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Comptroller and Auditor General of India: A time for reform?

The debate on the mode of appointment of CAG was reignited in August 2020 when G.C. Murmu was appointed as the Comptroller and Auditor General, without following any transparent process of selection. His appointment came as utter dismay to citizens of India, who have faith in parliamentary democracy since he has no professional experience in audits and accounts.

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INTRODUCTION

The Comptroller and Auditor General (hereinafter referred to as CAG) of India is the Constitutional Authority in India, established under Article 148 of the Constitution of India. CAG is described as one of ensuring financial propriety as well as value for money since 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. It is for these reasons Dr B.R. Ambedkar, the architect of the Indian constitution, called the CAG one of the most important functionaries of the constitution, as important as the judiciary.

Dr Rajendra Prasad had observed, “He has the power to call to account any officer, howsoever highly placed, so far as state sums of money are concerned.” Although the Constitution intended to create an office of Comptroller and Auditor General in reality, it is only fulfilling the role of that of the comptroller. In other words, ‘the CAG has no control over the issue of money from the consolidated fund and many departments are authorized to draw money by issuing cheques without specific authority from the CAG, who is concerned only at the audit stage when the expenditure has already taken place’. Hence, CAG’s report is post-facto meaning thereby it has only prospective value in improving systems and procedures after the expenditure is incurred. Whereas in the UK, the name Comptroller is justified since no money can be drawn from the public exchequer without the approval of the CAG.

 ISSUES INVOLVED IN THE OFFICE OF CAG

The independence of authority can be ensured if there is a well laid out criteria for its appointment. Such criteria would include required qualifications that an individual should possess to be appointed as the constitutional authority and also a procedure through which selection should be made. The procedure must be transparent. CAG is appointed by the President by a warrant under his hand and seal and his oath of office requires him to uphold the Constitution of India and the laws made thereunder. He can be removed by the President only by following the procedure mentioned in the Constitution that is the same as of a judge of the Supreme Court. Hence the selection process for the CAG is completely internal to the executive machinery of the Government. No one outside has any knowledge of what criteria is applied, how names are shortlisted and how the final selection is made. Thus, in India, there is the absence of clarity on the criterion, the definition of the field of choice, the procedures for the selection of this Constitutional authority. In other countries like the UK, CAG is jointly selected by the Chairman of the Committee of Public Accounts and the Prime Minister and thereafter ratified by the House of Common. In the USA, the Comptroller General of the United States is appointed by the President after being advised by a committee and on the consent of the Senate. India is the only democratic country in the world where the executive has acquired unfettered powers to the appointment of the CAG, rendering ‘independence of CAG from the executive’ as meaningless.

