Date: 17/04/2023

Relevance: GS-2: Appointment to various Constitutional Posts.

Key Phrases: ‘Sena versus Sena’ case, independence of the Election Commission, by warrant under his hand and seal, Constituent Assembly debates, N. Gopalaswami and Ors vs The Union of India, checks and balances.

Why in News?

• The Supreme Court of India has recently made comments that will impact the concept of independence of various constitutional authorities in India.
• In a hearing of the ‘Sena versus Sena’ case, the Court expressed its concern over the active role played by Governors in state politics, while in another instance, it took an important step in ensuring the independence of the Election Commission of India by forming a committee to suggest suitable names to man these constitutional posts.

Need for independent institutions:

• In a democracy, checks, and balances are necessary to prevent arbitrary use of power by the elected government.
• India has various independent constitutional authorities to regulate national sectors without executive interference, recognized by the Constituent Assembly.
• These bodies must function independently and without fear or favour in the interest of the nation, as laid out in the Constitution.
• The President appoints these authorities while safeguarding their independence from executive pressure.
• Maintaining independence is crucial for upholding the rule of law in a democratic system.

Different Appointment Procedures:

• 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).
• 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:
  • The judges of the Supreme Court and the High Court (Articles 124 and 217)
  • The CAG (Article 148)
  • The Governor (Article 155)
• Similar words have been used in Articles 338, 338A, and 338B authorizing the President for appointing the 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’.

Interpretation and Challenges:

• The Supreme Court has held, in N. Gopalaswami and Ors vs The Union of India 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.

‘Unrestricted and unfettered’ choice:

• The Constituent Assembly emphasized the importance of ensuring the independence of key constitutional positions, such as the CAG and Governor of a State, to ensure accountability and transparency in government functioning.
• The Assembly recognized the need for the President to have an "unrestricted and unfettered" choice in appointing such positions without any external influence.
• The discussions led to the introduction of the clause "by warrant under his hand and seal" in the Article for appointment of the CAG, which ensures that the President has full authority to appoint the CAG without any external influence.
• Similarly, in the case of the Governor of a State, the Assembly rejected the proposal to restrict the President's choice from a panel of names and instead ensured that the President has complete freedom in appointing the Governor.
• This highlights the significance of maintaining the independence of these positions to preserve the integrity of the democratic process and prevent undue influence on government functioning.

Both amendments were passed.

• For appointments to be 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.

A special status:

• The Constitution of India affixes a special status to certain constitutional positions, including Judges, the CAG, and the Governors, by using the phrase “by warrant under his hand and seal” only in reference to their appointment.
• This special status distinguishes them from other constitutional positions and is intended to keep them free from political or executive pressure.

Selection Process for CAG of India:

• Whereas the appointment of judges and the ECs have been made free from the influence of the executive, the need to set up well-defined criteria and procedures for the appointment of the CAG of India remains to keep in view the intention of the framers of the Constitution, as evident from the Constituent Assembly debates.
• To ensure the independence of the CAG, the process of selecting a person for this position should begin with a committee consisting of
  • The Speaker of the Lok Sabha,
  • The Chief Justice of India, and
  • The Chairman of the Public Accounts Committee.
• This committee should shortlist names to be considered for appointment, and a panel of three names should be forwarded to the President for the final selection, as outlined in Article 148 of the Constitution of India.

Conclusion:

• India's Constitution has checks and balances through independent constitutional authorities.
• The recent Supreme Court comments emphasize maintaining their independence for the national interest.
• Upholding this independence is crucial for democracy's integrity, and every citizen should safeguard these values and institutions.

Source: The Hindu

Mains Question:

Q. What is the need for independent institutions in a democracy? How did the Constitution makers ensure the independence of various constitutional authorities in India?