In this article we will discuss about:- 1. Introduction to the Independent Functionaries of India 2. Attorney General of India 3. Duties of Attorney General 4. Comptroller and Auditor General of India 5. Separation of Audit from Accounts 6. Public Accounts Committee and Comptroller and Auditor General 7. Ombudsman: Lok Pal and Lok Ayukta 8. Administrative Reforms Commissions and After.
- Introduction to the Independent Functionaries of India
- Attorney General of India
- Duties of Attorney General
- Comptroller and Auditor General of India
- Separation of Audit from Accounts
- Public Accounts Committee and Comptroller and Auditor General
- Ombudsman: Lok Pal and Lok Ayukta
- Administrative Reforms Commissions and After
1. Introduction to the Independent Functionaries of India:
In a parliamentary form of government there are broadly speaking two types of functionaries, namely, the politicians and permanent civil servants. The former enjoy the confidence of the people and are returned to Parliament on the basis of certain policies and programmes.
They occupy chairs for a limited period and may again be returned to power, in case majority of electorates is satisfied with their policies and programmes otherwise another set of bosses occupy the chair. Then, are permanent civil servants, who once appointed remain in office till their retirement age is reached.
They are suppose to be politically neutral and work under overall guidance and control of political bosses. They are dependent on them for getting favours but even otherwise have promotional avenues and some service conditions. But the Constitution has also provided for certain independent functionaries.
They are assigned some responsibilities and are also supposed to discharge these without any fear and favour of political bosses. Certain constitutional provisions have been made by which they become independent. One such important and independent functionary in India is Attorney General, who was previously known as the Advocate General of India.
2. Attorney General of India:
Under the Constitution of India (Article 76) it is provided that the President of India shall appoint a person to be the Attorney General of India. Such a person should possess such qualifications as are required for the appointment of a Judge of Supreme Court.
In other words he should be citizen of India and should have worked either as a Judge of some High Court for a period of 5 years or an Advocate for a period not less than 10 years. Under Constitution .Forty-Second Amendment Act, it was provided that a person who in the view of the President is an eminent jurist could also be picked up for this post but this provision was repealed by constitution Forty-Four Amendment Act.
The Attorney General holds office during the pleasure of the President, who also determines his emoluments. When he appears in any court to represent the government he receives some additional daily fees. He is entitled to free official residence, free travel and some entertainment allowance. He also gets telephone facilities and secretarial service.
In England office of the Attorney General is a political office. He is a member of Council of Ministers and comes and goes with it. On the other hand in India it is not a political office. He is not a member of Council of Ministers. Some time back there was a proposal that offices of Law Minister and Attorney General in India should be combined in one, but this proposal has not materialised.
Attorney General, however, has a right to attend sittings of the Parliament, when called upon to give his opinion on matter pending before either House of Parliament and in such a case he sits with the treasury benches.
Article 88 of the Constitution provides that every Minister and Attorney General of India shall have the right to speak in, and otherwise to take part in the proceedings of either House of Parliament, any Joint sitting of both the Houses, or any Committee of Parliament of which he may be named a member.
He shall, however, have no right to vote. As long as he will hold the position of Attorney General of India, he shall enjoy same privileges and immunities as are enjoyed by the Members of Parliament. He can be removed from his position by the President, as and when he feels that he is not performing his duties properly.
3. Duties of Attorney General:
Article 76 of the Constitution has specified the duties of Attorney General. It is, however, provided that in the performance of his duties he shall have right of audience in all courts in the Union Territory of India. It is, however, his legal obligation not to appear in any court against the Government of India.
He is entitled to carry out his private practice. Some of his important duties are to advice the Government of India in such matters in which legal and constitutional points are involved and are referred to him by the President or the Government of India.
He is required to appear on behalf of the Government of India, in all cases in which the Government of India, is a party, both in the Supreme Court, as well as in any High Court. When Parliament or Presiding officer of either House is involved in any dispute, he is required to defend him.
Under the Constitution, the President is empowered to refer any matter to the Supreme Court for advice. In such a case he is required to appear before the Court on behalf of the Government of India and represent its view point. According to the Constitution,
“It shall be the duty of Attorney General to give advice to the Government of India upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President, and to discharge the functions conferred on him by or under this constitution or any other law for the time being in force.”
