The acrimonious debate on the selection and appointment procedure for the Lok Pal and state Lok Ayuktas highlights the need for insulating statutory and constitutional positions from the executive’s sole decision-making powers. It was only after the judicial intervention of the Supreme Court calling for transparency in the selection of the Chief Vigilance Commissioner that the controversy surrounding P J Thomas’ appointment was finally laid to rest. However, that controversy was emblematic of the serious gaps in the process of appointments to key government offices, and of the growing politicisation of the selection process.
A cursory look at the appointment process to key statutory and constitutional positions reveals that the classic pre-requisites of neutrality and anonymity — that are supposed to help create, and characterise, the professional outlook of the bureaucracy — have, at times, been compromised in favour of a complaisant candidate. Increasingly, political exigency and ideological pliability, instead of merit and capability are given precedence. This has adversely affected the quality of governance in the country.
In India, the post of the Comptroller and Auditor General (CAG) enjoys an independent and exalted status, one guaranteed by the Constitution. Although the CAG is appointed by a presidential warrant, the manner of selection has attracted adverse observations from different sections of the political establishment, the media and the general public. In fact, the National Commission to Review the Working of the Constitution, in its recommendations to ensure the efficacy of the public audit system, stated that it is necessary to insulate the appointment of the CAG from executive influence. It suggested the formation of an independent committee comprising the prime minister, the leader of the Opposition in the Lok Sabha, the chairman of Parliament’s Public Accounts Committee and the finance minister. It is also said it was necessary to prescribe appropriate qualifications for appointment to the post.
Likewise, there is no specific legal provision in the matter of appointment to the posts of the Election Commission, with Article 324(2) of the Constitution leaving it as the exclusive prerogative of the executive. As a result, it is increasingly being feared that the independence and integrity of the Election Commission could be compromised, jeopardising the very foundations of parliamentary democracy. The Tarkunde Committee’s report spoke of how the hallowed institution of the Chief Election Commissioner, or CEC, is losing the respect and confidence of the people at large. It must be said that the institution of CEC has made a significant contribution to the strengthening of democratic institutions in the country.
However, to protect the institution from partisan interests, it has been suggested that the president appoint the CEC and other election commissioners on the advice of, and in consultation with, an independent committee comprising the prime minister, the leader of the Opposition in the Lok Sabha and the Supreme Court’s chief justice. This suggestion has been made by both the Dinesh Goswami and Tarkunde Committee reports on electoral reforms.
Even appointments to other constitutional bodies, like the Union Public Services Commission, could be made through such a consultative process. In most cases, the appointment could be made by a committee on the lines of the one suggested above, comprising the prime minister, the leader of the Opposition in the Lok Sabha and CJI. A statutory status may also be conferred on such procedures of appointment to give it legitimacy and a strong legal back-up.
Special mention needs to be made of the Public Enterprises Selection Board, a high-powered body entrusted to advise the government on appointments to top management posts in Central public-sector enterprises. Although constituted through a Government of India resolution dating back to 1987 which was subsequently amended in 2008, it has no statutory basis to its existence. This glaring loophole needs to be immediately addressed, if appointments made under it are to enjoy any force of law.
It is, therefore, critical that high-level posts in the Central government are filled in an unbiased and objective manner, with the constitution of an independent selection panel comprising an equal representation of members from the ruling party and the main opposition in the Lok Sabha or Rajya Sabha (as the case may be) and from the Supreme Court. Unanimity in the final choice by all members of the selection panel would not only restore balance in the process of government decision-making and enhance administrative efficiency, but also instil public faith in the functioning of the bureaucracy. Another way forward to ensure political consensus on appointments made to constitutionally mandated bodies would be to subject them to confirmation by a two-thirds majority of a joint session of both Houses of Parliament, a practice that is already in force in some Western democracies.
The criteria and procedure regarding selection and recruitment for both constitutional and statutory bodies must be explicitly laid down, rather than implicitly understood. In addition, to avoid a repeat of the CVC fiasco, it may be prudent to ensure that all dissent notes over appointments be placed before the President for his/her perusal and final assent — thereby mitigating any crisis that may ensue from the lack of agreement among members of the selection panel.
To conclude, fairness, transparency and political unanimity should become the touchstones for all government-led appointment procedures. Accountable and uniform methods of appointment are the first step towards ending the culture of political patronage that has come to dominate the bureaucratic system.
Misra is ex-chairman of the Telecom Regulatory Authority of India, or Trai. Sen is a research associate at the Public Interest Foundation, New Delhi.
They can be reached at info@publicinterestfoundation.com
