Prolific PIL litigant ‘Centre for Public Interest Litigation‘, through advocate Prashant Bhushan, told SC that though CAG was considered independent and impartial in the past, it had lost its stature because of the drop in number of audits it conducted of Centre and states governed by the party in office at Centre.
Justice Kant, however, did not seem to fully agree with the contention about erosion of the federal auditor’s autonomy. “We seem to have a great misconception about independence,” he said.
Bhushan said even for selection and appointment of SC judges, CVC and CEC, there were mechanisms provided to ensure their independence, yet SC thought it fit to lay down guidelines providing for a high-level panel, including leader of opposition and CJI, for their selection to ensure that these sensitive posts are manned by persons of impeccable integrity and enjoy independence while discharging their duties.
When Bhushan said architect of the Constitution, Dr B R Ambedkar, had envisaged greater independence for CAG than SC, the bench pointed out that the Constituent Assembly had debated the viewpoint but majority did not agree with it. “The issues and questions you raise about selection and appointment of CAG were squarely answered during the Constituent Assembly debates,” Justice Kant said.
The bench said there was already a PIL by one Anupam Kulshreshtha pending in SC on the same issue raised by Bhushan, who said though notice was issued a year ago, it was not listed for hearing again. Though the Constitution leaves it to the executive to appoint judges of SC and HCs in consultation with the CJI, SC in two judgments in the 1990s wrested the judge selection process to itself.
In the Vineet Narain judgment, SC had given statutory status to Central Vigilance Commission and set up a CVC selection committee comprising the PM, home minister and leader of opposition. CVC, home secretary and secretary (personnel) were mandated to select and recommend the person for CBI director post, which would have a minimum tenure of two years. A similar mechanism was laid down for appointment of ED director.
In 2023, SC had detected a vacuum in the law for appointment of CEC and ruled that CEC and ECs would be selected by a panel comprising PM, CJI and LoP. However, it also said it was for Parliament to decide the constitution of the collegium.