Extravagance of Public
Finance vis-à-vis curbing the power and
duties of C&AG.
The constitution of India provides that the
Comptroller and Auditor General of India shall be appointed by the President by warrant under his hand
and seal who shall not be removed from Office, except in the like
manner and on the like grounds as a Judge of Supreme Court. The term of
appointment shall be for a period of 5 years and the condition of service and
salary of the Comptroller and Auditor General of India shall be such as may be
determined by Parliament by Law and until they are so determined, shall be as
specified in the second schedule of the
constitution. The Comptroller and Auditor General shall perform such duties and
exercise such powers in relation to the accounts of the union and of the states
and of any other authority or body as may be prescribed or under any law made
by Parliament. The report of the Comptroller and Auditor General relating to
the accounts so maintained of the union
shall be submitted to the President who shall cause them to be laid
before each house of Parliament . The report relating to the accounts of the
states shall be submitted to the Governor who shall cause them to be laid
before the legislature of the states.
That the
present accounting system applicable to most Ministries and departments in
essentially external to Financial management function in that the payment made
by the treasuries and accounts are compiled by audit and accounts offices under
the control of the Comptroller and Auditor General on the basis of initial and
subsidiary accounts received by them from the treasuries. This system worked
fairly well when Governmental business was limited. With the increase ion the
volume and variety of Governmental business
and the continual set-up of developmental outlays, this system has
proved inadequate to the administration task.
The scheme of
separation of accounts from audit was to be implemented in selective ministries
e.g communication, civil aviation, tourism, industries and civil supplies w.e.f
April 1976, where the expansion regarding the
expenditures and its audit was felt to be providing certain constraint
and thereby resulting into the delay in implementation of the schemes at the
relevant time. However by the gradual
increase of the power with these ministries, the similar laxity in relation to
the procedural safeguard was further provided
the other ministries resulting into the defeat of the very purposes for
which the office of the Comptroller and Auditor General was given the power
through checks and balances. The effect of the aforesaid process has resulted in the departmentalisation of union
accounts enacted in 1976 and the transfer of personnel was given effect by the
enforcement of the Act no 59 of 1976 from Indian Audit and Accounts departments
which was earlier under the control of
C.& AG to the newly formed department of Civil Accounts under the Controller General of Accounts under
department of Expenditure ministry of Finance. In this manner the office of
C& AG which was constituted under the
scheme of the constitution of
India to provide the restraint to the expenditure disproportionate from its own
discretion by the relevant ministries was brought under the ministry of Finance
and thereby giving the unbridle powers to the ministers and thereby
overthrowing the constitutional mandate securing the safeguard over the
whimsical expenditure. According to the legal opinion of the constitutional experts, the
diversification of the financial powers
to be utilised by the sole discretion of the bureaucrats without taking into
consideration the Audit objections, which could have been made under the
original constitutional scheme, was directly resulting into the notion of
conferring the absolute power to the respective ministry. This was against the
democratic, federal and republic set-up
of our Constitution. The aforesaid
concept of the parliamentarian democracy, providing the fraternity to an
individual in preamble of the constitution,
was an attack on its basic structure. This has led to an inadequate
financial control which would have been benefited to the nation if such power
were remained with C&AG in India.
That it would
be relevant to point out that the office of the Auditor General of India was
created under the Government Of India Act 1935 for exercising the control over
expenditure incurred by Central And
State Governments and for proper accounting thereof in such forms and in such
manner as may be prescribed by him and he was also responsible for rendering a
complied account of receipt and expenditure to the Centre and State Governments
and he was also required to submit report on the result of Audit in his Audit
report to the Governor- General and
the Governor of the States for laying it before respective legislatures
. That after coming over the constitution of India the Auditor General was designated as Comptroller Audit General
of India under chapter V of the constitution. The state Govt. which lavishly
spends crores on the refreshment
allowances of its ministers, now is facing a crisis that it does not have
enough money in its coffers to deposit the premium of insurance cover for 1
lakh employees of local bodies due for
their group insurance scheme. As a result of this misutilisation of the public
money the insurance scheme of these employees has lapsed and the life insurance
corporation has expressed its inability to consider any future claim as part of
the scheme in case of the death of a employee. The LIC missive state that the
group insurance scheme of some 94.165 local bodies employees stands forfeited due to non deposit of approximately
the premium of Rs 1.83 crores due on it from the last seven months. The LIC
informed that the interest at the rate of 12% would also levied on the amount
due to delay in payment of the premium. It is based on the idea for having LIC’s
Master policy 4912 under its group insurance scheme which was mooted in 1977 by
the state Govt. The Directorate of the local bodies makes a monthly payment of
Rs 21.63 per member to the LIC while a employee make a payment of Rs 20 from
his salary while Rs 1.63 is contributed by the state Govt. each months towards
the policy, for which the LIC shrugs off future claims in case of the policy
holders death where his next kin get Rs 25,000 under the scheme beside the
premium deducted from his salary is also refunded with a 10% interest on the
amount. Similarly an employee on its retirement get a premium deposited by him
back with a 10% interest on the amount from the insurance firm. This is due to
extravagance of public finance and curbing the powers and duties of Comptroller
and Auditor General with effect from the time of enforcement of the Act no 59
of 1976 putting the earlier control of
the C&AG under the Department of Expenditure Ministry of Finance in State
of U.P.
