Indian Polity – Comptroller & Auditor General, Attorney General, Election Commission | IBPS PO Prelims & Mains Preparation - Bank Exams PDF Download

Union Public Service Commission (UPSC)

Historical Background

The first Public Service Commission in India was established on October 1, 1926. It was headed by Sir Ross Barker and had a limited advisory role. This was not enough for the independence movement leaders, who wanted a more powerful commission. In 1935, the Government of India Act established a Federal Public Service Commission with more powers. This commission was granted constitutional standing under the Indian Constitution on January 26, 1950.

Eligibility and tenure of Chairman & Members of the Union Public Service Commission

Appointment and term of office of the members of the Public Service Commission, as per Article 316 of the Constitution of India:

• The Chairman and other members of the Public Service Commission will be selected by the President.
• A member of a Public Service Commission shall hold office for a period of six years from the date of his appointment.
• The age limit for a member of a Union Commission is 65 years.

Criteria for Removal of Members of the Union Public Service Commission

• Article 317 of the Constitution outlines the process for the removal and suspension of a member of the Public Service Commission. According to this article, the President has the authority to remove the Chairman or any other member of the Commission from office on the grounds of misbehavior.
• However, this can only be done after an inquiry conducted by the Supreme Court, following the procedure specified in Article 145. The President must refer the matter to the Supreme Court for this inquiry to take place.
• Furthermore, Clause (2) of Article 317 allows the President to suspend the Chairman or any other member of the Commission.

Recruitment rules for the Union Public Service Commission

• Article 319 of the Constitution of India lays down certain restrictions regarding the employment of members of the Commission. According to this article, once they cease to be members of the Commission, they are prohibited from holding any office.
• Clause (a) of Article 319 states that the Chairman or any other member of the Commission cannot be subsequently employed by the Government of India or a State.
• Clause (b) of Article 319 specifies that the Chairman of a State Public Service Commission is eligible for appointment as the Chairman or any other member of the Union Public Service Commission or as the Chairman of any other State Public Service Commission. However, they are not eligible for any other employment with the Government of India or with the Government of a State.

Dr. Manoj Soni- UPSC Chairman 

Functions

• Conducting examinations for the recruitment of individuals to various services under the Union government.
• Providing advice to the President, although the President is not obligated to follow this advice, on matters related to the appointment, promotion, and transfer of civil servants from one service to another.
• Dealing with all disciplinary matters concerning individuals serving under the Union government.
• Handling matters related to the award of pensions and benefits for injuries sustained during service under the government.
• Ensuring the smooth functioning and uninterrupted administration of government services.

Union Public Service Commission - Landmark Cases

• The Supreme Court declared in State of Mysore v. R.V. Bidap that a member appointed as Chairman in the middle of a term begins a new six-year term, subject to the other requirements of the Constitution.
• The Supreme Court ruled in H.S. Bedi v. Patiala that Article 320(1) of the Constitution is advisory rather than mandatory and that any appointment made by the government without consulting the Commission is invalid.
• The Mysore High Court held in Kesava v. the State of Mysore that because the Commission is an advisory or consultative body to the Government, and because the Government is required to explain the reasons for not accepting the Commission's advice under Article 323, it is not open to the Commission to withhold any information requested by the Government.
• The Supreme Court concluded in Jatinder Kumar v. State of Punjab that the phrase "must be constituted" in Article 320(3) is to be understood as mandatory and that the Government's actions under any sub-clauses of clause (3) are null and unlawful in the absence of consultation.

Comptroller & Auditor General of India (CAG)

• Article 148 of the Indian Constitution establishes an independent office of the Comptroller and Auditor General of India (CAG).
• The President of India appoints the Comptroller and Auditor General by a warrant under his hand and seal.
• He is the head of the Indian Audit and Accounts Department and one of the foundations of India's democratic government system.
• Comptroller and Auditor General is the guardian of the public purse and oversees the whole financial system of the country at both the federal and state levels.
• His responsibility is to enforce the Indian Constitution and Parliamentary legislation governing financial management.

Appointment and Term

• The CAG is appointed by the President of India by a warrant under his hand and seal.
• Before taking over the office, the CAG makes and subscribed before the President an oath or affirmation
• Tenure: The CAG holds office for a period of six years or up to the age of 65 years, whichever is earlier.
• Resignation and Removal: He/she can resign any time from his office by addressing the resignation letter to the President and can also be removed by the President on the same grounds and in the same manner as a Judge of the Supreme Court.
• That is, he can be removed by the President on the basis of a resolution passed to the effect by both the Houses of Parliament with the special majority, either on the ground of proved misbehavior or incapacity.

