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[ Day 21 – Synopsis ] 75 Days Mains Revision Plan 2023 – Polity & Ethics

 

Polity


 

Q1. Discuss the role of the Comptroller and Auditor – General of India in ensuring the accountability of the government. (10M)

Introduction

Articles 148-151 of the Indian Constitution provides for an office of Comptroller and Auditor General (CAG) of India and its duties. He is the guardian of the public purse and controls the entire financial system of the country at both the levels–the Centre and the state.He is one of the bulwarks of the democratic system of government in India.

Body:

Role of CAG India in ensuring the accountability of the government:

  • He ascertains and certifies the net proceeds of any tax or duty and his certificate is final on the matter.
  • Financial audit: CAG audits the accounts related to all expenditure from the Consolidated Fund of India, Consolidated Fund of each state and UT’s having a legislative assembly.
    • He audits all expenditure from the Contingency Fund of India and the Public Account of India as well as the Contingency Fund and Public Account of each state.
    • CAG audits the receipts and expenditure of all bodies and authorities substantially financed from the Central or State revenues; government companies; other corporations and bodies, when so required by related laws.
    • CAG audits all trading, manufacturing, profit and loss accounts, balance sheets and other subsidiary accounts kept by any department of the Central Government and the state governments.
    • This audit helps in examining the financial transactions, revenue collections, and expenditures of the government entities to ensure compliance with laws, rules, and procedures.
    • By evaluating the financial management, the CAG detects financial irregularities, mismanagement, or potential fraud, promoting transparency and accountability.
  • Performance Audit: The CAG also conducts performance audits to assess the efficiency, effectiveness, and economy of government programs, policies, and schemes.
    • This audit evaluates whether government activities are achieving their intended objectives and utilizing resources optimally.
    • Through performance audits, the CAG identifies instances of wasteful expenditure, policy failures, or deficiencies in implementation, thereby holding the government accountable for its actions.
  • Compliance Audit: The CAG verifies whether the government entities have complied with applicable laws, regulations, and constitutional provisions. This includes examining whether financial and administrative procedures have been followed and whether the government has acted within its legal authority.
    • By assessing compliance, the CAG ensures that the government functions within the prescribed legal framework and upholds the rule of law.
  • Reporting and Recommendations: The CAG submits audit reports to the President or the Governor of a state, who further places them before the respective legislatures.
    • These reports highlight the findings, observations, and recommendations of the CAG, including instances of financial irregularities, non-compliance, or inefficiency.
    • The reports facilitate informed parliamentary debates, policy discussions, and decision-making, providing an opportunity for the government to address the identified shortcomings and take corrective actions.
  • Independence and Autonomy: The CAG’s appointment, removal, and conditions of service are safeguarded by the Constitution, ensuring their independence from political influence.
    • This independence allows the CAG to carry out audits objectively and fearlessly, without being unduly influenced or restricted.
  • Parliamentary Oversight: The reports of the CAG are examined by the Public Accounts Committees (PACs) of the Parliament and state legislatures. The PACs scrutinize the audit findings and recommendations and hold discussions with government officials to seek explanations and clarifications.
    • CAG also acts as a guide, friend and philosopher of the Public Accounts Committee of the Parliament.

 

Following needs to be done to make CAG more effective;-

  • Transparency in Appointment: In India, to bring about transparency and objectivity in the selection process of the CAG, an institutional mechanism needs to be put in place.
  • Curbing Delays: Just like the citizen’s right to get the information within a month under RTI Act 2005, auditors should be provided access to records on priority basis within seven days, failing which, heads of departments should be required to explain the circumstances that caused the delay.
  • Change in Audit mechanism: From climate change to PPPs, there are dramatic changes happening in the way government funding and public goods are exploited. CAG has to change its audit mechanisms in this context.
  • Reforms suggested by Vinod Rai (former CAG)
    • Widening ambit of CAG: Bring all private-public partnerships (PPPs), Panchayati Raj Institutions and government-funded societies, within the ambit of the CAG.
    • CAG Act of 1971 should be amended to keep pace with the changes in governance.
    • Collegium system: A collegium type mechanism to choose a new CAG on the lines of selecting a Chief Vigilance Commissioner (CVC).

Conclusion

When it comes to ensuring the accountability of the executive, the functions of CAG become very important in parliamentary democracy to implement transparency. CAG helps the parliament/state legislatures hold their respective governments accountable and hence reforms in office of CAG is of utmost importance.

 

Q2. Trace the evolution of collegium system of appointment in Indian Judiciary. Critically evaluate its functioning and recent controversies surrounding it. (15M)

Introduction

The Collegium System is a system under which appointments/elevation of judges/lawyers to supreme Court and high court is done. There is no mention of the Collegium either in the original Constitution of India or in successive amendments. The recommendations of the Collegium are binding on the Central Government.

