Supreme Court Asked Not to Meddle in Constitutional Appointments; PIL Questioning CAG Appointment Dismissed

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Dismissing a public interest litigation petition filed against the appointment of former Defence Secretary Shashi Kant Sharma as the Comptroller and Auditor General of India (CAG), the Court emphasised that there is “nothing against the man” to warrant the quashing of his appointment. However, the Attorney General, before concluding the arguments suggested that the Supreme Court should steer clear of matters falling within the executive’s domain and introspect on resolving the massive pendency of cases.

The three judge bench headed by the Chief Justice of India, H.L. Dattu opined that the Court cannot and does not need to interfere with matters of constitutional appointments. The PIL, filed by erstwhile Chief Election Commissioner, N. Gopalaswami; ex-chiefs of the Naval Staff Admiral (retd.) R.H. Tahiliani and Admiral (retd.)L Ramdas; former Deputy CAG B.P Mathur; and five retired bureaucrats had levelled allegations of conflict of interest and severe breach of propriety in the appointment of Shashi Kant Sharma to the post of CAG. According to the counsel for petitioners, Prashant Bhushan, Mr. Sharma had cleared quite a few defence purchases during his tenure as DG(Acquisitions)/Defence Secretary, which had been mired in controversy, causing embarrassment to the Central Government.

In response to Prashant Bhushan’s arguments, Attorney General Mukul Rohtagi, appearing for the centre pointed out that Executive had the sole prerogative to suggest the name for the appointment as CAG to the President. Consequently, the Court had no locus to interfere in the appointment process. The constitutional mandates that the appointment of CAG be done by the President under the advice of the Council of Ministers, headed by the Prime Minister.

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The Court retorted by taking recourse to Mr. Bhushan’s plea that the Supreme Court is obliged to intervene in the matter, in the same way it had intervened to guarantee independence from Executive interference in judicial appointments, by setting up the Collegium system.

However, Mr. Rohatagi, curtly observed that the Collegium system laid down by the Supreme Court in Second Judges case of 1992, suffers from faulty interpretation of the Constitution. He said that it was wrong on the part of the Supreme Court to take the power to appoint judges, away from the Executive. Further, he observed that there is logic in believing that the judges of the Supreme Court and High Courts who were appointed by the Executive before the establishment of the Collegium System, were in any way less independent than the judges who were appointed after.

The Attorney General went on to state that the appointments made in the yesteryear to the posts of CAG have all been above board. He argued that Shashi Kant Sharma has had a stellar record without even a single smear or blemish. The Court agreed and refused to pass any order establishing guidelines for the appointment process as it would interfere with the constitutional scheme.

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Locking horns with the Court through a sanctimonious barb at the apex Court, the Attorney General appeared to be asking the Court to look within and introspect. He said that the Court dockets were brimming with pending cases and arrears and instead of meddling with the Executive’s domain, the Court should focus its energy on resolving the problem. Later, he softened his stance, by stating that the Supreme Court would definitely have the locus to interfere in public interest, if there were to arise a situation shocking the Court’s conscience.