Statutory Institutions and Commissions

Election Commission

The Election Commission of India (ECI) is an independent constitutional body established in 1950 to conduct free and fair elections to the Lok Sabha, the Rajya Sabha and the State Legislative Assemblies. It supervises the entire electoral process, from voter enrolment to the declaration of results, and its autonomy is regarded as essential for the health of Indian democracy.

Composition and Appointment

The Commission comprises a Chief Election Commissioner and two Election Commissioners. All three are appointed by the President on the advice of a three-member selection committee headed by the Prime Minister, with the Leader of the Opposition and a Union Cabinet Minister as the other members. The CEC holds office for a maximum of six years or until the age of sixty-five, whichever is earlier, and has traditionally been drawn from the civil services.

Core Functions

The primary responsibilities of the ECI include the preparation and periodic revision of electoral rolls, scrutiny of nominations, monitoring of election campaigns, enforcement of the Model Code of Conduct, and supervision of vote counting and result declaration. Through these functions the Commission protects the integrity and transparency of elections at the national and state levels.

Issue of Rising Election Expenditure

Under the latest revision of expenditure limits, a candidate for a Lok Sabha seat may spend up to Rs 95 lakh and for an Assembly seat up to Rs 40 lakh. Once the parallel spending of political parties and undisclosed outlays are added, total expenditure on Indian elections runs into thousands of crores, making them among the most expensive in the world. This escalation raises the entry barrier for new political players and weakens the dynamism of the democratic process.

The lack of effective limits on corporate contributions also increases the danger of elite or corporate capture of electoral politics and of policy-making. In addition, anonymity in political funding has grown sharply: the Association of Democratic Reforms (ADR) has pointed out that in the last decade over seventy per cent of party funds came from anonymous sources. Such opacity denies voters the right to know who finances the parties and candidates seeking their mandate and corrodes democratic accountability.

Allowing unrestricted foreign funding of Indian parties would pose a further threat, as it could compromise the economic sovereignty of the state by subjecting policy to the influence of foreign companies and interests.

Electoral Bonds and their Demise

Electoral bonds were introduced as anonymous bearer instruments, purchasable through designated banks, through which donors could contribute to a political party without their identity being disclosed. The scheme was intended to curb the use of cash and black money in political funding, to shield donors from harassment by rival parties, and to bring greater order to party finances.

Yet the scheme was criticised for placing political funding beyond the reach of the RTI and Income Tax regimes. In February 2024, the Supreme Court struck down the electoral bonds scheme as unconstitutional and directed the State Bank of India, as the issuing bank, to surrender donor and recipient details to the ECI for publication on its website.

Earlier, the Companies Act 2013 had restricted corporate donations to 7.5 per cent of the donor company's average net profits over the preceding three years. This ceiling was removed by the Finance Act 2017, permitting unlimited corporate contributions. In its February 2024 judgment the Supreme Court held such unlimited corporate funding to be violative of Article 14 and restored the earlier 7.5 per cent cap.

Criminalisation of Politics

The growing role of money power and muscle power is reflected in the fact that, as per the 2024 election results, 46 per cent of newly elected MPs face pending criminal cases. The induction of law-breakers into the legislature dilutes the political will to fight corruption, encourages the politicisation of crime, demoralises the bureaucracy and hampers day-to-day administration.

• A 1999 PIL filed by the ADR led to the 2003 Supreme Court judgment making it mandatory for candidates to declare their criminal record, educational qualifications, assets and liabilities, and sources of income, along with those of their family members.
• Under Section 8(3) of the Representation of the People Act, conviction for an offence carrying a sentence of two years or more attracts disqualification for six years.
• Fast-track courts are needed for cases against sitting legislators, since at present around 250 criminal cases are pending against elected MPs.
• A 2017 PIL sought the setting up of fast-track courts to dispose of serious cases against sitting MPs and MLAs, so that judicial delay does not defeat the objective of cleansing politics.

Paid News and Fake News

The Press Council of India defines paid news as coverage in print media during the election period for which vested interests have paid in cash or kind. Although paid news is not presently an electoral malpractice under the RPI Act, both the ECI and the Law Commission have recommended that it be declared an electoral offence punishable by a two-year jail term. More than two hundred instances of paid news have been flagged by the Commission in the last decade.

To check this menace, the ECI, in collaboration with the Press Council, appoints District Media Observers to identify instances of paid news, and media organisations are expected to carry a clear declaration that their election coverage has not been paid for. The ECI also appoints Social Media Observers, working with social media companies, to detect and promptly counter the spread of fake news aimed at manipulating voters.

Opinion Polls and Exit Polls

An opinion poll gauges the mood of the electorate before ballots are cast, while an exit poll records voter views immediately after voting has closed. Following allegations of bias in 1997 and 2004, the ECI banned exit polls in consultation with political parties. When the Commission attempted in 2004 to extend the ban to opinion polls, media organisations including The Hindu filed a PIL in the Supreme Court, arguing that a blanket ban violated press freedom under Article 19. As a result, the ECI now only issues advisories requiring media houses to publish, along with poll findings, a note on methodology covering the sample size, questionnaire design, demographic composition and representativeness of the survey, so that readers can judge its reliability. In India, restrictions of two days to a month on publishing opinion polls before elections would require a consensus among all stakeholders, as is the practice in around sixteen European countries.

