The recent decision of the Supreme Court collegium, comprising the Chief Justice of India Dipak Misra and Justices J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and K. Joseph, to make public all its decisions regarding judicial appointments, with attributable reasons, has been widely welcomed. The Supreme Court had been under pressure from the government and the public for long to do so. The National Judicial Appointments Commission (NJAC) Act, it may be recalled, was struck down by a Constitution Bench in 2015, as being violative of the constitution for giving the government the final say in appointments.
Interestingly, the basic objective of the Act was to make judicial appointments more transparent and accountable. It had, though perhaps somewhat grudgingly, been conceded at the time that the existing collegium system had inherent drawbacks. An assurance had also then been held out that it would work to address them suitably. It has taken two years to make some movement on this score, even though the vexed member of parliament issue still remains unresolved. This is the second important step by the SC since the collegium under former CJI, K. G. Balakrishnan, bowing – yet again – to public demand, had made public the assets of all judges, the main difference being that this was voluntary.
The logical next question to ask of the government now is why the same degree of transparency should not be attached to all key constitutional posts. Let us take the case of the Comptroller and Auditor General (CAG) of India, the supreme auditor to the nation its conscience keeper, so to say. The duties and responsibilities of the CAG are laid down in Articles 148 to 151 of chapter V of part V of the constitution, immediately following the chapter on the Union judiciary.
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On September 25, 2017, the 13th CAG, Rajiv Mehrishi, assumed office. There was no break in tradition in the selection inasmuch as it remained shrouded in wraps – justified as a governmental prerogative presumably – and continued as a monopoly of the as yet elite – fast fading though – Indian Administrative Service. There are often claims made by the government of doing what has not been attempted or done in several past decades but none of those claims featured in this case. There was no trademark underscoring of the indispensability of deep domain expertise or throwing the doors wide open for lateral entrants or much applauded transparency. The incumbent – clearly very highly regarded by the present dispensation – had only weeks before completed a fixed two year tenure in the highly sensitive, prestigious post of Union home secretary, to which, incidentally, he had been appointed – literally – on the eve of his superannuation as Union finance secretary. A dream run for any bureaucrat, any time, any place. Though there were some noises made about effecting changes in the system of appointment, to make it open, they died a quiet, quick death. Natural, one believes.
The constitution may be cited in defense of this very closed system. Article 148 merely states that there shall be a CAG of India who shall be appointed by the president by warrant under his hand and seal. But what should not be missed is the independence of the CAG which the constitution has definitively provided for. The high independence quotient – IQ – does not quite gel with non–transparency. This IQ comes through in the special procedure for removal , which is akin to that of a Supreme Court judge, the fact that his salary and expenses are charged – and not voted – to the Consolidated Fund of India and that he is disallowed from holding any other government office after expiry of his term.
Whatever be the reasons, the shrouded appointment system has not become a rallying point to push the government in any other direction. The office of the CAG had always been a quiet one, functioning with humdrum routineness, till Vinod Rai, the grand predecessor, between 2008-13, energised it, almost like T. N. Seshan had done in the Election Commission of India decades back. The scams that bedeviled the UPA regime and brought it to its knees, can in very substantial measure be ascribed to his assuming an unprecedentedly activist and public – oriented role.
The many CBI investigations and trials that are dragging on relating, inter alia, to procedural irregularities in the issuance of licenses for second generation spectrum allotment, the last minute quick-fixes in the conduct of the XIX Commonwealth Games, the loss of national resources while allocating coal blocks, the flouting of systems and clear display of crony capitalism in the exploration of hydrocarbons, as well as the dismal tales in the civil aviation sector, are now part of governance folk lore. For those who would like the insider’s view, his memorable book, Not Just An Accountant, is a must read, hugely riveting. True, there may not be too many takers for an adulatory swoon within the government as they taint him as publicity crazed and responsible for governance paralysis – but that misses the core contribution of Rai. He made CAG a major force to be reckoned with.
In stark contrast, the tenure of the 12th CAG, a retired Union defence secretary, was marked by a strange quietude. This may be because of reasons related to his appointment by the UPA government, post-retirement, after a long stint in a ministry mired in controversies, which implicitly demanded being in constant compliance/acquiescence –mode. Alternatively, they could be those highlighted by Subramaniam Swamy, the BJP MP and ace crusader against corruption in high places.
In a letter to the present incumbent, as reported, he has pointed out that more than 12 reports on defence ministry related issues were audited, though Shashi Kant Sharma had himself worked in that ministry, in different capacities, for ten years. A demand has been made that all these reports should be re-examined by a special team of competent officers so as to ensure that they have not been compromised in any way. It has also been alleged that the final Audit Report of the Aircel-Maxis matter has been pending since January 2015 and kept in “suspended animation”. Causing further damage, it has been stated that the senior officers in the CAG’s office responsible for the hushing up of the reports have been suitably rewarded for their connivance, with one getting the coveted post of the director of audit, UN headquarters, New York and the other getting relief from major penalty proceedings recommended by the Central Vigilance Commission for false LTC claims and even securing an irregular promotion. The audit report on the Rajya Sabha TV’s questionable expenditure is supposed to have been suppressed, too. These may sound unsubstantiated conjectures but they ought not to be tossed out of hand.
It is early days yet. To do justice to the professed vision of the CAG to promote accountability, transparency, good governance and provide credible assurance to stakeholders – legislative, executive as well as the citizens – that public funds are being used efficiently and for public good, Mehrishi has his task cut out for him.
The next three years will be watched closely by an increasingly perceptive and somewhat cynical public, much more so than a harried executive and impatient Legislature.
Activism, no rocking of boats or reinvention through augmented vibrancy? Starting on the right note will be crucial.
Tuktuk Ghosh is a retired IAS officer.