Statutory Institutions - 1 | PSIR Optional for UPSC (Notes) PDF Download

Election Commission & Election Issues

The Election Commission of India is responsible for overseeing and conducting regular elections at both the central and state levels under the constitution from Art 324-329. To perform these tasks, the election commission needs to be a strong and independent institution. Some challenges faced by the commission include:

• Appointment and removal procedure of election commissioners: Currently, the chief election commissioner (CEC) and the two ECs are appointed solely by the executive without any consultation with other political groups. There is an urgent need to establish a bipartisan multimembered committee for appointing ECs. The appointment and removal procedures for the CEC and other two ECs need to be amended to ensure their credibility.
• Election expenditure: The high cost of Indian elections can negatively affect the functioning of democracy by raising entry barriers for new political entrants and increasing the risk of elite capture/corporate capture of the electoral process and the policies of ruling governments.
• Anonymity in funding: The anonymity in the funding of political parties can negatively affect the functioning of democracy as the electorate's right to information about the funding of political parties and their candidates gets compromised. The removal of restrictions on foreign funding of Indian political parties could pose a serious threat to the economic sovereignty of state policy.
• Electoral bonds: The electoral bonds are anonymous bearer bonds that can be used by a donor to make contributions to a political party while retaining the confidentiality of the transaction. Concerns have been raised about the bond system being completely outside the purview of the RTI act & IT act.
• Lifting of restrictions on donations by corporate parties: The lifting of these limits on corporate donations has raised concerns about the corporate capture of the electoral process. The retrospective amendments to FCRA (Foreign Contribution Regulation Act) 2010 introduced in 2016 and 2018, which have altered the definition of foreign donors, have also led to concerns about the increasing influence of foreign donors.

To limit the role of money power in politics, several steps can be taken:

• Strengthen enforcement of limits on election expenditure: Although there is an existing limit on election expenditure for individual candidates, it must be strictly enforced to ensure fairness and prevent the undue influence of money in the electoral process.
• Implement state funding for candidates: The recommendations made by the Indrajeet Gupta and Dinesh Goswami committee suggest state funding for candidates. This should be in the form of 'kind,' such as providing resources and facilities rather than direct financial assistance, to level the playing field and limit the influence of money power.
• Scrutinize declared sources of income and assets: The Supreme Court has directed strict monitoring of declared sources of income and assets of candidates. Any discrepancies between the two should be investigated swiftly by the relevant income tax agencies to prevent corruption and ensure transparency.
• Additionally, it is essential to address the criminalization of politics, which often manifests as muscle power in elections. This issue can lead to lawbreakers becoming lawmakers, weakening the political will to combat corruption. Moreover, the criminalization of politics can result in the politicization of crime and lower the morale of bureaucracy, ultimately hampering governance.

To tackle this issue, stringent measures must be taken to prevent individuals with criminal backgrounds from participating in the electoral process. This will help to uphold the integrity of democratic institutions and create an environment in which governance can thrive.

Way forward & Steps Taken

The Association of Democratic Reforms (ADR) filed a Public Interest Litigation (PIL) in 1999, which led to a 2003 Supreme Court judgement. This judgement mandated that candidates must declare their criminal background, educational background, assets/liabilities, and sources of income, along with that of their family members. Under Section 8(3) of the Representation of the People (RPI) Act, individuals convicted for a crime with a punishment of two years or more would be disqualified for six years. 

• However, Section 8(4) allowed sitting Members of Legislative Assembly (MLAs) and Members of Parliament (MPs) to avoid immediate disqualification if convicted for more than two years. The Supreme Court struck down this provision in 2014 as it violated Article 14 (Equality before the law) and was found to be arbitrary and unconstitutional.
• To tackle the criminalization of politics, the Supreme Court has also mandated the establishment of fast-track courts across the country. These courts aim to expedite the judicial process, especially in cases involving sitting MLAs and MPs. A recent PIL in 2017 called for the creation of fast-track courts to handle all serious cases against sitting MLAs and MPs. This initiative is crucial to ensure that judicial delays do not hamper the objective of curbing the criminalization of politics.
• Additionally, the Supreme Court has directed that all candidates seeking to contest state or central elections must submit details of their criminal records to their political party. The party must then display this information on their website, promoting transparency and accountability in the political process.

