The scheme of the Indian Constitution is that the state consists of three equal constituents — the Executive, Legislature and Judiciary — all of which operate autonomously within their own sphere, but which come together through overlapping of functions. For example, the Legislature is responsible for legislation and for approving the budget and the grants, but the responsibility of introducing proposals in this behalf rests with the Executive. When an Act of the Legislature or the manner in which it is implemented is called into question, the Judiciary intervenes through adjudication, which may be adversarial, through interpretation of laws or through directions given in exercise of writ jurisdiction. Increasingly as the Executive hesitates to perform its constitutional functions, people have tended to approach courts and when courts give directions this is sought to be represented as unwarranted interference by the Judiciary in Executive matters.
The Constitution is actually a finely balanced machine in which there is both equality and harmony between the organs of the state. From time to time politicians have attempted to superimpose the supremacy of Parliament by referring to it as sovereign, whereas the fact is that the first three words of the Constitution, which are, ‘We the People …’ vest sovereignty in the people collectively. The people, the true sovereign, have ended the Preamble with the following words, ‘hereby adopt, enact and give to ourselves this constitution’. In the Keshwanand Bharti case the Supreme Court by a judgment of its constitutional Bench has ruled that there are certain features of the Constitution that form such an integral part of these basic features that they lie outside the amending power of Parliament. These basic features, therefore, are immutable.
How does the state operate? Under Articles 53 and 154 the executive power of the Union and the states vests in the president or the governor as the case may be. This power is exercised through officers directly subordinate to the president or the governor and these officers form a part of the Executive which, on analysis, can be separated from the Executive appointed from the elected Parliament and state legislature to form the council of ministers, which will aid and advise the president or the government. Executive government can be said to consist of three layers: the head of state, the council of ministers, and the permanent executive, subordinate to the president or governor, which is then required to implement executive decisions.
Apart from legislation the most important role of Parliament is to approve the budget, to approve the demand for grants, to pass the Appropriation Bill in order to enable government access to the consolidated fund of India or the state. Without an Appropriation Act neither can sums of money accrue to the exchequer nor can they be withdrawn from it. To help the Executive the Constitution provides for an authority that stands outside the three organs of the state but which nevertheless is required to advise the government on all legal matters — the attorney general appointed under Article 76 and the advocate general of a state appointed under Article 165. They are the chief law officers of the land. There are three other constitutional authorities that stand outside the Executive, the Legislature and the Judiciary. These are the comptroller and auditor general appointed under Article 148, the Union and state public service commissions constituted and appointed under Articles 315 and 316 and the election commission constituted under Article 324 of the Constitution. With the attorney general they form four special pillars that strengthen the Constitution and promote constitutionalism in India.
I would like to comment on the CAG, whose office is under fire from the principal ruling party, the Congress, which is unfortunately known in the past to have been afraid of constitutionalism and has indulged in political adventurism. Whenever a judgment of court has been inconvenient, the role of the constitutional functionary has been embarrassing or where the continuation in power of a particular leader has been threatened by the provisions of the Constitution that party has not hesitated to indulge in political adventurism and twist the Constitution in its own favour. I would like to refer here to two instances of such adventurism. The first is the blatant and flagrant misuse of Article 352 whereby Emergency was declared because the election of the then prime minster was set aside by the Allahabad High Court. This went beyond mere adventurism and came within a whisker of converting India into a totalitarian state. The second was the 42nd Amendment of the Constitution, which changed substantially the manner in which election petitions would be heard against the PM, (which office is not elective but subject to appointment by the president) restricted the power of superintendence of the high courts under Article 227, and introduced Part XIV-A of the Constitution which permitted the setting up of tribunals outside the jurisdiction of the high courts. The latest attempt is to try and curb the CAG by doing to this office what was done to the election commission, that is, making the office multi-membered.
What is forgotten is that the office of the CAG would be a part of the immutable core of the Constitution and cannot be tampered with. The CAG is an officer whose job is to help Parliament and the state legislatures to exercise their function of overseeing income and expenditure of the state and ensuring that public monies are spent wisely. That is why he has been given wide ranging audit powers and his reports form a part of legislative proceedings and not of normal executive work. The election commission is a commission which can be multi-membered. Despite the fact that an attempt was made to emasculate the election commission by making it three-membered, successive chief election commissioners have asserted their will and expanded the outreach of the commission, so that the world now recognises that India conducts free and fair elections.
The present government at the Centre does not want the CAG to be able to win a name in the world that he conducts free and fair audit and like the unscrupulous businessman who uses his auditors to manipulate his balance sheet and tax returns the government would like to do the same with public money. The CAG functions as an auditor on behalf of the people of India and not on behalf of the Government of India and this is one case where political adventurism must be crushed and constitutionalism must prevail.
M N Buch, a former civil servant, is chairman, National Centre for Human Settlements and Environment, Bhopal.