EVMs and VVPATs

The introduction of Electronic Voting Machines with Voter Verifiable Paper Audit Trail has transformed Indian elections by substantially reducing malpractices such as booth capturing, rigging and ballot stuffing. EVMs are fast, cannot connect to any communication network such as Bluetooth, Wi-Fi or the internet, and use one-time programmable chips. Candidate names appear on the machine in alphabetical order rather than by party. Given these safeguards, reverting to paper ballots would be a regressive step; while constructive criticism is welcome, uninformed attacks on the machines can erode public faith in the electoral process.

Model Code of Conduct

The Model Code of Conduct, adopted in 1967 with the consensus of all political parties, ensures a level playing field during elections. Once election dates are announced, the MCC prohibits the announcement of new schemes, transfers and fresh appointments, and bars hate speech and personal attacks. Although the MCC lacks statutory sanctions, the ECI can de-register parties for violations, though the absence of legal backing limits the use of this power. Some argue that the MCC should be given legal force, while others contend that its moral authority before the public is itself a deterrent and that legalisation would only invite litigation and delay. There is also a plea to vest the ECI with contempt powers, though even the judiciary exercises such powers sparingly.

Contesting from Two Constituencies

The practice of candidates contesting from two constituencies is criticised because it negates the voice of the electorate, leaves voters uncertain whether the winner will retain his seat, and imposes avoidable expenditure on the ECI for a by-election.

CAG

The Comptroller and Auditor General of India is a constitutional authority created under Article 148 of the Constitution to audit government finances and ensure transparency and accountability in the use of public money. It scrutinises the accounts of the Union and State governments as well as autonomous bodies and institutions funded from public resources.

Constitutional Position and Mandate

Article 149 specifies the duties and powers of the CAG. In essence, the CAG audits all receipts and expenditure of the Government of India and of each State, audits the accounts of any other authority or body as provided by law, and Parliament may enlarge the CAG's duties and powers through legislation. The CAG's reports supply the essential material for legislative control over public expenditure and help ensure that government spending is lawful, efficient and effective. The Constitution protects the independence and impartiality of the office by regulating the CAG's appointment, conditions of service and removal.

In the Constituent Assembly, Dr. B.R. Ambedkar described the CAG as probably the most important officer in the Constitution, a guardian of the public purse who ensures that Parliament-appropriated expenditure is not exceeded or diverted. In fact, Ambedkar went so far as to argue that the CAG needed even greater independence than the judiciary, remarking that while the Constitution had secured the independence of the Supreme Court, it had not given the Auditor-General the same protection.

Appointment and the Debate on Independence

Under Articles 148 to 151, the CAG is appointed by the President on the advice of the Prime Minister and the Council of Ministers, with no role for the legislature in the selection. Because the CAG's findings can embarrass the government of the day, critics fear the executive may pick a pliable candidate or one with a conflict of interest. The appointment of Shashikant Sharma as CAG in 2013 was questioned because his earlier stint in the defence ministry supervising procurement could have made him soft in auditing defence acquisitions.

The Second Administrative Reforms Commission has recommended a bipartisan multi-member selection body for the CAG with a role for the opposition, for instance a committee chaired by the Prime Minister and comprising the Leader of the Opposition and the Law Minister. Amitabh Mukhopadhyay, writing on financial accountability in governance, has argued that the Public Accounts Committee should also be consulted in the appointment of the CAG.

Functions: The Three Types of Audit

• Compliance audits verify that government departments and agencies act in accordance with applicable laws, regulations and policies, and that financial and administrative actions follow established rules and procedures.
• Financial audits examine the accounts and financial statements of government entities to judge their accuracy and fairness and to offer an opinion on whether the statements present a true and fair view of the entity's financial position.
• Performance audits evaluate the economy, efficiency and effectiveness of government programmes, examining whether public resources are being used optimally and whether desired outcomes are actually achieved.

Historically, Supreme Audit Institutions in the developing world have concentrated on the relatively low-key compliance and financial audits, whereas mature democracies devote the greater part of their time and resources to performance audits.

Challenges before the CAG

The first major challenge is coping with criticism of its performance audits, especially where findings are unfavourable to government policy. During the UPA-2 regime, the CAG's reports on the 2G spectrum allocation and coal block allocation alleged huge revenue loss to the state and undue benefits to private players, triggering intense political controversy.

The second challenge concerns jurisdiction over private companies operating on behalf of the state, for instance under public-private partnership or revenue-sharing arrangements. In Association of Unified Telecom Service Providers v. Union of India (2014), the Supreme Court clarified that the CAG may audit such private entities only where the government directs it to do so. In 2014 the Delhi government asked the CAG to audit private power DISCOMs, and the CAG's 2016 draft report flagged potential under-reporting of profits by these companies to the tune of about Rs 8,000 crore.

The third challenge is the quality of CAG reports. In 2012 the CAG voluntarily submitted to a peer review by INTOSAI, the international body of Supreme Audit Institutions, which assessed its Audit Quality Management Framework (AQMF) and performance audit function by examining thirty-five performance audits from FY 2010-11. The review made ten recommendations: communicate the AQMF to staff; update audit standards and guidelines to reflect global best practice; strengthen training for performance audit skills; frame clear, achievable audit objectives, criteria and test programmes; introduce a formal policy to manage conflicts of interest; seek and publish responses from audited entities; include third parties in audits for fairness; strengthen evidence validation techniques and documentation; improve the quality and clarity of reports; and introduce annual reviews with shared lessons for continuous improvement. Notwithstanding these shortcomings, INTOSAI continues to treat CAG reports as an invaluable and reliable source of information, and the Public Accounts Committee has urged peer reviews once every three years to monitor improvement.