Independence

To safeguard and ensure the independence of CAG, the Constitution has made the following provisions:

• Security of Tenure: He/she is provided with the security of tenure and can be removed by the president only in accordance with the procedure mentioned in the Constitution.
• That is, even though CAG is appointed by the President, he/she holds the office till the pleasure of the President.
• The CAG is not eligible for further office, either under the Government of India or of any state, after he/she ceases to hold the office.
• Salary and Allowance: The Parliament determines the salary and other service conditions of the CAG. His/her salary is equal to that of a judge of the Supreme Court.
• Neither the CAG’s salary nor the rights in respect of leave of absence, pension, or the age of retirement can be altered pointing to his/her disadvantage after the appointment.
• The administrative expenses including all salaries, allowances, and pensions of persons serving in the office of the CAG, are charged upon the Consolidated Fund of India, which means they are not subject to the vote of Parliament.
• Consultation: The conditions of service of persons serving in the Indian Audit and Accounts Department as well as the administrative powers of the CAG are prescribed by the President after consultation with the CAG.
• Also, CAG cannot be represented by any minister in both the houses of the Parliament and no minister can be called upon to take any responsibility for any actions done by the CAG.

Reports by CAG

• The Comptroller and Auditor General (CAG) submits three audit reports to the President, who in turn presents them to both Houses of Parliament. These reports include the audit report on appropriation accounts, audit report on financial accounts, and audit report on public undertakings.
• The appropriation accounts compare the actual expenditure with the expenditure authorized by Parliament through the Appropriation Act. On the other hand, the financial accounts present the annual receipts and disbursements of the Union government.
• The Public Accounts Committee reviews the CAG's reports and highlights its observations and findings to Parliament.

Functions

• The Comptroller and Auditor General (CAG) serves as the protector of public finances. His responsibilities include auditing the accounts of the Union and the States to ensure that no expenditure is made from the Consolidated Fund of India or the States without the approval of Parliament or the respective State Legislature.
• The CAG submits an audit report of the Union to the President, who then presents it before Parliament. Similarly, the audit reports of the States are submitted to the respective Governors, who lay them before the respective State Legislature.
• In essence, the CAG acts as the guardian and steward of public funds, ensuring their proper utilization and accountability.

Recent Issues

• Recently, one of the former CAG has said the Central Government has held back a report that he had submitted to the President of India, to end what he called “a nightmare of accounts that militates against good governance”. He submitted the report under article 150 of the Indian Constitution to the President in April 2020 and it is still not in the public domain.
• Audit Reports got delayed in the Parliamentary sessions of 2019 and 2020 which showed the inefficiency as well as lack of manpower in the office pf CAG.
• In January 2021, the CAG announced that the office would begin evaluating procurement and availability of drugs and paramedics, as well as review the vaccine distribution scheme for issues related to transparency. But no report has been yet released. Thus a meaningful and timely audit appears likely to be a chimerical dream.

Attorney General of India

Shri K.K. Venugopal, Attorney General of India The Attorney General (AG) holds the highest position among legal officials in the country and is a member of the Union Executive. The establishment of the office of the Attorney General for India is outlined in Article 76 of the Constitution. The Attorney General acts as the chief advocate representing the Union Government in the Supreme Court of India. The Union Executive comprises the President, Vice-President, Prime Minister, council of ministers, and the attorney general of India.

• The Attorney General is the country's first law enforcement officer. As the Indian government's principal legal advisor, he advises the union government on all legal matters.
• Article 76 of the Indian Constitution established the office of Attorney General.
• In addition, the Attorney General serves as the Union Government's primary legal representation before the Indian Supreme Court.
• The Attorney-General of India has the power to speak in the Houses of Parliament or any committee thereof, but he does not have the right to vote, even if he is not a member of the Cabinet (as in England).
• The Attorney General enjoys the same privileges and immunities as a member of parliament.
• Corresponding Office of Attorney general in the States is Advocate General (Article 165)

Appointment And Term

• The Attorney General is appointed by the president.
• He/she must be a person who is qualified to be appointed a judge of the Supreme Court.
• In other words, he/she must be a citizen of India and must have been a judge of some high court for five years or an advocate of some high court for ten years, or an eminent jurist, in the opinion of the president.
• The term of office of the Attorney General is not fixed by the Constitution.
• Further, the Constitution does not contain the procedure and grounds for his/her removal.
• Thus, he/she holds office during the pleasure of the president which means that he may be removed by the president at any time.
• He/she may also quit his office by submitting his resignation to the president.
• The remuneration of the Attorney General is not fixed by the Constitution and receives such remuneration as the President may determine.

