The Supreme Court on Monday asked the Centre's reply on a PIL for declaring as unconstitutional, the process of appointment of the Comptroller and Auditor General of India "solely by the executive and the prime minister" and said "we should trust our institutions."
A bench of Justices Surya Kant and N Kotiswar Singh issued the notice on a PIL filed by NGO Centre for Public Interest Litigation and tagged it with a pending case on the issue.
The bench said Article 148 of the Constitution provides for the appointment of CAG aside from the safeguards from any influence.
"Ultimately, we have to trust our institutions. Article 148 also provides protection, similar to one which is provided to the judges of the Supreme Court," the bench said.
Advocate Prashant Bhushan, appearing for the NGO, said the question was over the independence of the institution and claimed audits by the CAG of Bharatiya Janata Party-ruled states such as Maharashtra were being stalled.
For a long time the appointment of the CAG was largely independent but recently the independence of the constitutional body, which audits the schemes of the Centre, states and the PSUs was being stalled, he added.
Bhushan said in 2023, only 18 CAG audit reports were tabled in Parliament as opposed to 40 previously.
"Now, the CAG is not being allowed to audit the schemes in the states especially which are ruled by the ruling party in the Centre. For Maharashtra, the audit teams were ready but then an order came that audit should be done after the elections," he said.
Referring to the 2023 Constitution bench judgment over the appointment of chief election commissioner and election commissioners where a panel of the PM, Leader of Opposition and the Chief Justice of India was formed, Bhushan said, "The question is whether just the safeguard against removal is sufficient to guarantee independence."
Justice Surya Kant, however, asked if the Constitution had provided an unbridled power of appointment, should the court intervene and "to what extent"?
"Would this not amount to rewriting the provision for appointment of the CAG?" he asked.
Bhushan said the court had already done it in the case of the appointment of important constitutional posts such as the chief vigilance commissioner and chief information commissioner.
The bench said in the case of CAG, it was clearly stated that the appointment should be done by the President.
Previously too, the bench said, the issue was dealt with by the Supreme Court and petitions were dismissed.
Bhushan said one petition was pending whereas other pleas that were dismissed did not directly question the procedure for appointment of the CAG.
The PIL has sought directions to declare that the CAG should be appointed by the President in consultation with an independent and neutral selection committee comprising of the Prime Minister, the Leader of the Opposition and the Chief Justice of India and in a transparent manner.
The direction for appointment of the CAG should be similar to the appointment of other bodies, including Information Commissions and the Central Vigilance Commission, it said.
The plea filed through Bhushan argued the present mode of appointment of the CAG, done solely by the executive, i.e., the Prime Minister who handpicks any individual and recommends their name to the President for appointment, was unconstitutional and violative of Article 14 and several basic features of the Constitution.
The plea said procedure, as a result, undermined the independence of the office of the CAG, suffered from a grave conflict of interest and was detrimental to good governance and democracy in India.
"It is also manifestly arbitrary, detrimental to institutional integrity and violates several basic features of the constitution," it added.
The CAG, the plea said, was uniquely placed in Part V of the Constitution as one of the five institutions of the Union and a collective reading of Articles 148-151 of the Constitution along with the various provisions of the Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act, 1971 showed that the Constitution equated the position of the CAG to that of a sitting judge of this court.
The current process of appointment of the CAG was by way of an "unwritten convention" alien to the law, it said.
"By the very nature of his job, the CAG is supposed to promote transparency," the PIL said.
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