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Unrestricted Constitutional Posts

Context

  • The Indian Supreme Court recently made remarks that will affect the idea of the independence of the country’s various constitutional authorities.
  • The Court expressed its concern regarding the active role played by governors in state politics during a hearing of the “Sena versus Sena” case, and in another instance, it took a significant step towards ensuring the independence of the Election Commission of India by creating a committee to recommend qualified candidates for these constitutional posts.

Relevance:

GS Paper-2: Appointment to various Constitutional Posts.

Mains Question

Why are independent institutions necessary in a democracy? How did India’s founding fathers ensure the independence of the country’s various constitutional authorities?


The need of Independent institutions

  • Independent institutions are required in a democracy to prevent the elected government from using its authority arbitrarily.
  • The Constituent Assembly recognised various independent constitutional bodies in India to regulate various national sectors, and the President appoints these bodies while protecting their independence from executive pressure.

The different appointment procedures

  • The Constitution’s authors used straightforward language like “shall be appointed by the President” when appointing the Prime Minister (Article 75), the Attorney-General for India (Article 76), the Chairman and other members of the Finance Commission (Article 280), the Chairman and other members of the Public Service Commission (Article 316), and the Special Officer for Linguistic Minorities (Article 350B).
  • Article 324 states that, “subject to any law made on that behalf by Parliament,” the President shall appoint the CEC and ECs.
  • The words “shall be appointed by the President by warrant under his hand and seal” are used when allowing the President to appoint: o The CAG (Article 148) o The Governor (Article 155) o The judges of the Supreme Court and the High Court (Articles 124 and 217)
  • The President is authorised to appoint the Chairman and members of the National Commissions for SCs, STs, and BCs in Articles 338, 338A, and 338B, which use similar language.
  • However, Article 338 of the original document stated that “the President shall appoint a Special Officer for the Scheduled Castes and Scheduled Tribes.”

The Explanation and Issues

  • The Supreme Court held in N. Gopalaswami and Ors v. The Union of India that the President acts on the aid and advice of the Council of Ministers, with the Prime Minister serving as the head in all matters which vest in the executive. However, in situations where the appointment of a particular constitutional authority is to be kept independent of the executive, the question arises as to whether such an interpretation would be in line with the thin line that separates the executive from the legis

Choice that is “unbounded and unhindered”

  • Choice that is “unrestricted and unfettered”: The Constituent Assembly emphasised the significance of preserving the independence of important constitutional positions, such as the CAG and Governor of a State, in order to guarantee accountability and transparency in governmental operations.
  • The Assembly agreed that the President should have “unrestricted and unfettered” discretion when selecting candidates for these positions.
  • The discussions resulted in the inclusion of the phrase “by warrant under his hand and seal” in the Article for CAG appointment, which guarantees that the President has full authority to name the CAG free from outside interference.Similar to this, the Assembly ensured that the President has complete discretion in selecting the Governor of a State by rejecting the proposal to limit the President’s choice from a panel of names.This emphasises how important it is to maintain these positions’ independence in order to protect the legitimacy of the democratic process and avoid undue influence on how the government runs.

Both changes were approved.

  • Articles 75, 76, 280(2), 316, and 324(2) of the Constitution specify requirements for candidates to meet in order to be given consideration for appointments made by the President.
  • Because the phrase “To be appointed by the President” is used in these articles, the President must follow the Prime Minister’s advice after ensuring that the necessary qualifications are met.

The Special Status

The phrase “by warrant under his hand and seal” is only used in reference to the appointment of certain constitutional positions, including judges, the chief accounting officer, and governors. This special status sets them apart from other constitutional positions and is meant to protect them from political or executive pressure.

Selection procedure for the Indian CAG

  • While the appointment of judges and ECs has been made free from the influence of the executive, it is still necessary to establish clear criteria and procedures for the appointment of the CAG of India in order to keep in mind the intention of the Constitution’s framers, which is clear from the debates in the Constituent Assembly.
  • The process of choosing a person for this position should start with a committee made up of the Speaker of the Lok Sabha, the Chief Justice of India, and the Chairman of the Public Accounts Committee.
  • This committee should shortlist names to be considered for appointment, and a panel of three names should be sent to the President for the final selection, as stated in Article 148 of the Indian Constitution.

Conclusion:

Independent constitutional authorities serve as checks and balances under the Indian Constitution, and the Supreme Court has recently emphasised the importance of maintaining their independence for the sake of the country.Every citizen should defend these principles and institutions because maintaining this independence is essential to maintaining the integrity of democracy.


February 2024
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