Paid News / Fake News

1. Definition of Paid News: The Press Council of India (PCI) defines paid news as any news coverage by media organizations, especially print media, during the electoral period that has been paid for in cash or kind by vested groups.
2. Legal Status of Paid News: Although paid news is not considered an electoral malpractice under the RPI Act, both the Election Commission (EC) and the Law Commission have declared that it should be classified as an electoral offense, punishable by a two-year prison term.
3. Impact on Electoral Integrity: Paid news represents a malpractice that attempts to manipulate voter behavior and negatively affects the integrity of the electoral process. The PCI and the Election Commission of India (ECI) have emphasized the need to curb this menace.
4. Instances of Paid News: Over the past decade, the ECI has flagged more than 200 instances of paid news.
5. Monitoring and Prevention Measures: The ECI, in collaboration with the PCI, appoints District Media Observers (DMO) to identify instances of paid news. Furthermore, media organizations are required to clearly state that their content has not been paid for during election periods.
6. Legal Recommendations: Both the ECI and the Law Commission have suggested that paid news should be declared an electoral malpractice under section 8 of the RPI Act 1951, with a two-year jail term, and that this law should be strictly enforced.
7. Fake News Issues: Fake news, which often involves the deliberate misreporting of facts, also needs to be urgently addressed, as it is often widely circulated through social media.
8. Social Media Observers: To tackle fake news, the ECI is appointing Social Media Observers (SMO) in collaboration with Facebook to monitor and take prompt action to prevent the spread of such news items.

Opinion Poll  | Exit Poll

• Opinion polls are pre-election surveys, while exit polls are post-election surveys, aiming to gather the views of the electorate during or after the election period.
• The Election Commission of India (ECI) imposed a ban on post-election surveys in 1997 and 2004 due to accusations of bias and favoritism towards certain political groups.
• In 2004, when the ECI attempted to expand the ban to include opinion polls, media organizations filed a PIL in the Supreme Court, arguing that the ban violates the freedom of the press.
• The ECI and the press council currently advise media houses to publish details about the methodology, respondents, and representativeness of the sample when publishing opinion poll results, allowing readers to make informed opinions about the surveys' relevance and trustworthiness.
• Sixteen European countries have restrictions on the publication of opinion polls in the immediate pre-election period, ranging from 2 days to a month before elections.
• If similar restrictions were to be imposed in India, a consensus with all stakeholders, including the press, must be reached first.

VVPAT - Voter-verified paper audit trail

• VVPAT systems have helped address the issue of booth capture that existed with the ballot system.
• These systems are fast and do not have any communication devices, making them secure from external interference.
• Candidates' names are arranged alphabetically, not based on their party affiliation, ensuring impartiality.
• The introduction of VVPAT has significantly reduced instances of electoral fraud, such as rigging and ballot stuffing.
• Going back to the ballot paper system would be a step backward in the electoral process.
• While constructive criticism is appreciated, uninformed criticism can negatively impact public trust in the electoral process.

Legalization of MCC

The Model Code of Conduct (MCC) was established in 1967 to create a level playing field for all political parties during elections. Its purpose is to prevent the ruling party from having an unfair advantage.

• MCC comes into effect as soon as election dates are announced. It prohibits the announcement of new schemes, transfers or new appointments, and any necessary transfers will be handled by the Election Commission of India (ECI) if it believes it would impact the election. Additionally, the MCC prohibits hate speech and personal attacks on other leaders.
• While the MCC does not have legal sanctions, the ECI has the power to de-register political parties. However, this power lacks legal backing, so it is argued that the MCC should be given legal support.
• On the other hand, some believe that violations of the MCC and its enforcement by the ECI can influence voter behavior and act as a deterrent for political parties. This is because the ECI is trusted by the public, meaning its sanctions have a moral impact. Making the MCC legally enforceable could result in litigation and delays.
• There is also a proposal to grant contempt powers to the ECI. However, even the judiciary uses contempt powers sparingly, and giving such powers to another branch of government could be seen as a step backward.

CAG: Comptroller & Auditor General

The Comptroller and Auditor General (CAG) of India is a crucial constitutional office that acts as a guardian of the public purse. Dr. B.R. Ambedkar argued in the constituent assembly that the CAG's office is the most important constitutional office due to its role in assisting the public accounts committee and parliament in holding the government accountable. However, the CAG faces several challenges in performing its constitutional mandate.