When Attorney General of India appears in any court he gets precedence over all other advocates.
The Speaker of Lok Sabha can invite him to appear before the House and give his opinion on a matter of constitutional importance, on which House wants to listen his view point. He may inform the Attorney General in advance about the questions which the members may like to put to him on the issue involved.
The members can seek clarification on some points, but cannot cross question him. His advice is, however, not binding on the House.
4. Comptroller and Auditor General of India:
Comptroller and Auditor General of India is also an independent functionary. Art 148 of the Constitution provides that this dignitary shall be appointed by the President of India. The Constitution, however, does not prescribe any qualifications for the incumbent of the post.
Of course, it is hoped that a person who possesses high financial qualifications shall be elevated to this post. Since Comptroller and Auditor General is to be appointed by the President obviously he will do so on the recommendations of the Cabinet or the Prime Minister.
According to critics whereas on the one hand Constitution makers desired that he should be independent of the executive, on the other, they left his appointment virtually to the executive, which was to see that the person was not opposed to party in power. As such in his appointment politics is bound to creep in.
Before entering upon his office he is required to subscribe before the President of India or some person appointed by him in this behalf, an oath or affirmation that he will be faithful to the constitution of India and faithfully discharge his duties. The constitution has not fixed any term of office of the Comptroller and Author General of India (C & A.G) but the Act of 1953 has fixed his term of office at 6 years.
He can, however, relinquish his office earlier by addressing his resignation by the President of India. He can also be removed from his office by the President provided his removal is recommended by two-third majority of both the Houses of Parliament; in each House separately on grounds of proved misbehaviour or of incapacity. Thus, the procedure of his removal is the same as that of A Supreme Court judge.
His salary and allowances are to be determined by an Act of Parliament. The Act of 1953 fixed his salary at Rs.4000/- per month which has now been raised to Rs. 9000/- per month. I order to ensure his independence his salary and allowances are charged on the Consolidated Fund of India and as such are not subject to the vote of Parliament. His service conditions, during his term of office, cannot be varied to his disadvantage.
After his retirement he has been debarred from holding any office of profit under the Union State Government. It, however, appears that he can join politics. T.N. Chaturvedi joined B.J.P. and was nominated by that party as a member of the Rajya Sabha.
He has direct access to the President and exercises full administrative control over all officers and staff serving in the audit departments. He is responsible for formulating service conditions of the employees of these departments.
His Powers and Functions:
It is most essential that the money collected by way of taxes must be properly spent and subjected to audit so that the irregularities committed by the spending departments are brought to light. In order to bring such irregularities to notice and also to have uniform auditing system it is essential that there should be a simple and uniform accounting procedure.
This work has been assigned in India to ‘Comptroller and Auditor General of India’. Under him is a net work of Audit Offices. In each state there is an office of the Accountant General. At the Centre is Accountant General Central Revenues.
The State Audit Offices audit the accounts of respective state governments whereas Accountant General Central Revenues (A.G.C.R.) audits the accounts of Central Government offices.
For departments which are run on commercial lines, there is a separate Accountant General of Commercial Audit. Since AGCR was over burdened with work, a separate audit office was created which now deals with auditing of the accounts of some Ministries.
In India it is believed that the Comptroller and Auditor General should have maximum autonomy. It is with this end in view that constitutional provision has been made for freeing him from the executive as well as legislative control. The office of the Comptroller and Auditor General of India came into existence with the passing of Government of India Act, 1919.
He was to be appointed by Secretary of State for India. Subsequently with the passing of Government of India Act, 1935, his status was raised and now he was to be appointed by His Majesty instead of being appointed by the Secretary of State.
According to Audit and Accounts Order, 1936, he was required to compile the finances and revenue accounts of India, as also prescribe forms in which accounts were to be maintained.
He was also required to decide whether a particular head was major or minor head and prepare each year a review of the balance of books as maintained by the Audit Department. Comptroller and Auditor General of India was to get work from offices subordinate to him and also to assist the local bodies in proper maintaining of accounts.
After the passing of the Constitution, the position of this office has considerably increased. He is now required to see that the accounts of the Government of India are properly maintained and he prescribes forms for maintaining accounts. He is to audit expenditure from the revenue of the Union and the States. He is to prepare annual accounts showing receipt and disbursement for the federation of India and the States.
