Editorial of the Day: A Reminder About Unfettered Constitutional Posts (The Hindu)

Context: The Supreme Court recently expressed its concern over the active role played by Governors in State politics, in the ‘Sena versus Sena’ case, stating that Governors becoming part of political processes is disconcerting. Also, it commented in the context of ensuring the independence of the Election Commission of India, where the Court formed a committee to suggest suitable names for the Chief Election Commissioner and Election Commissioners, thereby divesting the executive of its sole discretion in making these appointments. The article thus highlights the significance of these comments in protecting the independence of constitutional authorities in India.

Background of A Reminder About Unfettered Constitutional Posts

What are Constitutional Bodies?

• Constitutional bodies are those bodies whose formation is prescribed by the Indian Constitution itself.
• They derive their powers and authority from the Indian Constitution.  A constitutional amendment is often required to change any powers or functions related to such bodies.

Important Constitutional Bodies in India:

The constitutional bodies of India are:

• Election Commission of India (ECI): A permanent and independent body responsible for conducting free and fair elections at all levels in India, including the Lok Sabha, Rajya Sabha, State Legislative Assemblies, and the offices of the President and Vice President of India.
• State Election Commission (SEC): A constitutional body responsible for conducting elections to local bodies like Panchayats, Municipalities and Corporations in each state.
• State Finance Commission (SFC): A constitutional body set up by the President of India under Article 280 of the Constitution of India to recommend the distribution of taxes and grants-in-aid to the States by the Union.
• National Commission for Backward Classes (NCBC): A statutory body established under the National Commission for Backward Classes Act, 1993 to investigate and recommend measures for the welfare of socially and educationally backward classes. 102nd Constitution Amendment Act, 2018 provides constitutional status to the NCBC.
• National Commission for Scheduled Tribes (NCST): A constitutional body set up under Article 338A of the Constitution of India to safeguard the rights and interests of Scheduled Tribes in India.
• Comptroller and Auditor-General of India (CAG): A constitutional authority responsible for auditing the accounts of the government and public sector organizations, and providing recommendations to improve financial management.
• Attorney General of India: A constitutional officer appointed by the President of India to advise the government on legal matters and represent the government in court.

Decoding the Editorial

The article emphasizes the importance of independent institutions in upholding the principles of democracy and good governance. It emphasises on:

• Checks and Balances: There must be a system of checks and balances to prevent the government from misusing its power.
  • In India, various constitutional authorities have been established to regulate important sectors such as public services, finance, and social justice.
  • The Constituent Assembly of India recognized the importance of independent institutions that could function without any interference from the executive branch of the government.
  • The Constitution of India provides for the appointment of individuals to head these institutions in a manner that ensures their complete independence to perform their duties impartially and in the best interests of the nation.
• Autonomy from External Influences:
  • To ensure the independence of the Constitutional bodies, they should not be influenced by any vested interests and should be able to withstand pressure from the executive branch of the government.
  • The Constitution of India empowers the President to appoint all constitutional authorities, but it also takes into account the importance of safeguarding the independence of certain institutions that are critical to the country.

Appointment Process for Various Constitutional Authorities:

• “Shall be appointed by the President”:
  • The Constitution-makers have used simple words such as ‘shall be appointed by the President’ in the appointment of the Prime Minister (Article 75), the Attorney-General for India (Article 76), the Chairman and other members of the Finance Commission (Article 280), the Chairman and other members of the Public Service Commission (Article 316) and a Special Officer for Linguistic Minorities (Article 350B).
  • Similarly, Article 324 of the Constitution provides for the appointment of the Chief Election Commissioner and Election Commissioners, which is also done by the President.
    • However, this appointment is subject to any law made by Parliament in this regard. It means that the President’s power to appoint these authorities is not absolute, and Parliament can pass a law that may restrict or modify the appointment process.
• “Shall be appointed by the President by warrant under his hand and seal”:
  • The words ‘shall be appointed by the President by warrant under his hand and seal’ are used while authorising the President for appointment of the judges of Supreme Court and the High Court (Articles 124 and 217), the CAG (Article 148) and for appointment of the Governor (Article 155).
  • Similar words have been used in Articles 338, 338A and 338B authorising the President for appointing Chairman and members of the National Commissions for SCs, STs and BCs.
•  Power of the Executive:
  • The Supreme Court in N. Gopalaswami and Ors vs The Union of India 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 vest in the executive.
  • This means that in most cases, the executive has the power to make decisions and the President is bound to act according to their advice.
  • However, there are some instances where the appointment of a particular constitutional authority needs to be kept independent of the executive.
  • Therefore, the article raises the question whether the interpretation given by the Supreme Court in the above case would be in line with the intent of the Constituent Assembly, especially in cases where the independence of these authorities is of paramount importance to the country.
  • Example:
    • Appointment of the CAG: There were discussions and amendments made in the Constituent Assembly regarding the appointment of the Auditor General (Article 124) in the draft Constitution.
      • The Constituent Assembly recognized the importance of ensuring the independence of the Auditor General, who serves as a watchdog for the country’s finances.
      • To ensure this, it  amended the Article to include the words “by warrant under his hand and seal,” similar to the appointment of the Chief Justice of the Supreme Court, to strengthen the CAG’s position and prevent any undue influence from the executive or the legislature and to maintain the independence of his/her office.
    • Appointment of the Governor:
      • There was a proposed amendment to Article 131 of the draft Constitution to substitute the existing article with a new one that provided for the appointment of the Governor by the President through a warrant under his hand and seal.
      • This was to ensure the independence of the Governor from the Legislature, and to prevent any undue influence on the President’s decision.
• Strengthening the Appointment of CAG:
  • The Constitution provides for certain positions to be free from political or executive pressure, including judges of the Supreme Court and High Court, as well as the CAG of India.
  • While the appointment of judges and Election Commissioners has been made independent of the executive, the appointment of the CAG requires a well-defined criteria and procedure to be established in order to ensure that this position remains independent as it is the watchdog of the country’s finances.
    • The current practice adopted for the appointment of the CAG is that the Cabinet Secretary prepares a shortlist for the finance minister who then submits it before the prime minister.
    • The prime minister recommends one name from that list to the president. If the president approves the same, the appointment of the CAG is made by warrant under the hand and seal of the president.
  • The author suggests that a committee consisting of the Speaker of the Lok Sabha, the Chief Justice of India, and the Chairman of the Public Accounts Committee should be appointed to shortlist potential candidates for the role.
  • The committee would then forward a panel of three names to the President, who would make the final selection from that panel which would ensure that the appointment of the CAG is kept independent of the executive and free from political or executive pressure.

Beyond the Editorial

Important recommendations for strengthening various constitutional bodies in India:

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