The debate on the mode of appointment of CAG was reignited in August 2020 when G.C. Murmu was appointed as the Comptroller and Auditor General, without following any transparent process of selection. His appointment came as utter dismay to citizens of India, who have faith in parliamentary democracy since he has no professional experience in audits and accounts. In 2017, Common Cause and the Indian Audit and Accounts Retired Service Officers Association submitted a memorandum to the Prime Minister requesting a transparent procedure and objective criteria for the appointment of the CAG, which should ensure institutional integrity. The government didn’t accept the recommendation and went ahead to appoint Rajiv Mehrishi, a retired home secretary, without following any criteria. This appointment was also questioned and scrutinized on the ground that it was a post-retirement reward for ‘services rendered’. Mehrishi’s tenure was marked by a huge decline in the number of audit reports submitted to parliament, as well as state legislatures. Murmu’s appointment once again raised the question of why a generalist IAS officer is appointed as the CAG. How can a person with no knowledge and background of audits and accounts give leadership to the complex responsibilities of the Indian Audit and Accounts Department? In the case of N Gopalaswami & Ors vs The Union Of India & Anr, where a PIL was filed by the former Chief Election Commissioner N Gopalaswamy challenging the controversial appointment of Shashi Kant Sharma who served in key positions in the defence ministry that involved decision making powers over purchases including the Augusta Westland Chopper deal and the Tatra trucks deal, as CAG in May 2013 on the grounds of conflict of interests but the court didn’t allow the writ on the ground that judicial review must be limited to considering as to whether a person is eligible to be appointed as the CAG. The Court further observed, “of course, as the high constitutional post of a CAG is an integrity institution, an incumbent must have the qualities of competence and integrity. There are no prescribed criteria as to what qualifications a person must possess before he is considered for the post of the CAG.” There are some limitations on the CAG for example Secret service expenditure is kept outside the purview of the CAG. He cannot audit the expenditure incurred by the executive agencies but has to accept a certificate from the competent authority about how the expenditure has been so incurred. An increase in the participation of the government in the private sector through the ‘Public-Private Transfer’ and ‘Build own Transfer’ Model requires a significant change in auditing rules but the same has not been done hence the CAG does not have the power to audit Public Private Partnership investments. There is no provision for auditing of funds that are allotted to an NGO and local bodies. CAG does not have powers to audit the funds of the District Rural Development Authority who are nowadays managing large sums of money for rural development. It has also been contended that the CAG is not autonomous in the true sense. The Duties, Powers and Conditions of Service Act, 1971 provides that the CAG shall audit all expenditure of the government to ensure that the amounts disbursed were available, applicable to the said purpose, and were properly authorized. Regarding receipts, the CAG is required to verify whether the system provides for effective assessment and collection. Article 151 provides that the CAG’s reports on the accounts shall be submitted to the president or governor for being laid before the legislature. Hence, the CAG does not derive any independent accreditation directly from the Constitution. In fact, the CAG is undoubtedly mandated to carry out such tasks as Parliament may, by law, prescribe. The connotation is clear that the basic purpose of the CAG is to aid and assist the Parliament.

CONCLUSION

When it comes to ensuring the accountability of the executive, the functions of CAG become very important in parliamentary democracy to implement transparency. The most important factor which affects the functional autonomy of the CAG is its selection procedure. There is a requirement to frame a transparent selection procedure based on definite criteria and constitute an independent and impartial selection committee, which would recommend the most suitable person for appointment as CAG after calling for applications and nominations. There is also a need for an institutionalized process of selection for the post of CAG, a selection committee as seen in the appointment of CVC which involves PM, Leader of Opposition and Home Minister may be considered or it may also be laid down in the parliament as it is done in the most of the countries. To minimize the limitations imposed upon CAG and to cope with the changes in the Indian polity such as liberalization of the economy, the increasing role of civil society and NGOs and PPP mode of investments, the Duties, Power and Condition of Service Act 1971 must be reviewed and amended to ensure greater accountability and transparency in every functionary that deals with the public. CAG’s work should go beyond the auditing task and it must be entrusted with the power to ask the question of whether policies of the government ar

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A PLEA IN SUPREME COURT CHALLENGES THE CHANGED NEET-SS 2022 EXAM PATTERN

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The Supreme Court in the case Dr Richa Verma v. National Board of Examination observed the changed examination pattern which would now be comprising of 150 questions from the general i.e., the basic component of the primary feeder broad specialty subject and from all sub- specialty/systems/component of that primary feeder broad specialty subject. A plea filled in the Supreme Court by MD Radiation Oncologists and MD Anaesthesiologists NEET SS 2022 aspirant.

the petitioners have sought issuance of directions to restrain the NBE from excluding / MD Radiotherapy from the eligible feeder specialties for the super specialty course of DM Medical Oncology for NEET SS 2022 and have further sought for restoring the scheme/pattern for the exam further the petitioner deleting the MD Radiation Oncology, against this backdrop.

On 05.10.2021 the Central Government had told the Court that the revised pattern will be implemented only from next year and it may be noted that over the eleventh-hour changes brought to the NEET-SS 2021 pattern after facing the harsh criticism from the Supreme Court.

