Patna High Court's Co-ordination Committee of three Advocate Associations flag rift between Bar and Bench, point out uncharitable, uncouth, abusive, insulting behaviour of judges

The Co-ordination Committee of the three Associations of the Advocates of the Patna High Court has issued the following statement:

The Co-ordination Committee met in extraordinary situation which due to notice dated 7th May 2026 issued under the signature of Registrar General-In-Charge. The Members of Co-ordination Committee unanimously and unequivocally resent and express their anguish against such notice. 1- That Bar of Patna High Court of late has felt that there is a growing rift between the Bar and Bench. The behavior of judges with lawyers in court proceedings, to say the least, are uncharitable, uncouth often abusive insulting and hitting below the belt. The proceedings in many courts are such that it appears that the judges are a repository of all knowledge as to law and otherwise. What to talk of young members even senior members are often afraid to appear before certain judges. 2- The members of Bar see the aforesaid notification as a reflection of their feelings towards the Bar. The co-ordination committee unanimously resolved that the members of the Bar are requested to abstain from their the professional duties on 11.5.2026 form 10.30 am onwards. The signatories to the statement include chairman, co-ordination committee, Advocates Association, Bar Association and Lawyer's Association. 

 

Notably, Registrar General-in-Charge had issued a notice dated May 7, 2026 which reads: "This is for information to all concerned that all earlier orders with regard to pick up and drop facility to the vehicles of the Learned Advocates/Doctors and Officials of State Dispensary/Officers & Staff of the Court and such beneficiaries, in the premises of the Court beyond the barrier is hereby recalled with immediate effect. They shall use the facility of Battery Operated Carts (available at Gate Nos. 2 & 3 of the Court) for their movement up to their designated places, after parking their vehicles at the designated parking places near Gate Nos. 2 & 3 of the Court. Only official vehicles of the Court and vehicle(s) of the Learned Advocate General may be moved beyond the barrier and parked within the premises of the Court."

In the coordination committee meeting, many lawyers also expressed displeasure over the order issued by the High Court on May 7, which banned taking vehicles inside the campus due to barricading.

Advocates asked as to how will the old and infirm lawyers get down from their vehicle near the High Court gate and go to the lift. A battery operated vehicle has been arranged by the High Court, but elderly people and women lawyers cannot board that vehicle because it is high from the ground. According to the notice, except the High Court vehicle and the Advocate General's vehicle, other vehicles are not allowed inside, due to which there is a lot of anger among the lawyers. It seems although all are equal as per the Constitution of India, some are more equal than others. 

The notice issued by the three advocate associations, appear to be related to the provisions of Section 16 of The Contempt of Courts Act, 1971. It reads:"16. Contempt by judge, magistrate or other person acting judicially.—(1) Subject to the provisions of any law for the time being in force, a judge, magistrate or other person acting judicially shall also be liable for contempt of his own court or of any other court in the same manner as any other individual is liable and the provisions of this Act shall, so far as may be, apply accordingly.(2) Nothing in this section shall apply to any observations or remarks made by a judge, magistrate or other person acting judicially, regarding a subordinate court in an appeal or revision pending before such judge, magistrate or other person against the order or judgment of the subordinate court."

Justice Sandeep Kumar's order is error free: Chief Justice Vipul Pancholi led Division Bench

In Parshuram Rai vs. The State of Bihar through the Secretary, Revenue & Land Reform Department, Govt. of Bihar & Ors. (2025), Patna High Court's Division Bench of Chief Justice Vipul M. Pancholi and Justice Partha Sarthy passed a 8-page long judgment dated August 7, 2025 dismissed the petition. This is the 16th judgement by Justice Pancholi as chief justice. He concluded:"when it is not in dispute that the appellant/original petitioner is an encroacher and is in possession of the land without any authority of law since long and when the learned Single Judge already granted him protection up to 30th June, 2024, we are of the view that no further relief can be granted to the appellant/original petitioner in the present appeal. Learned Single Judge has not committed any error while passing the impugned order and, therefore, no interference is required in the present appeal. Accordingly, Letters Patent Appeal stands dismissed."

