By Mr. Y.Srinivasa Rao, Principal Senior Civil Judge, Tirupati, Andhra Pradesh.
Introduction :—
There can be no clear-cut distinction between what could or should and what could not or should not be comprehended within the body of rules called “constitutional law”. In practice, it will be found that what is embodied even in a written Constitution depends sometimes on the peculiar notions for the time being of people who make it. It reflects their views about what should be considered so basic or fundamental as to find a place in the constitutional document. According to normal notions of “constitutional law”, such a subject should not have found a place in it. Others think that a constitution should contain nothing more than the barest possible outlines of the structure of the Government of a country. The test, whether “constitutional law”or not, could be done by the exercise of ordinary legislative powers, State of Karnataka v. Union of India, AIR 1978 SC 68.
The distinction between constitutional law and ordinary law in a rigid Constitution like ours is that the validity of the constitutional law cannot be challenged whereas that of ordinary law can be challenged on the touchstone of Constitution. But constitutional law is as much law as ordinary law. A Constitution cannot consist of a string of isolated dooms, Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1.
The two most important qualities or requirements for appointment to a constitutional post such as the Chairman of the Public Service Commission are that personally the Chairman of the Public Service Commission should be beyond reproach and his or her appointment should inspire public confidence in the institution. The first “quality” can be ascertained through a meaningful deliberative process, while the second “quality” can be determined by taking into account the constitutional, functional and institutional requirements necessary for the appointment. Thus, two factors that need to be jointly taken into account for the exercise of the power of judicial review are: the deliberative process and consideration of the institutional requirements, State of Punjab v. Salil Sabhlok, (2013) 5 SCC 1. See. Arts. 316, 315, 317, 319, 320, 322 and 323 of the Constitution of India.
There are some important institutions/bodies which derive constitutional power directly from the Constitution of India.
Constitutional bodies:—
CAG (the Comptroller and Auditor General of India):— This is an independent office of CAG. Article 148 of the Constitution of India provides it. CAG is the guardian of public money and audits the accounts of the Central and the State Governments. The Comptroller and Auditor General (CAG)’s appointment, powers and the audit reports are dealt under Articles 148 to 151 of the Constitution of India. The Comptroller and Auditor-General of India is appointed by the President by warrant under his hand and seal and shall only be removed from office in like manner and on the like grounds as a Judge of the Supreme Court under, See. Article 148, Constitution of India.
The Election Commission of India:—
The Election Commission is appointed by the President for the purpose of superintendence, direction and control of the preparation of the electoral rolls for and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President. The Election Commission 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. See. Article 324, Constitution of India.
The Finance Commission of India:—
The Finance Commission of India can function like a Civil Court and that it has power to call any witness and also has power to ask to produce any document or public record from the court or office. Under Article 280 of the Indian Constitution, the President of India periodically constitutes Finance Commissions to define the financial relations between the Central and State Governments. Finance Commission is constituted every five (5) years under the Constitution. The Commission was constituted in 1951. One of the main functions of the commission is such that it distributes ‘net proceeds’ of taxes between Central and State Govts. It determines the significant factors relating to Grants-in-Aid to the State Governments. It is an autonomous body of the Government of India.
National Commissions for SC & STs:—
National Commission for SC is a Constitutional body. On the 89th Amendment of the Constitution of India coming into force on 19th February, 2004, this Commission for Scheduled Castes was set up under Article 338.
Duties and Functions of the Commission:—
Under Article 338 of the Constitution of India, the following duties and functions are assigned to the Commission.
(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under the Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;
(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes;
(c) to participate and advise in 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;
(d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
(e) to make in such reports, recommendations as to the measures that should be taken by the Union or any State for effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Castes and
(f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes as the President may, subject to the provisions of any law made by Parliament, by rule specify. See. Website: http:/ncsc.nic.in.
Similarly, National Commission for STs is also a Constitutional body. Main object of this Commission is , for the Socio-economic and overall development of the Tribal people, special provisions and safeguards have been provided in Indian Constitution and some initiative have also been taken by the Government of India, including Tribal Sub Plan (TSP) strategy.
Union Public Service Commission:—
Article-315 of the Constitution deals with Public Service Commissions for the Union and for the States. The functions of the Commission under Article 320 of the Constitution are:
- UPSC conducts examinations for appointment to the services of the Union.
- Direct recruitment by selection through interviews.
- Appointment of officers on promotion / deputation / absorption.
- UPSC frames and amends the Recruitment Rules for various services and posts under the Government.
- Disciplinary cases relating to different Civil Services.
