The National Commission for Women

The functions, section 10(1)

(a) and (b). Investigate and examine all matters relating to the safeguards provided for women under the Constitution and other law; and present reports upon the working of those safeguards to the Central Government annually and at such other times as it thinks fit.

(c) and (d). Make recommendations in those reports for the effective implementation of the safeguards by the Union or any State; and review from time to time the existing provisions of the Constitution and other laws affecting women and RECOMMEND AMENDMENTS to meet any lacunae, inadequacies or shortcomings.

(e) and (f). Take up cases of violation of the Constitution and other laws relating to women with the appropriate authorities; and look into complaints and take SUO MOTU notice of matters relating to the deprivation of women's rights, the non-implementation of laws enacted to protect women and to achieve equality and development, and non-compliance with policy decisions, guidelines or instructions aimed at mitigating hardship and providing relief.

(g) and (h). Call for special studies or investigations into specific problems or situations arising out of discrimination and atrocities against women, and identify the constraints; and undertake promotional and educational research to suggest ways of ensuring due representation of women in all spheres and to identify the factors impeding their advancement, such as lack of access to housing and basic services and inadequate support services and technologies for reducing drudgery and occupational health hazards.

(i) and (j). Participate and advise on the planning process of the socio-economic development of women; and evaluate the progress of that development under the Union and any State.

(k), the inspection power. INSPECT OR CAUSE TO BE INSPECTED a jail, remand home, women's institution or other place of custody where women are kept as prisoners or otherwise, and take up remedial action with the authorities. This is the counterpart of section 12(c) of the Protection of Human Rights Act 1993 and is the Commission's sharpest practical power.

(l), funding litigation. FUND LITIGATION involving issues affecting a large body of women. Very unusual, and it converts the Commission from a reporting body into a litigant's backer.

(m) and (n). Make periodical reports to the Government on any matter pertaining to women and in particular the various difficulties under which women toil; and any other matter referred to it by the Central Government.

Powers, reports and consultation

Section 10(4), civil court powers. While investigating a matter under clause (a) or a complaint under clause (f)(i), the Commission has all the powers of a civil court trying a suit: summoning and enforcing the attendance of any person FROM ANY PART OF INDIA and examining on oath, requiring discovery and production of documents, receiving evidence on affidavits, requisitioning public records, issuing commissions for the examination of witnesses and documents, and any other prescribed matter.

Section 10(2), reports to Parliament. The Central Government shall cause the reports under clause (b) to be laid before each House along with a MEMORANDUM explaining the action taken or proposed on the recommendations relating to the Union and THE REASONS FOR NON-ACCEPTANCE of any of them.

Section 10(3). Where a report relates to a matter with which a State Government is concerned, the Commission forwards a copy to the State, which lays it before the State Legislature with a like memorandum.

Sections 11 to 14. Grants by the Central Government after appropriation by Parliament; accounts audited by the Comptroller and Auditor-General; the annual report for each financial year forwarded to the Central Government; and the annual report and audit report laid before each House with a memorandum of action taken and the reasons for non-acceptance.

Section 15. The Chairperson, Members, officers and employees are deemed PUBLIC SERVANTS.

Section 16, the consultation duty. The Central Government SHALL CONSULT the Commission on all MAJOR POLICY MATTERS affecting women.

Section 16 is the provision to name in an examination, because most textbook accounts omit it. Compare article 338(9) precisely: that clause binds the Union AND EVERY STATE GOVERNMENT and rests in the Constitution; section 16 binds only the CENTRAL Government and rests in an ordinary Act that Parliament may amend. The difference is real and it is narrower than it is usually stated.

Section 17. Rule-making by the Central Government, and the laying of rules.

What the Commission cannot do

It cannot order anything. Every function in section 10 ends in a recommendation, a report or the taking up of a matter with an authority. The remedy for refusal is the memorandum in Parliament under section 10(2) and section 14.

It has no constitutional status. Both the Commission and the section 16 duty rest on ordinary legislation.

It does not bind the States. Section 16's duty is on the Central Government alone; section 10(3) only requires a State to lay a report before its legislature.

It cannot try or punish. Its civil court powers are for INVESTIGATION, and the outcome is a report.

And its independence is limited by its composition. The Chairperson and all five Members are nominated by the Central Government for terms of not more than three years, and the Member-Secretary may be a serving officer of that Government. There is no selection committee of the kind that appoints to some other statutory bodies.

The criticisms, and the fair answer to each

That it is a recommendatory body. True, and shared with the Minorities Commission, the Human Rights Commission and, in substance, the constitutional Commissions too, whose orders also bind nobody. The distinguishing power is publicity in a legislature.

That appointments are political. A real objection, met partly by section 3's requirement that the Chairperson be committed to the cause of women and that Members have the specified experience, which is a weak control.

That it is under-resourced. Section 11 leaves the grant to the Central Government's view of what is fit.

That it duplicates the State Commissions. The State Commissions are created by State law with their own functions, and coordination is a matter of practice.

And the demand for constitutional status. The argument is that a Commission created by article, like those under articles 338, 338A and 338B, cannot be diminished by an ordinary majority, and that the consultation duty would then bind the States as well. That is the reform proposal to state, and it is the answer to MU's short note.

