The Supreme Court's judgment in the CVC case is a very important, path-breaking one. It prompts one to ask whether what the Supreme Court has said in this case does not have wider implications beyond this particular case. Several things become clear from the judgment in this case: the selection procedure must be open and transparent; all relevant facts and aspects must be taken into account; ‘impeccable integrity' is a sine qua non ; reasons must be recorded for both the majority and minority views in the selection process. Underlying all this is the tacit assumption that the selection to high office must be guided by procedures and criteria.
The Supreme Court has been taking keen interest in the institution of the CVC. The general public and the media are also very interested in appointments to this institution. It is undoubtedly an institution of great importance. However, there is another constitutional institution of still greater importance, namely the CAG, in which, quite inexplicably, the public, the media and even the Supreme Court do not appear to take the same degree of interest. The CAG as an institution has recently come into some prominence because of its reports on the Commonwealth Games and 2G cases, but even now, it cannot be said that there is widespread and adequate appreciation of its constitutional position and the importance of what it does.
The CAG is our Supreme Audit Institution (SAI), i.e., the supreme institution for enforcing the financial accountability of the Central and State governments, other public authorities, institutions receiving substantial funds from the government, and so on. Wherever public funds are involved, the CAG has a role to play. The crucial importance of this high functionary in our constitutional system can hardly be over-stated. Several distinguished leaders of the past (Dr. B.R. Ambedkar, Dr. Radhakrishnan, Dr. Rajendra Prasad and so on) have attested to this, and extolled the virtues of this high office. In particular, Dr. Ambedkar's remark in the Constituent Assembly that the duties of this functionary are even more important than those of the judiciary has been repeatedly cited. The status and independence of the CAG is ensured through a variety of provisions, which need not be detailed here. An important point to bear in mind is that the CAG, at the time of appointment, takes an oath similar to that taken by the judges of the Supreme Court, that is to say, to “uphold the Constitution and the laws”, whereas a Minister has to swear an oath only to act “in accordance with the Constitution.”
What then is the current system — the criteria, the definition of the field of choice, the procedures — for the selection of this high constitutional functionary? The short answer is that there seems to be none; at any rate, none that anybody knows of. The processes are entirely internal to the government machinery; no one outside has any knowledge of what criteria are applied, how names are short-listed, and how a final selection is made. It is not the intention of this article to imply any reflections on any of the appointments made so far. In particular, this writer holds the current CAG in high regard. However, it needs to be said that if some out of the eleven CAGs appointed so far have been good, that must be attributed to accident, not design.
Leaving past selections aside, let us consider how future selections should be made. The present ‘system' leaves the matter entirely in the hands of the Cabinet Secretary, the Principal Secretary to the Prime Minister and the Prime Minister himself (with a certain limited role for the President thereafter). This is no system at all. However good and noble the individuals concerned may be, the process is bound to be influenced by a wide range of extraneous considerations (i.e., considerations unrelated to the requirements of the job) which need not be gone into here.
One is not saying that the internal bureaucratic selection process is entirely ungoverned by any criteria; perhaps seniority, a good record, extent of relevant experience, and so on, are gone into. It would be very strange if they were not, but one simply does not know. A criterion that seems to have come to be applied over the years is that the person to be selected should have served as a Secretary to the Government of India. As there are not many non-IAS Secretaries, this criterion virtually limits the field of choice to retiring IAS Secretaries. Even out of that limited field of choice, there are no discernible selection criteria, judging by the results.
The question arises: if clear criteria, full relevant information, compliance with procedures and complete openness and transparency are so important in the case of the selection of the CVC, are they not even more important in the case of the position of CAG? It is of course true that the CVC Act lays down a committee procedure (the Prime Minister, the Home Minister and the Leader of the Opposition in the Lok Sabha) for the selection, whereas the CAG's Act does not. However, that idea was of fairly recent origin and was incorporated in the Act relating to the National Human Rights Commission and in the CVC Act. The committee procedure was not laid down in either the CAG's Act or the legislation relating to the Election Commission. That does not mean that the committee procedure is good for the CVC and the NHRC, but not good for the CAG or the CEC. The principle of a broad-based selection committee is even more important in the case of the CAG (and CEC) than in that of the CVC. The lacuna in the older laws needs to be remedied. The actual composition of the Committee will of course have to vary from post to post. For instance, the selection committee for the CAG will have to include the Chairman of the Public Accounts Committee.
As for criteria, the need for them is self-evident. Selection to any senior positions in government, and particularly for high constitutional positions, cannot be arbitrary; they have to based on a careful spelling out of the job requirements, and going beyond that, on a visualising of what kind of person we are looking for. It is simply inconceivable that such appointments can be made without any criteria. The Selection Committee will definitely have to go by certain criteria and fields of choice.
This article does not propose to spell out the author's ideas (set forth elsewhere) on the appropriate field of choice and the selection criteria to be adopted. After careful consideration and wide-ranging consultations, these can be laid down in the CAG's Act through amendments. (Apart from other things, impeccable integrity is surely as crucial for the CAG as for the CVC.)
It may seem to some of the readers that this article is arguing the obvious. Curiously enough, it does not seem to be so obvious. Two writ petitions to the Supreme Court asking for the laying down of criteria and procedures for the selection of the CAG, one by the late H.D. Shourie of Common Cause and the other by B.P. Mathur, a retired Deputy CAG, failed. Speaking subject to correction, the Supreme Court seemed uninterested in the subject and somewhat reluctant to enter into it. The contrast between that attitude and the keen interest shown by the Supreme Court in the CVC case seems difficult to understand. Would not the Supreme Court like to extend the excellent principles that it has laid down in the CVC case to other high constitutional positions?