Question& Answer
Question: What do you think whether our judiciary conferred
with the power of judicial review under our constitution has been successful to
deal with the plight of living dead?
Answer :The
constitution is supreme and all the three pillars functions under its strict
supervision . the supremacy of the parliament and the power of the Hon'ble
Constitutional Courts in India have gone through a consistent efforts for
providing a harmonious construction to build up a foundation on which our
country may survive . The doctrine of immunity from legislation against the
enactment through legislation has undergone a great struggle whenever the
Hon'ble Constitutional Court found the infringement of fundamental rights of
the citizen . However on account of excessive burden and the need for securing
the effective exercise of the judicial review by the Hon'ble Constitutional
Courts even with regards to Administrative action , there is an unchecked flow
of litigation for every invasion of the right under the garb of the
infringement of the fundamental rights.
Question:
Whether you speculate in this process any tough battle for securing the basic
structure of our constitution with the doctrine of Supremacy of the parliament
and how far it is important for the healthy growth of our welfare state .
Answer: The
rigours to demotion of judicial writ power by some of the constitutional
amendments like 42nd Amendment has been declared ultra virus in Minerva Mills
Case (1980) 3 S.CC 625 , Waman Rao case (1981) 2 S.C.C 362 and in L. Chandra
Kumar case (1997 ) 3 S.C.C 261 reaffirming the majority verdict of the landmark
judgement of Keshavananda Bharti case of 13 judge constitution bench of the
Hon'ble Supreme Court . The jurisdiction conferred upon the Hon'ble
constitutional Courts including the High Courts under Article 226 and Article
227 has been held as a part of the basic structure of the constitution. Thus
not even the power of legislative enactment but also the power conferred under
Article 368 to Amend the constitution may be subjected to judicial review by
the Apex Court .
Question:
Whether you think that in this process the expression "Procedure
established by Law " as enshrined in Article 21 has now been replaced by
"due process of law" as evident in American Constitution ?
Answer:
Article 14 has two concepts which is a unique feature in Indian constitution.
Most of the constitutions of the world either speaks of "equality before
the law" or the "equal protection of the laws". Both these
concepts although appears to be the same are not actually the same . The
equality before the law refers as to providing the equality before the
substantive laws of the nation as illustrated in Article 15 to 18 and also
under Article 38, 39, 39A, 41and 46 of the constitution . The connotation equal
protection of law contemplates for minimising the inequalities and for
eliminating the inequalities in status , facilities , opportunities , values of
lives with social care towards educational and economic interest not only
amongst citizen but also amongst the group of the citizens. This Article
forbids class legislation except being founded on an intelligible differential
and to have a rational relation to the object sought to be achieved by the
statute in question . The test of classification must be rational . However by
the efflux of time , Article 21 which is couched in negative language by the
framers of our Constitution has undergone the major change by interpretation
through its positive angle having the inhibition contained therein i.e.
"life " as synonymous to "livelihood" by taking into
consideration that by abrogation and subjugation of the means of the living
there shall be no life . This was done to get the rid of the radical innovation
providing an instrument of status quo upholding the traditions of Anglo-Saxon
jurisprudence and resisting radical innovation in the use of judicial power to
promote social change by the so called judicial activism . The other concepts
such as "Rule of Law" , "Judicial restraint" ,
"Separation of power", supremacy of fundamental right s over
directive principles and "Procedure established under Law"
conveniently to avoid change whenever possible through the assistance of two
concepts of Article 14 as whenever required delete it and whenever inevitable
dilute it as far as practicable and thus the discretionary powers were
exercised in the different manner by inviting the diversities in the opinion of
the constitutional Courts while dealing with Quasi judicial actions .
Question :
Thus you mean to say that Article 21 of the constitution is not a fundamental
right of the citizen as is being dealt with by the Hon'ble Supreme Court and
has been included in the chapter of fundamental rights ?
