advocateyogeshsaxena

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.