"Article 338 of the Indian Constitution mentions about the powers & provisions for a national commission for the Scheduled Caste community of India. Its sub-articles consist of Article 338A for a national commission for the Scheduled Tribes and Article 338B for a national commission for Backward Classes".

Explanation Of The Article?

Article 338 was in the constitution since 1949. There are three wings of NCSC: atrocities and protection of civil rights wing, service safeguards wing, economic and social development wing. According to the National Commission for Scheduled Castes website, the Commission's duties and functions under Article 338 of the Constitution of India are to:
Investigate and monitor all matters relating to the safeguards provided for Scheduled Castes under the Constitution or under any other law for the time being or under any order of the government and evaluate the working of such safeguards. To investigate Scheduled Castes' rights and protections. The National Commission for Scheduled Castes is a body of individuals that the President of India appoints.

The president selects the chairperson, vice-chairperson, and three members of this body. The commission creates a report detailing its accomplishments and suggestions annually. The report provides information on the commission's actions, recommendations for bettering the situation of Scheduled Castes, and any other pertinent information.

Duties And Functioning Of The Commission:

Constitution of India under Article 338 has assigned the following duties and functions to the Commission.

1. to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under the Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;
2. to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes;
3. to participate and advise in the planning process of socio-economic development of the Scheduled Castes and to evaluate the progress of their development under the Union and any State;
4. to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
5. to make in such reports, recommendations as to the measures that should be taken by the Union or any State for effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Castes and
6. to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes as the President may, subject to the provisions of any law made by Parliament, by rule specify

Powers Of The Commission:

While investigating the matters referred to in sub-clause (a) to inquire into any complaint referred to in sub-clause (b) of clause 5, the Commission have all the powers of a Civil Court trying a suit and in particular in respect of the following matters:

1. Summoning and enforcing the attendance of any person from any part of India and examining him on oath;
2. requiring the discovery and production of any documents;
3. receiving evidence on affidavits;
4. requisitioning any public record or copy thereof from any court or office; 8
5. issuing summons/communications for the examination of witnesses and documents;
6. any other matter which the President may by rule determine.

Aspects To Be Kept In Mind While Filing Complaints Before The Commission

1. The complaint should be directly addressed to the Chairman / Vice Chairman/Secretary, National Commission for Scheduled Castes, New Delhi, or the heads of its State Offices.
2. The complaints should disclose his full identity and give his full address and should sign the representation.
3. Complaints should be legibly written or typed and, where necessary, supported by authenticated documents.
4. No action will be taken on matters, which are sub Judice. Hence sub Judice matter need not be referred to the Commission as complaint(s).
5. Cases pending in courts or cases in which a court has already given its final verdict may not be taken up afresh with the Commission.
6. If Commission, prima facie, feels that there is instance of allegation-Thorough enquiry may be conducted by the Commission through its Investigation Officers and report of the said inquiry may be placed before the Commission before final decision taken by the Commission.
7. The cases of transfer/posting in the Govt. service of the members of Scheduled Castes should not be considered in the Commission unless the specific instance of violation of Rules / instructions leading to discrimination against the complainant come to the notice of NCSC.

Scope Of Article 338:

The scope of the NCSC's powers:
The NCSC has been empowered to investigate and monitor matters related to the safeguards provided for Scheduled Castes (SCs) under the Constitution, it is mentioned in clause 2 of Article 338. In the case of E.V. Chinnaiah vs. State of Andhra Pradesh (2005) , the Supreme Court held that the commission has the authority to investigate complaints and take appropriate action in cases of violation of the rights of SCs. The commission's powers include inquiring into specific complaints and ensuring the implementation of protective laws.

• Protection against discrimination:
  Article 338 ensures protection against discrimination faced by SCs. In the case of M. Nagaraj vs. Union of India (2006), the Supreme Court affirmed the importance of the constitutional provisions for the protection of SCs and emphasized the need for their implementation. The court held that the reservation policy and protective measures for SCs are essential to overcome historical discrimination.
   
• Evaluation of socio-economic measures:
  The NCSC is responsible for advising on the planning and implementation of socio-economic measures for the welfare of SCs. In the case of Union of India vs. National Commission for Scheduled Castes8 , the Supreme Court clarified that the commission has the authority to evaluate and monitor the progress of these measures and programs. The court also held that the commission can issue directives to government authorities for the enforcement of constitutional safeguards and to remedy any violations.

Who Can File A Complaint In NCSC:
According to the NCSC website, any individual belonging to the Scheduled Castes (SCs) can lodge a complaint with the NCSC . The NCSC has launched an online portal where SC applicants can lodge their complaints online. The portal is designed to deliver fast and transparent justice to class complainants.

