Shivakantjha.org - Triplet 2 - The watchdog's plight: Reflections on role of CAG

Triplet 2

The watchdog's plight: Reflections on role of CAG

By Shiva Kant Jha

November 28, 2008

IT is reported that the President of India, the Prime Minister and the Chief Justice of India, addressed the recent the XXIVth Conference of Accountants General wherein, as it is reported, learned speeches fell from lesser luminaries; and they spoke ”words. words. and words” of the hue and passion not different from what those these had been hurled in the past conferences. Inaugurating the XXnd of the Accountant Generals (2003), Prime Minister Atal Bihari Vajpayee and Union Finance Minister Jaswant Singh had counseled, with no less vehemence and suavity, the Comptroller and Auditor General (CAG) and his folk their string of homilies including such precious pearls of thoughts as these:

(a) that the excessive stress on accounting audit prevented the creation of a level playing field between the government enterprises and departments, and the private sectors;

(b) that there is need for to shift focus on outputs and outcomes rather than on spending;

(d) that the role of the C&AG deserves re-examination so that it works as a performance appraiser of the government and its entities, rather than as their adversaries;

(e) that their reports should go to the departmental committees instead of being handled by the Public Accounts Committee;

Such high inflated instructions are given, almost as a matter of course, in complete, and studied. ignorance of the constitutional role of the C&AG. My reflections hereinafter intend to focus on certain aspects, which we must not forget.

The C&AG subscribes to an oath or affirmation which is the same for the Judges of the Supreme Court: it is “to uphold the Constitution of India”. He can be removed from office in like manner and on the like grounds as the Judges of the Supreme Court. The Constitution adopted the British designation rather that what was under the Government of India Act, 1935 to emphasize his high status. His expenditure is charged on our Consolidated Fund. His reports are to be placed for legislative scrutiny. The Constituent Assembly Debates show that this institution was conceived as a constitutional watchdog on the public finance in a broad sense. Article 149 of the Constitution prescribes his role, so felicitously and crisply described by Sri A.K Roy, the then C&AG, in his lecture at the Defence Service Staff College on November 14, 1964:

“He himself determines the extent and scope of audit in regard to various types of transactions….. He has absolute discretion in regard to the accounts to be included in his reports to Parliament and the State Legislature and the executive can in no way fetter his discretion in his matter. Unlike the U.S.A. he has no power to settle claims by or against Govt. nor has he the power to impose a fine as a done by the audit courts of Europe. His audit transcends the mere formal or legal aspects of audit and includes what may be called efficiency-cum-propriety audit.”

This view is valid even under the Comptroller and Auditor-General’s (Duties Powers and Conditions of Service) Act, 1971. Examination of accounts involves the examination of the legality and propriety of the receipts and expenditure; and also the coeval pursuits to examine to what extent the legitimate and prudent expectations have materialized.

The C&AG does not have coercive powers. During the British days the Auditor-General was accountable to the Secretary of State for India who, like other ministers, was responsible to the British Parliament. The Indian officials were responsible only to the Secretary of the State. Hence the writ of the Auditor-General ran effectively. Now ground realities have changed making the great office of the C&AG a virtual constitutional orphan. As the Chief Commissioner of Income tax, Bihar, I had the painful opportunity to see the constraints under which the officers under the C&AG worked. The bureaucrats and the political executive made them to a large extent ineffective and effete. This sinister situation emanated from the nexus between the superior bureaucrats and the wielders of political power. Justice J.C. Shah rightly called this nexus, in the famous Shah Commission Report, “the Root of All Evil”. It is high time that the institution of the C&AG is made effective by making appropriate constitutional or statutory provisions. It is surprising that those who reviewed our Constitution missed to suggest measures to make this languishing institution well equipped to carry out constitutional mandate. Strange somnambulism and the Brownian motion seem endemic as much with our government as with its decorated advisors.

