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GS Paper: GS2-09.Appointment to various Constitutional posts; Constitutional Bodies(powers, functions and responsibilities); Statutory, Regulatory and Quasi-judicial bodies

  • Comptroller and Auditor General (CAG)

    The article highlights the importance of CAG in times of disasters to ensure check and balances.

    Context

    • With the nation spending substantial resources to manage the pandemic, the role of Comptroller and Auditor General (CAG) of India has come into prominence.

    Opportunity for corruption in pandemic

    • Allegations of siphoning off of funds to purchase the inferior quality at prices higher than those prevailing in the market are made.
    • The opportunity to indulge in corruption exists in disaster management.
    •  Emergency procurement to save lives and reduce sufferings are a chance to obfuscate rules and procedures and can happen in all three tiers of governance.

    Role of the CAG

    • If all the major purchases by governments are audited by the CAG, there can be substantial improvement in disaster management.
    • It will usher in better transparency, integrity, honesty, effective service delivery and compliance with rules and procedures and governance.
    • The CAG has issued an order creating a new vertical — health, welfare and rural development, restructuring the office of the Director General of Audit, Central Expenditure.
    • It is necessary that the CAG undertakes performance audits of COVID-19 related procurements, the Central Government Health Scheme (CGHS) and Employee State Insurance (ESI) hospitals.
    •  A beneficiary survey will become part of the audit process to bring out efficacy of service delivery and the availability and quality of drugs.
    • Audit recommendations can contribute improvements in various aspects of disaster preparedness, management and mitigation.

    Benefits of audit

    • The statutory responsibility of CAG includes appraising disaster preparedness, ensuring that management, mitigation operations, procedures are complied with, and proper internal controls are in place.
    • Ensuring that there are proper records, documentation, authentic, accurate, reliable and complete information and data.
    • Providing assurance to people’s representatives, tax payers and the public at large that government resources are being used prudentially as per the law and regulations and safeguarded.
    • Providing assurance that risks are assessed, identified and minimised with established disaster management process and procedures.
    • Offering assurance that resources are being used economically efficiently and effectively for achieving the planned objectives and that benefits have gone to the targeted beneficiaries.

    Conclusion

    All public entities management must be accountable and ensure that resources are managed properly and used in compliance with laws and regulations; programmes are achieving their objectives; and services are being provided efficiently, effectively, and economically.

  • Commission for Sub-Categorization of OBCs

    The Union Cabinet has approved the extension of the term of the Commission to examine the issue of Sub-categorization of Other Backward Classes, by 6 months i.e. upto 31.1.2021.

    Practice question for mains:

    Q.The quota policy for OBCs needs a revisit. Comment.

    About the commission

    • The Commission was constituted under Article 340 of the Constitution in 2017 under the chairmanship of Justice (Retd.) Smt. G. Rohini.
    • The Commission has since interacted with all the States/UTs which have subcategorized OBCs, and the State Backward Classes Commissions.
    • The expenditure related to the establishment and administration costs of the Commission is borne by the Department of Social Justice and Empowerment.

    Background

    • The Supreme Court in Indra Sawhney and others vs. Union of India case (1992) had observed that there is no constitutional or legal bar on states for categorizing OBCs as backward or more backward.
    • It had also observed that it is not impermissible in law if a state chooses to do sub-categorization.
    • So far, 9 states/UTs viz. Karnataka, Haryana, Andhra Pradesh, Jharkhand, Puducherry, Telangana, West Bengal, Bihar, Maharashtra and Tamil Nadu have carried out sub-categorization of OBCs.
    • However, there was no subcategorization in the central list of OBCs so far.

    Why need a sub-categorization?

    • Presently, half of these 1,900-odd castes have availed less than three per cent of reservation in jobs and education, and the rest availed zero benefits during the last five years.
    • Five-year data on OBC quota implementation in central jobs and higher educational institutions showed that a very small section has cornered the lion’s share.
    • A/c to the Commission, the classification is based on relative benefits availed and not relative social backwardness, which involves parameters such as social status, traditional occupations, religion, etc.

  • Need for fiscal decentralisation

    Covid pandemic has turned the fiscal health of states from bad to worse. This article highlights the role of the Finance Commission as a neutral arbiter in the Centre-state relation in achieving the delicate balance. It has highlighted certain issues that the commission has to consider when it submits its report. So, what are those issues? Read to know…

    Disruption in fiscal consolidation and impact on Centre-state relations

    • Due to COVID, there is a  collapse in general government revenues and the consequent rise in the deficit levels.
    • It has disrupted the glide path of fiscal consolidation.
    • But it has also deepened the faultlines in Centre-state fiscal relations. 
    • The Centre is trying to claw back the fiscal space ceded to the states and assert its dominance over the country’s fiscal architecture.
    • This coupled with the fiscal constraints exposed by the pandemic have made it harder to maintain the delicate balance needed to manage the contesting claims of the Centre and the states

    Why the 15th Finance Commission report is critical for decentralisation

    • It will be ironic if the ongoing health crisis that has ended up exposing the limitations of a centralised approach, ends up reversing the trend towards fiscal decentralisation.
    • The Commission’s report will be critical on two counts:
    • First, it will determine how India’s fiscal architecture is reshaped.
    • Second, how Centre-state relations are reset as the country attempts to recover from the COVID-19 shock.