Delay in Tabling Reports

Ruling governments have often delayed the tabling of CAG reports and the PAC's findings, since these can be politically embarrassing. Such delay, however, deprives the legislature and the public of a credible evidence base for holding the executive accountable. The Second ARC and the PAC have repeatedly pressed for a time-bound procedure under which CAG reports should be placed before Parliament preferably within a year.

Finance Commission

The Finance Commission is a constitutional body established under Article 280 to recommend the distribution of tax revenues between the Union and the States. Its task is central to fiscal federalism, since it seeks to correct disparities in the fiscal capacity of different states and preserve fiscal balance between the two levels of government.

Role and Rationale

India's constitutional design deliberately gives the Union the broad-based, nation-wide taxes, creating a common economic space and avoiding internal fiscal barriers, while assigning to the States the responsibility for welfare functions such as health, education, agriculture, police, local government and public services. Since states are closer to the people they are expected to respond to local needs, yet their own revenue sources are often inadequate for these responsibilities. This vertical mismatch between revenue powers and expenditure obligations makes devolution of a share of Union taxes to the states unavoidable, and the Finance Commission supplies the principles and formula so that transfers are not arbitrary.

The Commission also addresses horizontal imbalances. Indian states differ sharply in history, geography, income levels and administrative capacity; some can raise revenue more readily, while others have large expenditure needs but weak revenue bases. By using criteria such as income distance, population, area, forest cover and demographic performance, the Finance Commission seeks to reduce these disparities and ensure a reasonable equality of public services across states, thereby promoting balanced regional development and national integration. Its continuing existence also allows the devolution system to evolve with changes in the economy, demography, urbanisation, environmental challenges and fiscal needs, keeping Indian fiscal federalism both flexible and constitutionally guided.

Three Heads of Recommendation

• Vertical devolution decides the share of the divisible pool of Union taxes that goes to all the states together; for instance, the Sixteenth Finance Commission recommended 41 per cent for states.
• Horizontal devolution determines how that common share is divided among the states, with states such as Uttar Pradesh, Bihar, Maharashtra and Tamil Nadu receiving different amounts according to criteria like population, income distance, area, forest cover and contribution to GDP.
• Grants-in-aid are additional transfers from the Consolidated Fund of India under Article 275 for specific needs, including revenue deficit grants, local body grants, disaster management grants, sector-specific and state-specific grants.

The Commission is further charged with recommending measures to augment the Consolidated Fund of a state so as to supplement the resources of panchayats and municipalities, linking the Union Finance Commission to fiscal decentralisation. The President may also refer any other matter to the Commission in the interest of sound finance. Although the Commission's recommendations are advisory in nature, they carry great moral and institutional weight because the body is constitutional and expected to act quasi-judicially. Dr. P.V. Rajamannar, Chairman of the Fourth Finance Commission, argued that the government should not reject a Finance Commission's recommendations except for the most compelling reasons.

The Sixteenth Finance Commission

Constituted with Dr. Arvind Panagariya as Chairman for the award period 2026-27 to 2030-31, the Sixteenth Finance Commission was asked to recommend on vertical devolution, horizontal devolution, grants-in-aid, local body grants and disaster management financing.

Its most important recommendation is that the states' share of the divisible pool of Union taxes stay at 41 per cent, continuing the position adopted by the Fifteenth Finance Commission. The divisible pool is the shareable part of Union tax revenue after excluding cesses, surcharges, collection costs and other non-shareable components. The Commission also urged the Union to annually disclose the net proceeds certified by the CAG under Article 279, since states have long complained about lack of clarity over the actual divisible pool; periodic disclosure of CAG-certified data can reduce mistrust between the Union and the states.

Horizontal Devolution Criteria of the 16th FC

The Commission distributed the states' 41 per cent share among the 28 states using six criteria:

Income distance (42.5 per cent weight): This measures the gap between a state's per capita GSDP and a benchmark fixed by the Commission using the average per capita GSDP of the top three large states. Income distance equals the benchmark minus the state's per capita GSDP; the poorer the state, the greater its distance and the higher its share.

Population (17.5 per cent weight): The Commission used the 2011 population and raised the weight from 15 per cent to 17.5 per cent.

Demographic performance: States with lower population growth are rewarded, responding to the long-standing grievance of southern states that they should not be penalised for successfully controlling population. At the same time, the report warns that India risks growing old before it grows rich, and suggests that such demographic rewards may need to be phased out as the policy concern shifts from population control to labour-force sustainability.

Area (10 per cent weight): The weight for area was reduced from 15 per cent to 10 per cent.

Forest and ecology (10 per cent weight): Forest cover is retained at 10 per cent but refined to include open forest along with moderately dense and very dense forest. Forest-rich states face a developmental constraint because conservation limits industrialisation, mining, infrastructure and urbanisation; weighting forest cover compensates them for the ecological services they provide to the country.

Contribution to GDP: The Fifteenth Finance Commission's separate 2.5 per cent weight for tax and fiscal efforts was dropped. In its place the Sixteenth Finance Commission introduced contribution to GDP as a broader proxy for efficiency, economic performance and fiscal management, thereby rewarding states that contribute more to national economic growth.

Local Body Grants

The Commission recommends total local body grants of Rs 7,91,493 crore for 2026-31, with Rs 4,35,236 crore for rural local bodies and Rs 3,56,257 crore for urban local bodies. Both rural and urban grants are split 80:20 between basic and performance components. For urban bodies, two additional components are provided: a special infrastructure component of Rs 56,100 crore focused on wastewater management in cities with populations between 10 lakh and 40 lakh, and an urbanisation premium of Rs 10,000 crore.

