. He would report to the President upon those matters at such intervals as the President may direct. The President should place all such reports before each House of Parliament and send to the governments of the states concerned

The Constitution does not specify the qualifications, tenure, salaries and allowances, service conditions and procedure for removal of the Special Officer for linguistic minorities. In pursuance of the provision of Article 350-B, the office of the Special Officer for Linguistic Minorities was created in 1957. He is designated as the Commissioner for Linguistic Minorities.

The Commissioner has his headquarters at Allahabad and there are three regional offices at Belgaum, Chennai and Kolkata which are each headed by an Assistant Commissioner. At the centre, the commissioner falls under the Ministry of Minority Affairs. Hence he submits the annual reports or other reports to the President through the Union Minority Affairs Minister.

6. Attorney General of India


The Constitution (Article 76) has provided for the office of the Attorney General for India. He is the highest law officer in the country and is responsible for giving advice to the Government of India upon such legal matters and to perform such other duties of legal character as may be referred or assigned to him by the President.

6.1 Appointment and Term


The Attorney General is appointed by the President. He must be person who is qualified to be appointed a judge of the Supreme Court i.e. he must be a citizen of India and he must have been a judge of a high court for five years or an advocate of a high court for ten years or an eminent jurist in the opinion of the President. The term of Office of the AG is not fixed by the Constitution and it is also silent on the procedure and grounds for his removal. He holds office during the pleasure of the President and may be removed by him at any time. He may also quit his office by submitting his resignation to the president. Conventionally, he resigns when the government resigns or is replaced, as he is appointed on its advice. The remuneration of the AG is not fixed by the Constitution and is determined by the President. It must be noted that the AG is not a full-time counsel for the Government. He does not fall in the category of government servants and is not debarred from private legal practice.

6.2 Duties and Functions:


As the Chief Law Officer of the Government of India, the duties of the AG include the following: 1. 2. 3. To give advice to the Government of India upon such legal matters which are referred to him by the president To perform such other duties of a legal character that are assigned to him by the president To discharge the functions conferred on him by the Constitution or any other law

6.2.1 The president has assigned the following duties to the AG: 1. 2. To appear on behalf of the GoI in all cases in the Supreme Court in which the GoI is concerned To represent the GoI in any reference made by the president to the Supreme Court under Article 143 of the Constitution 3. To appear in any high court in any case in which the GoI is concerned

6.3 Rights and Limitations:


The AG has the right of audience in all courts in the territory of India. Further, he has the right to speak and participate in the proceedings of both the Houses of Parliament or their joint sitting or any committee of the Parliament of which he may be named a member, but without the right to vote. He enjoys all the privileges and immunities that are available to a member of Parliament.

6.4 Limitations
The AG does not have any executive authority as these functions are performed by the Law Minister of India; further, following limitations are placed on the AG in order to avoid any complication and conflict of duty: 1. 2. 3. 4. He should not advise or hold a brief against the Government of India He should not advise or hold a brief in cases in which he is called upon to advise or appear for the GoI He should not defend accused persons in criminal prosecutions without the permission of the GoI He should not accept appointment as a director in any company or corporation without the permission of GoI

7. Solicitor General of India:


In addition to the AG, there are other law officers of the GoI- the solicitor general of India and additional solicitors general of India. These law officers are subordinate to the AG and assist him in the fulfilment of his official responsibilities. Unlike the AG, SG does not tender legal advice to the GoI and his functions are confined to appearing in courts on behalf of the GoI. It is not a constitutional post as Article 76 has no mention of the solicitor general or the additional solicitors general.

8. Finance Commission
The Finance Commission is constituted by the President as a quasi-judicial body under article 280 of the Constitution, mainly to give its recommendations on distribution of tax revenues between the Union and the States and amongst the States themselves. Two distinctive features of the Commissions work involve redressing the vertical imbalances between the taxation powers and expenditure responsibilities of the centre and the States respectively and equalization of all public services across the States.

8.1 Composition
The Finance Commission is constituted by the President every fifth year or at such earlier time as he considers necessary. It consists of a chairman and four other members. They hold office for such period as specified by the president in his order and are eligible for reappointment. The Constitution authorises the Parliament to determine the qualifications of members of the commission and the manner in which they should be selected. Accordingly, the Parliament has specified the qualifications of the chairman and other members of the commission. The Chairman should be a person having experience in public affairs; and the four other members should be selected from amongst the following: 1. 2. 3. 4. A judge of high court or one qualified to be appointed as one A person who has specialised knowledge of finance and accounts of the government A person who has wide experience in financial matters and in administration A person who has special knowledge of economics.