    1. Will the burden of reducing debt/gdp  fall equally on Centre and state?

    • The glide path of fiscal consolidation laid out by the FRBM review committee had envisaged bringing down general government debt to 60 per cent of GDP by 2022.
    • This is unlikely to materialise now.
    • Factoring in the additional borrowings, the debt-to-GDP ratio may well be over 80 per cent this year.
    • Thus the fiscal consolidation roadmap will have to be reworked.
    •  As per its terms of reference, the Finance Commission will lay out the new path to be followed by both Centre and states.
    • But the question is: Will the burden of debt reduction fall equally upon the Centre and states?
    • Or will the Commission allow the Centre to have greater leeway when it comes to fiscal consolidation?

    2. Will the conditional extension of borrowing limit be formalised?

    •  Recently, the Centre eased the states’ budget constraint, allowing them to borrow more this year.
    • But this extra borrowing was conditional upon states implementing reforms in line with the Centre’s priorities.
    • Despite protests, most states are likely to comply with the conditions, to varying degrees.
    • But the issue is: As the hit from the ongoing crisis spreads over multiple years, state governments may want to maintain their expansionary fiscal stance next year as well.
    • Then, will the Finance Commission, in line with its terms of reference, go along with the Centre’s stance and recommend imposing conditions on additional borrowing and formalise this arrangement?
    • It is difficult to see such an arrangement being rolled back once formalised.

    3. GST compensation cess

    • The GST council, in which the Centre effectively has a veto, is yet to clearly spell out its views on the extension of the compensation cess to offset states losses beyond the five-year period.
    • The Commission will have to weigh in on this too.
    • At this time the Centre is struggling to fulfil its promise of assuring states their GST revenues.
    • In such situation, will the Commission argue in favour of extending the compensation period, as states desire, but, perhaps, lowering the assured 14 per cent growth in compensation and linking it to nominal GDP growth?
    • As GST revenue accounts for a significant share of states’ income, how this plays out will also have a bearing on their ability to bring down their debt levels.

    4. Issue of tax devolution

    • In some sense, accepting the recommendations of the 14th Finance Commission was a fait accompli.
    • The terms of reference of the 15th Finance Commission points to the present government’s desire to claw back the fiscal space offered to the states.
    • But is clawing back fiscal space now a prudent approach?
    • A cash-strapped Centre will surely welcome greater say over the diminished resources.
    • And there a strong argument for the Centre to have far greater fiscal space than it currently enjoys.
    • This is partly because the fiscal multiplier of central government capital spending is greater than that by the states.
    • But also the nature of politics may well push in that direction.
    • Centralisation of political power may well lead to demands for centralisation of resources.
    • However, surely fiscal space can be created by a review of the Centre’s own spending programme.

    Need to relook at the Centre’s expenditure priorities

    • Over the past decades, there has been a substantial increase in the Centre’s spending on items on the state and concurrent list.
    •  This shift has occurred even as grants by the Centre to states exceed the former’s revenue deficit.
    • This, as some have pointed out, effectively means that the Centre is borrowing to transfer to states.
    • Surely, a relook at the Centre’s expenditure priorities would create greater fiscal space for it.

    What the Finance Commission can do?

    • Any attempt to shift the uneasy balance in favour of the Centre will strengthen the argument that this government’s talk of cooperative federalism serves as a useful mask to hide its centralising tendencies.
    • As a neutral arbiter of Centre-state relations, the Finance Commission should seek to maintain the delicate balance in deciding on contesting claims.
    • This may well require giveaways especially if states are to be incentivised to push through legislation on items on the state and concurrent list.
    • The fiscal stress at various levels of the government necessitates a realistic assessment of the country’s macro-economic situation, the preparation of a medium-term roadmap, as well as careful calibration of the framework that governs Centre-state relations.
    • At this critical juncture, the Finance Commission should present the broad contours of the roadmap.
    • Though it could request for another year’s extension to present its full five-year report citing the prevailing uncertainty.

    Consider the question “COVID pandemic has put the States in the dire fiscal position. What we need is more of the fiscal decentralisation now.” In light of this, along with other factors, elaborate on the role 15th Finance Commission could play in this regard.

    Conclusion

    Finance Commission has to play an important role in achieving the delicate balance in the conflicting domain of finance by addressing the concerns of both the players.

  • Central Administrative Tribunal (CAT) bench for the UT of J&K and Ladakh

    The union govt. has inaugurated the 18th Bench of Central Administrative Tribunal (CAT) for the Union Territories of Jammu and Kashmir and Ladakh.