The urbanisation premium is designed to encourage states to merge peri-urban villages into nearby urban local bodies and to formulate a Rural to Urban Transition Policy. This addresses a major governance problem whereby many settlements are urban in reality but rural in legal status, leaving them with weak planning, poor infrastructure and inadequate municipal services. Entry-level conditions for local body grants include the proper constitution of local bodies, publication of audited and provisional accounts, and timely constitution of State Finance Commissions. In a more controversial recommendation, the Union Finance Commission proposes removing the constitutional requirement that its local body recommendations be based on those of the State Finance Commissions, whose reports are frequently delayed, inconsistent and unsuited to a common national formula.

Revenue Deficit Grants and Fiscal Discipline

The Commission's strongest recommendation is the discontinuation of revenue deficit grants, the support given to states whose revenue expenditure after devolution exceeds revenue receipts. It argues that repeated revenue deficit grants create perverse incentives and that ending them will push states to improve their own revenue, cut wasteful expenditure and avoid populist spending.

The Commission proposes a disaster management corpus of Rs 2,04,401 crore for State Disaster Response Funds and State Disaster Mitigation Funds, with the Union contributing roughly Rs 1,55,916 crore under a 90:10 sharing pattern for North-Eastern and Himalayan states and 75:25 for other states. It recommends that the Union reduce its fiscal deficit to 3.5 per cent of GDP by 2030-31, while keeping the states' fiscal deficit cap at 3 per cent of GSDP.

Off-Budget Borrowings and DISCOMs

The Commission is sharply critical of off-budget borrowings, which conceal the true fiscal position of governments, weaken legislative oversight and create future liabilities. It also pays close attention to electricity distribution companies, noting that DISCOM losses repeatedly damage state finances: populist power subsidies, low tariffs, delayed subsidy payments and weak collection generate debt that states are eventually forced to take over, raising interest burdens and crowding out development spending. The Commission recommends actively promoting privatisation of DISCOMs and allowing states to create a Special Purpose Vehicle to warehouse accumulated debt, making the DISCOMs more attractive to private investors. It further suggests that repayment or prepayment of such debt be made eligible for assistance under the Special Assistance to States for Capital Investment scheme.

Subsidies and State Public Sector Enterprises

While accepting that subsidies and transfers have a legitimate place in a welfare state, the Commission warns that many schemes, especially unconditional cash transfers, have large and untargeted beneficiary bases that impose a heavy fiscal burden and crowd out capital, health and education expenditure. It therefore recommends rationalisation of subsidies, clear exclusion criteria, rigorous review and sunset clauses, and insists that subsidies should not be financed through off-budget borrowings, guarantees or assignment of revenues.

The Commission also highlights the sorry state of State Public Sector Enterprises, many of which suffer persistent losses, inactivity and delayed accounts. As on 31 March 2023, 7,162 accounts of 1,237 SPSEs were in arrears, with at least 441 SPSEs having accounts pending for more than three years, leaving public money outside proper legislative and audit scrutiny. It recommends that states adopt a State-level public sector enterprise policy on the lines of the Union's New Public Sector Enterprise Policy and review inactive and underperforming enterprises for closure, privatisation or continuation.

UPSC

Genesis and Constitutional Status

The Royal Commission on the Superior Civil Services in India, chaired by Lord Lee, recommended the creation of a Public Service Commission, and accordingly the first Public Service Commission was established on 1 October 1926. Its advisory character and limited scope drew sustained criticism from the leaders of the freedom movement, and the Government of India Act 1935 consequently set up a Federal Public Service Commission. After independence this body became the Union Public Service Commission and was given constitutional status when the Constitution came into force on 26 January 1950.

The UPSC is the central recruiting agency of India and derives its constitutional position from Articles 315 to 323. The Constitution envisages it as the watchdog of the merit system. It consists of a Chairman and other members appointed by the President; the Constitution does not fix the strength of the Commission, leaving it to the President's discretion, and in practice it has nine or eleven members including the Chairman. No formal qualifications are prescribed for membership, except that at least half of the members should have held office under the Government of India or a state for at least ten years. A member may be removed by the President for misbehaviour, though such a decision is open to challenge in court.

Functions

The UPSC is responsible for making recruitment through competitive examinations and interviews for the all-India services, central services and the public services of the centrally administered territories. It advises on the suitability of officers for appointment by promotion or transfer on deputation; advises government on all matters relating to recruitment methods; frames and amends recruitment rules; handles disciplinary cases relating to the civil services; settles miscellaneous matters such as extraordinary pensions and reimbursement of legal expenses; advises the government on any matter referred to it by the President or at the request of a Governor; and may, with the President's approval, serve all or any of the recruitment needs of a state. Its recommendations, however, are not binding on the government.

Methods of Recruitment

Recruitment through the Commission is effected by direct recruitment, promotion, deputation or absorption, and a composite method combining deputation and promotion. Direct recruitment is conducted either through competitive examination or by selection. The list of examinations held regularly includes the Civil Services Examination, Engineering Services, Combined Medical Services, Indian Forest Service, Combined Geo-Scientist (Preliminary), Indian Economic Service and Indian Statistical Service, Combined Defence Services, the National Defence Academy and Naval Academy Examination, the Central Armed Police Forces (Assistant Commandants) Examination, and several departmental competitive examinations. The Commission also makes direct recruitment by selection to all Group A posts and selected Group B posts in the Central Government. Short-listed candidates are called for interview, sometimes after a recruitment test, and once interviews conclude the Commission's recommendations are conveyed to the concerned ministry or department. The Commission further handles promotions from state services to the all-India services through a selection committee and the selection of non-state civil service officers for appointment to the IAS.