Body:

Evolution of collegium system of appointment in Indian Judiciary:

  • Pre-Collegium Era: Initially, the appointment of judges in India was primarily governed by executive discretion. The President, in consultation with the Chief Justice of India (CJI) and other senior judges, made appointments.
  • Judges’ Cases: In the 1980s and 1990s, several judicial pronouncements, collectively known as the “Judges’ Cases,” significantly impacted the appointment process.
    • First judges case (1982): The court held that consultation does not mean concurrence and it only implies exchange of views
    • Second judges case (1993): The court reversed its earlier ruling changed the meaning of the word consultation to concurrence.
      • Hence, it ruled that the advice tendered by the CJI is binding on the President in matters of appointment of SC judges.
      • But any such advice would be tendered after CJI consults with two of his most senior-judges. It was also decided in the case that President should appoint the senior-most judge in the SC as the CJI.
    • Third judges case (1998): The consultation process to be employed should be based on plurality of judges. He should consult a collegium of four senior-most judges before making a recommendation to the President and even if two judges give an adverse opinion, he should not send the recommendation to the President.
    • Fourth Judges Case: In 2014, the National Judicial Appointments Commission (NJAC) Act was passed by the Parliament to replace the collegium system.
      • However, in 2015, the Supreme Court, in the case of Supreme Court Advocates-on-Record Association v. Union of India (NJAC case), struck down the NJAC Act as unconstitutional, restoring the collegium system

 

Functioning of the Collegium System:

  • Independence of the Judiciary: The collegium system provides a mechanism for judges to have a significant say in the appointment process, preserving judicial autonomy and ensuring the selection of competent and impartial judges.
  • Expertise in Decision Making: The collegium system allows for a collective decision-making process involving senior judges who possess extensive experience and knowledge of the legal system.
  • Efficient and Expedited Process: As the recommendations are made by a smaller group of judges, it streamlines the decision-making process and avoids delays associated with bureaucratic procedures.
  • Protection against Political Influence: By limiting the role of the executive in the appointment process, the collegium system helps prevent political influence or favouritism in judicial appointments.

 

Controversies surrounding the Collegium System:

  • Lack of Consultation: Critics argue that the collegium system has reduced the role of the executive in the appointment process, leading to concerns of lack of wider consultation and representation.
  • Opacity and Opaque Decision-making: The lack of a written manual for functioning, the absence of selection criteria, the arbitrary reversal of decisions already taken, the selective publication of records of meetings prove the opaqueness of the collegium system.
  • Absence of Diversity: The collegium’s composition has been criticized for not adequately reflecting diversity in terms of regional representation, gender balance, and representation from marginalized communities.
  • Insufficient Accountability: The absence of a formalized process for assessing the performance and conduct of judges may hinder the removal of underperforming or errant judges, impacting the overall quality and credibility of the judiciary.
  • Credibility of the SC: Controversial collegium system of judicial appointments undermines the independence of judges and raises doubts about the credibility of the highest court.
    • Example: The controversy over the proposed elevation of Justice P.D. Dinakaran of the Karnataka High Court to the Supreme Court by the collegium.

 

Conclusion

Till 1973, from appointing senior-most judge of Supreme Court as CJI to gradually developing a ‘collegium system’ through precedence established by the Supreme Court judgements in three Judges’ case to appoint judges of the Supreme Court, the ‘collegium system’ evolved so far has ensured ‘independence of the judiciary’. However, with the need of time, a more efficient system surely needs to be found so that appointment procedure could be fairer and the judiciary will have the best possible minds as judges.

 


Ethics


 

Syllabus: “Aptitude and foundational values for Civil service, integrity, impartiality and non-partisanship, objectivity, dedication to public service, empathy, tolerance and compassion towards the weaker sections”

Q3. Can ethical integrity be situational, or is it an absolute concept? Analyse. (10M)

Introduction:

Ethical integrity refers to behaving ethically and doing the right thing, even behind closed doors. For instance, informing a cashier that they gave you too much change.

Body:

Absolutism vs situational integrity:

 

  • Limits of absolutism: Kant’s Categorical Imperative says: “Act only according to that maxim by which you can at the same time will that it should become a universal law”. But integrity in ethical issues can never be universal. I might forgive a child who is hungry and steals.

Therefore, I believe ethical integrity is situational but there are limits to it too.

Limits of situational ethics- absolute values to consider:

  • Moral Duty: For instance, It’s okie to forgive the child who steals but it’s also a duty to guide the child in a moral way.
  • No personal bias: one should return extra change to the cashier even if the cashier was rude and you had a small fight with him.
  • Self-control and avoiding the slippery slope: justifying every wrong action.
  • Consciencethe bigger judge: As Gandhiji said “There is a higher court than courts of justice, and that is the court of conscience. It supersedes all other courts.”

 

Conclusion:

Though absolute integrity may not always be desirable. Situational integrity must be based on universal moral values such as honesty, fairness, and justice. Bias, personal favors and pleasures cannot be a base for it.


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