Comparing constitutional bodies: a table and an assessment

Detail

Key terms

• Constitutional body: a body that the Constitution itself creates, such as the ECI, UPSC, CAG or Finance Commission. A normal law cannot abolish it. Only a constitutional amendment can.
• Statutory body: a body created by an Act of Parliament, such as the CVC, CIC or Lokpal. Parliament can change or end it with an ordinary law.
• Ex officio: a person holds a post because of another office they hold. For example, every state Finance Minister sits on the GST Council because they are Finance Minister.
• Pleasure: the person can be removed at any time without giving a reason. The AG serves at the pleasure of the President.
• Removed like a Supreme Court judge: removal needs a special majority in both Houses of Parliament on proven misbehaviour or incapacity. This is the strongest protection of tenure.
• Action-taken memorandum: a note the government places before the legislature with a report. It says which recommendations it accepted and why it rejected the others.

The comparison table

Body (Article)	Appointed by	Tenure	Removal	Reports to
ECI (324)	President, on the advice of the selection committee under the 2023 Act	6 yrs or age 65, whichever comes first; no reappointment [3]	CEC: like an SC judge. ECs: only on the CEC's recommendation (Art. 324(5))	No annual report required
UPSC (315–323)	President	6 yrs / 65	Art. 317: President removes for misbehaviour after an inquiry by the Supreme Court	Annual report to the President → Parliament, with a memo explaining any advice not accepted (Art. 323)
SPSC (315–323)	Governor	6 yrs / 62	President, under Art. 317. The Governor appoints but cannot remove.	Governor → state legislature
CAG (148–151)	President, by warrant under hand and seal	6 yrs / 65 (CAG's (DPC) Act, 1971) [4]	Like an SC judge	Union accounts → President; state accounts → Governor → legislature (Art. 151)
Finance Commission (280)	President	As fixed in the President's order (each award covers 5 years)	Not specified in the Constitution	President → Parliament, with an explanatory memorandum on action taken (Art. 281)
GST Council (279A)	Ex officio: Union FM (chair), Union MoS Finance and state FMs	—	—	Recommendations to the Union and the states
Attorney General (76) / Advocate General (165)	President / Governor	Pleasure	Pleasure	No report
NCSC / NCST / NCBC (338 / 338A / 338B)	President, by warrant	3 yrs (set by rules)	As set by rules	President → Parliament, with an action-taken memo
Special Officer for Linguistic Minorities (350B)	President	—	—	President → Parliament and state governments

Reading the table: three patterns

• Pattern 1: tenure protection is graded.
• Strongest protection (removal like an SC judge): the CEC and the CAG.
• Next: UPSC/SPSC members. They can be removed only after a Supreme Court inquiry (Art. 317).

• Weakest: the AG/AdvGen (pleasure) and the SC/ST/BC commissions (removal by rules made by the executive).

• Pattern 2: the ECs are less protected than the CEC.

• The CEC can be removed only like an SC judge. ECs can be removed on the CEC's recommendation.

• PRS calls this a "lack of parity" in removal. In 2023 the Supreme Court said that extending the same protection to ECs "is a matter for Parliament to consider" [2].

• Pattern 3: the SPSC is split between two authorities.

• The Governor appoints SPSC members.
• Only the President can remove them. This protects members from pressure by the state government.

How the ECI appointment rule changed (2023)

Article 324(2) says the President appoints the CEC and ECs, "subject to any law made by Parliament". Until 2023, no such law existed, so the Union Cabinet effectively chose them.

Stage	Who selects	Source
1950 – March 2023	President, on the advice of the Union Cabinet (no law in place)	Art. 324(2)
Anoop Baranwal v. Union of India (2 March 2023)	A committee of the PM, the Leader of Opposition in the Lok Sabha and the Chief Justice of India, until Parliament makes a law. The Court said the ECI "should be independent of Executive control" [2]	Constitution Bench [2]
CEC and Other ECs (Appointment, Conditions of Service and Term of Office) Act, 2023	Selection committee: PM + a Union Cabinet Minister + LoP in the Lok Sabha (or leader of the largest opposition party). The CJI is dropped [2][3]	Introduced in the Rajya Sabha on 10 August 2023. It replaced the Election Commission Act, 1991 [3]

The process under the 2023 Act, step by step:

1. A Search Committee headed by the Cabinet Secretary, with two members of at least Secretary rank, prepares a panel of five names [3].
2. The Selection Committee recommends a name. It may choose someone outside the panel [3].
3. The President appoints the person recommended [3].
4. Who is eligible: people of integrity who have experience of conducting elections and who are or were Secretary-level officers [3].
5. Term: 6 years or age 65, whichever comes first. Members cannot be reappointed [3].

What PRS criticised in the Bill (2023):

• Government members form a majority of the Selection Committee (2 out of 3) [2].
• Because of how vacancies are handled, the committee could be left with only government members [2].
• The Bill as introduced linked pay to the Cabinet Secretary, an executive post, instead of an SC judge [2].
• Only civil servants are eligible, which shuts out other qualified people [2].

The CAG's tenure law

• The CAG's (Duties, Powers and Conditions of Service) Act, 1971 came into force on 15 December 1971 [4].
• Parliament amended it in 1976, 1984, 1987 and 1994 [4].
• Term: 6 years from the date of taking office. If the CAG turns 65 earlier, they leave office on that date [4][5].
• The CAG may resign by a letter to the President [4].

The SC, ST and BC commissions

• Timeline:
• Art. 338 (original 1950): one Special Officer for SCs and STs.
• 89th Amendment, 2003: split this into a separate NCSC (338) and NCST (338A).