Relationship with the CVC

The emergence of the Central Vigilance Commission in 1964 affected the UPSC's role in disciplinary matters, since both bodies may be consulted by the government in disciplinary proceedings against civil servants. Where their advice conflicts, the UPSC, being a constitutional body, takes precedence over the CVC, which is merely statutory.

Lateral Entry Debate

Lateral entry refers to recruiting professionals from outside the civil services, typically from the private sector, for mid-level and senior positions in government on contract. The scheme has faced strong opposition on several grounds: newcomers may be unfamiliar with complex bureaucratic procedures; short tenures of three to five years may not allow long-term projects to be seen through; importing outsiders may suggest a lack of competence within the established services and demotivate career civil servants; ensuring a fair and transparent selection process is difficult, raising fears of political favouritism; and lateral entrants with strong domain expertise may lack the broad administrative experience of the traditional path. Since a comprehensive policy framework covering selection, role clarity and career progression is still evolving, the scheme needs careful design. Where lateral recruitment is scaled up, provision should be made for the training of such personnel, or an examination ensuring the required qualifications, or recruitment as advisors on a temporary basis. For occasional needs, consultancy arrangements with private firms may serve, while for specialised posts current officers could be trained before promotion.

NCSC & NCST

Evolution of the Commissions

Under the original Constitution, Article 338 provided for a Special Officer for Scheduled Castes and Scheduled Tribes to protect their interests and monitor their progress. Finding this institutional arrangement inadequate, the Union government brought the 65th Constitutional Amendment Act in 1988, and in 1990 the National Commission for Scheduled Castes and Scheduled Tribes was established as a constitutionally recognised body. Later, the 89th Constitutional Amendment Act of 2003 split this single commission into two separate bodies: the National Commission for Scheduled Castes, provided for by Article 338, and the National Commission for Scheduled Tribes, provided for by the newly inserted Article 338A. Each commission consists of a Chairperson, a Vice-Chairperson and three full-time members, including one woman member.

Functions of the NCSC and NCST

Under clauses (5) of Articles 338 and 338A, the two commissions discharge parallel functions for their respective communities: they investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes or Scheduled Tribes under the Constitution, any law or any government order, and evaluate the working of those safeguards; they inquire into specific complaints concerning the deprivation of rights and safeguards of these communities; they participate in and advise on the planning process for their socio-economic development and evaluate the progress of such development under the Union and the states; they present annual and other reports to the President on the working of the safeguards; they make recommendations in those reports for effective implementation of the safeguards and for measures of protection, welfare and socio-economic development; and they discharge such other functions relating to the protection, welfare, development and advancement of these communities as the President may specify by rules.

The SC/ST (Prevention of Atrocities) Act, 1989

The Act was enacted to prohibit the commission of offences against members of the Scheduled Castes and Scheduled Tribes, to establish special courts for such offences and to provide for the rehabilitation of victims. Atrocities under the Act include forcing a person to eat or drink something offensive, parading an individual naked, sexually assaulting a woman, and forcing a person to leave his house or village. These acts amount to atrocities only when committed by a non-SC/ST person against an SC/ST individual. Offences under the Act are cognisable, meaning the police need not obtain a warrant to arrest, and they are also non-bailable, so bail may be denied. Punishments range from a minimum of six months to five years, and public officials who neglect to implement the Act may face punitive action including imprisonment of up to one year. The Act additionally requires the state to ensure rehabilitation of victims.

The Misuse Debate and the 2018 Controversy

Although the Act is a powerful instrument against caste-based discrimination, it has faced allegations of misuse: false cases are sometimes filed to settle personal disputes, threaten opponents or extort money; trivial arguments are misconstrued as caste-based offences, overburdening the judicial system and diverting resources from genuine cases; and the provision for mandatory arrest can be misused to harass government officials, discouraging them from performing their duties. In March 2018 the Supreme Court introduced safeguards against misuse, including a preliminary inquiry before arrest and the availability of anticipatory bail in certain situations. The judgment provoked protests from Dalit and Adivasi communities, who saw it as weakening their protection, and Parliament responded in August 2018 with a law overturning the Court's ruling and restoring the original provisions of the Act. The Supreme Court subsequently recognised that its 2018 judgment had encroached on the legislative domain and effectively reversed its own decision, upholding the Act's provisions.

Nehru's Panchsheel for Tribals

Jawaharlal Nehru formulated five principles, known as Panchsheel, for dealing with tribal communities, first set out in his article 'The Right of Tribal People' in the Indian Journal of Social Work. The principles hold that people should develop along the lines of their own genius and alien values should not be imposed; tribal rights in land and forest should be respected; tribals should be trained for administration and development work; tribal areas should not be over-administered or overwhelmed with a multiplicity of schemes; and results should be judged not by statistics or money spent but by the human character that is evolved.