He is supposed to assist the Union/State Governments for the preparation of annual financial statements and audit all transactions of the central and state governments. He is also required to prescribe forms in which government accounts are to be kept.
In addition to accounting functions, he has also certain audit functions to perform. He is supposed to audit incomes and expenditures insofar as national finances are concerned. He is also supposed to render suitable assistance to the departments for properly maintaining of their accounts.
In India Comptroller and Auditor General had been given the double role of maintaining accounts and getting these audited. Such a combination of powers was being decried since some time past.
Nar Hari Rao the first Comptroller and Auditor General of free India was of the view that combination of audit and account functions was likely to facilitate frauds and embezzlements and prevent their coming to light. These comments had effects and it was accepted in principle that audit and accounts should be separated from each other.
Independence of Office:
The duties and responsibilities of Comptroller and Auditor General include unpleasant job of criticizing the working of all government departments. In the proper performance of his duties obviously he will be displeasing many. He can properly perform his duties provided he enjoy considerable autonomy, which under the constitution he has been given.
As mentioned above his salary is non-votable and his conduct cannot be discussed on the floor of the House. He cannot be removed from his office by the executive government is terms and conditions of service cannot be changed to his disadvantage.
It has also been decided that on his retirement he cannot serve anywhere else and thus, he is not to be tempted to oblige any highly placed person during his tenure to get benefit from him after retirement.
He can be removed from his office in a manner as prescribed for the removal of a judge of the Supreme Court of India. He has been given direct assess to Parliament without the intervention or help of any Minister. He has full and final control over the staff working in the accounts and audit offices.
In India audit department occupies a very pivotal point and quite a good number of persons are employed in that department. At the helm of the affairs is the Comptroller and Auditor General of India who is aided and assisted by Deputy Assistant Comptrollers General.
They decide policy matters for all Accounts Offices. In each state there is one Accountant General who has Deputy Accountants General and Assistant Accountants General and also good number of superintendents and auditors.
The Defence, Railways and Posts and Telegraphs Departments have their own audit offices and their accounts are audited through them. In order to audit the accounts of the commercial undertakings there is a separate audit office, under the control of Comptroller and Auditor General.
Appleby’s Criticism of India’s Audit System:
Dr. Appleby sometime back criticisess India’s audit system on many grounds. Firstly, according to him our system is heritage of British imperialism. The system was most suited to a colonial set up but is not suited to a democratic system of today’s India.
Then he says that by and large our system has negative and aggressive character. Under the system there is less stress on improvement and constructive suggestions whereas an effort is made to point out as many drawbacks as possible.
The system has also been criticised for its making public servants as weak and timid and they hesitate to take very bold steps. According to Dr. Appleby another defect of the system is that it is wrong to believe that the auditors know auditing and are perfect in their job.
On the other hand, he feels that they know nothing and an outside agency cannot efficiently audit the accounts of an organisation according to its own principles. According to him audit should be done on the lines approved by the departmental head or the Board of Directors.
But the criticism has been effectively replied by Mr. A.K. Chanda, the former Comptroller and Auditor General of India when he said, “Any student of constitutional history would be aware that this post was an essential one in a democratic form of government and its functions were so defined as to secure public accountability of the administration.”
Though Dr. Appleby’s points of criticism have sufficient strength but the need and necessity of the
work of the Comptroller and Auditor General of India cannot be under-estimated. He has already done full justice with his office and job and has completely adjusted himself to the new democratic traditions.
5. Separation of Audit from Accounts:
Since there has all along been strong criticism that audit should be separated from the accounts and that the combination of the two was not good, therefore, during 1975 emergency period, audit and accounts were separated from each other.
A separate Comptroller of Civil Accounts was created and made responsible to the Ministry of Finance. Necessary staff was taken away from the control of Comptroller and Auditor General and placed under the Comptroller of Civil Accounts, who in turn distributed that among various Ministries and departments of the government.
It is this staff which now maintains accounts Thus, instead of centralised accounting system, now there is decentralised accounting system and accounts are maintained at Ministry/Department level. Staff has been distributed among the Ministries depending on the volume of work. It is this staff which maintains accounts and functions under the over all control of Secretary of the Ministry.
