Tuesday, January 11, 2011

The CAG & the Constitution

I think my earlier post on the CAG requires some correction: My point is merely to emphasize the importance of the CAG and the independence that the Constitution grants it; but I believe I went too far when I spoke about the CAG being the final voice on financial matters - Parliament is that voice, as a reading of Articles 148-151 reveals.

Most constitutions separate power between the legislature, executive, and judiciary. The degree of separation is almost invariably different, but the focus remains on separating powers between these three institutions. But as Bruce Ackerman captured in his pioneering Harvard Law Review piece, The New Separation of Powers, this is not always the case. The Indian Constitution, for instance, It establishes institutions that exist independently of these three traditional wings of government. The most famous of these is the Election Commission, but an equally important if often ignored example is the Comptroller and Auditor-General of India (CAG).

The principles embodied in Articles 148-151 of the Constitution establish the CAG as an authority on the Union and the States’ financial affairs. For present purposes, the independence of the CAG under the Constitution helps us better understand the ongoing controversy. To begin with, the executive has the privilege, as it should in any democracy, to raise questions about and prompt debate on the veracity of the CAG report. But it is vital to distinguish a possible disagreement with the report from an outright rejection of the report or an attack on the CAG’s legitimacy. Just as the executive cannot “choose” to accept or reject a judicial decision, it is granted no discretion in how to respond to a CAG report. Under the Constitution, the CAG is the final voice on financial accounts; the executive re-investigation of a CAG report results in the executive being a judge in its own cause. The Telecom Ministry may well disagree strongly with the report, but it has no constitutional authority to determine whether it ought to be accepted or rejected.

It is for this reason that the Constitution calls upon the CAG report to the laid before each House of Parliament, rather than to stimulate discussion amongst the cabinet. Parliament is not simply bound to debate the report on representative grounds; under the Constitution, it is only institution that can investigate the report and shape its fallout. Viewed in this light, the claim for a joint parliamentary committee may appear to gain persuasiveness. It promises to do justice to the independence of the CAG and the collective responsibility of Parliament to pay due respect to its report. Simultaneously, however, it decreases the legitimacy of the opposition’s actions: the Constitution directs parliamentary debate on the CAG report; any attempt to stall Parliament upsets the constitutional procedure set out for responding to CAG reports.

The present debate has largely ignored the constitutional imperative of the CAG report. A rejection of the report by the executive will amount, in constitutional terms, to a rejection of a judicial decision or an Election Commission verdict on which party has the numbers to form government. Politics will surely discover its own unique answer to this crises but it may be worth beginning with the Constitution.

4 comments:

Tarunabh Khaitan said...

dear madhav, you may also be interested in barber's 'prelude to separation of power', which seems to make a similar argument to that of ackerman.

Madhav Khosla said...

Thanks Tarunabh. Barber's piece is excellent, especially it's rumination on the relationship between constitutional theory and political philosophy. But - while relevant - I am not very convinced that Barber makes a similar argument to that of Ackerman's or that he is interested in the same questions. I think he too tries to point out the different nature of his inquiry in footnote 1 of his piece.

Tarunabh Khaitan said...

thanks for the clarification. i have not read ackerman's piece yet, just thought your rough summary of his ideas were similar to some of the things barber said (again, it has been a while since i read him). will look at ackerman's piece soon. between, have you seen 'The New Separation of Powers, A Theory for the Modern State' by Eoin Carolan? any good?

Madhav Khosla said...

Thanks Tarunabh! I haven't seen Carolan but am looking to get hold of it sometime! One excellent piece, however, on SOP and representative govt that I am across recently was Bryan Garsten, “Representative Government and Popular Sovereignty,” in Political Representation, ed. Ian Shapiro, Susan Stokes, Elisabeth Wood and Alexander Kirshner (Cambridge University Press, 2009). It is freely available here: http://pantheon.yale.edu/~bg246/Representative%20Government%20and%20Popular%20Sovereignty.pdf