8.2 Functions
It is the duty of the Commission to make recommendations to the President as to: The distribution between the Union and the States of the net proceeds of taxes which are to be, or may be, divided between them and the allocation between the States of the respective shares of such proceeds; The principles which should govern the grants-in-aid of the revenues of the States out of the Consolidated Fund of India;

The measures needed to augment the Consolidated Fund of a State to supplement the resources of the Panchayats in the State on the basis of the recommendations made by the Finance Commission of the State; The measures needed to augment the Consolidated Fund of a State to supplement the resources of the Municipalities in the State on the basis of the recommendations made by the Finance Commission of the State; Any other matter referred to the Commission by the President in the interests of sound finance. The Commission determines its procedure and has such powers in the performance of its functions as Parliament may by law confer on them.

8.3 Recommendations of FC
The recommendations are presented to the President in the FC report and the President causes the same to be tabled in the Parliament. They are not binding on the Government but are conventionally accepted by the Government.

8.3.1 The recommendations of the Finance Commission are implemented as under: Those to be implemented by an order of the President: The recommendations relating to distribution of Union Taxes and Duties and Grants-in-aid fall in this category. Those to be implemented by executive orders: The recommendations in respect of sharing of Profit, Debt Relief, Mode of Central Assistance, etc. are implemented by executive orders.

8.4 Finance Commission and Fiscal Federalism


Finance Commission has a crucial role in the following areas: Cooperative financial relations between the centre and states Level the inequality among the states- bridge horizontal imbalances by giving more to the backward states as a part of the mandate to create equity Bridge the vertical imbalances between the centre and the states by recommending adequate devolution to the states Promote state fiscal autonomy and efficiency Various reforms, on being referred by the President, for infrastructure and good governance

8.5 Article 275: Statutory Grants


After the devolution of the taxes and duties from the divisible pool, if some states still face revenue deficits, Article 275 empowers the Parliament to make grants to the states which are in need of financial assistance. These are not given to every state and also, different sums may be fixed for different states. These sums are charged on the Consolidated Fund of India every year. These statutory grants under Article 275 are given to the states on the recommendation of the Finance Commission

8. 6 Tenth FC and Alternative Scheme of Devolution:


The Constitution (Eightieth Amendment) Act, 2000, which seeks to provide an alternative scheme for sharing taxes between the Union and States, is based on the recommendations of the Tenth FC. Constitution was amended to give the recommendations a legal effect. Under this, amendments have been made in Article 270 to essentially make all Union taxes and duties shareable with States unlike earlier when the Union had some taxes and duties exclusively to it. Now, only surcharges go to the Union exclusively.

8.6.1 The advantages of this system are: States will be able to share the buoyancy of Central taxes The Central Government can pursue tax reforms and expect states to cooperate Economic Reforms in general will have wider consensus as the country takes steps towards a common market Creates conditions for Cooperative federalism in other spheres

8.7 Thirteenth FC (under Vijay Kelkar) Recommendations:


8.7.1 Sharing of Union tax revenues: The share of states in net proceeds of shareable central taxes shall be 32 per cent in each of the financial years from 2010-11 to 2014-15 The share of each state in the proceeds of all shareable central taxes in each of the financial years from 2010-11 to 2014-15 shall be as specified: i. Finances of Union and States: a. Actual share in the tax revenue of the Centre which is devolved to states: The Eleventh and Twelfth Commissions had recommended that the share of states be fixed at 29.5% and 30.5% respectively, of central taxes. However, the actual shares devolved to states have been lower than recommended by previous finance commissions. Recommendation: The Ministry of Finance should ensure that the accounts reflect all collections so that there are no inconsistencies in the amounts released to states

b.

Losses in the power sector: Subsidy for the power sector is the largest component of state government subsidies. The power sector in most states is beset with high losses, and inefficient infrastructure, resulting in huge losses. Recommendation: Losses in the power sector are expected to be a major drag on the finances of State Governments, and therefore, the problems confronting this sector need to be addressed in a time-bound manner

c.

