Should the members of the statutory bodies be asked to go with change in Centre?
22 Jun, 2014The National Democratic Alliance (NDA) government appears to have initiated the process of easing out the heads and members of statutory bodies appointed by the previous Government under the United Progressive Alliance. The process began with the easing out of Governors of States and has begun to spread to other statutory bodies at the Central level. The Indian National Congress had started this trend several decades ago which the NDA seems to be following without questioning the rationale of such pressure tactics.
Venkatesh Nayak has put together a quick compilation of the procedures for appointment and removal of the heads and members of important statutory bodies at the Central level which would enable readers to understand how appointments are made to such bodies and how their members should be removed. This is also intended to provide readers with a ready-reckoner to assess the new appointments that may be made by the NDA Government against the requirements in law.
I National Disaster Management Authority established under the Disaster Management Act, 2005:
The National Disaster Management Authority (NDMA) has nine members apart from the Prime Minister as its Chairperson. The appointment of other members is completely Government-controlled with the PM nominating them including the Vice-Chairperson. The law does not prescribe any qualifications that a person must possess for appointment as a member of these bodies. Merely being born a human being is deemed enough for consideration for appointment. This Act does not provide any procedure for the removal of members of the disaster management authorities at the National or State level. Under Section 75 the Central Government is required to prescribe the terms of office and conditions of service of the members of the NDMA. To the best of my knowledge, these Rules have not been made till date. Essentially, these authorities are completely under the mercy of the concerned Governments which establish them.
II National Commission for Women established under the National Commission for Women Act, 1990:
Under the National Commission for Women Act, 1990 (NCW Act) the Central Government nominates the Chairperson of the National Commission for Women (NCW) and five members from amongst women. While the only qualification for a candidate to be considered for appointment as Chairperson is a commitment to the cause of women, candidates to be appointed as members must be persons of ability, integrity and standing, with experience in a range iof issues affecting women. The NCW is also completely at the mercy of the Central Government for the appointment and continuation of its members in service.
III National Commission for Scheduled Castes established under Article 338 of the Constitution:
The Chairperson, Vice Chairperson and 3 Members of the NCSC are appointed by the President of India. Article 338(2) empowers Parliament to determine the conditions of service and tenure of the Chairperson and Members of the NCSC. From an analysis of the manner of appointments made to this body since 2004, it appears that the Central Government has the power to recommend all appointments which under Article 74(1) are binding on the President. I hope the NDA Government moots a Bill in Parliament to stipulate the terms and conditions of service of the Chairperson and Members of the NCSC to remove arbitrariness in their appointments and removal.
IV National Commission for Scheduled Tribes established under Article 338A of the Constitution:
The Chairperson, Vice Chairperson and 3 Members of the NCST are appointed by the President of India. Article 338A(2) empowers Parliament to determine the conditions of service and tenure of the Chairperson and Members of the NCST. The Ministry of Tribal Affairs notified the National Commission for Scheduled Tribes Chairperson, Vice-Chairperson and Members (Conditions of Service and Tenure) Rules in 2004. The Chairperson must be a member of a Scheduled Tribe and at least two amongst the Vice Chairperson and Members must also belong to Scheduled Tribes. They hold office for a term of three years which is renewable only once. The Central Government has the power to recommend all these appointments which under Article 74(1) are binding on the President.
The President may remove a Chairperson, Vice Chairperson or Member directly on grounds on some ground specified in the Rules. For all purposes this decision of the President will be based on the recommendation of the Central Government. However a Chairperson may be removed on grounds of misbehaviour by the President only upon receipt of a report of inquiry held by the Supreme Court upon receiving a reference from the President. This procedure does not apply to other Members of the NCST. This procedure for removal is somewhat better than those of other bodies discussed above.
V National Commission for Protection of Child Rights established under The Commission for Protection of Child Rights Act, 2005:
Under The Commission for the Protection of Child Rights Act, 2005 (CPCRA) the Chairperson and 6 Members of the National Commission for Protection of Child Rights (NCPCR) are appointed by the Central Government. The Chairperson is selected from a panel of names recommended by a 3-member Selection Committee chaired by the Minister for Human Resources Development. The Chairperson and members may serve in the Commission for a term of three years, which is renewable for a like period once. The Central Government has the power to remove the Chairperson on grounds of proved misbehaviour or incapacity and other specified grounds. However the Chairperson or Member sought to be removed must be given an opportunity of being heard.
