COMPTROLLER AND AUDITOR GENERAL: THE THRESHOLD FOR APPOINTMENT

INTRODUCTION

Comptroller and Auditor General or otherwise known as CAG, being the fundamental auditor and the watchdog of the expenditure of central and state governments, is one of the important constitutional offices, enshrined under Articles 148 to153, additionally guided by The Comptroller and Auditor General’s (Duties, Powers and Conditions of Service) Act, 1971. CAG has been given a stature, oath, and removal akin to a Supreme Court. The high footing that the constitutional framers wanted to give to CAG could be understood by the fact that Dr.BR. Ambedkar calls it “the most important office under the constitution.”[1]

Although the constitutional office is meant for upholding executive accountability, the answerability in terms of appointment of a Comptroller and Auditor General and its functioning are themselves in grey. Both the Indian Constitution[2] and the CAG DPC Act[3] provide for the President to appoint a CAG, however, there is no clarity as to the procedure, and eligibility of becoming a CAG.

The mockery of appointment

‘Accountability entails ‘answerability’, but what if the questioner itself is one appointed by the answerer! Constitutional framers were keen to keep in place the ‘President on the aid and advice of the council of minister’ mechanism for appointment of different offices; however, no such system was there for CAG. This thus gives an inference that the drafters were apprehensive of the government’s poking in the accountability scheme and independence of CAG, and thus probably would have deliberately left it in President’s courtyard, until the Shamsher Singh & Anr v. the State of Punjab[4] changed the interpretation of appointment. Conventionally, CAG has been appointed by the President on the recommendations of the Prime Minister based on the observations of the cabinet secretary. The current practice of appointing the person based on PM’s recommendations[5] is itself a mockery of the very purpose for which CAG was established: it would be reasonably difficult to gloss over the fact that an office meant for checking the government’s expenditure and accounts is itself being selected by the government & the person selected might be ‘pliable’ and affect the credibility and integrity of the office.

Collegium: A collegium consisting of senior members like retired CAGs, administrators, Supreme court judges shall be appropriate in answering the call. A well-functioning and well-constituted collegium of retired officers would be in a better frame to understand the need, based on experience, and determine the right person for the important office and avoid government intervention. Former Comptroller and Auditor General Vinod Rai and BJP veteran LK Advani had also stressed for a collegium for key offices like Central vigilance Commissioner, Election Commissioner and Comptroller and Auditor General for checking the misuse of power by government in their selection processes.[6]

 In the instance of the Indian sub-continent, where the Public Accounts Committee (PAC) is already in place, consultations of the collegium with PAC would also have significant results in the overall selection process, for PAC is a major stakeholder in the accountability mechanisms of reports. Justice Venkatchalia’s commission report also decisively voices for an independent appointment mechanism as well as a proper inclusion of the Public Accounts Committee in the said process.[7]An exemplification can be taken from Australian, Japanese, Bhutanese supreme auditor selecting systems, among others, where the opinion of the Public Accounts Committee and a bipartisan collegium has a major say in the selection and the system has already borne fruits.[8]

The ‘pick and choose’ system

Article 148 just enables the President to appoint CAG under his/her hand and seal, without laying down a proper selection criterion.[9] Without a proper selection criterion in place, the President is presently allowed to select any Tom-Dicken-Harry to the esteemed position of CAG: even a person not having any expertise in finance and account can also become an officer, auditing the highly complex financial reports of government. In N. Gopalaswami v. Union Of India 2014[10], the Delhi High Court although recognized the need for an experience for CAG, however erroneously rejected the petition saying that procedural justice was followed, putting substantive justice at doldrums: here the question was not about the fulfillment of procedure, rather about the procedure itself. An office of this stature thus requires a properly laid qualification based upon the experience and work background of the prospective person.

Drawing Parameter: Auditing, especially in the government realm, is a highly technical and professional job that requires persons who are well-versed with finance and accounts. Considering that CAGs have been kept at par to judges, equity calls for establishing the qualification bar for Comptroller and Auditor General to be reasonably high, at least at par to Supreme Court Judges: the point here is not about the lack of qualification in existing offers but the upkeeping of the integrity of an important constitutional office and the public faith associated therewith. The appointment thus requires a conscious effort in drafting out structured and effectively implemented parameters and requires a loyal implementation of the same. In laying out a structured and coherent qualification parameter, clues can be taken from overseas legal systems and then morphed accordingly to the best of use for the Indian case. Suggestively, the requirements of Sri Lanka and South Africa where a person becomes qualified only when he/she has a requisite auditing knowledge and experience can also be a guider in setting a qualification for the post of SAI.[11]

Conclusion

Accountability is the essence of an office. Comptroller and General of India is a fundamental constitutional institution, having a high stature in upkeeping the financial reports and executive accountability. Deductively speaking, the office of CAG must have been contemplated to hold a significant position in the government’s accountability, and a strong basis that testifies this contemplation can be inferred from the wordings of Dr. B.R. Ambedkar, who calls the office to be “the most important office.” However, in the current appointment scheme, where the government is having a vast and luxurious discretion in the selection of CAG, the pillars of the CAG office seem to be starkly under great damage and threat of dependence. Adding to the chagrin, a lack of selection criteria allows the government to exploit this loophole to the best to its advantage. Thus, the call of the hour is to substantially bring a proper selection criterion and a collegium for an unbiased selection of the supreme accounting officer to uphold the integrity of the office.

Author(s) Name: Parv Pancholi (National Law University, Odisha)

References:

[1] Constituent Assembly Debates on April 30, 1949 available at: https://indiankanoon.org/doc/1096032/(last visited on October 3, 2021).

[2] Constitution of India, art 148(1).

[3] The Comptroller And Auditor General’s (Duties, Powers And Conditions Of Service) Act 1971, s 2(c).

[4] [1974] AIR 2192 (SC).

[5] BI INDIA BUREAU, ‘CAG Audit – What is prime responsibility of CAG in audit’ ( Business Indsider, 14 January, 2020) <https://www.businessinsider.in/india/faqs/what-type-of-audit-report-can-cag-generate-in-india/articleshow/72384855.cms> accessed on October 2,2021).

[6]Indian Express, ‘Advani Proposes Collegium System’(The Indian Express, 3 June 2012)<https://indianexpress.com/article/india/politics/advani-proposes-collegium-system-to-appoint-ecs-cag/> accessed 5 October 2021.

[7]Jus. Venkatchalia, ‘THE NATIONAL COMMISSION TO REVIEW THE WORKING OF THE CONSTITUTION’ (2002) <https://www.thehinducentre.com/multimedia/archive/03091/ncrwc_3091109a.pdf> accessed 5 October 2021

[8]BP Mathur, ‘What Ails CAG, and What Can be Done’ (Cenfa, 27 December 2018) <https://www.cenfa.org/blog/what-ails-cag-and-what-can-be-done/> accessed 7 October 2021.

[9] Constitution of India, art. 148.

[10] (2014) 214 DLT 79 (DB)

[11]Anupam Kulshreshta, ‘Process of Slecting CAG Should Not Aoid Accountability’ (The Wire, 30 July 2020) <https://thewire.in/government/cag-selection-auditor-prime-minister-government> accessed 7 October 2021.

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