Article 150 of the constitution originally provided that:
“The accounts of the Union and of the States shall be kept in such form as the Comptroller and Auditor General of India may with the approval of the President prescribe.”
This Article of the constitution was substituted, by another Article by Forty-Second Constitution Amendment Act.
The substituted Article read as follows:
“The Accounts of the Union and of the states shall be kept in such form as the President may after consultation with the Comptroller and Auditor General of India prescribe.”
In other words, it was left to the President i.e., the executive government to decide the form in which accounts should be kept. Thus, the powers of this high dignitary were much reduced,
Forty-Fourth Constitution Amendment Act, however, still further amended this clause. The words in Italics were omitted and substituted with the words ‘on the advice of’. In this way Comptroller and Auditor General got back his lost powers.
Article 148 (2) of the Constitution provides that salary and other conditions of service of Comptroller and Auditor General shall be such as may be determined by Parliament by law and until these are so determined shall be as in the Second Schedule.
6. Public Accounts Committee and Comptroller and Auditor General:
Public Accounts Committee is a Parliamentary Committee which provides effective Parliamentary control over public money. Since 1954 it has become a Joint Parliamentary Committee consisting of 22 members, 15 from the Lok Sabha and 7 from the Rajya Sabha. The members represent different political parties in the Parliament and in fact, representation is according to their strength in their respective Houses.
The Committee is constituted for a period of one year. If Deputy Speaker is a member of the Committee, he becomes its chairman, otherwise Speaker nominates a member of the committee as its chairman. The Committee has usually one of its prominent private members as its Chairman.
The Committee is required to suggest economy measures and administrative reforms and sees that the moneys spent were, legally available and actually spent for the purpose for which these were earmarked. The Committee is to see that every re-appropriation has been made in accordance with the rules framed for the purpose and that this has been done by the competent authority.
It is supposed to see that the expenditure conforms to the authority which governs it. The Committee has been empowered to examine the balance sheets of all such commercial organisations which the President of India may direct the Committee to examine.
For the purpose the Committee considers the report of the Comptroller and Auditor General of India on the working of the Ministries/Departments. In fact, these reports form the basis of the working of the Committee.
In order to effectively carry out its obligations the Committee has been authority to call for papers and persons. Usually Secretary of the Ministry is required to personally satisfy the Committee by appearing before it.
The chairman is assisted by the Comptroller and Auditor General of India who gives him all technical advice for examining public servants. After the persons have been examined the report is submitted to the Parliament which is usually accepted.
But if there are differences of views on any issue between the Committee and the Government these are tried to be sorted out, but if the differences still persist the Parliament is the final authority to decide, whose decision is to be final and binding.
It is, however, constitutional obligation of the Comptroller and Auditor General of India to present his report annually about the working of audit and accounts departments to the President, which he will cause that laid before the Parliament.
It is on the basis of one such report that in 1989 as many as 102 Members of Parliament belonging to opposition political parties of the Lok Sabha decided to resign from the membership of the House.
The comments made by him are examined by the Public Accounts Committee. It is said that politics can creep in here as well. Since Members of Public Accounts Committee belong to different political parties, therefore, even in controversial cases they can dilute some of the adverse comments of Comptroller and Auditor General and thus, labour done by him with all good intentions may be lost.
7. Ombudsman: Lok Pal and Lok Ayukta:
In India administration is day-by-day coming nearer to the Public. Since sometimes past wild charges are being levied that highly placed public servants and politicians are becoming corrupt and selling favours.
In order to restore confidence of the people for these highly placed persons the idea of starting the institution of Ombudsman was played with as early as in 1959 when the then Finance Minister C.D. Deshmukh proposed that a high powered officer should he appointed to investigate charges of corruption against highly placed persons.
The idea was supported by the then President of India Dr. Rajendra Prasad. In 1963, P.B. Gajendragadkar supported this move and in the same year L.M. Singhvi, suggested in the Lok Sabha, that such an institution should immediately be established as that would enable the citizens to effectively ventilate their grievances.
It was with this object in view that Moraiji Commission was set up in 1966 to find out adequacy of existing arrangements for the redressal of grievances by the public against public servants and also to suggest new machinery, if necessary, for redressing such grievances. Within few months the Commission submitted its report.