    Try this question from our AWE initiative:

    “The Central Administration Tribunal which was established for redressal of grievances and complaints by or against central government employees nowadays is exercising its powers as an independent judicial authority.” Explain. (10 Marks)

    What is Central Administrative Tribunal (CAT)?

    • The Central Administrative Tribunal had been established under Article 323 – A of the Constitution for adjudication of disputes and complaints with respect to recruitment and conditions of service.
    • It aims to provide speedy and inexpensive justice to the aggrieved public servants.
    • It adjudicates for the persons appointed to public services and posts in connection with the affairs of the Union or other authorities under the control of the Government.
    • In pursuance of Article 323-A, the Parliament has passed the Administrative Tribunals Act in 1985.
    • The act authorizes the Central government to establish one Central Administrative Tribunal and the state administrative tribunals.

    Composition of the CAT

    • The CAT is a specialist body consisting of Administrative Members and Judicial Members who by virtue of their specialized knowledge are better equipped to dispense speedy and effective justice.
    • A Chairman who has been a sitting or retired Judge of a High Court heads the Central Administrative Tribunal.
    • There are now 18 Benches and 21 Circuit Benches in the CAT all over India.

    Its functioning

    • It exercises jurisdiction only in relation to the service matters of the parties covered by the Administrative Tribunals Act, 1985.
    • The Tribunal is guided by the principles of natural justice in deciding cases and is not bound by the procedure, prescribed by the Civil Procedure Code.
    • Under Section 17 of the Administrative Tribunal Act, 1985, the Tribunal has been conferred with the power to exercise the same jurisdiction and authority in respect of contempt of itself as a High Court.

    Independence of working

    • The conditions of service of the Chairman and Members are the same as applicable to a Judge of High Court as per the Administrative Tribunals (Amendment) Act, 2006.
    • The orders of CAT are challenged by way of Writ Petition under Article 226/227 of the Constitution before respective High Court in whose territorial jurisdiction the Bench of the Tribunal is situated.

  • A weak rebuke: It’s unfortunate EC didn’t punish hate speech in Delhi campaign

    Context

    Campaign for the Delhi Assembly election in which the development debate was overshadowed by hate-mongering and outpouring of communal vitriol underscores need to do more.

    Understanding the Model Code of Conduct (MCC)

    • Behavioural guidelines: It is a set of behavioural guidelines for political parties and candidates for-
      • The peaceful conduct of elections.
      • To prevent hate speech.
      • Malpractices.
      • Corruption and
      • Misuse of government machinery by the ruling party.
    • Not judicially enforceable: Since it is not an Act passed by Parliament, the Code is not judicially enforceable.
      • The action against a violator usually takes the form of an advice, warning or censure.
      • No punitive action can be taken.
      • No wonder, many consider the Code as toothless.
    • Moral authority: It is not toothless though. Its moral authority far outweighs its legal sanctity.
      • Political leaders worth their salt are scared of inviting a notice for a violation, as it creates negative public opinion.
      • Besides, unlike the legal processes, its impact is instant.

    The legality of the MCC

    • Test of legality in the courts: The legality of the code has been judicially tested.
      • First legal acceptance: Its first judicial acceptance came in 1997 when the Punjab and Haryana High Court gave the EC the power to enforce the code.
      • “Such a code of conduct when it is seen that it does not violate any of the statutory provisions can certainly be adopted by the Election Commission for the conduct of free and fair election, which should be pure as well,” the Court said.
      • The SC has repeatedly held that this must be enforced strictly.

    Parallels between the MCC and other legal provision

    • The first section of the MCC lays down that-Part 1 (1) “ No party or candidate shall include in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic.”
    • “…Criticism of other parties or their workers based on unverified allegations or distortion shall be avoided.”
    • Parallels with RPA: The Representation of the People Act (1951) categorically defines the above two as corrupt practices in Section 123 (3A) and Section 123 (4) respectively.
      • Section 125 of RPA provides for punishment for similar violations.
    • Parallels with IPC: It is important to note that Section 153A of the Indian Penal Code has a similar provision:
      • Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.

     Refreshing change

    • Prompt action: It must be appreciated that the EC was prompt in its action against the leaders accused of hate speech in Delhi election campaign.
      • While it instantly, suo moto, deprived the two leaders of their star campaigner status, it also punished them with a gag order, using the ultimate weapon provided by Article 324.
      • The EC flexing its muscle outside the so-called “toothless” MCC and invoking Article 324 is indeed a refreshing change.
      • In earlier instances, it often had to let the culprits go with a mere “warning, caution or censure”.
      • In its notice to a leader, the EC cited Sections 123 and 125 of the RP Act.

    Conclusion

    • Historically, the EC has always taken simultaneous action under the Model Code of Conduct and the other two provisions. While the MCC produces instant results, the penal provisions involve endless judicial processes. Not taking action under the IPC encouraged violators to commit repeat offences.