A worked example

A national newspaper reports that women prisoners in a State jail are being denied medical care and that two have died. No complaint has been made to the Commission.

Can the Commission act? Yes. Section 10(1)(f) allows it to take SUO MOTU notice of matters relating to the deprivation of women's rights and the non-implementation of laws enacted to protect them.

What can it do on the ground? Section 10(1)(k): inspect or cause to be inspected a jail or other place of custody where women are kept, and take up remedial action with the authorities.

What powers does it have while investigating? Section 10(4): the powers of a civil court, so it may summon the Superintendent from any part of India, examine him on oath, require the production of the medical registers and requisition the post-mortem records.

What can it order? Nothing. It may take up the matter with the authorities under clause (e), recommend under clause (c), and report under clause (b).

What if the State ignores it? Section 10(3): the report goes to the State Government, which lays it before the State Legislature with a memorandum of action taken and the reasons for non-acceptance. Section 16 does not help, because it binds only the Central Government.

And what would give it teeth? Funding a writ petition under section 10(1)(l), which is the one function that reaches a court, and a reference to the National Human Rights Commission, whose section 18(b) power to approach the High Court is worked in [The Human Rights Commissions].

What this does NOT mean

It does not mean the Commission has no duty of consultation attached to it. Section 16 imposes one on the Central Government, and an answer that denies it is wrong.

It does not mean it is equivalent to the Commissions under articles 338 and 338A. They are constitutional, and their consultation duty binds the States too.

It does not mean it cannot reach a court. Section 10(1)(l) lets it fund litigation on issues affecting a large body of women.

And it does not mean a recommendation is worthless. Section 10(2) and section 14 require the reasons for non-acceptance to be laid before the legislature, and that is the sanction the design relies on.

Quick revision

National Commission for Women Act 1990; Commission constituted 31 January 1992. s.3 Chairperson committed to the cause of women, five Members from law or legislation, trade unionism, industry or organisations increasing women's employment, women's voluntary organisations including activists, administration, economic development, health, education or social welfare, at least one each from the Scheduled Castes and Scheduled Tribes, and a Member-Secretary who is an expert or a serving officer. s.4 terms of not more than three years. ss.5 to 9 staff, salaries, vacancies, committees with non-voting co-opted members, and procedure.

s.10(1) functions (a) to (n): investigate and examine safeguards; report annually; recommend implementation; review the Constitution and laws and recommend amendments; take up violations; look into complaints and act SUO MOTU; call for studies; undertake promotional and educational research; advise on the planning process; evaluate progress; INSPECT jails and places of custody where women are kept; FUND LITIGATION affecting a large body of women; report periodically; and any matter referred by the Central Government. s.10(2) reports laid before Parliament with a memorandum of action taken and REASONS FOR NON-ACCEPTANCE; s.10(3) the same before a State Legislature. s.10(4) civil court powers on investigation, including summoning from any part of India. ss.11 to 14 grants, audit by the Comptroller and Auditor-General, annual report, and laying. s.15 public servants. s.16 THE CENTRAL GOVERNMENT SHALL CONSULT the Commission on all major policy matters affecting women. s.17 rules. Criticisms: recommendatory only; nominated appointments for short terms; a Member-Secretary who may be a serving officer; resources at the Government's discretion; no constitutional status and no duty on the States.

Test yourself

1. How is the Commission composed? A Chairperson committed to the cause of women, five Members of ability, integrity and standing with experience in law or legislation, trade unionism, the management of an industry or organisation committed to increasing women's employment, women's voluntary organisations including activists, administration, economic development, health, education or social welfare, of whom at least one each must be from the Scheduled Castes and the Scheduled Tribes, and a Member-Secretary who is either an expert in management, organisational structure or sociological movement or a serving officer of a Union or all-India service. All are nominated by the Central Government for terms of not more than three years.

2. Which two functions in section 10 go beyond reporting? Clause (k), the power to inspect or cause to be inspected a jail, remand home, women's institution or other place of custody where women are kept, and to take up remedial action; and clause (l), the power to fund litigation involving issues affecting a large body of women.

3. What does section 16 provide, and how does it compare with article 338(9)? That the Central Government shall consult the Commission on all major policy matters affecting women. Article 338(9) binds the Union AND EVERY STATE GOVERNMENT and rests in the Constitution; section 16 binds only the Central Government and rests in an ordinary Act that Parliament may amend.

4. What happens to the Commission's reports? Under section 10(2) the Central Government lays the reports before each House of Parliament with a memorandum explaining the action taken or proposed on the recommendations relating to the Union and the reasons for non-acceptance of any of them; under section 10(3) a report concerning a State goes to that State, which lays it before the State Legislature with a like memorandum; and under section 14 the annual report and audit report are laid in the same way.

5. State the case for giving the Commission constitutional status. That a body created by an article of the Constitution, like the Commissions under articles 338, 338A and 338B, cannot be diminished or abolished by an ordinary majority; that its consultation duty would then bind the State Governments as well as the Union, which section 16 does not; and that its recommendations and reports would carry the weight the constitutional Commissions' do.