1. Issues related to the appointment procedure of CAG: Under Article 148-151, the CAG is appointed by the president on the advice of the Prime Minister and his Council of Ministers, without any role for the legislature in the process. This may lead to the appointment of a more pliable individual or someone with a conflict of interest. To address this issue, the 2nd ARC report suggests establishing a bipartisan multi-membered body for appointing CAG, which includes the opposition. Additionally, Amitabh Mukhopadhyaya recommends consulting the Public Account Committee (PAC) while appointing the CAG.
2. Scope of CAG audits: The CAG currently conducts compliance audits, financial audits, and performance audits. Performance audits examine the efficiency, effectiveness, and economy of government expenditures or issues affecting revenue generation. The challenge for the CAG is to handle criticism of its performance audits, especially when findings are critical of government policies. Moreover, the CAG faces challenges in auditing private companies involved in public-private partnerships (PPPs) or revenue-sharing agreements with the government.
3. Quality of audits: The quality of CAG reports, particularly when they criticize government policy, has been questioned. The International Organization of Supreme Audit Institutions (INTOSAI) assessed the CAG's reports and found that 50% of them could have been more balanced and lacked sufficient evidence. However, the PAC and Committee on Public Undertakings (COPU) consider CAG reports as invaluable and authoritative sources of information. INTOSAI recommends regular peer-to-peer assessments to monitor the quality of CAG reports.
4. Delay in tabling of reports: Delays in tabling CAG reports and PAC findings can be intentional by the ruling government to avoid embarrassment. However, this deprives the legislature and the public of credible evidence to hold the executive accountable. To address this issue, the 2nd ARC and PAC propose a time-bound procedure for tabling CAG reports and PAC findings, preferably within a year, before parliament.

In conclusion, to ensure the effectiveness of the CAG in performing its constitutional mandate, it is important to address these challenges. This includes improving the appointment procedure, clarifying the scope of audits, ensuring the quality of reports, and implementing a time-bound procedure for tabling reports. These measures will strengthen the role of the CAG in assisting the public accounts committee and parliament in holding the government accountable.

Finance Commission of India (FC)

The Finance Commission of India is a quasi-judicial body established under Article 280 of the constitution. It is constituted by the President every fifth year or earlier if necessary. The commission comprises a chairman and four members appointed by the President. Its primary function is to make recommendations to the President on matters related to the distribution of net proceeds of taxes between the Centre and the States, the allocation of these proceeds among the states, and the principles governing grants-in-aid to the states by the Centre. The recommendations made by the Finance Commission are not binding on the government, but they hold significant weight in maintaining fiscal federalism in India.

• The need for the Finance Commission arises from its role as a balancing wheel of fiscal federalism in India, ensuring rational distribution of tax revenue between the Centre and the states, addressing regional disparities, and evolving the devolution mechanism with changing times.
• However, there have been issues associated with the Finance Commission, such as an overlapping of functions with the erstwhile Planning Commission, concerns over the use of the 2011 Census for revenue distribution, and questions regarding the provision of revenue deficit grants. The 15th Finance Commission, set up under N.K. Singh, has been facing questions from South Indian states regarding the use of the 2011 Census as one of the criteria for fiscal transfers, as they believe it undermines their population control efforts.
• Using the 2011 Census for revenue distribution has been a point of contention, with southern states arguing that it penalizes them for their effective population control efforts. However, the latest population data should be used to ensure a comparable level of public services, and other criteria such as income distance, area, and forest cover are also considered in the horizontal devolution formula.
• The provision of revenue deficit grants is another issue, as the 15th Finance Commission has been suggested to consider discontinuing these grants. This could potentially violate Articles 275(1) and 280(3b) of the Indian constitution, as these grants are meant to address vertical imbalances arising from the constitution.

In conclusion, while the Finance Commission plays a crucial role in maintaining fiscal federalism in India, it also faces challenges and concerns from various stakeholders. It is crucial to address these concerns and ensure that the commission functions effectively to maintain the spirit of federalism and ensure equitable distribution of resources across the country.