1. To file a complaint under the portal, you have to pass the following eligibility:
   
   • An applicant must be a citizen of India.
   • And an applicant must be from the scheduled caste category.
2. To apply through the portal, you must have the following documents with you:
   
   • Applicants must have a scheduled caste certificate.
   • Applicants must have their own Aadhar card which is linked with their mobile number.
   • Applicants must have their own registered mobile number and email ID.

Enforceability

1. Professor Ramesh Chandra vs. University of Delhi and Anr., LPA No. 280/2007 it was stated that "While conferring limited powers of a civil court for some purposes, Article 338 has not given the Commission, the power to adjudicate and pass binding and executable decrees like a civil court. ...It is clear from the reading of Clauses 6-8 that the reports made by the Commission are recommendatory in nature and cannot be equated with decrees/orders passed by Civil Courts which are binding on the parties and can be enforced and executed. It cannot be said that the reports of the said Commission are alternative to the hierarchical judicial system envisaged under the Constitution of India."
    
2. In the case of Union Of India & Anr vs National Commission (W.P.(C) 2390/2012) it was stated that, "It is an undisputed legal proposition that the Commission, while acting under Article 338(5) of the Constitution, can only make recommendations, but cannot issue any direction to the Government or any other person or Authority".
    
3. Maharaja Agrasen College & Anr. vs. Narendra Kumar & Ors. in W.P. (C) 521/2018 decided on 26.03.2019, The controversy involved in the case is, ex facie, a service matter. It is now a settled position that the NCSC does not have the jurisdiction to adjudicate service matters. The Supreme Court in All India Indian Overseas Bank SC & ST Employees Welfare Association and Ors. v. Union of India &Ors.: 1996 Supp (8) SCR 295 had examined the powers of the NCSC and had held that although the NCSC has certain powers of a Court, it was not a Court and thus would not adjudicate disputes.
    
4. State Trading Corporation Of ... vs National Commission for Schedule ... on 12 November 2020 (W.P. (C) 8220/2020) The issue was that the directions issued in the impugned order dated 06.03.2020 were beyond the purview and jurisdiction of NCSC under Article 338 of Constitution of India. The High Court was of the prima facie view that the directions issued by NCSC are beyond its jurisdiction, as held by the Co-ordinate Bench of this Court that the Commission does not have powers to issue directions relating to service matters.

Investigation And Enquiry:

1. Municipal Corporation of Delhi vs. Lal Chand and Ors. (W.P.(C) 5468/2011) has held as under: - "It would be noticed that sub-clause (a) empowers the Commission to undertake an investigation and sub-clause (b) empowers it only to make an enquiry and not an investigation. Investigation and enquiry are altogether different connotations, envisaging application of different procedures.
   
   Therefore, no investigation can be carried out by the Commission into matters which can be subject matter only of an enquiry. However, a perusal of the communication dated 14.12.2012 would show that on receipt of a complaint from respondent No. 1, the Commission decided to „investigate‟ into the matter. This, however, was beyond jurisdiction of the Commission since it can make only an enquiry and not investigation into specific complaints of deprivation of rights and safeguards of the Scheduled Castes".
    
2. The Supreme Court in All India Indian Overseas Bank SC and ST employees' welfare association v. Union of India (Supra) (Appeal (civil) 13700 of 1996) held that "all the procedural powers of civil court given to the National Commission for Schedule Caste and Schedule Tribe by Article 338(8) of the Constitution of India are for the limited purpose of investigating any matter under Article 338(5)(a) or inquiring into any complaint, under 338(5)(b). The powers of a civil court of granting injunctions, temporary or permanent, do not inhere in the Commission nor can such a power be inferred or derived from a reading, of clause (8) of Article 338 of the Constitution". "The Commission shall ... have all the powers of the Civil Court trying a suit".

But the words "all the powers of a Civil Court" have to be exercised "while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause 5". All the procedural powers of a civil court are given to the Commission for the purpose of investigating and inquiring into these matters and that too for that limited purpose only".

While investigating any matter referred to in sub-clause (a) or inquiring into specific complaints under sub-clause (b) of the clause (5) of Article 338 of the Constitution, the Commission shall have the powers of a Civil Court trying a suit and in particular in respect of the following matters:

1. summoning and enforcing the attendance of any person from any part of India and examining him on oath;
2. requiring the discovery and production of any document;
3. receiving evidence on affidavits; NCSC Hand Book 2016 14
4. requisitioning of any public record or copy thereof from any court of office;
5. issuing commissions for the examination of witnesses the documents;
6. any other matter which the President may, by rule, determine

Issues Regarding Section 338:

1. There have been instances where individuals have exploited Article 338 of the Indian Constitution, as illustrated in the case of Collector, Bilaspur vs. Ajit P.K. Jogi and Ors. (AIR 2012 SC 44). In this particular case, the sixth respondent lodged a complaint with the Commission, alleging that the first respondent had fraudulently obtained a false caste certificate and did not actually belong to a Scheduled Tribe. This instance serves as an example of how certain individuals have misused the provisions of Article 338, highlighting the need for vigilance in ensuring the authenticity of caste certificates and upholding the intended purpose of the constitutional safeguards for marginalized communities.
    