VI National Human Rights Commission established under the Protection of Human Rights Act, 1993:
Under the Protection of Human Rights Act, 1993 the Chairperson of the National Human Rights Commission (NHRC) must have occupied the post of the Chief Justice of India. One Member should be a serving or ex- judge of the Supreme Court and a third, a serving or ex-Chief Justice of a High Court. Two other Members may be appointed from amongst persons having knowledge of or practical experience in matters relating to human rights. The Chairperson and Members are appointed by the President of India upon the recommendation of a committee headed by the Prime Minister and comprised of The Speaker of the Lok Sabha, Union Home Minister, Leaders of the Opposition in the Lok Sabha and the Rajya Sabha and the Deputy Chairperson of the Rajya Sabha. The Chairpersons of the National Women's Commission, the NCSC, the NCST and the National Commission for Minorities are ex officio members of the NHRC. A Chairperson or Member may resign from office or they may be removed by the President on grounds of proved misbehaviour or incapacity upon receipt of a report containing a recommendation for removal from the Supreme Court after a reference is made to it by the President to inquire into any complaint against them. The President may remove them on grounds of being adjudged an insolvent, (by a competent court) or upon conviction and imprisonment for an offence involving moral turpitude (such as committing fraud, cheating or corruption etc.), or if engaging in paid employment outside of office during one's tenure, or is unfit to continue in office due to infirmity of mind or body or has been declared to be of unsound mind by a competent court. This law provides for some safeguards against the Central Government monopolising all appointments and removals with regards to the NHRC.
VII National Commission for Minorities established under the National Commission for Minorities Act, 1992:
Under the National Commission for Minorities Act, 1992, the Chairperson and 5 Members of the National Commission for Minorities must be persons of eminence, ability and integrity. The Central Government nominates them to the Commission for a period of three years. A Chairperson or Member of the Commission may resign from office. The Central Government may remove them on grounds specified in the Act. However the Chairperson or Member sought to be removed must be given an opportunity of being heard.
VIII Central Electricity Regulatory Commission established under The Electricity Act, 2003:
The Central Electricity Regulatory Commission is established under Section 76 of The Electricity Act, 2003 with a Chairperson and three Members apart from the Chairperson of the Central Electricity Authority. The Chairperson and Members must be persons with adequate knowledge of or experience in, or shown capacity in, dealing with, problems relating to engineering, law, economics, commerce, finance or, management. A quota system is maintained to ensure that members with diversity of knowledge and experience in the fields mentioned above are appointed. The Central Government may appoint the Chairperson and Members on the recommendation of a committee comprising of Member of the Planning Commission in charge of the energy sector (Chair of the panel), Secretary, Department of Legal Affairs, Chairperson of the Public Enterprises Selection Board, a representative from a public financial institution as defined in the Companies Act, 1956, head or director of a research, technical or management institution- both nominated by the Central Government and the Secretary of the Ministry of Power. The Central Government may remove the Chairperson or a Member on grounds specified under the Act. A member may be removed from office on the three grounds only upon receipt of a recommendation of removal from the Chairperson of the Appellate Tribunal to whom a prior reference has been made about the case.
IX The Competition Commission of India established under The Competition Act, 2003:
The Central Government appoints its Chairperson and 6 Members. The Chairperson and Members must be persons of ability, integrity and standing and who has special knowledge of, and such professional experience of not less than fifteen years in fields specified in the Act. The Central Government may remove them on grounds specified in the Act. A Chairperson or member may be removed from office by the Central Government on two specific grounds only upon a recommendation received form the Supreme Court pursuant to an inquiry conducted upon a reference made by the Central Government.
X The Forward Markets Commission established under the Forward Contracts (Regulation) Act, 1952:
The Central Government constitutes the FMC with a Chairperson and between 1-3 other Members. The Chairperson and Members must be persons of ability, integrity and standing who have shown capacity in dealing with problems relating to commerce or commodity markets, and other areas specified in the Act. The Forward Contracts (Regulation) Act, 1952 does not provide any procedure for removal of the Chairperson or Members of the FMC although Rules may be made for determining the terms and conditions of their service. The Introduction to FMC on its official website indicates that the Chairperson and Member are serving bureaucrats and experts in the regulation of equity markets.