Constitutional and Legal Protections for SCs and STs

The Constitution and statutes afford a host of protections to the Scheduled Castes and Scheduled Tribes. Article 15(4) permits the state to make special provisions for the advancement of socially and educationally backward classes and of SCs and STs; Article 23 prohibits traffic in human beings and forced labour; Article 24 bars the employment of children below fourteen in factories or hazardous work; Article 29 protects minorities' right to conserve their language, script and culture and bars denial of admission into state-maintained or state-aided educational institutions; Article 46 requires the state to promote the educational and economic interests of SCs, STs and other weaker sections; Article 330 reserves seats for SCs and STs in the House of the People; Article 334 provides for reservation of seats and special representation, initially for ten years and subsequently extended; Article 350 entitles every person to submit representations in any of the languages used in the Union or the state; Article 164(1) deals with the appointment of the Chief Minister and other Ministers; Article 244 provides for the administration of scheduled and tribal areas; the Fifth Schedule contains provisions for scheduled areas and scheduled tribes in states other than Assam, Meghalaya, Tripura and Mizoram, while the Sixth Schedule covers tribal areas in those four states; Article 337 contains special provisions regarding educational grants for the Anglo-Indian community; and Article 371 and its various clauses make special provisions for states including Maharashtra, Gujarat, Nagaland, Assam, Manipur, Andhra Pradesh, Sikkim, Mizoram, Arunachal Pradesh, Goa and Karnataka.

Among the key statutes are the Protection of Civil Rights Act; the Bonded Labour System (Abolition) Act 1976; the Child Labour (Prohibition and Regulation) Act; the Panchayats (Extension to the Scheduled Areas) Act 1996; the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006; and the Forest Conservation Act.

PESA Act, 1996

PESA was enacted to extend the panchayati raj system to scheduled areas under the Fifth Schedule, a step made necessary by the 73rd and 74th Constitutional Amendments. State legislation under PESA must conform to the customary law, social and religious practices and customary modes of dispute resolution of tribal communities. The Act provides for hamlet-level villages and gram sabhas, making every gram sabha competent to safeguard and preserve the customs, cultural identity, community resources and customary dispute-resolution mechanisms of the people. It also empowers the gram sabha to approve plans and projects and the selection of beneficiaries, and vests ownership of minor forest produce in the gram sabha.

Forest Rights Act, 2006

The rights under Section 3 of the Forest Rights Act can be summarised under several heads. Land title rights allow families living in the area for seventy-five years or three generations to receive up to four hectares, though the provision does not apply to migrant tribes, and ownership is limited to land actually cultivated as on 13 December 2005, with no new land to be brought under cultivation from forest for three generations. Use rights cover minor forest produce, grazing routes and pastoral areas. Relief and development rights entitle communities to relief and rehabilitation in cases of illegal eviction or past displacement and to basic amenities, subject to restrictions needed for forest and wildlife protection. Forest management rights allow tribes to manage sacred groves such as the Niyamgiri hills. However, the working of the Act has attracted criticism: exclusion errors arise because of distress migration; individual rights are secured while community rights are denied by classifying land as degraded and paving the way for exploitation of jal, jungle, zameen (water, forest, land); there are denials of development rights, rehabilitation programmes and delays in relief; and it has been suggested that the powers of the gram sabha in land acquisition should be increased, mining rights should be given to tribal cooperatives, acquired but unused land should be used for tribal rehabilitation, no new provisions should be made for big dams, and a judicial commission should be set up to inquire into Naxal-related offences.

NCW & NHRC

The Towards Equality Report and the NCW

In December 1974, the Ministry of Education and Social Welfare released 'Towards Equality', the report of the Committee on the Status of Women in India. The report found that large masses of Indian women had remained untouched by the constitutional guarantees and laws enacted since independence. It is regarded as laying the foundation of the women's movement in independent India, exposing the discriminatory socio-cultural, political and economic processes at work, and it reopened the women's question before government, academia and women's organisations. By analysing development and democracy from a gender perspective, it prompted women-sensitive policy-making and stressed the education of the girl child.

The problems facing women, who are said to suffer from the womb to the tomb, span cognitive (identity), social (gender stereotypes), economic (dependency), political (representation) and psychological dimensions. The Constitution seeks to address them through Article 14 (right to equality), Articles 15 and 16 (prohibition of discrimination on grounds of sex), Article 39 (equal pay for equal work), Article 41 (right to work, education and public assistance) and Article 47 (duty of the state to raise the level of public health).

Constitution, Composition and Powers of the NCW

Because women are a most vulnerable section of society, neither a minority nor a backward class, yet heavily disadvantaged in a patriarchal order, the National Commission for Women was constituted under the National Commission for Women Act 1990 to assist the legislative and judicial processes in empowering women. Under Section 3 of the Act the Commission consists of a Chairperson, five members drawn from diverse fields, and a Member Secretary with expertise in management, organisational structure or social movements, or drawn from the Union civil services. All members are nominated by the President on the recommendation of the Council of Ministers, and one member each must come from the Scheduled Castes and Scheduled Tribes.

The Commission reviews the development of women under the Union and the states; studies the causes of the deprived status of women and suggests remedial action; takes up cases of violation of the constitutional provisions protecting women; participates in planning for the socio-economic development of women; and may take suo moto notice of matters relating to the deprived status of women. While inquiring, it enjoys the powers of a civil court, including summoning and enforcing the attendance of persons, requiring discovery and production of documents, receiving evidence on affidavit and requisitioning public records. Section 10(1) of the Act sets out a fourteen-point directive which can be grouped under four heads: safeguarding the rights of women; studying women's problems and recommending solutions; evaluating the status of Indian women; and funding and fighting cases concerning violation of women's rights.

