NHRIs Issue-01 July to September 2010 Index Page
Full version of the report

The NCSC – what ails India’s NHRIs

On 18 February 2009, the Parliamentary Standing Committee on the Welfare of Scheduled Castes and Scheduled Tribes (hereafter “the Committee”) presented its 36th Report (14th Lok Sabha) on the “National Commission for Scheduled Castes (NCSC) – Its mandate and achievements – A review of its organisation and working” to the Lok Sabha. The report contained 22 recommendations/ observations.

The action taken report on the 7th Report of the Committee along with its comments were presented to 15th Lok Sabha on 22.04.2010 and laid in Rajya Sabha on the same day. The Parliamentary Standing Committee in this report stated that out of total 22 recommendations/observations, 10 recommendations i.e. 45% have been accepted by the Government; the Committee did not desire to pursue 8 recommendations i.e. 36% as the Committee was satisfied with the replies of the Government; and the Committee did not accept replies of the government in 4 recommendations i.e. 18%.

These critical issues raised by the Parliamentary Standing Committee underline what ails the National Human Rights Institutions in India.

i. Strength of the NCSC

The Committee stated that the NCSC has enormous responsibility to investigate and monitor all matters under the Constitution or under any other law or under any order of Government. However, the strength of the Commission is not adequate to cater to the needs and problems of Scheduled Caste (SC) population spread all over India. Inquiring into specific complaints of deprivation of rights itself is a vast responsibility. Deprivation of rights in the form of atrocities against SCs, suppression of their civil rights as also deprivation of their service rights are some of the matters which require to be inquired into objectively by visiting the places of occurrence of such incidents to have the first hand knowledge and information.

The Committee, therefore, recommended that “the strength of the Commission should be increased suitably with a view to assigning each member specific subjects such as atrocities, socio-economic development, service matters, etc. so that he may give his undivided attention to find a favourable solution to the problems/difficulties being faced by the distressed SC people”.

In its reply, the Ministry of Social Justice and Empowerment rejected the recommendation stating that the current members are adequate.

In its comments to the reply of the Ministry of Social Justice & Empowerment, the Committee asserted that “the duties assigned to the Commission are extremely demanding and hence emphasised on the necessity to enhance the strength of the Commission accordingly. The functions inter-alia include the Commission acting as a quasi-judicial authority while investigating cases referred to in sub-clauses (a) and (b) of Clause-5, to participate and advise on the planning process of socio-economic development of the SCs and to evaluate the progress of their development under the Union and any State. However, the Committee are dismayed about the manner in which reply is given by the Government by just mentioning about the Constitutional provisions, without taking into account the quantum and importance of each of the duties and responsibilities assigned to the Commission and the resultant enormity of the work volume. While reiterating their earlier recommendation, the Committee further recommended that the number of members of the Commission should be increased from the present five to at least seven”.

II. Financial autonomy: Give the same status as Election Commission or Union Public Service Commission

The Committee also unequivocally stated that financial autonomy is indispensable for the functioning of the NCSC. The Committee regretted that the “Commission does not have full autonomy in regard to financial and administrative matters and has no powers in matters relating to creation of posts, reappropriation of funds from one head to another; purchase of vehicles; and permitting officers of the Commission to participate in Seminars, Conferences or Training abroad”.

The Committee further expressed dismay at the fact that the Commission, which has been given statutory status and powers of the Ministry of Central Government in certain matters, has to project its requirements to the Ministry of Social Justice and Empowerment for provision to be made in Budget Estimates.

In its reply, the Ministry informed the Committee that the proposal for separate Demands for Grants for NCSC has also not been agreed to by the Ministry of Finance (Department of Expenditure). At present, NCSC has only Budget Head within the Demands for Grants for Ministry of Social Justice and Empowerment. The Ministry of Finance stated that the same practice is followed with regard to the National Human Rights Commission which forms part of the Demands for Grants of Ministry of Home Affairs.