• 102nd Amendment, 2018: added Art. 338B. The NCBC changed from a statutory body into a constitutional body [6][7].

• Powers of the NCBC under Art. 338B:

• It hears complaints from socially and educationally backward classes (SEBCs) and has the powers of a civil court for this work [6].
• It advises on their socio-economic development and checks their progress [6].

• The Union and state governments must consult the NCBC on all major policy matters that affect SEBCs [6].

• How the list of backward classes changed:

• The 102nd Amendment let the President notify the SEBC list for each state and UT [7].
• The 127th Amendment Bill, 2021, passed as the 105th Amendment, 2021, gave states back the power to make their own SEBC lists [8].

Cross-cutting assessment: who can actually bind the government?

• Binding powers are rare.
• ECI: its orders on conducting elections (Art. 324: superintendence, direction and control) are binding.
• CAG: its certificate of the net proceeds of any tax or duty is final.

• Everyone else gives advice. UPSC advice, Finance Commission awards, GST Council recommendations and the commissions' reports can all be rejected.

• So influence depends on the report-and-memorandum chain:

• The body sends its report to the President or Governor.
• The government places it before the legislature with a memo explaining what it did not accept (Arts. 151, 281, 323, 338).
• The legislature and the public can then question the government. If there is no political will, the report just sits on a shelf.

Problems common to these bodies

• The executive controls appointments.
• Most heads are chosen by the President, which means by the Council of Ministers.
• Selection committees are spreading: the ECI (2023 Act), and also the statutory CVC, CIC and Lokpal.

• In the ECI's case the government still holds a majority on the committee [2].

• Jobs after retirement and political links.

• Some former members get government posts after they retire.

• Some chairs have known political links. Both weaken how neutral the body looks.

• Vacancies and delays.

• Posts stay empty for long periods.

• Annual reports and action-taken memos reach the legislature years late.

• Money and staff come through ministries.

• Budgets and staff depend on the ministry the body is supposed to watch, so its independence is reduced.

Reform ideas

• Collegium-style appointments: a committee that includes the LoP and the CJI, as suggested in Anoop Baranwal (2023) [2].
• Equal protection for ECs and the CEC against removal [2].
• Fixed deadlines for tabling reports and action-taken memos.
• Independent budgets: expenses "charged" on the Consolidated Fund (spending that does not need Parliament's vote), plus separate staff for each body.
• More constitutional status? Should bodies like the NCW or the Lokpal become constitutional bodies? The NCBC's move in 2018 is the model [6].

The framing debate (Class 11, Executive, exercise 9)

• The question: should autonomous agencies be freed from ministers? Does democracy mean that elected representatives must control everything?
• For more autonomy:
• Expertise and neutrality matter for elections, audit, recruitment and sharing money between the Union and states.

• A ruling party should not be able to choose the umpire of its own election (Anoop Baranwal, 2023) [2].

• For democratic control:

• Unelected bodies must still answer to someone.

• This is why most of them report to Parliament through the President, and why their advice is not binding.

• The balance the Constitution chose:

• Strong security of tenure (removal like an SC judge, or after an SC inquiry).
• But elected bodies keep the final decision, and the reporting chain lets the legislature hold everyone to account.

Prelims Hooks

• Art. 317: a UPSC/SPSC member can be removed for misbehaviour only after an inquiry by the Supreme Court. SPSC members are removed by the President, not the Governor.
• Art. 323: the UPSC's annual report goes to Parliament with a memo explaining any advice that was not accepted.
• Art. 281: the Finance Commission's recommendations are laid before Parliament with an explanatory memorandum.
• CAG: 6 years or age 65, set by the DPC Act, 1971 (not by the Constitution). The Act came into force on 15 December 1971 [4].
• Anoop Baranwal (2023): PM + LoP + CJI. 2023 Act: PM + Union Cabinet Minister + LoP. The CJI was dropped [2][3].
• 2023 Act: the Search Committee is headed by the Cabinet Secretary and suggests 5 names. ECs cannot be reappointed [3].
• Art. 324(5): an EC can be removed only on the CEC's recommendation. The CEC is removed like an SC judge.
• 89th Amendment (2003) created NCSC 338 and NCST 338A. 102nd Amendment (2018) created NCBC 338B [7]. 105th Amendment (2021) gave states back their SEBC-listing power [8].
• Trap: the GST Council (279A) has no tenure. It is fully ex officio and only makes recommendations.
• Trap: only the ECI's election orders and the CAG's net-proceeds certificate are binding or final. UPSC advice is not binding.

Mains Points

• Independence vs accountability: use the Executive exercise 9 frame. Expertise and neutrality need security of tenure. Democracy needs these bodies to report to Parliament. The best design protects tenure and makes reporting transparent; it does not give these bodies veto powers.
• The ECI appointment debate (2023): the Court said the ECI must be "independent of Executive control". Parliament replaced the CJI with a Cabinet Minister, which gives the government a 2–1 majority. Weigh Parliament's power under Art. 324(2) against free and fair elections, which are part of the basic structure [2][3].
• Advice without force: most of these bodies can only recommend, so their impact depends on deadlines for tabling, action-taken memos and parliamentary committees. Reforms: fixed timelines, budgets charged on the Consolidated Fund, filling vacancies on time, and limits on jobs after retirement.
• Should more bodies become constitutional? The NCBC's move in 2018 (consultation required, civil-court powers) is a model for the NCW or Lokpal [6]. But the 2021 rollback on SEBC lists shows how constitutional status can clash with federalism [8].