Union Public Service Commission (UPSC): Overview and Functions

The Union Public Service Commission (UPSC) is the central recruiting agency in India, responsible for conducting examinations and recruiting candidates for various positions in the government. Created by the Indian Constitution, the UPSC is considered the "watchdog of the merit system" in India. Its composition, functions, and various issues are discussed in detail below.

Composition: The UPSC comprises a chairman and other members appointed by the President of India. The constitution does not specify the strength of the body, leaving it to the president's discretion. Usually, the commission consists of 9 or 11 members, including the chairman. No specific qualifications are prescribed for membership, except that at least half of the members must have experience under the Government of India or a state for at least 10 years. The president has the authority to remove a UPSC member for 'misbehavior,' but such a decision can be questioned in court.

Functions

• Conducts examinations: The UPSC is responsible for conducting examinations for appointments to the All India Services, Central Services, and public services of centrally administered territories.
• Assists states in joint recruitment: The UPSC helps states in framing and operating schemes of joint recruitment for any services requiring candidates with special qualifications, if requested by two or more states.
• Recommendations: The recommendations made by the UPSC are not mandatory for the government to follow.

Issues
The emergence of the Central Vigilance Commission (CVC) in 1964 affected the UPSC's role in disciplinary matters, as both bodies are consulted by the government for disciplinary actions against civil servants. Conflicting advice from the two bodies can create problems, but the UPSC, as a constitutional body, has an edge over the CVC, which is a statutory body.

Lateral Entry
When considering lateral entry for recruitment, provisions for training and education of laterally recruited personnel should be made, or an exam ensuring required qualifications should be conducted. Alternatively, candidates can be recruited as temporary advisors. Consultancy with private firms can be considered for occasional requirements. The current recruitment process ensures that the best minds are recruited for civil services, and if high specialization is not required, current officers can be trained before promoting them to services demanding domain knowledge.

National Commission for Scheduled Castes (NCSC) & National Commission for Scheduled Tribes (NCST)

Establishment and Background

• Amendment to Article 338: The NCSC and NCST were established by amending Article 338 and inserting a new Article 338(A) through the 89th Constitutional Amendment Act 2003. This amendment replaced the erstwhile officer for SC & ST with two separate commissions.
• Original Constitution: In the original constitution, Article 338 provided for special officers for SCs and STs to protect their interests and evaluate their progress in the country.
• 65th Constitutional Amendment Act: In 1988, the Union government initiated the 65th constitutional amendment act after finding that institutional support was insufficient.
• Establishment of National Commission for SC and ST: In 1990, the National Commission for SC and ST was established as a constitutionally approved institution to protect the interests of SCs & STs.
• 89th Constitutional Amendment Act: Later in 2003, the 89th constitutional amendment act replaced the National Commission for SC and ST with two separate commissions. Article 338 established NCSC, and Article 338(A) established NCST.

Composition:

• Chairperson, Vice Chairperson, and 3 full-time members, including one woman member.

Functions of NCSC & NCST (Article 338(5) & 338(A)(5)):

1. Investigate and Monitor: To investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes/Tribes under the Constitution or under any other law or under any order of the Government and to evaluate the working of such safeguards.
2. Inquire into Complaints: To inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes/Tribes.
3. Participate and Advise: To participate and advise on the planning process of socio-economic development of the Scheduled Castes/Tribes and to evaluate the progress of their development under the Union and any State.
4. Present Reports: To present to the President, annually and at other times as the Commission may deem fit, reports upon the working of those safeguards.
5. Recommendations: To make recommendations in such reports as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare, and socio-economic development of the Scheduled Castes/Tribes.
6. Discharge Other Functions: To discharge such other functions in relation to the protection, welfare, development, and advancement of the Scheduled Castes/Tribes as the President may, subject to the provisions of any law made by Parliament, by rule specify.

Conclusion

India's democratic institutions, such as the Election Commission, UPSC, Finance Commission, and Commissions for Scheduled Castes and Scheduled Tribes, play a crucial role in maintaining the integrity and smooth functioning of the nation's governance. However, these institutions face various challenges, including appointment procedures, overlapping functions, and concerns over transparency and fairness. Addressing these issues through appropriate reforms and ensuring the independence and effectiveness of these institutions is vital for upholding India's democratic values and promoting equitable development across the country.