In its further comments, the Committee stated that “when it was decided to bifurcate National Commission for Scheduled Castes and Scheduled Tribes, it was never envisaged that NCSC would function as a part of the Ministry of Social Justice and Empowerment. If it was so, there was no need to bifurcate the erstwhile Commission into two separate statutory bodies. It could have continued to function as a non-statutory body as earlier. NCSC would not be able to work fearlessly and independently unless it is given independence in its day to day working by allowing it to decide on its own administrative, financial and legal matters.”

The Committee further stated, “The Constitutional responsibility conferred upon the NCSC provided under the Article 338(5), 338(6) and 338(7) demands autonomy of its functioning from the Government. Since the Commission has to assess and report on the functioning of various Executive functionaries vis-à-vis the implementation of various welfare measures etc., there arises a necessity for complete autonomy including financial autonomy and a separate demand for grants. It is seen that unlike the Finance Commission there is no Constitutional provision conferring upon the NCSC the financial independence by way of treating its expenditure as “Charged”. Therefore, the Committee are of the view that necessary steps in this regard be initiated by the Government to insert a provision in the Constitution.”

On a related issue pertaining to the “Separate Demands for Grant”, the Committee stated that “only limited administrative and financial powers have been given to the NCSC by making it a part of Ministry of Social Justice and Empowerment”. The Committee, therefore, recommended that “full administrative and financial powers should be given to NCSC so that it may not remain dependent on the Ministry of Social Justice and Empowerment for every piece of proposal having financial implications. The NCSC is an independent statutory body and it has every right to have its own Demand for Grants in a realistic manner. Keeping in view the magnitude of the functions and duties assigned to NCSC, the Committee also recommend that a fresh proposal should be sent to Ministry of Finance for creating a separate Demand for Grants for NCSC on the lines of other constitutional bodies such as Election Commission, Union Pubic Service Commission, etc. as it is essential for the independent functioning of the Commission. The Committee may also be apprised of the outcome within three months.”

In its action taken report, the Ministry stated that the issue of separate Demand for Grants for the Commission was taken up by Secretary, NCSC, with Secretary, Department of Expenditure, Ministry of Finance vide his D.O. letter dated 4.12.2006. However, Secretary, Department of Expenditure vide his D.O. letter dated 15.1.2007 did not agree to the request. Secretary, NCSC vide his D.O. letter dated 15.6.2009 sent fresh proposal to Secretary, Department of Expenditure for creation of separate Demand for Grants for the Commission.

The Committee stated that it expects the Ministry to pursue the matter hard with the Ministry of Finance, so as to bring in a separate Demand for Grants for the Commission in the Budgetary Demands at the earliest.

If separate demand of Grants for the NCSC is accepted, it will have positive implications for the effectiveness of all the NHRIs in India.

III. Filling up vacancies: DIG appointment under process for five years!

There are a number of posts which have been lying vacant against the sanctioned posts. The Ministry of Social Justice and Empowerment has created ten posts in various grades in the office of Chairman of NCSC on co-terminus basis and that out of 245 sanctioned posts of all the officers and staff, the number of filled up posts as on 01.10.2007 was stated to be 196. During evidence, the Secretary, Ministry of Social Justice and Empowerment had submitted that the Commission was facing problems in filling up certain posts like LDC, Assistant Director in Research, DIG, Law Officer, Librarian, Assistant Director (Programming) and Assistant Public Relations Officer.

The appointment explains astonishing red-tapism both on the part of the NCSC and the Ministry of Social Justice & Empowerment by not initiating the process of filling up of vacancies on time.