Criticisms of the NCW

The National Policy for Women 2001 called for advancement, development and empowerment of women, and the Commission's own charter speaks of empowerment, yet in practice the Commission is largely confined to protection. It departs from the policy goal of changing societal attitudes and securing support for women's upliftment because it misses a collaborative and synergistic approach, for instance by keeping its membership exclusively female. Its dependence on the government for funds and functionaries inhibits criticism of the government, as seen in its muted response to grievances concerning AFSPA in the North East. Its politicised character was evident in its pro-government stance during the Gujarat riots, and critics hold that it has become a body for distributing patronage, caught in contradictions. Its scope often narrows to the inclination of its chairperson: while the Commission has urged liberal social attitudes, its chairperson at one point counselled Indian women not to imitate the West over the public molestation of a young woman in Guwahati. In 2021, after the gang-rape and murder of a woman in Badaun, Uttar Pradesh, an NCW member suggested that part of the blame lay with the victim, prompting outrage over the competence and sensitivity of its members. Two centres of power, the Chairperson and the Member Secretary, frequently conflict, with bureaucracy retaining greater influence; a similar tension marks the relationship between the NCW and the Ministry of Women and Child Development, notably over sexual violence in Gujarat and the Mangalore pub incident. According to Sadhana Arya, the Commission is limited by design by the government but its members have chosen to limit themselves further.

Nevertheless, the Commission has also recorded achievements. It secured the release of women allegedly gang-raped by BSF personnel in early 2002. Its legal cell has recommended amendments to several laws, including the Hindu Marriage Act, the Medical Termination of Pregnancy Act and the provision in the Indian Penal Code making adultery a criminal offence, proposing that it be made a civil wrong. It also proposed the Domestic Violence Against Women Bill, which was eventually enacted. Reformers urge that the Commission should not remain an all-women body; that its composition and funding should be independent of the government for it to function as a genuine watchdog; that its recommendations should be made binding; that it should hold consultations with NGOs and civil society; and that its Chairperson should be a person of high repute, free from political interference.

The NHRC: Genesis and Definition of Human Rights

Classical liberal theory, as in Locke, saw human rights as pre-existing natural rights to life, liberty and property, but this definition has been criticised as too narrow. In 1993 India enacted the Protection of Human Rights Act, which defines human rights more broadly to include not only rights enforceable under domestic law, such as fundamental rights, but also rights recognised under international conventions to which India is a party and which need not yet have been domesticated into law. In accordance with the Paris Principles, the Act envisaged a body that would advise government on human rights policy, monitor allegations of state violations of human rights, and be independent, autonomous and pluralistic in composition. The National Human Rights Commission was accordingly set up in 1993.

Human Rights Concerns in India

In 2016, 3.38 lakh cases of violence against women were registered, of which 1.1 lakh involved violence by husbands and relatives, revealing the scale of domestic violence. The Justice Verma Committee recommended in 2012 that marital rape be criminalised, but the offence remains unpunished. In the same year, 1.06 lakh cases of violence against children were reported. India amended its labour laws in 2016 to raise the minimum working age from fourteen to eighteen, though loopholes persist with respect to family enterprises. NHRC records for 2021-22 show 2,152 deaths in judicial custody and 155 deaths in police custody, pointing to excessive force and poor prison conditions. India has also yet to ratify the UN Convention against Torture, which it signed in 1997, and has not enacted a law criminalising torture. Allegations of extra-judicial killings and fake encounters have surfaced repeatedly in many states. State policies have at times violated the rights of indigenous communities: Medha Patkar, for instance, argued that the completion of the Sardar Sarovar dam in 2017 displaced 40,000 families, mostly tribal, without full compensation.

On refugees, India has a relatively open policy that has admitted Tibetan, Chakma, Afghan, Pakistani and Sri Lankan refugees, but reports in 2017 and 2018 suggested that the Home Ministry was considering deporting 40,000 Rohingyas on security grounds. Since India has not signed the 1951 UN Refugee Convention, it has avoided more binding legal obligations towards refugees.

Functions and Powers of the NHRC

The NHRC regularly inspects prisons and other places of confinement; gives its opinion on key legislation and its human rights implications; undertakes human rights education; and proactively inquires, including suo moto, into allegations of human rights violations. Its authority, however, suffers from limitations. It is financially and administratively dependent on the Law Ministry, raising questions about its autonomy. It cannot inquire into any matter more than one year after the incident, a period activists consider too short when victims live under immediate threat. Its advice is merely recommendatory, so state agencies can disregard its reports; it has been suggested that the executive should be required to submit an action-taken report within a year. Overlapping jurisdiction with other agencies can also leave victims without effective redress.

Proposed amendments would widen the pool of candidates for the post of NHRC chairperson from former Chief Justices of India to former judges of the Supreme Court, and at the state level from former Chief Justices of High Courts to all former High Court judges. The term of the NHRC chairperson would be reduced from five years to three, in line with other commissions, and the central government would be empowered to assign to State Human Rights Commissions the functions relating to Union Territories, with Delhi dealt with by the NHRC itself.

The Commission has recorded notable interventions: in 1998 it recommended against the deportation of Chakma refugees as a violation of their right to life, forcing the state to abandon the plan; its opposition to the sweeping policing powers under TADA and POTA contributed to the Supreme Court striking down those laws; and after the 2002 Gujarat riots it recommended transferring riot cases out of Gujarat, finding that fear and intimidation could deny victims a fair trial.