The petition further states that they will have to compete with candidates who have 100% questions from their postgraduate syllabus/ broad specialty as the new examination scheme is making some candidates write a paper which has no questions from their postgraduate broad specialty.

particularly in favor of MD Medicine in so far as the choice of options is far greater vis-a-vis the choices available to either MD Radiation Oncology or MD Anaesthesia, the pattern is not just a waste of time and effort for all those who have prepared for Critical Care but also grossly biased against few broad specialties and of the other four post-graduate branches there will be no questions from broad specialties.

This is complete waste of time, resources and effort put by the candidates who have been preparing for a super speciality subject for years as it is arbitrarily, illogical, highly partial and unreasonable, while terming the change in pattern, the contentions made by the petitioner.

the new pattern was forcing all the candidates from the broad specialties to write a single paper which will have 100% questions from General Medicine, stated by the petitioner. Furthermore, contending that the erstwhile pattern had a paper with 40% mixed questions from all the broad specialties and 60% questions from Critical Care (i.e., the super-specialty subject) which had ensured a level playing field.

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THE CRIMINAL PROCEEDINGS UNDER SECTION 482 OF THE CRPC CANNOT BE QUASHED MERELY ON THE GROUND THAT NO USEFUL PURPOSE WILL BE SERVED: SUPREME COURT

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The Supreme Court in the case Satish Kumar Jatav vs State of Uttar Pradesh observed that while by prolonging the proceedings of the case, the criminal proceedings cannot be quashed. As when a clear case is made for the offence alleged on the ground that no useful purpose will be served.

under Sections 307, 504, 506 of the IPC and 9 Section 3(10)(15) of the Act, the serious allegations for the offences were made and while considering the application under Section 482 Cr.P.C. and quashing the criminal proceedings for the aforesaid offences, the High Court ought to have been more cautious and circumspect. on how the order passed by the learned Magistrate summoning the accused was wrong and/or erroneous, has not at all being allowed by the High Court. the application under Section 482 Cr.P.C. and has quashed the criminal proceedings is deprecated in the manner in which the High Court has disposed of further the High Court has observed in the proceedings of the case that no useful purpose will be served. The aforesaid cannot be a good ground and/or a ground at all to quash the criminal proceedings when a clear case was made out for the offences alleged, appeared while quashing the criminal proceedings by the High Court even for the impugned order passed, the bench overserved while allowing the appeal.

The application under Section 482 Cr.P.C The manner in which the High Court has disposed and quashed the criminal proceedings is not appreciated at all Furthermore the Court has emphasized that the High Court must pass a speaking and reasoned order in such matters. The same has been set aside by the High Court in a most cursory and casual manner.

The allegations made against the accused persons and even on the legality and validity of the order passed by the Magistrate summoning the accused, has not been discussed by the High Court the Court noted.

The appellant contended that there are no reasons whatsoever have been assigned while quashing the criminal proceedings and further the appellant contended that there is no independent application of mind by the High Court. The respondent defended the impugned order, on the other hand before the Apex Court.

the Allahabad High Court quashed the criminal proceedings merely opining that “that no useful purpose shall be served by prolonging the proceedings of the case, while allowing the petition filled by the accused challenging this order and the offences punishable under Sections 307, 504, 506 of the Indian Penal Code and Section 3(10)(15) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the accused to face the trial the Magistrate summoned the accused in the present case.

The bench comprising of Justice MR Shah and the justice BV Nagarathna observed and reiterated under Section 482 of the Code of Criminal Procedure that a High Court must pass a speaking and reasoned order while disposing petitions.

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Nexus between accused’s negligence and victim’s death has to be established under Section 304A IPC: Supreme Court

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The Supreme Court in the case Nanjundappa vs State of Karnataka observed that would not apply to a criminal case, the doctrine of res ipsa loquitur stricto sensu.

when there is no report of a technical expert to corroborate the prosecution story as The Appellants therefore are entitled to be given the benefit of doubt furthermore It is even more unbelievable that Appellant no. 2 came in contact with the same voltage and managed to get away with a few abrasions.

when such current passed through the Television set, it did not blast and melt the wiring of the entire house and the court further added that it sounds completely preposterous that a telephone wire carried 11KV current without melting on contact.