Reduction of centrally sponsored schemes: Initiatives should be taken to reduce the number of Centrally Sponsored Schemes and to restore the predominance of fund-transfers based on Planning Commission recommendations

8.7.2 Goods and Services Tax (GST): The Commission has recommended the adoption of the GST and formulated a model GST. The main features of the model GST are: The central portion of the GST would include (a) central excise duties, (b) service tax, (c) additional customs duties, (d) all surcharges and cesses. The state GST would include (a) VAT, (b) central sales tax, (c) cesses and surcharges, and others such as luxury tax, lottery tax, stamp duties, etc. There would be special provisions for certain goods such as petroleum, and exemptions would be allowed only on the basis of a common list applicable to all states and the centre. GST should be implemented by all states and the centre at the same time. To provide incentives to states to agree to the model GST, the Commission has recommended the implementation of a Grand Bargain. The Grand Bargain envisages a grant of a total of Rs. 50,000 crore to be provided to all states. This amount would be distributed among states subject to the model GST framework being adopted by all states. This grant would be used to compensate states for revenue losses on account of implementing GST. This amount should not be distributed if states cannot reach a consensus on implementing GST.

The Empowered Committee of State Finance Ministers (EC) should be given statutory status. The compensation should be disbursed in quarterly instalments on the basis of recommendations by a three-member Compensation Committee. The Compensation Committee should comprise of the Secretary, Department of Revenue of the central government, Secretary to the EC, and an eminent person with experience in public finance

8.7.3 Union Finances The central government has recently decided that proceeds from disinvestment shall be used fully as capital expenditure for social sector programmes. This policy needs to be liberalised and proceeds should also be used for augmenting critical infrastructure and environment related projects.

8.7.4 State Finances The practice of diverting plan assistance to meet non-plan needs of special category states should be discontinued. For PSUs: All accounts and backlogs of PSU accounts should be cleared by states. States need to draw a roadmap for closure of nonworking PSUs by March 2011. Divestment and privatisation of PSUs should be considered and actively pursued. Power Sector: Reduction of Transmission and Distribution (T&D) losses should be attempted. Unbundling needs to be carried out on priority basis and open access to transmission strengthened. Proper systems should be put in place to avoid delays in completion of hydro projects. Regulatory institutions should be strengthened through capacity building, consumer education and tariff reforms. Regarding reforms in the area of pensions, a switch to the New Pension Scheme needs to be completed at the earliest.

8.7.5 Revised roadmap for fiscal consolidation: i. Central government The revenue deficit of the Centre needs to be progressively reduced and eliminated, followed by emergence of a revenue surplus by 2014-15. A target of 68 percent of GDP for the combined debt of the centre and states should be achieved by 2014-15. The Medium Term Fiscal Plan should be reformed and made a statement of commitment rather than a statement of intent. The government should list all public sector enterprises that yield a lower rate of return on assets than a norm which should be decided by an expert committee. An independent review mechanism should be setup by the Centre to evaluate its fiscal reform process.

ii. State governments: States should be able to get back to the path of fiscal consolidation after the disruption caused in 2008-09 and 2009-10. States with zero revenue deficit or revenue surplus in 2007-08 should eliminate revenue deficit by 201112. Other states should do so by 2014-15. General category states with zero revenue deficit in 2007-08 should achieve a fiscal deficit of 3 percent of GDP by 2011-12. Other states should do so by 2013-14. States should amend/enact Fiscal Responsibility and Budget Management Acts to build on the fiscal reform path worked out.

State-specific grants recommended for a state should be released upon compliance. Borrowing limits for states to be worked out by Finance Ministry using the fiscal reform path, thus acting as an enforcement mechanism for fiscal correction by states.

8.8 Fourteenth FC:


The Fourteenth Finance Commission has been set up under the Chairmanship of Dr. Y.V.Reddy [Former Governor, Reserve Bank of India]. The Finance Commission is required to give its report by 31st October, 2014. Its recommendations will cover the five year period commencing from 1st April, 2015. Its terms of reference include: review the state of the finances, deficit and debt levels of the Union and the States, keeping in view, the fiscal consolidation roadmap recommended by the Thirteenth Finance Commission, and suggest measures for maintaining a stable and sustainable fiscal environment consistent with equitable growth the level of subsidies that are required, having regard to the need for sustainable and inclusive growth, and equitable sharing of subsidies between the Central Government and State Governments the need for making the public sector enterprises competitive and market oriented; listing and disinvestment; and relinquishing of non-priority enterprises the need for insulating the pricing of public utility services like drinking water, irrigation, power and public transport from policy fluctuations through statutory provisions; the need to balance management of ecology, environment and climate change consistent with sustainable economic development; and the impact of the proposed Goods and Services Tax on the finances of Centre and States and the mechanism for compensation in case of any revenue loss

