Mechanisms to check a free-for-all

Some healthy constitutional conventions need to be revived in order to stop officials from exceeding their mandate. Ashok Kapur writes.

A new Comptroller and Auditor General (CAG) has taken over. It is hoped he starts with a clean slate, both literally and figuratively. The last CAG Vinod Rai had publicly indicted the ruling executive severely on occasion, even by the prevailing standards of public conduct.

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It was both unprecedented and unparalleled in the annals of democratic governance in the country. A constitutional authority, the CAG had publicly taken the government of India to task even abroad for the 'brazen' manner in which some decisions had been taken by it.

The CAG was addressing a meeting of the World Economic Forum where he admonished the government over the manner in which it had handled the auction of some public assets and the related process of decision-making. In effect, it was a rap on the knuckles of the Union Cabinet, the highest duly elected decision-making executive body. In essence, it was a value judgement on the part of the CAG, an unelected official after all.

The CAG during the course of official audit had faulted the auction process, calculated the 'presumptive' loss caused to the exchequer and submitted his detailed report to Parliament. This is in accordance with his mandated constitutional duty. No more, no less. The report had been debated extensively by Parliament, and the government had to initiate action on it. A serving minister was dropped from the Cabinet, and is now being prosecuted in a court of law. The entire case has been entrusted to the CBI.

In the constituent assembly debate on the role and responsibility of the CAG, there was a suggestion to designate him as controller general and not the comptroller general. The distinction is subtle but vital. He was not entrusted with any administrative authority, unlike some other such auditors in modern democracies. In the latter case, a system of audit courts has been put in place to punish errant officials. A view was finally taken, and rightly so that any follow-up disciplinary action should remain the prerogative of the government, which is accountable to Parliament for all its actions.

The episode was unfortunately not the first such instance of a constitutional authority exceeding its mandate.

A division bench of the Supreme Court has delivered a verdict recently 'directing' the government under the RTI Act. A PIL had earlier challenged certain provisions of the RTI Act as unconstitutional. The bench upheld the constitutional validity of the Act. Constitutionally, the role of the judiciary should have ended with it. But the bench had gone a step further, and 'directed' the government to not only amend the law but to also amend it in a particular manner.

It must of course be added with respect that the apex court is a hallowed institution, and the never-failing champion of the citizen's rights against any assault by the government or its agencies. Having said that, it must be pointed out that if a constitutional authority exceeds its mandate, democratic governance becomes a casualty. In the aforesaid example, a 'direction' on the government is, in effect, a 'direction' on Parliament itself. Law-making is the prerogative of Parliament and not of either the judiciary or the executive.

If respected constitutional authorities exceed their mandate, and comment publicly on the performance of other constitutional authorities, it erodes the confidence of the common man in the 'system'. This is not a healthy development for the growth of democracy. It affects the performance of other constitutional authorities if they have to continually be on the defensive and to run for cover against unjustified attacks.

The CAG is of the same rank and status as a Supreme Court judge. Just as a wise judge speaks through his judgments, the CAG is similarly expected to speak through his reports. The fact that he admonished the government before a distinguished foreign audience in a formal address disentitles him to the benefit of doubt of a chance remark. The government has no disciplinary control over him save the process of impeachment.

It goes without saying that impeachment would have been out of proportion with what was a minor indiscretion by an individual in his otherwise good track record.

Some healthy constitutional conventions need to be revived. The chief justice of the erstwhile Bombay High Court had participated in a public function that had political undertones. Pandit Nehru, the then prime minister and one of the main architects of the Constitution immediately took cognisance of the matter and promptly wrote to the chief justice. Eventually, the chief justice resigned.

A time has come when some accountability mechanism needs to be worked out as an effective check against constitutional authorities that are tempted to exceed their constitutional mandate. This would strengthen democratic governance in the country.

Ashok Kapur, a former civil servant, is director general, Institute of Directors

The views expressed by the author are personal