2. Life Insurance Corporation of India v. National Commission for Scheduled Caste, 202212 in this case The Court examined the scope of Article 338 of the Constitution and said that it is unambiguous that the Commission can exercise the powers of the Civil Court for the purpose of conducting an adjudication in an effective manner, but it may not issue any direction, directing the Government authorities or the corporation authorities to grant promotion to a particular person or issue posting to a person in a particular station or place, which all are governed under the Service conditions of an employee. It is pretty much visible that commissions are not following administrational power and exercising their direction in matters they do not have jurisdiction.

Can A Contract Be Challanged Under Article 338

1. Life Insurance Corporation of India v. National Commission for Scheduled Caste, 2022 (W.P.No.27385 of 2018) The Court held that, NCSC was not expected to interfere with the routine administrative affairs of the corporation, as the scope of Article 338 of the Constitution cannot be expanded for the purpose of interfering with the routine administrative affairs of the employer, which are governed under the service rules , and while considering the complaint, if at all any violation of service rules are identified or traced out by the commission.
    
2. In Union of India vs Puna Hinda, The Court further observed that the whole dispute consisted of only technical issues and no question of law was involved. Accepting the appellant's argument, the Court held that although the high court's jurisdiction is wide, purely contractual matters in the field of private law that have no statutory substances are better adjudicated upon by a specialised forum agreed to by the parties.
   
   The Court held that since the dispute consisted of highly technical issues such as resurveys and the examination of contract documents, such processes could be adjudicated by only arbitration and not by the writ court as it did not have the expertise to adjudicate the complex technical issues of this case. 12 "Madras High Court| Scope of Article 338 of the Constitution cannot be expanded for interfering with the routine administrative affairs of the employer, governed under the service rules | SCC Blog.". MANU/SC/0601/2021
    
3. Union Of India & Anr vs National Commission (W.P.(C) 2390/2012) g) The cases of administrative nature like transfer/ posting/ grading of ACRs will not be taken up by the Commission unless there is caste-based harassment of petitioner.

(h) No action will be taken on the matters where there is no mention of violation of Reservation policy, DOPT OMs, Government of India Orders, State Government Orders, PSUs and Autonomous Bodies orders or any other violation of Rules of Reservation. Hence the matters where there is no mention of violation of above Rules need not be referred to the Commission as complaints."

It would thus be seen that even as per the Rules framed for the Commission, the matters which do not involve violation of reservation policy and allied matters are not expected to be inquired into by the Commission, and the emphasis is on inquiring into his complaints which relate to deprivation of rights and safeguards made available only to the members of the Scheduled Castes."

Can National Commission For Scheduled Caste File FIR?

The NCSC has asked Delhi Police to register an FIR against Aam Aadmi Party's Uttam Nagar MLA Naresh Balyan for manual scavenging in his constituency allegedly on his directions14 The NCSC can recommend filing an FIR against the accused with the concerned law-enforcing agency of the State/District if it finds substance in the allegation/complaint regarding atrocity after detailed inquiry/investigation. However, it cannot initiate an enquiry under Article 338 of the Constitution of India based on a specious complaint and unsubstantiated allegations . Relating laws: 7. 5.1

Whenever information is received in the Commission about any incident of atrocity against a person belonging to Scheduled Castes, the Commission would immediately get in touch with the law enforcing and administrative machinery of the State and the district to ascertain the details of incident and the action taken by the district administration.

If after detailed inquiry/investigation; the Commission finds substance in the allegation/complaint regarding atrocity, the Commission may recommend to file an FIR against the accused with the concerned law-enforcing agency of the State/District. In such cases, the State Government/District Administration/Police Personnel may be called within three days through the summons.

1. Prithvi Raj Chauhan vs Union of India (Writ Petition [C] NO. 1015 OF 2018) 39. The National Commission for Scheduled Castes Annual Report 2015-16, has recommended for prompt registration of FIRs thus: "The Commission has noted with concern that instances of procedural lapses are frequent while dealing atrocity cases by both police and civil administration. There are delays in the judicial process of the cases.
   
   The Commission, therefore, identified lacunae commonly noticed during police investigation, as also preventive/curable actions the civil administration can take. NCSC recommends the correct and timely application of SC/ST (PoA) Amendment Act, 2015 and Amendment Rules of 2016 as well as the following for improvement: "8.6.1 Registration of FIRs.
   