It came to the conclusion that Lok Pal and Lok Ayuktas should be appointed to enquire into the grievances of the people. The former will look into complaints made against Ministers and Secretaries to the Central as well as State Governments whereas the latter will deal with complaints against other officials. Each State as well as Central Government was required to appoint one Lok Ayukta.
It was on the recommendations of Morarji Commission that the suggestions for the institution of Lok Pal and Lok Ayukta came into consideration. It was a substitute for ombudsman in countries like France and U.S.S.R.
Some of the critics are of the opinion that since India has an independent judiciary, therefore, there was no need to have institutions of ombudsman or the Lok Pal and Lok Ayukta. But they forget that our legal process is very slow, costly and difficult.
Salient Features of Lok Pal and Lok Ayukta:
Morarji Commission was of the view that our Lok Pal and Lok Ayukta should act in a free and impartial manner. They should conduct enquiries impartially and in an informal manner. They should be comparable to a senior judicial officer.
While investigating cases involving injustice, corruption and favouritism, they should be invested with discretionary powers. They should also be allowed to call for papers and documents and barred from receiving any pecuniary advantages from the executive government.
The Commission was of the view that Lok Pal should have status equivalent to that of the Chief Justice of India, both in terms of emoluments and also security of service. All those conditions applicable to the Chief Justice of India for ensuring impartiality should be made applicable in his case also.
He should send his annual report to the Parliament and also indicate the difficulties experienced by him in actual application of laws and desirability of their amendment. Lok Pal was to be empowered to investigate all cases brought to his notice on his own initiative.
But he was not to investigate cases in which a foreign government was involved and India’s relations with that country were likely to be adversely affected by that investigation.
One Lok Ayukta each was proposed to be appointed in each State. Lok Ayukta was to be empowered to investigate cases of persons at lower level of hierarchy and his position was kept analogous to that of the Chief Justice of a High Court and he was to enjoy the same powers and privileges as were enjoyed by him.
It was hoped that with the creation of this Institution the people will have easy assess to these dignitaries for getting their grievances redressed. It was also hoped that the people will get speedy justice and that too free from the influence of executive government.
In the system there was no need for intermediaries and every representation made was to be considered by fair means. In addition to this, it was to be an additional means of getting the grievances redressed and that-of providing additional guarantee for protecting legitimate interests of the people.
But the system had certain defects as well. It is said that one Lok Pal at the centre would not have been capable enough to deal with the complaints which would have poured from all over the country. His work was thus likely to be un-manageable and always in arrears. Thus, the very purpose of his appointment would be defeated.
It was also said that this institution was likely to be detrimental to the principles enunciated in the constitution. It was as well likely to be derogatory to the judiciary and an adverse reflection on it. These institutions are bound to result in red-tapism and can defame both the state legislatures as well as the Parliament and thus against democracy and democratic institutions.
Lok Pal and Lok Ayukta in India are intended to be equivalent to ombudsman and as such it is essential to have a reference about him as well. Ombudsman originated in Sweden and today the this institution found in many European countries including Denmark, Finland, Norway, West Germany and New Zealand.
Similar institutions have been set up in France. In Sweden, where the institution was originally established has three guardians of law; namely, Ombudsman for Ministry of Home Affairs who is elected, by the Parliament and is responsible for looking after the welfare of the armed forces.
Then comes the Collector of Justice who is adviser to the King in Council. Then is ombudsman for Civil Affairs who is responsible to Parliament, which of course, does not interfere in his day-to-day working. They act on the basis of complaints received from the public and also on their own initiative.
It is obligatory for all, Government officers to supply information to ombudsman. He suggests defects and ensures that these are removed even if for their removal some legislation is needed that should be enacted. He also suggests guidelines for further tuning up of administration.
Evaluation of Work of Ombudsman:
Ombudsman has worked very successfully. The main reasons for his success include among others, that he is independent of government and Parliament and has worked on behalf of the people, insofar as day-to-day activities of the government are concerned.
He conducts investigations informally and has free access to all documents. He touches basic and not superfluous cases of maladministration. The system is very cheap and functions in a non-partisan manner.
There is considerable flexibility in his working and investigations are open to the public and the press. He gives his findings to the government only in the form of suggestions and as such these are not embarrassing for it.
The procedure followed by him is clear and simple and he enjoys considerable discretion in taking up cases against any official. In fact, today ombudsman has become principal protector of the people against possible abuse of powers by the government.
