New Delhi: The Supreme Court sought the Centre’s response earlier this week to a public interest litigation seeking transparency in the appointment process for the Comptroller & Auditor General of India (CAG).
Filed by the Centre for Public Interest Litigation (CPIL), a non-profit organisation, the petition alleges political and executive interference in CAG’s working and the current selection mechanism violates the Constitution and undermines the position’s independence.
The petition cites findings made by various reports, including a series of whistleblower complaints, with allegations of corruption, delayed inquiries and silence from the government, raising concerns about the integrity of the selection process.
ThePrint takes a deep dive into the current process of appointing the CAG and the concerns raised by the plea.
Current procedure of appointment
Established under Article 148 of the Constitution of India, the Comptroller & Auditor General of India is an independent high-ranking institution empowered to audit the financial records of Union and state governments of India, various government-funded bodies, Panchayati Raj institutions and public sector undertakings (PSUs).
Constitutionally, CAG is appointed by the President of India (Article 148), and submits all its audit reports to the President or the Governor, who furthers it before the Parliament of India or the state legislature (Article 151). Article 149 of the Constitution lists the duties and powers of CAG.
CAG is the fundamental bedrock of ensuring accountability in government expenditures and public finances. Its reports are not just fodder for academic discussions, but also a peek into the essential information for various governmental bodies, which ensures transparency and questions the government on its expenditure.
For the appointment, the cabinet secretary first shortlists names of potential candidates to give to the finance minister, who then submits the list to the prime minister. The prime minister then recommends one name from the list to the President, and if the same is approved, the appointment is made by warrant under the hand and seal of the President.
This practice to pick the CAG is “against the Constitution’s vision to insulate the body from executive interference”, the CPIL’s petition has said.
This process also lacks parliamentary and independent oversight, which eventually becomes an arbitrary exercise of the executive, it adds.
“The current procedure, being carried by way of an unwritten convention, also runs contrary to Articles 148-151 of the Constitution,” the petition further notes. Such a procedure has extreme chances of conflict of interest, it says.
This also violates the many fundamentals of the Constitution and causes immense damage to institutional integrity, the plea adds. “It is in the interest of justice to issue the necessary directions/guidelines to fill the vacuum in the law relating to the appointment of the CAG.”
Invoking Article 14
The petitioner has invoked Article 14 of the Constitution, alleging violation of the basic structure doctrine. Article 14 guarantees ‘equality before the law’ and ‘equal protection of the laws’ to all individuals within India. It ensures that no person is discriminated against arbitrarily by the state and that everyone is subject to the same laws regardless of their status.
According to the petitioner, the appointment violates Article 14 because when the Executive appoints the CAG, the institutional integrity is not maintained, and “the office of CAG suffers from grave conflict of interest, and thereby, is detrimental to good governance and democracy in India.”
Referring to the Supreme Court’s 2011 judgment, where it ordered the formation of a broad-based independent and neutral selection committee for the appointment of Central Vigilance Commissioner (CVC), the petitioner seeks a similar direction to the government for CAG’s appointment.
Also, since the government has full control over the selection, it creates inequality and goes against the idea that everyone should be treated equally under the law, it is alleged.
The lack of an independent selection process gives unchecked power to the Executive, contradicting fair and equal treatment guaranteed under Article 14, the petition says. This is because “the pick-and-choose method of appointment, without any objective criteria or clearly laid out norms, grants wide discretion to the auditee to appoint his own auditor”.
Furthermore, this is unequal towards the other to-be-auditors as it denies the opportunity to them to participate in the selection process, the petition adds.
Instances of interference mentioned in petition
Petitioned by Kamini Jaiswal, secretary of CPIL, this petition also lists out various incidents of political and executive interference in the working of CAG.
One of them is about a serving CAG official being on the Board of Construction Committee of the Shri Ram Janmabhoomi Teerth Kshetra Trust, which the plea says goes against the Constitution’s value of keeping CAG’s office independent of political interference.
The plea also mentions allegations of corruption in recruitment to several vacancies in the CAG.
Another instance listed pertains to transfer of auditors responsible for unearthing alleged irregularities in central scheme projects. The 2G Spectrum Scam Audit in 2010 had received huge backlash over alleged irregularities and executive overreach.
Transfers of auditors in such sensitive cases should be scrutinised to ensure that they do not undermine the principles of accountability, transparency and anti-corruption efforts in public spending, the petition says.
(Edited by Mannat Chugh)
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