PIL For Independent Process To Appoint CAG : Supreme Court Seeks Centre's Response

The three-Judge Bench of Chief Justice DY Chandrachud, Justices JB Pardiwala and Satish Chandra Sharma, after hearing submissions of Senior Advocate Vikas Singh (representing the PIL petitioners), called for the response of the Ministries of Law & Justice and Finance.

In the instant case, the petitioners seek inter-alia (i) a declaration that the procedure adopted for the appointment of CAG is against the Constitutional mandate, and not independent, fair and transparent (ii) order for CAG's appointment to take place without any interference from the Executive (iii) constitution of a committee to prepare a report and recommend the process for neutral and independent appointment.

Article 148(1) of the Constitution of India, which deals with the appointment of CAG, reads thus:

“There shall be a Comptroller and Auditor-General of India who shall be appointed by the President by warrant under his hand and seal and shall only be removed from office in like manner and on the like grounds as a Judge of the Supreme Court.”

The PIL claims that the absence of a prescribed procedure for CAG appointment reflects a legal vacuum, which has led to the adoption of a procedure which is unfair and against constitutional mandates. As per the petitioners, this procedure lacks “a system for selection, a selective committee, criteria, evaluation and transparency.”

To quote the plea, “The appointment process virtually entrusts the high constitutional post of the CAG to the Cabinet Secretary, allowing arbitrary shortlisting without established criteria. The Prime Minister then holds sole discretion in choosing from the Cabinet Secretary's shortlisted candidates, rendering the process arbitrary and against constitutional mandates”.

It is contended that the founding fathers of Indian Constitution envisaged for the CAG, an officer responsible for overseeing government expenditures and ensuring fiscal accountability, to be an independent authority, free from influences of the Legislature and/or the Executive.

The petitioners seek to impress that constitutional roles such as that of Judges, Governors and the CAG have been afforded a special status under the Constitution, with the precise intention to insulate them from political or executive pressures.

In support of the quest for “fair, transparent and independent CAG appointments”, they cite Anoop Baranwal v. Union of India, 2023 LiveLaw(SC) 155 (where procedure for appointment of Election Commission appointments was challenged) and aver that the values of transparency and independence, emphasized in Anoop Baranwal, are lacking in the procedure for appointment of CAG.

“In the CEC judgement, this Hon'ble Court stressed that the appointment should not be overshadowed by the perception of a 'yes man' deciding the fate of democracy. The current procedure for appointment of CAG appears to lack independence, raising concerns about absolute control and allegiance to the Executive.”

Notably, they attempt to distinguish their case from others who have previously challenged the procedure for CAG appointment and been returned with a dismissal order, by pleading that the judgment in Anoop Baranwal constitutes a changed circumstance. In this regard, it is claimed that the petitioners are not calling in question the appointment of a specific CAG, unlike their predecessors.

The matter is likely to be listed next on March 11, 2024.

Counsels for appellants: Senior Advocate Vikas Singh; AOR Mudit Gupta; Advocates Varun Singh, Kajal S Gupta, Deepeika Kalia, Somesa Gupta, Smriti Wadhwa, Keshav Khandelwal, and Vasudha Singh

Case Title: Anupam Kulshreshtha and Ors. v. Union of India & Anr., W.P.(C) 36/2024