SC seeks Centre's reply on PIL challenging current CAG appointment procedure
The Supreme Court on Monday asked the Centre to respond to a PIL challenging the current system of appointing the Comptroller and Auditor General of India (CAG) solely by the Government even as it said, “We have to trust our institutions.”
A Bench of Justice Surya Kant and Justice N Kotiswar Singh issued notice on the PIL filed by the Centre for Public Interest Litigation and that it should be clubbed with another petition pending on the issue.
On behalf of the petitioner NGO, advocate Prashant Bhushan submitted that it involved independence of the CAG as an institution. He alleged that audits by CAG in BJP-ruled states such as Maharashtra were being stalled.
The NGO contended that current system of appointing the CAG was “manifestly arbitrary, detrimental to institutional integrity and violates several basic features of the constitution.”
Bhushan said if the appointment was controlled by the Government, the CAG’s independence will be compromised. However, the Bench said, “We have to trust our institutions also.”
The Bench referred to Article 148 of the Constitution according to which the CAG has the same level of protection as a Supreme Court Judge when it comes to removal from office.
Noting that even the Election Commissioners have the same protection, Bhushan pointed out that the Supreme Court found it to be inadequate to protect their independence, and changed the system of appointing CEC and ECs. Under the current system, the Comptroller and Auditor General of India is solely by the Government and the Prime Minister.
However, the PIL sought a direction that the CAG shall be appointed in a transparent manner by the President in consultation with an independent and neutral selection committee comprising the Prime Minister, the Leader of the Opposition (LoP) and the Chief Justice of India.
The PIL said the system for appointment of CAG should be similar to the appointment of other bodies including Information Commissions and the Central Vigilance Commission.
It alleged that the present system of appointment of the CAG done solely by the executive i.e. by the Prime Minister -- who handpicks any individual and recommends his name to the President for appointment -- was unconstitutional being violative of Article 14 and several basic features of the Constitution.
It alleged several instances of political and executive interference with the functioning of CAG.
Alleging that it undermined the independence of the office of the CAG, suffered from grave conflict of interest and was detrimental to good governance and democracy in India, the PIL contended that it was also “manifestly arbitrary, detrimental to institutional integrity and violates several basic features of the constitution.”
“By the very nature of his job, the CAG is supposed to promote transparency,” the PIL said, adding that if he is to discharge his duties dispassionately without fear or favour, his appointment process cannot be opaque or arbitrary.
Noting that the CAG acted as a watchdog over government accounts and expenditure, the petitioner said he played an important role in ensuring transparency and financial accountability in the functioning of the central and state governments as well as Panchayati Raj institutions.
Highlighting the unique position of the CAG under Part V of the Constitution as one of the five institutions of the Union, the PIL submitted that a collective reading of Articles 148-151 of the Constitution along with the various provisions of the Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act, 1971 would show that the Constitution has equated the position of the CAG to that of a sitting judge of this court.
The current process of appointment of the CAG is by way of an unwritten convention which is alien to the law, it said.
The CAG reports were not just used for public debates, but were also an essential source of information for several parliamentary committees, for instance the Public Accounts Committee (PAC), which then uses them to scrutinise government expenditures and debate them in Parliament leading to policy making, delivery of essential services to the public, drafting appropriate and necessary legislations, and so on, the petitioner submitted.
“It is for this reason that the appointment process of the CAG should be fair, transparent and non-arbitrary. Unfortunately, despite the Constitution's best intent to keep the office of the CAG independent from any executive interference, it is increasingly witnessing political interference, thereby compromising the very purpose for which the high office was established,” the NGO contended.