NCM & NCBC

The Question of Minorities

The UN Sub-Commission on Prevention of Discrimination and Protection of Minorities defines minorities as non-dominant groups in a population that wish to preserve their ethnic, religious or linguistic traditions, which differ from those of the rest of the population. India has notified Muslims, Sikhs, Christians, Parsis, Buddhists and Jains as minorities, although the country has no settled statutory definition or policy of its own. Migration, conquest, imperialism, refugee movements and, more recently, globalisation have created minorities in almost every country. Minorities have at times suffered dreadful persecution, as with the Jews under Hitler, the Rohingyas in Myanmar and the Uyghur Muslims in China, so the subject engages not only national governments but humanity at large.

In a UN report on freedom of religious belief in India, the Pakistani scholar Asma Jahangir praised India's legal system, its constitutional protections for minorities and its commitment to secularism, even as she flagged the poor implementation of laws at the state level and attacks by majority fundamentalists on Christian minorities.

Two broad approaches to diversity can be distinguished: homogenisation or assimilation, which pursues unity through uniformity and is reflected in the melting-pot model; and multiculturalism, understood as unity in diversity or the salad-bowl model, which recognises special rights for minorities. The Indian Constitution recognised the special rights of minorities at its very framing, and the government has since established a statutory commission for minorities, constituted committees such as the Sachar Committee, and adopted plans of action such as the Prime Minister's 15-Point Programme of 2006.

The National Commission for Minorities

The idea of an NCM was conceived by the Ministry of Home Affairs in 1978, driven by the MHA's perception of a feeling of insecurity and inequality among minority communities. The Commission is a multi-member body consisting of a Chairperson, a Vice-Chairperson and five members, all drawn from minority communities and nominated by the government from among persons of eminence, ability and integrity. It was constituted under and derives its powers from the NCM Act 1992. Historical precursors include the first minorities commission formed in Uttar Pradesh in 1960 under the Congress government of Dr. Sampurnanand, a multi-member minorities commission in Bihar in 1971, and a state minorities high-powered committee in Gujarat in 1977.

The Commission evaluates the progress and development of minorities under the Union and the states; observes the working of the constitutional safeguards and of safeguards in laws enacted by Parliament and state legislatures; attends to specific complaints concerning the deprivation of rights and safeguards of minorities; conducts studies, research and analysis on the socio-economic and educational development of minorities; and considers any other matter referred to it by the central government. Like other commissions, it enjoys the powers of a civil court: summoning and examining persons on oath, requiring the discovery and production of documents, receiving evidence on affidavit and requisitioning records from any court or office.

The Sachar Committee Findings

The Sachar Committee on the socio-economic status of minorities, reporting in 2006, found that Muslims, who form roughly three-fourths of all minorities, lag far behind in sharing the fruits of development. Nearly 25 per cent of Muslim children in the 6-14 age group had never attended school or had dropped out. Only about 4 per cent of Muslims are graduates, and only one in twenty graduates holds a postgraduate degree. In the civil services, Muslims hold about 1.3 per cent of IFS posts, 3 per cent of IAS posts, 4 per cent of IPS posts and 4.5 per cent of posts in the Railways, revealing grossly disproportionate representation.

The Committee identified several reasons for this backwardness: Muslim communities tend to live in compact localities and prefer facilities close to home, especially for the girl child; they remain uncomfortable with and confined to madrasa-based education; their settlements are often unhygienic with poor living conditions and they lean towards self-employment because of this confinement; a psychological fear and alienation from the wider society inhibits integration, producing poor educational outcomes, lower employment opportunities and vulnerability in the unorganised sector; and they largely avoid the banking and insurance systems. The Committee suggested connecting the community with ICT and spreading awareness of banking facilities across the world.

Criticisms and Reform of the NCM

It is often recommended that the NCM should be given constitutional status on a par with the National Commissions for SCs, STs and OBCs; that it should be empowered not merely to monitor but to investigate the working of safeguards; that it should be able to inquire into complaints rather than merely look into them; and that consultation with the Commission should be made mandatory for the Union and state governments in matters of minority development, as it is in the case of the SC/ST Commissions. The government's response to its recommendations has been lukewarm. Like the NCW, the NCM is composed of nominated members, and its functioning therefore tracks the political identity of the day, often being reduced to a purely political role concerning the Muslim minority. The Commission has also collaborated with the Digital Empowerment Foundation to recommend a satellite support system to mainstream minority institutions and to emphasise e-governance for stronger connections between government and minorities and between minorities and the majority. Together with the same foundation, the NCM organised a conference that disapproved of the very word 'minority', arguing that it runs against the Constitution's philosophy that every person is a citizen without being majority or minority. In 1998 the NCM wrote to the Election Commission urging that terms such as vote bank, appeasement and concussion should not be used with reference to minorities in the forthcoming elections.

The National Commission for Backward Classes

The NCBC was originally constituted under the National Commission for Backward Classes Act 1993. It was given constitutional status by the Constitution (One Hundred and Second Amendment) Act 2018, which inserted Article 338B providing for a Commission for the socially and educationally backward classes. The Commission consists of a Chairperson, a Vice-Chairperson and three other members.

Under Article 338B, the functions of the NCBC mirror those of the NCSC and NCST: to investigate and monitor all matters relating to the safeguards provided for the socially and educationally backward classes under the Constitution, any law or any government order, and to evaluate the working of those safeguards; to inquire into specific complaints concerning the deprivation of rights and safeguards of these classes; to participate in and advise on the planning process for their socio-economic development and evaluate its progress under the Union and the states; to present annual and other reports to the President on the working of the safeguards; to recommend measures for the effective implementation of the safeguards and for the protection, welfare and socio-economic development of these classes; and to discharge such other functions as the President may specify by rules.