While evaluating such evidence the jury should bear in mind that inference of guilt should be the only reasonable inference from the facts as In case of circumstantial evidence, there is a risk of jumping to conclusions in haste However the conviction of the accused persons seems wholly unjustified against the weight of the evidence adduced, in the present case. The Court also referred to the case of Syad Akbar Vs. State of Karnataka in which this Court proceeded on the basis that doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case as its applicability in an action for injury by negligence is well known, observed by the court in the present case.

The court noted that there is no eye witness to say conclusively that the Appellants were in fact executing the work at the place alleged and further the court notice that no report or even inspection was conducted by a technical expert to assess the veracity of the averments made by the complainants to suggest that it was due to the alleged acts of the Appellants that the incident took place. the allegations against the Appellants are highly technical in nature, notice by the court on perusing the evidence on record.

On 21th November 2003 at 1.00p.m. the deceased was watching TV in his house. Noticing a sudden sound in the TV, the deceased got up to separate the dish wire, the TV connection wire and the telephone wire, which were entwined together, he felt an electric shock and his right hand was burnt and as a result of this shock he succumbed to death at that point of time it was found that the said incident took place because of the negligent act on the part of the accused, the supervisor (an employee in the telephone department ) and daily wage worker employed by him, as it was found out in the investigation. under Section 304A read with Section 34 IPC was upheld by the Karnataka High Court, the appellant is convicted.

the bench comprising of CJI NV Ramana, Justice Krishna Murari and the justice Hima Kohli observed under Section 304A of Indian Penal Code for causing death by negligence, while acquitting two persons that prosecution has to firstly prove negligence and then establish direct nexus between negligence of the accused and the death of the victim, for bringing home the guilt of the accused.

The Court also referred to the case of Syad Akbar Vs. State of Karnataka in which this Court proceeded on the basis that doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case as its applicability in an action for injury by negligence is well known, observed by the court in the present case.

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AN ASSOCIATION OF CORPORATE BODIES CAN ESTABLISH A CAPTIVE POWER PLANT PRIMARILY FOR THEIR OWN USE UNDER THE ELECTRICITY ACT: SUPREME COURT

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The Supreme Court in the case Chhattisgarh State Power Distribution Company Ltd. vs Chhattisgarh State Electricity Regulatory Commission observed that a captive power plant primarily for their own use can be established by an association of corporate bodies.

The requirement would be that the consumption of SBIPL and SBMPL together should not be less than 51% of the power generated. Admittedly, the joint consumption by SBIPL and SBMPL is more than 51% and under the provisions of the said Act, the use of electricity by it would be for captive use only even an association of corporate bodies can establish a power plant. Since SBMPL holds 27.6% of the ownership, the requirement of not less than 26% of shares is fulfilled by SBMPL as SBMPL holds 27.6% equity shares in SBPIL.

The fourth proviso to sub­section (2) of Section 42 of the said Act would also reveal that surcharge would not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use and under Section 9 of the said Act, could be an individual or a body corporate or association or body of individuals, whether incorporated or not, it is clear that the person will get benefit even an association of corporate bodies can establish a captive power plant it has been seen. The definition of “person” is wide enough to include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person it should be primarily for the use of the members of such co­operative society or association is the requirement, the Bench observed while referring to the provisions of the Electricity Act.

The BPIL, the respondent contended and supported the impugned judgment that no permission is required from the Commission for supply of electricity for its own use. Thereafter the appellant Company contended that unless SBPIL consumes 51% of the aggregate electricity generated by it, it will not be entitled to get the benefit under Section 9 of the said Act, in an appeal filled before the Apex Court.