Functions

• He is entitled to the audience in all courts of the country & can take part in the proceedings of the Parliament & its committees. However, he is not given the right to vote.
• Gives advice on all such legal matters which may be referred to or assigned to him by the President.
• Appears before the Supreme Court and various High Court in cases involving the govt. of India.

Rights Of Attorney General

• In the performance of his official duties, the Attorney General has the right of audience in all courts in the territory of India.
• Also, he/she has the right to speak and to take part in the proceedings of both the Houses of Parliament or their joint sitting and any committee of the Parliament of which he/she may be named a member, but without a right to vote.
• He/she enjoys all the privileges and immunities that are available to a Member of Parliament.

Limitations Placed On The Attorney General

• He/she should not advise or hold a brief against the Government of India.
• He/she should not advise or hold a brief in cases in which he is called upon to advise or appear for the Government of India.
• He/she should not defend accused persons in criminal prosecutions without the permission of the Government of India.
• He/she should not accept an appointment as a director in any company or corporation without the permission of the Government of India.
• He/she should not advise any ministry or department of Government of India or any statutory organization or any public sector undertaking unless the proposal or a reference in this regard is received through the Ministry of Law and Justice, Department of Legal Affairs.
• However, the Attorney General is not a full-time counsel for the Government and does not fall in the category of government servants.
• Further, he/she is not debarred from private legal practice.
• The Attorney General is not a member of the Central cabinet. There is a separate law minister in the Central cabinet to look after legal matters at the government level.
• The Delhi High Court has ruled that the office of the Attorney General of India (AGI) does not come under the ambit of the Right to Information (RTI) Act as it is not a public authority.

Solicitor General Of India

• In addition to the Attorney General, there are other law officers of the Government of India.
• They are the solicitor general of India and the additional solicitor general of India who assists the Attorney General in the fulfillment of his/her official responsibilities.
• Article 76 does not mention the solicitor general and additional solicitor general.

Election Commission (Article 324) 

Shri Rajiv Kumar - Current ECI of India 

What is Article 324? 

The Election Commission of India is vested with the authority to direct, supervise, and manage elections for the parliament, state legislatures, the office of the President, and the office of the Vice-President. It is an independent body that operates at both the central and state levels, overseeing elections throughout the country. It is important to highlight that the commission does not handle elections for municipalities and panchayats. For these local elections, a separate State Election Commission is established as per the provisions of the Indian Constitution.

Constitutional Appointment of ECI

Since its inception in 1950 and till 15 October 1989, the election commission was a one-member body with only the Chief Election Commissioner (CEC) as its sole member.

• In October 1989, the voting age in India was lowered from 21 to 18 years. To accommodate the increased workload resulting from this change, two additional election commissioners were appointed by the president. This increased the total number of members in the Election Commission to three.
• However, in January 1990, the two additional posts of election commissioners were abolished, returning the Election Commission to its previous structure. This change was once again reversed in October 1993 when two more election commissioners were appointed by the president. Since then, the Election Commission has functioned as a multi-member body comprising of three commissioners.
• The chief election commissioner and the two other election commissioners hold equal powers and receive the same emoluments, including salaries equivalent to those of a Supreme Court judge. In cases where there is a difference of opinion among the chief election commissioner and/or the two other election commissioners, the matter is decided by a majority vote within the Commission.
• The term of office for the commissioners is six years or until they reach the age of 65, whichever comes first. They can also be removed from office or choose to resign before the completion of their term.

Independence of the Election Commission

Article 324 of The Constitution of India mentions the provisions to safeguard and ensure the independent and impartial functioning of the Election Commission which is as follows.

