A Reminder About Unfettered Constitutional Posts | 17 Apr 2023

India's Constitution-makers recognized the need for independent institutions to regulate sectors of national importance without executive interference.

As a result, various constitutional authorities, such as the Public Service Commission, the Comptroller and Auditor General of India (CAG), the Election Commission of India (ECI), the Finance Commission, and the National Commissions for Scheduled Castes, Scheduled Tribes, and Backward Classes, were created.

Why Unrestricted and Unfettered Choice Given?

• The Supreme Court has held (N. Gopalaswami and Ors vs The Union of India) that the President acts on the aid and advice of the Council of Ministers, with the Prime Minister as the head in all matters which vest in the executive.
• However, in cases where the appointment of a particular constitutional authority is to be kept independent of the executive, the question arises whether such an interpretation would be in line with the thinking which prevailed during the relevant Constituent Assembly debates.
  • In the Constituent Assembly debates, it was recognised that individuals heading constitutional bodies must be independent of the legislature or the executive.
  • The Assembly discussed that the choice of the President should be unrestricted and unfettered to ensure the independence of these individuals.
  • The amendments made to the Constitution reflect this thinking.

What are the Recent Supreme Court Comments?

• Two recent comments of the Supreme Court of India have a direct bearing on the independence of various constitutional authorities in India.
  • Sena versus Sena:
    • In the "Sena versus Sena" case, the Court expressed its "serious concern" over the active role being played by Governors in State politics.
    • The Court observed that Governors becoming part of political processes is disconcerting.
  • Election Commission of India case:
    • Earlier, the Court divested the executive of its sole discretion in appointing the Chief Election Commissioner and Election Commissioners by forming a committee to suggest suitable names to man these constitutional posts.

Why is the Need for Independent Institutions?

• For Checks and Balances:
  • In a democracy, it is essential to have a system of checks and balances to prevent the arbitrary use of power by the elected government of the day.
• To Regulate Various Sectors:
  • India's Constitution provides for various constitutional authorities to regulate sectors of national importance without executive interference.
• Protecting the Rule of Law:
  • Without independent institutions, there is a risk that those in power may abuse their authority, leading to a breakdown in the rule of law and undermining the principles of democracy.
• Promoting Good Governance:
  • Independent institutions are essential for promoting good governance by ensuring that government actions are fair, transparent, and in the public interest.
  • This helps to build trust in government and ensures that citizens are able to participate in the democratic process.
• Protecting Human Rights:
  • Independent institutions are often tasked with protecting human rights and ensuring that the rights of all citizens are respected.
  • This includes protecting vulnerable groups such as minorities, women, and children, and ensuring that their voices are heard in the decision-making process.
• These institutions require complete independence to enable them to function without fear or favour and in the larger interests of the nation.

What Should be the Way Forward?

• Clear and Transparent Appointment:
  • Establish clear and transparent criteria for the appointment of individuals to these positions, including requirements for expertise, experience, and integrity.
    • Developing clear guidelines, involving experts in the selection process, establishing a selection committee can be some measures.
• Accountability of Constitutional Authorities:
  • Establish clear lines of accountability for individuals holding these positions, including regular reporting requirements and mechanisms for investigating any allegations of misconduct or impropriety.
    • Developing mechanisms for investigating misconduct, Enforcement of strict codes of conduct etc. can be helpful in ensuring accountability.
• Training and Capacity building:
  • Support the development of training and capacity-building programs for individuals appointed to these positions, to ensure that they have the skills and knowledge necessary to carry out their functions effectively.
    • Through lectures, case studies, simulations, and hands-on training.
• Evaluation of Performance:
  • Monitor and evaluate the performance of individuals holding these positions on a regular basis, to ensure that they are fulfilling their responsibilities and upholding the standards of independence and integrity.
    • Establish performance indicators, Feedback mechanisms, Publish performance reports.