It is not possible, on this small fragment of this triplet, to portray comprehensively the expectations and achievements of this great institution at work. It is slighted by the Executive itself, but most often it too enjoys the captivity of its delight! Yet a few words in broad brush:

The accounting is a rigorous exercise often unpalatable to many members of the executive. The constitutional duty of the C&AG is not to help provide a level-playing field between the government department and the private enterprise: this institution has its constitutionally conceived mission of its own. It has its own pragmatics and teleology. In my assessment, the real roadblock to a quick and effective decision-making by the Executive is never any audit psychosis. It a strange irony that an institution which cannot even prevent an executive misfeasance or malfunction is held responsible for the Executive’s remissness, or delay, in discharging its functions. If this institution would have been taken seriously, Bihar would have been saved from the ignominy of the Fodder Scam. A democratic government must always be under constitutional limitations. All public power and public resources are under trust. And, hence, it is prudent to ensure that the institution of the C&AG functions without fear or favour. He provides Parliament an opportunity to weigh the executive which is accountable and responsible to it. He is also a sentinel on the qui vive. This institution is a watchdog; it is neither a lap-dog nor a hound. It is quite understandable why the Executive wants it to be friendly with it: the Executive wants still more, it wishes the Superior Judiciary too become friendly as during the days of the Stuarts. And the ruling breed of the economists wish to get rid of all that is not market-friendly.When dreams come cheap, what is wrong in dreaming? It is time neither to send off slings, nor to be in love with own voice: it is time to act, act, and act. But I hope someone somewhere listens to these even in this wilderness with thistles and thorns for many, and roses for the bed for a few.

II

The Meaning of Meaning

Since the courts have had jurisdiction to interpret the legal provisions, not a year has ever passed with a rich harvest of learned judicial dicta how one should ascertain their meaning. Words are the counters with which the interested persons play the costliest of all games we call litigation. But many have reasons to believe that such learned words most often conceal only the judges’ preference. There is a point when it is said that decisions are first taken, reasons are then arrived at. Logic is the obedient servant to its masters, whosoever they be. It is said that in course of the debate on the Statute of Westminster, Winston Churchill and the Solicitor General of England were sure that certain provisions were free from obscurity, yet, yet they came to “dramatically opposite views” as to their effects. All the popular books on legal linguistics and interpretation provide ammunitions to all the sides to send off their forensic missile as per their briefs. Whilst the litigants are guided by their combative interests, the judges are supposed to provide through their insight, guided by principles, solutions which they consider fair and just. But all this exercise turns on the ascertainment of the meaning of the legal provisions. But most of us are not clear about the meaning of meaning itself. In 1923 a wonderful book was co-authored by Ogden and Richards. It was the Meaning of Meaning which examined, in depth, the influence of language upon thought, and of the science of symbolism. But we ascertain meaning only on the examinination of the language used. Some expressions are mere ‘statements’ whilst otheres are ‘expressions’. In most situations we are on the quest to make out the plain sense; and to explore the intention of the legislature. But this is a creative game, often of intelligent hunch. “Intention of Parliament” is a metaphor only subsiting on an anology to the intention of biological enties like you and I. But the pursuit at meaning is most often to negotiate through the Scylla of Mnemonic Irrelevances of the judges and the Charybdis of their Stock-respnses: the first is the impermissible intrusion of the judge’s own past and personality, the second is their rigidness not to leave their groove come what may. Every quest at justice requires one’s competence to evidence what we call Jalpankaj Nyaya.

III

Musings on the Mahatma at the Supreme Court

Caroline Spurgeon had studied Shakespeare's Imagery to discover what this Bard of Avon had treasured at the heart of his plays. Someday, it is hoped, someone would study the imagery at our Supreme Court to see what it conceals and what it reveals. Of the images, Mahatma Gandhi’s is conspicuous to all by its presence: seen at least thrice a day. One is between “ the two entrances from the Judge’s wing, as one enters the Chief Justice’s Court, there is a beautiful mural of coloured porcelain tiles, with the Goddess of Justice and Mahatma Gandhi, one each side of the wheel of dharma. The eyes of the goddess are not blindfolded” [ Hon’ble Justice Jagannadha Rao]. Gandhi is in his dandimarch posture, agile, forward-looking, commanding, on his journey forward on the ridge of history; (reminding our Hon’ble Judges that they must uphold the dharma by weighing the causes on the scales of the Goddess of Justice, on which they too are to be weighed by the ‘We, the People’). Third image of Gandhi is outside the Court’s, in front of the Chief Justice’s Court. Here he, with down-cast visage and drooping eyes, is responding in distress, as it were, to what he reads from our deeds scripted on the dharitri. And the second one is what we get on the high-value currency notes, which are the prime-movers of all that happens all around. It is interesting that those, who committed this sacrilege of selecting his image for this, had the macabre delight to select the image of vivacious and over jubilant Gandhi! Gandhi is not the first, nor will he be the last, to be damned in his greatness even this way.