XI Central Information Commission established under the The Right to Information Act, 2005:
The Chief Information Commissioner and up to 10 Information Commissioners are selected by a committee comprising of the Prime Minister (Chairperson), the Leader of the Opposition and a Cabinet Minister nominated by the Prime Minister. Where there is no Leader of the Opposition, the leader of the single largest party in Opposition will be a member of the selection committee. The President of India appoints the members of the CIC based on the recommendations received. The Chief and Members of the CIC may be removed by the President on grounds of proved misbehaviour or incapacity upon receiving such a recommendation after an inquiry conducted by the Supreme Court upon a reference received from the President to that effect. The President may remove any Member of the CIC unilaterally, on other grounds specified in the Act.
XII Central Vigilance Commission established under the Central Vigilance Commission Act, 2003:
The Central Vigilance Commissioner and 2 Vigilance Commissioners are selected form a panel of names recommended by a committee comprising of the Prime Minister (Chairperson), the Leader of the Opposition and the Minister for Home Affairs. Where there is no Leader of the Opposition, the leader of the single largest party in Opposition will be a member of the selection committee. Candidates selected for consideration must be serving or retired members of the All India Services or any other civil service under the Union or who have held an office in a company or corporation owned or controlled by the Central Government. These candidates must have knowledge and experience in vigilance, policy making and administration including police administration. The President may remove them from office on grounds of proved misbehaviour or incapacity upon receiving such a recommendation after an inquiry conducted by the Supreme Court upon a reference received from the President to that effect. The President may remove any Member of the CVC unilaterally, on other grounds specified in the Act. In such cases the President will have to act on the recommendation of the Central Government.
XIII The Securities Exchange Board of India established under Securities and Exchange Board of India Act, 1992:
SEBI comprises of a Chairperson and 8 Members - all appointed by the Central Government. Two members must be serving bureaucrats under the Central Government dealing with Finance and administration of the Companies Act, 1956. A third member must be an official of the Reserve Bank of India. The Central Government may appoint 5 other members of whom at least 3 must be whole-time. Appointees must be persons of ability, integrity and standing who have shown capacity in dealing with problems relating to securities market or have special knowledge or experience of law, finance, economics, accountancy, administration or in any other discipline which, in the opinion of the Central Government, shall be useful to the Board. There is no provision for an independent selection committee for shortlisting candidates. The Central Government may remove the Chairperson or a Member of SEBI on grounds specified in the Act unilaterally.
XIV The Telecom Regulatory Authority of India established under the Telecom Regulatory Authority of India Act, 1997:
The Central Government appoints the Chairperson and Member of TRAI. The Chairperson must be or must have been a judge of the Supreme Court or a Chief Justice of a High Court. The other Member Member must be a person who has special knowledge of, any professional experience, in telecommunication, industry, finance, accountancy, law, management and consumer affairs. They hold office for a term of five years. A serving bureaucrat will have to retire from service upon appointment to TRAI. The Central Government may remove any Member of TRAI on grounds specified in the Act. The Central Government may remove a Member of TRAI on two specific grounds only upon receiving such a recommendation after an inquiry conducted by the Supreme Court upon a reference received from the Central Government to that effect.
XV The Insurance Regulatory and Development Authority established under the Insurance Regulatory and Development Authority Act, 1999:
The Insurance Regulatory and Development Authority Act, 1999 (IRDA Act) itself establishes the Insurance Regulatory and Development Authority (IRDA). The Central Government only has the duty to notify people about its establishment through the Official Gazette. The IRDA is comprised of a Chairperson, five whole-time members and four part-time members. Candidates considered for appointment must be persons of ability, integrity and standing who have knowledge or experience in life insurance, general insurance, actuarial science, finance, economics, law, accountancy, administration or any other discipline which would, in the opinion of the Central Government, be useful to the Authority. The Chairperson and whole-time members hold office for five years and are eligible for reappointment without restriction. Part-time members hold office for a period of five years only. The Central Government may remove from office a Chairperson or Member on grounds specified in the Act. No Member may be removed without being given an opportunity of being heard.
Discussion:
In a majority of cases the power of the Central Government to appoint and remove members of statutory regulatory bodies is near total without being subject to any checks and balances except that of Courts. However, the practice of including opinion from outside of Government is a recent one but not very popular.
The NDA may seize the opportunity to chart a different course of action from that of the previous Governments and evolve a system where only people of eminence befitting the requirements of the job get picked up and get a good working atmosphere to perform. Whether changing the members of such bodies would have the desired results would remain to be seen in the longer run, but prima facie, does not appear to be a healthy practice in a democracy.
Based on a e-mail circulated by Venkatesh Nayak with minor amendments