An appeal was dismissed by the Appellate Tribunal for Electricity filed by the Company further The Commission held that SBPIL was entitled to supply electricity to its sister concern SBMPL and the same would qualify to be treating as own consumption and within the ambit of Section 9 read with Section 2(8) of the Electricity Act, 2003 and Rule 3 of the Electricity Rules, 2005 SBPIL submitted a petition for providing open access and wheeling of power through the transmission system of the Chhattisgarh State Power Distribution Company Ltd (Company) for captive use by SBMPL to the Chhattisgarh State Electricity Regulatory Commission, the commission. A Captive Generation Plant is established by SBPIL, and is a sister concern of SBPIL Shri Bajrang Power and I spat Ltd and Shri Bajrang Metallics and Power Ltd, SBMPL.

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Where the crime was committed the remission or premature release policy of the state has to be considered: Supreme Court

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission or pre­mature release in terms of the policy which is applicable in the State.

While allowing the writ petition the court observed and contended that Once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court, as the case may be. The court further stated that under Section 432(7) CrPC the appropriate Government can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments.

the appropriate Government in the ordinary course would be the State of Gujarat. But the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighboring State i.e., the State of Maharashtra by an order dated 06.08.2004. ordinarily, the trial was to be concluded in the same State and in terms of Section 432(7) CrPC as the crime in the instant case was admittedly committed in the State of Gujarat, observed by the Apex Court.

he application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat, as prayed by the petitioner by judgment impugned dated 17.07.2009 As His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. Thereafter He had filed his petition for pre­mature release under Sections 433 and 433A of the Code of Criminal Procedure, 1973 stating that he had undergone more than 15 years 4 months of custody.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed and noted that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of the appropriate Government.

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Adopt roster based reservation for preferential candidates as followed by JIPMER: Supreme Court directs all AIIMS institutes

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The Supreme Court in the case Students Association AIIMS Bhopal And Or’s. v. AllMS and Or’s observed and directed all AIIMS Institutes to adopt roster-based reservation followed by Jawaharlal Institute of Postgraduate Medical Education and Research, Pondicherry (JIPMER) as a plea was filled in the Court seeking direction to AIIMS to have a defined criteria for arriving at seat matrix for institutional preference candidates in INI-CET examination.

the order of the Apex Court in the case AIIMS Students’ Union v. AIIMS And Or’s, would not be applicable if It emphasized that if the roster-based system is implemented the actual roster points for AIIMS would be different from JIPMER as the same would depend on the percentage of seats decided to be allocated to the preferential candidates but It stated that the reservation would be similar to the one adopted by JIPMER AIIMS New Delhi was willing to provide a roster-point based reservation for its institutional preference candidates, by way of an affidavit 20th January 2022 the Bench was apprised that pursuant to a meeting held on 28th June 2020 as prescribed the relevancy:

It shall not be too wide with the one for the general category candidate, that the margin of difference between the qualifying marks for the Institute’s candidate.

The one who has secured marks at the common entrance PG test less than the one secured by any other candidate belonging to reserved category enjoying constitutional protection such as SC, ST etc. cannot be the AIMS graduate the last student to qualify for admission.

appearing on behalf of AIIMS, Advocate, Mr. Dushyant Parashar, New Delhi was asked to get instructions from AIIMS, Bhubaneswar and Jodhpur so that the Court can pass appropriate orders on the next date of hearing. As that apart from AIIMS, Bhubaneswar and AIIMS, Jodhpur, all other AIIMS before the Apex Court has agreed to implement the roster-based reservation system followed by JIPMER Puducherry for their institutional preference candidates, the Court was informed at the last date of hearing.

the petition had been filed seeking direction to AIIMS to disclose how the seats for institutional preference candidates are to be allotted in the view of the same the petitioners claim that in the INI-CET examination conducted in July, 2021, only 4 seats (1.87%) in AIIMS, New Delhi were allotted to institutional preference candidates. Rivetingly, the petitioners note that no seats were allocated to any other AIIMS for admission of institutional preference candidates.

the Bench comprising of Justice L. Nageswara Rao and the justice A.S. Bopanna observed and noted that to record in the order that the roaster system would be applicable from this year. Mr. Parashar informed it that since new software is to be put in place for counselling, it might cause some delay. The bench further stated that the court will order it to apply this year but in case of delay AIMS can come later.

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