Answer: True
, Article 21 has been included in the chapter of fundamental right under our constitution
but the same is a fundamental duty of the government as to provide protection
against depriving any person of his life or personal liberty . There is only
one individual fundamental right of the citizen i.e Article 19 . Article 25 and
26 is a collective right to the freedom of conscience and right to profess ,
practise and propagate religion and also to manage religious affairs . Thus
every fundamental duty casted upon the government which is providing the
protection to the individual may be read with the reasonable restrictions as
contemplated in sub articles (2)to (6) of Article 19 of our constitution thus
the constitution has provided a "check and balance" over the power of
the Hon'ble Courts and the duties casted upon the government . In this manner
the Hon'ble Courts while interpreting these Articles of fundamental rights may
dealt with the individual as to whether the right which implies the forbearance
to perform the duty by the Government has got the qualification prescribed in
the yard stick of the reasonable restrictions or the constitution with the
galaxy of so called fundamental right may be ruled in respect of its governance
by the political set-up having co-ordination with divisive forces to the
oppression of the people at large which has not been done after independence.
Question:
What was the need of introducing Article 51A when already there were
fundamental duties of the Government ?
Answer: Every
right implies the forbearance on the part of other to perform his duty as right
and duty is correlated and coexistent. After independence our country has been
ruled with governance through laissez faire and the citizens have miserably
forgotten there duties under the spirit of availing an aspirant cherished
freedom . Thus the chapter of unenforceable fundamental duties was introduced
with effect from 3.1.1977 by 42nd amendment .
Question :
Why there is a pendency of number of litigation before the Constitutional
Courts in which the case of the living people who have been declared as dead people
in the official records have not been dealt with in time .?
Answer: The
right of the people has been considered in the different dimension against
every atrocities committed by the administration in discharge of their duty as
the custodian of the public trust . The concept of public trust doctrine was
developed by the Constitutional Courts to provide the safety to an individual
as susceptible to abuse in discharge of the role by our Constitutional courts
as a sentinel on quivive . The maxim of "ubi us ibi remedium" (where
there is a right , there is a remedy ) was sparingly applied in respect of
administrative action without considering as to whether the same is quasi
judicial or not . The separation of power which was embodied to certain extent
in our constitution and having its elasticity to provide pervasive potency and
versatile quality has been diluted in absence of any accountability towards
administrative action. Thus there was a flow of litigation before the
constitutional Courts even in respect of violation of every right for which the
administrative authority were responsible to exercise their power as the
custodian of the public duty .Thus due to paucity of time , the genuine
litigation was circumvented by unscrupulous litigation and there by suppressing
the fundamental right of a bonafide citizen .
Question: Do
you think that the present system can be rectified by enacting more legislation
by the parliament or it may be left to the Constitutional Courts to eradicate
the prevailing maladies ?
Answer There
must be an accountability fixed with every officer and bureaucrats in the
society regarding there abuse of power and judicial review which comprises the
power of judicial superintendence over every sub-ordinate authority may be
necessarily applied by the higher judiciary .There is a requirement of complete
separation of power between three institutions on which our democratic set-up
is dependent the adequate punishment be implemented in the deterrent and
punitive manner as to create an example to the other wrong doer specially under
the circumstances when the integrity and the prosperity of the nation is
involved. In case of malafide exercise of power not only the action which is
done contrary to the object may be rectified but there may be a judicial
scrutiny for recommending the departmental disciplinary proceeding against the
official who has passed such order with extraneous considerations. There should
be the limit over the privilege conferred with every public servant who is not
only a custodian of the power but also owe the duties towards the citizens who
are considered in our constitution as the sovereign of the sovereignty .
Question:
What do you think to be the source of the power of judicial review ?
Answer :It may be traced to the classic enunciation of the principles laid
down by the Chief Justice John Marshall of U.S Supreme Court in Marbury Vs
Madison ( 1 Crunch : 2 L Ed 60 (1803 ) ) as the origin of this power is never
attributed to one source alone . It has been laid down that the judiciary
dealing with interpretation of Law is duty bound while expounding and
interpreting the Law and to see as to whether the Law is repugnant to the
settled norms of the constitutions otherwise the same be declared as void .In
America where the Supreme Court has assumed extensive power of reviewing the
legislative Acts while in our constitution this power is conferred by the
expressed provision contained in Article 13 of the constitution of India . Thus
the power of judicial review has now considered to be an integral part of our
constitutional system .
Question:
What do you think to be the role of the Advocates in the process of judicial
discipline and thereby providing a check and balance over misutilisation of the
judicial and quasi judicial power by the public servant ?
Answer : In America the Lawyers may conduct the
investigation in respect of the wrong committed with the people through their
own investigation agencies and there is there is the power vested with every
officer to deal with the misuse of power by any person without taking the
accent from the higher elechon in the hierarchical set-up of superior authority
in some of the European countries .However in India we have no such power to
fix an accountability towards a public wrong by an Advocate and also by any
honest official as there is a vicious circle in our Bureaucratic set-up where
there is larger privilege and lesser responsibility. Thus we have become a
silent spectator of the situation which is going to be the worst by the process
of time . The apathy of the intellectual echoes back into a vacuum which has
neither any ventilation for providing the fresh air to our people . Till such
time when the intellectuals in the society may not be allowed to run the public
administration nothing can be achieved in our nation.