• The chief election commissioner enjoys security of tenure and can only be removed from office under the same conditions as a judge of the Supreme Court. This means that the president can remove the chief election commissioner based on a resolution passed by both Houses of Parliament with a special majority, either due to proven misbehavior or incapacity.
• While the president appoints the chief election commissioner, the position is not subject to the pleasure of the president. The chief election commissioner's office is independent and secure.
• The terms and conditions of service for the chief election commissioner cannot be altered to his disadvantage after his appointment.
• As for other election commissioners or regional commissioners, they cannot be removed from office except upon the recommendation of the chief election commissioner.
• Though the constitution has sought to safeguard and ensure the independence and impartiality of the Election Commission, some flaws can be noted, ie:
  • The Constitution has not prescribed the qualifications (legal, educational, administrative or judicial) of the members of the Election Commission.
  • The Constitution has not specified the term of the members of the Election Commission.
  • The Constitution has not debarred the retiring election commissioners from any further appointment by the government.

Powers, Functions, and Responsibilities of Election Commission

Among the major Constitutional Bodies in India, Election Commission is a permanent Constitutional Body. It was established in accordance with the Constitution on 25th January 1950.

• The Constitution has vested to this body superintendence, direction and control of the entire process for conduct of elections.
• The Commission’s functions and powers with respect to elections to the offices of the President, the Vice President, the state legislators and the Parliament are divided under three headings:
  • Administrative
  • Advisory
  • Quasi-judicial

Powers of Election Commission of India

In details, these powers of the Election Commission of India are:

• Determining the Electoral Constituencies’ territorial areas throughout the country on the basis of the Delimitation Commission Act of Parliament.
• Preparing and periodically revising electoral rolls and registering all eligible voters.
• Notifying the schedules and dates of elections and scrutinising nomination papers.
• Granting recognition to the various political parties and allocating them election symbols.
• Acting as a court to settle disputes concerning the granting of recognition to political parties and allocating election symbols to the parties.
• Appointing officers for inquiring into disputes concerning electoral arrangements.
• Determining the code of conduct to be followed by the political parties and candidates during elections.
• Preparing a program for publicising the policies of all the political parties on various media like TV and radio during elections.
• Advising the President on matters concerning the disqualification of MPs.
• Advising the Governor on matters concerning the disqualification of MLAs.
• Cancelling polls in case of booth capturing, rigging, violence and other irregularities.
• Requesting the Governor or the President for requisitioning the staff required for conducting elections.
• Supervising the machinery of elections throughout the country for ensuring the conduct of free and fair elections.
• Advising the President on whether elections can be held in a state that is under the President’s rule, in order to extend the period of emergency after 1 year.
• Registering political parties and granting them the status of national or state parties (depending on their poll performance).

The Commission is aided in its function by deputy election commissioners. The deputy ECs are taken from the civil services and they are appointed by the Commission. They have a fixed tenure. They are aided by the secretaries, deputy secretaries, joint secretaries and under-secretaries posted in the commission’s secretariat.

Functions of Election Commission

1. To direct and control the entire process of conducting elections to Parliament and Legislature of every State and to the offices of President and Vice-President of India.
2. To decide the election schedules for the conduct of periodic and timely elections, whether general or bye-elections
3. To decide on the location of polling stations, assignment of voters to the polling stations, location of counting centres, arrangements to be made in and around polling stations and counting centres and all allied matters
4. To prepare electoral roll and issues Electronic Photo Identity Card (EPIC)
5. To grant recognition to political parties & allot election symbols to them along with settling disputes related to it
6. To sets limits of campaign expenditure per candidate to all the political parties, and also monitors the same
7. To advise in the matter of post-election disqualification of sitting members of Parliament and State Legislatures.
8. To issue the Model Code of Conduct in the election for political parties and candidates so that no one indulges in unfair practice or there is no arbitrary abuse of powers by those in power.

Composition of Election Commission

Article 324 of the Constitution has made the following provisions with regard to the composition of the election commission:

• The President appoints the Chief Election Commissioner and other election commissioners.
• When any other EC is so appointed, the CEC acts as the Election Commission’s Chairman.
• The President can also appoint regional commissioners to assist the Commission, if necessary after consulting with the Election Commission.
• The tenure of office and the conditions of service of all the commissioners shall be determined by the country’s President.

Challenges faced by Election Commission

1. Increased violence and electoral malpractices under influence of money have resulted in political criminalization, which ECI is unable to arrest.
2. Election Commission is not adequately equipped to regulate the political parties. It has no power in enforcing inner-party democracy and regulation of party finances.
3. ECI is becoming lesser independent of the Executive which has impacted its image.
4. Allegations of EVMs malfunctioning, getting hacked and not registering votes, corrodes the trust of the general masses in ECI.