8.9 Planning Commission vs. Finance Commission


In India, resources can be transferred from the centre to states in many ways. The Finance Commission and the Planning Commission are the two institutions responsible for centre-state financial relations. There has been serious debate in the country regarding the role of the Finance Commission vis-a-vis the Planning Commission. Finance Commission is a Constitutional body whereas the Planning Commission is a non-statutory institution. Over a period of time, the working of both the institutions led to friction among them due to lack of clear-cut guidelines demarcating their areas of work. The relative roles of the Planning Commission and Finance Commission have come to be demarcated in the terms of reference of the Finance Commission. Scrutiny of plan expenditure and transfer of capital to the states have been left to the Planning Commission.

The Finance Commission assesses the non-plan requirements of the State Governments and recommends a share in the net yield from the Central and Grants-in-aid (presently 32.5%). The divisible sum of Central taxes is distributed inter se among the states based on independent criteria. In addition, the Finance Commission recommends the principles governing non-plan grants and loans to states. Examples of grants would include funds for disaster relief, maintenance of roads and other state-specific requests.

Among states, the distribution of tax revenue and grants is determined through a formula accounting for population (25%), area (10%), fiscal capacity (47.5%) and fiscal discipline (17.5%). Unlike the Planning

Commission, the Finance Commission does not distinguish between special and non-special category states in its allocation.

The most significant centre-state transfer is the distribution of central tax revenues among states. The Finance Commission decides the actual distribution and the current Finance Commission have set aside 32.5% of central tax revenue for states. In 2011-12, this amounted to Rs 2.5 lakh crore (57% of total transfers), making it the largest transfer from the centre to states.

The Planning Commission allocates funds to states through central assistance for state plans. Central assistance can be broadly split into three components: Normal Central Assistance (NCA), Additional Central Assistance (ACA) and Special Central Assistance.

NCA, the main assistance for state plans, is split to favour special category states: the 11 states get 30% of the total assistance while the other states share the remaining 70%. The nature of the assistance also varies for special category states; NCA is split into 90% grants and 10% loans for special category states, while the ratio between grants and loans is 30:70 for other states.

The Planning Commission also allocates funds for ACA (assistance for externally aided projects and other specific project) and funds for Centrally Sponsored Schemes (CSS). State-wise allocation of both ACA and CSS funds are prescribed by the centre.

For allocation among special category states, there are no explicit criteria for distribution and funds are allocated on the basis of the states plan size and previous plan expenditures. Allocation between non special category states is determined by the Gadgil Mukherjee formula which gives weight to population (60%), per capita income (25%), fiscal performance (7.5%) and special problems (7.5%).

As a proportion of total centre-state transfers NCA typically accounts for a relatively small portion (around 5% of total transfers in 2011-12). However, Planning Commission allocations can be important for states, especially for the functioning of certain schemes.

8.10 Finance Commission and Local Bodies:


Local governments, notably panchayati raj institutions (PRIs), once a neglected appendage of rural development departments, acquired a habitation and a name in the Indian federal polity after the 73rd and 74th Constitutional Amendments in 1993. It is significant that Article 280 of the Constitution that established the union finance commission (UFC) was altered as part of the two amendments, mandating the UFC to recommend measures needed to augment the consolidated fund of a state to supplement the resources of panchayats and municipalities in the state on the basis of the recommendations made by the finance commission of the State, thereby affirming the organic link in Indian fiscal federalism. The principle of subsidiarity implies that matters are best handled by the least centralized competent authority. Following this, these institutions need to be adequately empoweredboth functionally and financiallyto enable them to fulfill the role envisaged for them in the Constitution. The State Finance Commissions (SFCs), which buttress the functioning of local bodies, also need to be strengthened so as to make their functioning more predictable and the process of implementing their recommendations more transparent. All the UFCs since the two amendments have been required through their terms of reference to make recommendations on the above. The 10th Finance Commission, although appointed before these amendments, became a fait accompli, and on its own recommended some ad hoc grants to local governments. The 13th FC has made some significant departures from the past and made recommendations that could help to strengthen the process of democratic decentralization in the country if they are fully implemented.