- UPSC advises the Government on any matter referred to the Commission by the President of India. See. https://www.upsc.gov.in/about-us/functions
NON-CONSTITUTIONAL BODIES:
National Human Rights Commission:—
Human Rights means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India, [Section 2(d), Protection of Human Rights Act, 1993 (India)]. 2. Is a broad concept and cannot be straitjacketed within narrow confines. Any attempt to do so would truncate its all-embracing scope and reach and denude it of its vigour and vitality. Human rights are not like edicts inscribed on a rock. They are made and unmade on the crucible of experience and through irreversible process of human struggle for freedom. They admit of a certain degree of fluidity. Categories of human rights, being of infinite variety, are never really closed. Human rights are the basic, inherent, immutable and inalienable rights to which a person is entitled simply by virtue of his being born a human. They are such rights which are to be made available as a matter of right. The Constitution and legislations of a civilised country recognise them since they are so quintessentially part of every human being. That is why every democratic country committed to the rule of law put into force mechanisms for their enforcement and protection. Human rights are universal in nature. The Universal Declaration of Human Rights (hereinafter referred to as “UDHR”) adopted by the General Assembly of the United Nations on 10-12-1948 recognises and requires the observance of certain universal rights, articulated therein, to be human rights and these are acknowledged and accepted as equal and inalienable and necessary for the inherent dignity and development of an individual. Consequently, though the term “human rights” itself has not been defined in UDHR, the nature and content of human rights can be understood from the rights enunciated therein, Ram Deo Chauhan v. Bani Kanta Das, (2011) 3 SCC (Cri) 727.
Lokpal and Lokayuktas :—
Lokpal means the body established under Section 3 of the Act. The Lokpal shall consist of— (a) a Chairperson, who is or has been a Chief Justice of India or is or has been a Judge of the Supreme Court or an eminent person who fulfills the eligibility specified in clause (b) of sub-section (3); and (b) such number of Members, not exceeding eight out of whom fifty per cent shall be Judicial Members: Provided that not less than fifty per cent of the Members of the Lokpal shall be from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities and women.
A person shall be eligible to be appointed,— (a) as a Judicial Member if he is or has been a Judge of the Supreme Court or is or has been a Chief Justice of a High Court; (b) as a Member other than a Judicial Member, if he is a person of impeccable integrity and outstanding ability having special knowledge and expertise of not less than twenty-five years in the matters relating to anti-corruption policy, public administration, vigilance, finance including insurance and banking, law and management.
The Chairperson or a Member shall not be— (i) a member of Parliament or a member of the Legislature of any State or Union territory; (ii) a person convicted of any offence involving moral turpitude; (iii) a person of less than forty-five years of age, on the date of assuming office as the Chairperson or Member, as the case may be; (iv) a member of any Panchayat or Municipality; (v) a person who has been removed or dismissed from the service of the Union or a State and shall not hold any office of trust or profit (other than his office as the Chairperson or a Member) or be affiliated with any political party or carry on any business or practice any profession and accordingly, before he enters upon his office, a person appointed as the Chairperson or a Member, as the case may be, shall, if— (a) he holds any office of trust or profit, resign from such office; or (b) he is carrying on any business, sever his connection with the conduct and management of such business; or (c) he is practising any profession, cease to practise such profession, See. Section 2(1)(i), Lokpal and Lokayuktas Act, 2013.
Lokayukta and Upa-Lokayukta:-
The Administrative Reforms Commission suggested that there should be one authority dealing with complaints against the administrative acts of Ministers or Secretaries to Government at the Centre and in the States and another authority in each State and at the Centre for dealing with complaints against administrative acts of other officials and all these authorities should be independent of the executive, the legislative and the judiciary. It recommended that the Lokpal be appointed at the Centre and Lokayukta at the State level. Based on the report of the Administrative Reforms Commission the Karnataka Lokayukta Act, 1984 came to be enacted. The Karnataka Act has also been enacted to make provision for making enquiries by the Lokayukta and Upa-Lokayukta into the administrative actions relatable to matters specified in List II or List III of the Seventh Schedule to the Constitution, taken by or on behalf of the Government of Karnataka or certain public authorities in the State of Karnataka, including any omission or commission in connection with or arising out of such action, etc. The Lokayukta or Upa-Lokayukta under the Karnataka Act are established to investigate and report on allegations or grievances relating to the conduct of public servants which includes the Chief Minister, all other Ministers and Members of the State Legislature; all officers of the State Government; Chairmen, Vice-Chairmen of local authorities, corporations, owned or controlled by the