   The Commission has observed that the police often resort to preliminary investigation upon receiving a complaint in writing before lodging the actual FIRs. As a result, the SC victims must resort to seeking directions from courts for registration of FIRs u/s 156(3) of Cr.P.C. Hon'ble Supreme Court has also on more than one occasion emphasized about registration of FIR first. This Commission again reemphasizes that the State / UT Governments should enforce prompt registration of FIRs."
    
2. In case any person apprehends that he may be arrested, harassed, and implicated falsely, he can approach the High Court for quashing the FIR under Section 482 as observed in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568.

How to convince the police to file FIR? (information form the website)17 Show the proof of your caste identity. Lodge a written complaint with the police. Attach versions of witness (as) supporting your statement duly signed by him / them by affidavit in writing Try to establish the motive with direct and circumstantial evidence. Insist on receipt of your complaint duly signed by the duty officer.

Case Filed By Omcs Against Ncsc Or Ncst Challenging Their Direction?

1. Indian Oil Coporation Ltd vs National Commission For ... on 9 January, 2018 (W.P.(C) 9186/2016 & CM 37148/2016) Facts : The Commission advised Indian Oil Corporation Limited (IOCL) to reconsider its decision of cancelling the Distributorship Agreement with respondent no.2 and instead reinstate it in their favour. The Commission observed compelling reasons to believe that the cancellation of the dealership was driven by an intention to harass a Scheduled Tribe allottee.
   
   Through an order dated 27.07.2016, the Commission reiterated its advice to IOCL, instructing them to restore the petrol pump to respondent no.2, as it had determined that IOCL's decision was arbitrary and aimed at harassing a member of a Scheduled Tribe.
   
   Additionally, the Commission directed that failure to comply with the restoration order would result in action being taken against the responsible officials of IOCL under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
   
   Issue: whether the impugned orders are ultra vires the powers of the Commission and/or are otherwise unsustainable.
   
   Held: In the present case, there was no material before the Commission to even remotely suggest that there was any derivation of rights and safeguards of any Scheduled Tribe. The representation made by respondent no.2 merely articulated his grievance regarding the action taken by IOCL, which he described as high handed. He had apart from alleging various irregularities had specifically alleged violation of certain rules and regulations.
   
   But, he had made no allegation of any discrimination or hostile treatment on account of being a member of a Schedule Tribe. The Court is in no doubt that the Commission has misunderstood its role under Article 338A of the Constitution of India. The Commission is not an Alternative Forum for dispute resolution and has no adjudicatory function.

Analysis
Article 338 and the establishment of the NCSC reflect the constitutional commitment to address historical disadvantages and discrimination faced by SCs in India. The commission's independent status, monitoring and investigative powers, advisory role, and reporting requirements contribute to the protection and upliftment of SCs. The remedial powers of the NCSC further ensure that violations are addressed, and appropriate action is taken to uphold the rights and welfare of SCs

End Note:

1. https://ncsc.nic.in/pages/display/47
2. NCSC Grievance Management Portal: Register Online Complaint @ ncsc.negd.in.. NCSC Grievance Management Portal: Register Online Complaint @ ncsc.negd.in (pmmodiyojana.in)
3. Article 338 of Indian Constitution. [online]. Available at: https://indianconstitution.guru/constitution-of india/part-16/article-338/..
4. New Brochure 2018.pdf (ncsc.nic.in)
5. New Brochure 2018.pdf (ncsc.nic.in)
6. Microsoft Word - Inner Page.docx (ncsc.nic.in)
7. 2004 SCC Online SC 1420
8. 2014 SCC Online DEL 1829
9. http://ncsc.nic.in/pages/view/275-online-complaint
10. https://pmmodiyojana.in/ncsc-grievance-management-portal/
11. NCSC Grievance Management Portal: Register Online Complaint @ ncsc.negd.in. [online]. Available at: https://pmmodiyojana.in/ncsc-grievance management portal/#NCSC_Grievance_Management_Portal_Objectives.
12. Madras High Court| Scope of Article 338 of the Constitution cannot be expanded for interfering with the routine administrative affairs of the employer, governed under the service rules | SCC Blog."
13. MANU/SC/0601/2021
14. Delhi: File FIR against MLA over manual scavenging, says Scheduled Castes panel | Delhi News - Times of India.. Delhi: File FIR against MLA over manual scavenging, says Scheduled Castes panel | Delhi News - Times of India (indiatimes.com)
15. Rules Of Procedure Of The National Commission For Scheduled Castes.
16. National Commission For Scheduled Castes Cannot Initiate Enquiry On Specious Complaint, Unsubstantiated Allegations: Delhi High Court
17. FAQ National Commission for Scheduled Castes. [online]. Available at: https://ncsc.nic.in/faq.