8. Administrative Reforms Commissions and After:
In 1966, Administrative Reforms Commission also suggested that Lok Pal and Lok Ayukta should be appointed in India. Accordingly, in 1969, Lok Pal and Lok Ayukta Bill was introduced in the Lok Sabha. The salient features of the bill were that at the centre there will be a Lok Pal, who will be appointed by the President of India, but before doing so he will consult the Chief Justice of India and the leader of the opposition.
Lok Ayukta will also be appointed by the President but in consultation with the Lok Pal. Both of them will be appointed for a period of 5 years and can be re-appointed for one more term but after their retirement they will not be eligible for any other appointment, without the prior approval of the central government.
The bill also provided, that the Lok Pal and Lok Ayuktas will be removed by the President on ground of misbehaviour and incapacity. For this a resolution of the Parliament was absolutely necessary. His salary and allowances were equated with those of the Chief Justice of India.
The bill, however, lapsed because of dissolution of the Lok Sabha and after this the matter was not taken up seriously till 1979, when Janata party came to power. In between, however, the States of Bihar and Maharashtra passed Lok Ayukta Bills.
In July 1977, Government introduced a Bill in the Lok Sabha for providing for Lok Pal and Lok Ayuktas. In this Bill Prime Minister was also brought within the orbit of the Bill. The Lok Pal was to have his own administrative machinery to carry out investigations, without depending on governmental machinery.
He could look into any complaint of misconduct, pertaining to a period of five years prior to the date of complaint against a person who was or has been a public man. These persons included Prime Minister, Ministers, Legislators, etc.
The bill provided that the Lok Pal will be appointed by the President in consultation with the Chief Justice of India, the Chairman of the Rajya Sabha and the Speaker of the Lok Sabha. He was to be appointed for a period of 5 years on a monthly salary of Rs.5000/-. After completing his term he was not eligible to hold any other office.
He was not to be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of total membership of that House and a majority of not less than two-third of the members of that House present and voting has been presented to him in the same session for such removal on the ground of misbehaviour and incapacity.
The Lok Pal was to have his own administrative machinery to investigate complaints and was to have all powers which civil courts enjoy in respect of summoning witnesses and calling for papers and documents.
In case the Lok Pal, after investigation found charges to be partially or fully true, he was to communicate his findings to the authority concerned which in turn was to inform the Lok Pal of the action taken on that and that too within a period of 3 months.
Reports of the Lok Pal was to be presented to the President, who was to cause these laid before the Parliament. In order to avoid rush of work and complaints on frivolous grounds each complainant was required to deposit a sum of Rs.1000/- with the complaint. The bill could not be passed as Janata government collapsed in 1979.
Need and necessity of Lok Pals and Lok Ayuktas is being increasingly felt and it appears that now there is political will behind it as well. Every political party knows the extent of political corruption prevailing at political level and the likely implications of investigations of charges by an independent authority beyond the orbit of executive government.
National Front government was committed to the appointment of a Lok Pal and Prime Minister was to be brought within his purview.
In his first Presidential address to the joint session of Parliament, to the newly constituted ninth Lok Sabha, the President said that his government is interested to bring forward Lok Pal Bill. The then Prime Minister V.P Singh also made it clear more than once that his government was committed to bringing such a bill before the Parliament at the earliest.
But nothing came out because of fall of the government. Several states have, however, passed Lok Ayukta Bills but there is long way to travel before the objective of checking corruption for which they are to be appointed in achieved. As the day is passing with that the need of these institution is being increasingly felt because corruption at every level is increasing in the country.
At the fag end of tenth Lok Sabha in 1996 Hawals dealings by Jain brothers came to light in which several political leaders, including Ministers of Central government were alleged to be involved. In the case were also involved several senior bureaucrats.
Several Ministers resigned from the Central Council of Ministers. In Bihar state Fodder scandal came to light, almost at the same time, in which crores of rupees were alleged to have been illegally taken away by bureaucrats.
Once again a very forceful demand was made in the Parliament that the institution of Lok Pal should be started immediately to check corruption in high places and in that the Prime Minister should also be covered. The government was perhaps inclined to go ahead with Lok Pal Bill, but again Bill was introduced in last session of tenth Lok Sabha.