The post of DIG fell vacant on 01-11-2005 but the Ministry of Social Justice & Empowerment wrote to the Ministry of Home Affairs only on 30-01-2006 to send a panel of suitable officers for the post. After one year and seven months, the Ministry of Social Justice & Empowerment sent a request on 10.8.2007 to all State Chief Secretaries to forward names of suitable IPS officers. However, only 15 States/UT Administrations responded to this Ministry’s request all stating that they did not have any officers to recommend for the post. The Ministry of Home Affairs, after regular follow-up, sent the name of one IPS officer on 14.8.2007, which was conveyed to NCSC. However, NCSC vide its letter dated 12.9.2007 insisted for a panel consisting of 3 names. The matter was again taken up with the Ministry of Home Affairs. The Ministry of Social Justice & Empowerment also sent another request on 11.1.2008 to Chief Secretaries of State Governments/UT Administrations, who had not responded to Ministry’s earlier request 10.7.2007. However, there was no positive response from any State/UT. The matter was also taken up at the level of the Hon’ble Minister for Social Justice & Empowerment with the Ministry of Home Affairs on 26.3.2008. Thereafter, the Ministry of Home Affairs, vide its communication dated 17.7.2008, sent a panel of two IPS officers. The panel so received was forwarded to NCSC, who vide its letter dated 27.8.2008 requested for one more name from the Ministry of Home Affairs. Further, NCSC vide its letter dated 10.12.2008 requested for a panel of IPS officers from the 1994 batch. Accordingly, the Ministry of Social Justice & Empowerment requested the Ministry of Home Affairs on 5.1.2009 to send a fresh panel. The Ministry of Home Affairs has requested Chief Secretaries of States/UTs, vide its communication dated 29.5.2009, to recommend names of eligible and willing IPS officers for the above post. The matter is being pursued.

There is no DIG level officer for the last five years!

IV. Submission of annual reports and special reports: Waiting for the Godot!

The NCSCST had submitted three special reports in 2000 concerning State Governments of Bihar, Uttar Pradesh and Madhya Pradesh and one Annual Report for the year 2004-05 in July, 2006 and one Special Report for the period 01.04.2006 to 30.09.2006.

With regard to the three Special Reports comments from the concerned States for taking action as per clause (7) of Article 338 of the Constitution is awaited. First Annual Report of the National Commission for Scheduled Castes for the year of 2004-05 submitted in July, 2006 was sent to concerned Ministries for Action Taken Reports on portions concerning them! The comments are awaited. The First Special Report of the Commission, for the period 01.04.2006 to 30.9.2006 received in February, 2007 was sent to the Ministries concerned for Action Taken Reports on the recommendations related to them. The inputs received from them are being compiled and the Special Report of the Commission will be laid in the Parliament soon.

In view of the inordinate delay the Committee strongly recommended that action to amend clause (6) and (7) of Article 338 of the Constitution should be initiated so that a time limit is fixed for presenting the reports of the NCSC in the Parliament. The Committee also recommended that the Ministry should initiate action for holding discussion on the report in Parliament by way of a Government Motion.

The Government in its reply stated that “amendment in the Constitution is, on the whole, not considered necessary”. NCSC has also not favoured acceptance of the recommendation.

In its comments to the reply, the Committee reiterated their recommendation that a definite time period may be prescribed for the same by amending clauses (6) and (7) of Article 338 of the Constitution. Further, the responsibility for the delay in laying of the Reports in the Parliament should be fixed on the officials concerned and appropriate action should be initiated against them. Further, the Committee was not provided reply with regard to the stand of the Government vis-à-vis holding discussions on the NCSC’s reports in Parliament by way of a Government Motion.

V. Power to issue interim orders

The Committee noted the dichotomy between the duty, to inter alia, investigate all matters relating to the safeguards provided to SCs and to enquire into specific complaints with respect to the deprivation of rights and safeguards of the SCs and powers of the NCSC. While investigating such matters, or making inquiry in specific complaints, NCSC enjoys powers of a civil court, trying a suit under clause (8) of the Article 338 of the Constitution, it is limited to that of summoning and enforcing attendance of any person, call for production of any document and examine evidence on affidavits but has no judicial power unlike other civil courts.  The Ministry and the NCSC stated that the role of Commission is as an advisory body.

The Committee stated that “the NCSC has been made toothless and ineffective by not empowering it with the authority to issue binding orders/judgments. This is a deliberate strategy not to empower the Commission to issue orders on its inquiry/investigation.” Therefore, the Committee reiterated their recommendation that necessary steps be initiated to empower the NCSC accordingly.

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