Special Category States


The concept of a special category state was first introduced in 1969 when the 5th Finance Commission sought to provide certain disadvantaged states with preferential treatment in the form of central assistance and tax breaks. Initially three states Assam, Nagaland and Jammu & Kashmir were granted special status but since then eight more have been included (Arunachal Pradesh, Himachal Pradesh, Manipur, Meghalaya, Mizoram, Sikkim, Tripura and Uttarakhand). The rationale for special status is that certain states, because of inherent features, have a low resource base and cannot mobilize resources for development. Some of the features required for special status are: (i) hilly and difficult terrain; (ii) low population density or sizeable share of tribal population; (iii) strategic location along borders with neighbouring countries; (iv) economic and infrastructural backwardness; and (v) non-viable nature of state finances. The decision to grant special category status lies with the National Development Council. Special category states also receive specific assistance addressing features like hill areas, tribal sub-plans and border areas. Beyond additional plan resources, special category states can enjoy concessions in excise and customs duties, income tax rates and corporate tax rates as determined by the government.

13th FC on Local Bodies


Performance Grant: The local grant recommended by the 13th FC has two components, a basic component and a performance-based component. The basic grant is equivalent to 1.5% of the previous years divisible tax revenue. All states will have access to this grant for all the five years (2010-15). The performance grant allocated to each state is subject to them fulfilling a nine-point conditionality package. This should help promote results-based accountability.

a.

Role of SFC : One major contribution is the template prepared by 13th FC with the help of an expert committee to help future SFCs in preparing their reports. Although no SFC with a mind of its own will mechanically follow the template, this is a big step towards streamlining SFC reports in the future. Amend Article 280: The 13th FC has recommended to amend Article 280(3)(bb) and (c) of the Constitution so that the words on the basis of the recommendations of the finance commission of the State are changed to after taking into consideration the recommendations of the finance commission of the State. This recommendation, already approved by several expert bodies fully appreciates the spirit of the clause that envisages an organic link in Indian fiscal federalism.

b.

c.

Parallel Agencies and bodies: The 13th FC rightly points out that parallel agencies and bodies are emasculating local governments both financially and operationally. Having constitutionally assigned a certain functional domain to local governments, which include planning for economic development and social justice and preparing a draft district development plan, it is for the union and state governments to help this process of decentralised planning and governance with funds, functionaries and technical support.

8.11 Summary of Recommendations:


Local bodies should be transferred 2.28% of the divisible pool of taxes after converting this share to grant-in-aid under Article 275.

Article 280 (3) (bb) & (c) of the Constitution should be amended to make the recommendations of the State Finance Commissions less binding on state governments. Article 243(I) of the Constitution should be amended to empower states governments to constitute and direct state Finance Commissions to give their report before the National Finance Commission finalises its report. State governments should strengthen their local audit departments through capacity building. Bodies similar to the SFC should be set up in states which are not covered by Part IX of the Constitution (Panchayats). Local Bodies should be associated with city planning functions wherever other development authorities are mandated for this function. State governments will be eligible for the general performance grant and the special areas performance grant only if they comply with the prescribed stipulations.

8.12 Some Shortcomings


A large chunk of the performance grant, estimated to be Rs 29,826 crore, remaining unutilised by 2015 is a distinct possibility. If state governments do not take necessary legal and administrative action, everything will remain in cold storage. The 13th FC has given only a low weightage of 25% to population against a weightage of 47.5% to fiscal capacity distance and 17.5% to fiscal discipline, making a total weight of 65% for fiscally relevant criteria. The 13th FC has dispensed with the tax or revenue effort criterion with regard to local grants on the plea that credible data are not available. It had data for six years and it could have obtained better outcomes by using the tax or revenue effort criterion. The 13th FC criteria may be unfair as it is biased towards highly populated states. The 13th FC Report says the quality of SFC reports continues to be patchy, but it is silent on where and how they continue to be so. Actually the 13th FC is only reiterating the sweeping, general comments against SFCs made by the 11th and 12th FC. The criteria chosen for inter se distribution of local grants leave many things to be desired and so is its silence on SFCs. The third tier has to be made an integral component of Indias federal public finance and UFCs of the future cannot afford to shirk that responsibility any more.