State Government, a company in which not less than 51% of the shares are held by the State Government, societies registered under the Societies Registration Act, cooperative societies and universities established by or under any law of the legislature. The functions to be discharged by the Lokayukta or Upa-Lokayukta are investigative in nature. The Lokayukta and the Upa-Lokayukta while exercising powers under the Act, of course, is acting as a quasi-judicial authority but his functions are investigative in nature. The Upa-Lokayukta is a high dignitary in the State of Karnataka. The broad spectrum of functions, powers, duties and responsibilities of the Upa-Lokayukta, as statutorily prescribed, clearly bring out that not only does he perform quasi-judicial functions, as contrasted with purely administrative or executive functions, but that the Upa-Lokayukta is more than an investigator or an enquiry officer. At the same time, notwithstanding his status, he is not placed on the pedestal of a judicial authority rendering a binding decision. He is placed somewhere in between an investigator and a judicial authority, having the elements of both. For want of a better expression, the office of an Upa-Lokayukta can only be described as a sui generis quasi-judicial authority. An Upa-Lokayukta is certainly not a court. He does not adjudicate a lis nor does he render a “judicial decision” derived from the judicial powers of the State. An Upa-Lokayukta is also not a tribunal, although he may have the procedural trappings (as it were) of a tribunal. The final decision rendered by the Upa-Lokayukta, called a report, may not bear the stamp of a judicial decision, as would that of a court or to a lesser extent, a tribunal, but in formulating the report, he is required to consider the point of view of the person complained against and ensure that the investigation reaches its logical conclusion, one way or the other, without any interference and without any fear. Notwithstanding this, the report of the Upa-Lokayukta does not determine the rights of the complainant or the person complained against. Consequently, the Upa-Lokayukta is neither a court nor a tribunal. Therefore, the Upa-Lokayukta can best be described as a sui generis quasi-judicial authority. An Upa-Lokayukta does function as an adjudicating authority but the Act places him short of a judicial authority. He is much more “judicial” than an investigator or an inquisitorial authority largely exercising administrative or executive functions and powers. Under the circumstances, taking an overall view of the provisions of the Act and the law laid down, the Upa-Lokayukta is a quasi-judicial authority or in any event an authority exercising functions, powers, duties and responsibilities conferred by the Act as a sui generis quasi-judicial authority, Chandrashekaraiah v. Janekere C. Krishna, (2013) 3 SCC 117: (2013) 1 SCC (L&S) 826: (2013) 3 SCC (Cri) 347.
Central Vigilance Commission:—
It means the Commission constituted under sub-section (1) of Section 3 of the Central Vigilance Commission Act, 2003 which consists of— (a) a Central Vigilance Commissioner — Chairperson; (b) not more than two Vigilance Commissioners — Members, See also. Section 3(a), Whistle Blowers Protection Act, 2011
Central Information Commission:-
It was constituted w.e.f 12-10-2005 under the Right to Information Act, 2005. The jurisdiction of the Central Information Commission covers over all Central Public Authorities. The powers and functions of this Commission are mentioned in sections 18, 19, 20 and 25 of the Right to Information Act, 2005
NITI Aayog ( National Institution for Transforming of India):— In it was observed that the Central Government had constituted a high level committee of NITI Aayog to identify sick or loss making/non-performing Public Sector Undertakings and for recommendations of suitable strategies for action with regard to those identified. Such committee had decided that, prioritization of Public Sector Undertakings should be made on the basis of nature of activity performed by them and not on the basis of profit. In deciding on the priority, such committee had taken into consideration four essential factors. Firstly, whether a Public Sector Undertaking was required for national security. Secondly, whether the Public Sector Undertaking was performing any sovereign or quasi sovereign function. Thirdly, whether it involved in any important development where the private sector has failed to perform. Fourthly, whether the presence of Public Sector Undertaking was desirable for public purpose. Any Public Sector Undertaking which met any of such criteria was categorized as high priority. Otherwise, the Public Sector Undertakings were categorized as low priority. See. Bengal Chemical Sramik Karmachari Union & Ors. Vs. Union of India & Ors., 2018 SCC OnLine Cal 4200 : AIR 2018 (NOC 524) 184 : (2018) 3 CHN 133. Visit more details. https://www.niti.gov.in. —
National Commission tfor Backward Classes:— The present 8th Commission was accorded Constitutional Status and constituted vide “ The Constitution (One Hundred and Second Amendment)
Act, 2018” Act m, dated 11.8.2018, whereby Article 338B was inserted, forming a Commission for the socially and educationally backward classes to be known as NCBC. In fact, initially, NCBC was constituted by the Central Govt by The National Commission for Backward Classes Act, 1993 (27 of 1993), dated 2.4.1993. Till now, the Commission had been reconstituted seven times up to 2016. The Central Govt has repealed The National Commission for Backward Classes Act, 1993 (27 of 1993) w.e.f 15.8.2018. Visit. http://www.ncbc.nic.in.