A Reminder About Unfettered Constitutional Posts

Why in News?

• Recently, the Supreme Court passed two judgements that emphasised the concept of independence of constitutional authorities.
• In a hearing of the ‘Sena versus Sena’ case, the Court observed that Governors becoming part of political processes is disconcerting.
• Earlier, the Court divested the executive of its sole discretion in appointing the CEC and ECs of the Election Commission of India (ECI) by forming a committee to suggest suitable names to man these constitutional posts. 

 

Some constitutional authorities of India

• 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.

 

Need for independent constitutional bodies

• To regulate sectors of national importance without any executive interference.
• To function as a system of checks and balances to prevent the arbitrary use of power by the elected government.
• To function without fear, favour, and in the larger interest of the nation.

 

The appointment of constitutional authorities

• The constitution has empowered the President of India to appoint all constitutional authorities. 
• For appointments to be made by the President, the Constitution provides for certain conditions to be fulfilled by those who may be considered for such appointments.
• 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), etc.
  • Article 324 provides that the President will appoint the CEC and ECs ‘subject to any law made in that behalf by Parliament’.
• For appointing the judges of SC and the HC (Articles 124 and 217), the CAG (Article 148) appointment of the Governor (Article 155) the Constitution uses the words ‘shall be appointed by the President by warrant under his hand and seal’.
  • These words assign a special status to these positions to distinguish them from other constitutional positions.

 

Does the appointment procedure provide for the independence of constitutional authorities?

• The SC (in N. Gopalaswami vs The Union of India) observed that the President acts on the aid and advice of the Council of Ministers, that fall under the purview of the executive.
• Thus, the appointment process is not free from executive influence.

 

SC’s decision on the appointment process of CEC and ECs

• A new committee comprised of the PM, the opposition leader, and the CJI will suggest suitable names to the President for the posts of CEC and ECs.
• Earlier the appointment was made by the President on the advice of the Union Council of Ministers.

 

What needs to be done?

• There is the need to set up well-defined criteria and procedures for the appointment of all the constitutional authorities.
• For example, for appointment of a CAG the process 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.
  • They can decide on 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.

 

Conclusion

• In a democracy, it is important to ensure that constitutional institutions are free from all kinds of executive and legislative pressure. 
• This will protect citizen liberty and lead the country to prosperity, by preventing dilution of independence of constitutional authorities.

 

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Q1) What is the difference between phrases “Shall be appointed by the president” and “Shall be appointed by the president by warrant under his hand and seal”?

The phrase “by warrant under his hand and seal” signifies that the president is the final authority in these cases and that there would be a signature of the president on the appointment letter. In other cases where the president is the appointing authority it is not necessary that he is the Final appointing authority. He might delegate his function to some other authority.

 

Q2) Why did the Supreme Court divest the executive of its role in the appointment of CEC and ECs?

To free from executive pressure and ensure transparency in the appointment process.

 

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Source: The Hindu