PIL before Supreme Court questions CAG selection process, says CAG office no longer independent

The Supreme Court on Monday sought the response of the Central government to a public interest litigation (PIL) petition questioning the manner in which the Comptroller and Auditor General (CAG) of India is appointed [Centre For Public Interest Litigation vs. Union Of India]..The plea filed by a Non-Governmental Organisation (NGO), Centre for Public Interest Litigation (CPIL), raised concern that the CAG's office is no longer considered independent.As per the petitioner, the practice of appointing the CAG solely based on the decision of the executive branch of the government and the Prime Minister is violative of Article 14 (right to equality and against non-discrimination) of the Constitution and violates its basic structure. The petitioner has urged the Supreme Court to issue directions so that the CAG is henceforth appointed after consultation with an independent and neutral selection committee that comprises the Prime Minister of India, the Leader of Opposition and the Chief Justice of India (CJI). The plea also seeks directions so that all details and documents regarding the selection of the CAG are made public. The petitioner pointed out that a similar direction was earlier issued by the top court when it comes to the appointment of Central Information Commission (CIC) members under the Right to Information Act, 2005 (RTI Act). .The matter was briefly heard by a Bench of Justices Surya Kant and NK Singh today, when the Court issued notice and tagged the plea along with a similar pending case, namely Anupam Kulshreshtha and ors v. Union of India (2024).The Bench also hinted that the case may be referred to a three-judge Bench, although no orders to that effect were passed today. "Issue notice. Tag it with Anupam Kulshrestha ... We think this will have to be heard by three judges bench," the Court said. .The office of the CAG is tasked with auditing the revenue and expense accounts of the government, both at the Central and State/ Union Territory levels. Reports prepared by the CAG are sent to the President (if it relates to the Central government's accounts) or the Governor (if it relates to a State's accounts), which are then tabled before the Parliament, or the State Legislative Assembly, as the case may be. .Advocate Prashant Bhushan appeared for CPIL today and raised concerns about the diminishing number of CAG reports being tabled before the parliament in the recent years. "CAG is no longer considered independent. It was known to be so ... The number of CAG reports in 2023 ... Only 18 audit reports were tabled in Parliament," Bhushan said. "Suppose CAG made 40.. and government tables 22?" the Court asked. "They have to table all," Bhushan maintained. "Then something (may be) lacking somewhere else," the Court replied. Bhushan, in turn, said that there were concerns about staff numbers declining. In one instance from Maharashtra, an audit team was ready, but the audit was stalled, only for the CAG to direct that the audit can take place after assembly elections. Bhushan added that the top court had earlier intervened to issue directions on the manner in which officers of the Central Bureau of Investigation (CBI) and the Election Commission of India (ECI) should be appointed to ensure that the independence of these bodies was protected. He urged the top court to intervene similarly when it comes to CAG appointments as well. .The Court, however, noted that there were already Constitutional provisions that were meant to protect the independence of the CAG's office. "We have to trust the institutions you see ... Sometimes, we have great misconceptions about independence. See Article 148 (of the Constitution). There is constitutional protection," Justice Kant remarked. He added that the issue regarding the appointment of the Chief Election Commissioner of the ECI is on a different footing since the parliament has made a law on that issue. The CAG's appointment, on the other hand, is governed by the Constitution, he noted. "When the Constitution has provided unbridled power of appointment ... to what extent can the court intervene and rewrite it?" Justice Kant asked. Bhushan replied by pointing out that the top court has earlier intervened to modify the manner in which judges are appointed by devising the Collegium, even though the procedure was laid down by the Constitution. "The Constitution also provided how judges will be appointed.. but then this Court reinterpreted it to ensure independence of judiciary," Bhushan said. The Bench noted that the Supreme Court had earlier dismissed two similar petitions questioning the manner in which the CAG is appointed. Bhushan replied that the question of the CAG's independence has not yet been decided. "Only (one) similar case is pending in Anupam Kulshreshtha - which was heard year ago and no counter affidavit filed (by the government)," he said. The Court eventually decided to hear the matter further and tagged it with the Anupam Kulshreshtha case.