SC seeks Centre’s view on process to pick CAG
The court was hearing a petition filed by NGO Centre for Public Interest Litigation which raised questions on transparent and independent functioning of CAG.
The Supreme Court on Monday underlined the need to have trust in constitutional institutions , expressing concerns over entertaining a fresh petition seeking a “neutral” selection committee, headed by Prime Minister with Chief Justice of India (CJI) as one of the members, to recommend appointment of the Comptroller and Auditor General (CAG), although it eventually issued notice on the petition and sought the response of the Centre.
A bench headed by justice Surya Kant said, “Where the Constitution provides unconditional power for appointment of a constitutional authority, it needs to be examined to what extent can the Supreme Court rewrite the Constitution.”
The court was hearing a petition filed by NGO Centre for Public Interest Litigation (CPIL) which raised questions on the transparent and independent functioning of CAG, the audit watchdog for public expenditure, and sought a three-member selection committee having Prime Minister, Leader of Opposition and CJI to recommend appointment of CAG to the President of India.
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The court issued notice on the petition and sought response of the Centre after being told that the same issue is already pending before the top court in a PIL filed by former deputy CAG Anupam Kulshreshtha and others seeking a similar independent committee headed by PM to recommend the appointment of CAG. The bench directed the CPIL case to be tagged with Kulshreshtha’s petition.
Advocate Prashant Bhushan appearing for CPIL said that the issue of safeguards against removal of constitutional authorities has never been a bar against courts from entertaining petitions to devise a new scheme for appointment in the interest securing transparency and fairness in the functioning of these authorities. He cited the 2023 judgment by a five-judge bench of the Supreme Court proposing a three-member committee having PM, leader of opposition in Lok Sabha, and CJI or his nominee to recommend the appointment of chief election commissioner (CEC) and election commissioners.
The bench, also comprising justice Ujjal Bhuyan said, “We have to trust our institutions.” It distinguished the judgment on CEC appointment and said, “There is a vast difference between the manner of appointing CEC. Article 324 of Constitution (dealing with CEC appointment) says that the appointment is subject to law made by Parliament.”
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The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 was enacted by the Centre in December 2023 to replace Chief Justice of India (CJI) from the selection committee proposed by the Constitution bench as one of the members. Instead, the law proposed having a Union Cabinet minister to be nominated by the PM. The challenge to the law is pending before the top court in a clutch of petitions. The petitions have alleged that replacing CJI in the selection committee fails to preserve free and fair elections that forms part of the basic structure of the Constitution
The court referred to Article 148 of the Constitution of India dealing with the appointment of CAG that says CAG shall be appointed by the President and shall be removed from office in the like manner and on the like grounds as a judge of the Supreme Court.
“We need to have the wider aspect in mind. These appointments are by President. Sometimes, we have a misconception about the independence part. Once appointed to the posts, constitutional protection is there...Twice, this court has rejected petitions for removal of CAG.”
Bhushan pointed out that the issue of CAG appointment was never discussed in any of the earlier decisions by the top court. On the pending petition by Kulshreshtha, it was pointed out that notice was issued by the top court in January 2024 and the Centre is yet to file its response.
The petition said, “The present mode of appointment of CAG, which is done solely by the executive i.e. by the Prime Minister who handpicks any individual and recommends his name to the President for appointment, is unconstitutional as it is violative of Article 14 and several basic features of the Constitution of India.”
It further stated that the CAG acts as a “watchdog” over government accounts and expenditure and plays an important role in ensuring transparency and financial accountability in the functioning of the Central and state governments as well as Panchayati Raj institutions.
Unfortunately, Bhushan said, “Despite the Constitution’s best intent to keep the office of the CAG independent from any executive interference, it is increasingly witnessing political interference.” When the court asked Bhushan to suggest what “deviations” have been noticed in the functioning of CAG, Bhushan cited news reports suggesting “steady decline” in the number of CAG audits on the Union government as only 18 reports were tabled in Parliament in 2023.
The court said it is possible that reports may have been prepared by CAG but the same were not tabled in Parliament.
Bhushan cited the statement made by BR Ambedkar at the time of framing of the Constitution proposing CAG to have far greater independence than the judiciary. This proposal was not accepted by the majority in the Constituent Assembly.
As the petitioner sought an early date of hearing citing the issue to be “urgent”, the court said it needs to ascertain if there is any direction in the Kulshreshtha matter requiring a three-judge bench to hear the case. While Bhushan submitted the issue may ultimately have to be heard by a constitution bench, the court refrained from making any comment. As per the information updated on the portal, the matter is tentatively listed for hearing on May 6.
