• In his recent comment the Supreme Court (SC) expressed its “serious concern” over the active role being played by Governors in State politics, observing that Governors becoming part of political processes is disconcerting.
• SC earlier also divested the executive of its sole discretion in appointing the Chief Election Commissioner (CEC) and Election Commissioners (ECs) by forming a committee to suggest suitable names to man these constitutional posts.

Need for an Independent institution in the democracy

• A democracy requires a system of checks and balances to prevent the arbitrary use of power by the elected government.
• India’s democracy provides for various constitutional authorities such as the Public Service Commission, the Comptroller and Auditor General of India (CAG), the ECI, the Finance Commission and the National Commissions for Scheduled Castes (SC), Scheduled Tribes (ST) and Backward Classes (BC), etc.
• Constituent Assembly of India had recognized the need for such independent institutions to regulate sectors of national importance without any executive interference.
• It is necessary that such constitutional bodies are provided with complete independence to enable them to function without fear or favor and in the larger interests of the nation.
• The President is empowered to appoint all constitutional authorities.
• But the makers of the constitution kept in mind those institutions whose independence is of paramount importance to the country and the manner in which the independence of these authorities could be safeguarded from the whims of the executive.

Constitutional provisions on various appointments

• The Constitution-makers have used simple words such as ‘shall be appointed by the President in the appointment of:
• Prime Minister (Article 75),
• Attorney-General for India (Article 76),
• Chairman and other members of the Finance Commission (Article 280),
• Chairman and other members of the Public Service Commission (Article 316), and
• Special Officer for Linguistic Minorities (Article 350B)
• Article 324 provides that the President will appoint the CEC and ECs ‘subject to any law made on that behalf by Parliament’.
• The words ‘shall be appointed by the President by warrant under his hand and seal’ are used while authorizing the President for appointment of:
• Judges of the Supreme Court and the High Court (Articles 124 and 217),
• CAG (Article 148), and
• Appointment of the Governor (Article 155)
• Similar words have been used in Articles 338, 338A, and 338B authorising the President for appointing a chairman and members of the National Commissions for SCs, STs, and BCs.
• However, the original Article, Article 338, had stated that ‘there shall be a Special Officer for the Scheduled Castes and Scheduled Tribes to be appointed by the President’.

What did the supreme court say?

• N. Gopalaswami and Ors vs The Union of India: Supreme Court held that the President acts on the aid and advice of the Council of Ministers, with the Prime Minister as the head in all matters which vests in the executive.
• However, in cases where the appointment of a particular constitutional authority is to be kept independent of the executive.
• The question arises whether such an interpretation would be in line with the thinking which prevailed during the relevant Constituent Assembly debates.

How Constitution gave special status to some appointments?

• Constitution affixes the phrase “by warrant under his hand and seal” only to refer to appointment to positions (Judges, the CAG, and the Governors).
• It assigns a special status to distinguish them from other constitutional positions.
• Constitutional authorities such as the Judges of the Supreme Court and the High Court and the CAG of India are to be kept free from political or executive pressure.

Other appointments by the President

• Appointments made by the President (Articles 75, 76, 280(2), 316, and 324(2)), the Constitution provides for certain conditions to be fulfilled by those who may be considered for such appointments.
• In these articles, the words used are – ‘To be appointed by the President’, and as such the President must act on the advice of the Prime Minister after ensuring that the requisite qualifications are fulfilled.

Constituent Assembly on the appointment of Comptroller and Auditor General of India

• In the draft Constitution, the article for appointment of the CAG (Article 124) had provided that ‘There shall be an Auditor General who shall be appointed by the President ....’
• While moving an amendment to this Article “That in clause (1) of Article 124 after the word ‘Present’ [‘President’] the words ‘by warrant under his hand and seal’ be inserted”.
• The Constituent Assembly had discussed that Auditor-General is to be appointed by the President and therefore it is essential that the words ‘by warrant under his hand and seal’ should be introduced.
• The Auditor-General should always be independent of the legislature or the executive.
• He is the watchdog of finances, and his position must be made so strong that he cannot be influenced by anyone.

Suggestion on the appointment of CAG

• The process of selecting a person to be appointed as the CAG of India should begin by appointing a committee consisting of the Speaker of the Lok Sabha, the Chief Justice of India, and the Chairman of the Public Accounts Committee.
• Committee will shortlist names to be considered for appointment as the CAG of India.
• A panel of three names should be forwarded to the President for him to make the final selection as in Article 148 of the Constitution of India.

Constituent Assembly on the appointment of the Governor

• Article 131 of the draft Constitution was moved to substitute the following that: ‘The Governor of a State shall be appointed by the President by warrant under his hand and seal’.
• Constituent Assembly discussed the following: “To say that the President may nominate from a panel of names really means restricting the choice of President”.
• It gives power into the hands of the Legislature.
• It is necessary that the President should be free from the influence of the Legislature, So the choice of the President should be unrestricted and unfettered.
• Both amendments were passed.

Keeping in view the intention of the framers of the Constitution, the appointment of judges and the ECs have been made free from the influence of the executive, the need is to set up well-defined criteria and procedures for the appointment of the CAG of India.