The Letters Patent Appeal was filed under provisions of Clause 10 of the Letters Patent of the Patna High Court Rules against the 3-page long order dated April 25, 2024 rendered by Justice Sandeep Kumar, the Single Judge in CWJC No. 8186 of 2023, whereby the Single Judge had disposed of the writ petition filed by the appellant/original petitioner by observing that the application submitted by the appellant/original petitioner under the Bihar Privileged Persons Homestead Tenancy Act shall be decided by the concerned authorities by 15th June, 2024 and appellant/original petitioner shall not be removed till 30th June, 2024. 

The counsel for the appellant/original petitioner contended that Single Judge gave direction to the respondent authority to decide the representation/application of the appellant/original petitioner before June 15, 2024, despite which no decision was taken by the respondent authority, and only on May 31, 2025, the appellant/original petitioner was informed that his application was already rejected in the year 2020. However, copy of the said order has not been supplied to the appellant/original petitioner, despite which the appellant/original petitioner has filed the appeal against the said order before the appellate authority, which is still pending. Learned counsel thereafter submitted that now recently, i.e., on yesterday, the appellant/original petitioner has received notice from the concerned respondent authority in which it has been stated that as the appellant/original petitioner is an encroacher, the encroachment will be removed. The appellant/original petitioner has, therefore, filed the urgent note, pursuant to which, now the matter has been listed.

The counsel submitted that as per the provisions of the Bihar Privileged Persons Homestead Tenancy Act, the respondent authorities are required to give alternate land to the homeless persons. However, as the appeal filed by the appellant/original petitioner is pending before the appellate authority, the respondent authorities be restrained from removing the so-called encroachment made by the appellant/original petitioner. He urged that the impugned notice issued by the respondent be stayed till final disposal of the appeal filed by the appellant/original petitioner before the concerned appellate authority. 

The counsel for the respondents submitted that the appeal may not be entertained because the appellant/original petitioner subsequently challenged the order after a delay of 412 days. It was also submitted that if the appellant/original petitioner was having any grievance with regard to the non-consideration of his representation/application, it was always open for the appellant/original petitioner to file application under the provisions of the Contempt of Courts Act, 1971 before the concerned Single Judge. However, as the appellant/original petitioner, who was an encroacher and was in possession of the land in question, did not file any application before this Court, and now when the respondents have pointed out to the appellant/original petitioner that his representation/application was rejected long back in the year 2020, he filed the present appeal. It was further submitted that it was not in dispute that the appellant/original petitioner was an encroacher and now only request of the appellant/original petitioner is that alternate land should be provided to him. 

Justice Pancholi observed:"We are of the view that when the representation/application of the appellant/original petitioner was already rejected long back, appellant/original petitioner must be aware about the aforesaid aspect, despite which it appears that appellant/original petitioner did not disclose the same before the learned Single Judge when the learned Single Judge disposed of the petition with the aforesaid direction. Even otherwise, now it is the case of the appellant/original petitioner that he has already filed appeal before the appellate authority challenging the decision which has been taken by the respondent authority in the year 2020."

Justice Kumar's order reads:"From the pleadings and the argument of the learned counsel for the petitioner, it is an admitted fact that the petitioner is an encroacher and therefore, there is no need of any interference in the order of the Circle Officer for directing for removal of removal of encroachment. 3. This application is dismissed with direction to the authorities to consider the application of the petitioner which has been filed for allotment of a plot under Bihar Privileged Persons Homestead Tenancy Act. 4. The pendency of this application does not give any right to the petitioner who is an encroacher to encroach upon the land. The encroachment should be removed forthwith. 5. The application of the petitioner under the Bihar Privileged Persons Homestead Tenancy Act shall be decided by the concerned authority by the 15th of June, 2024. 6. The petitioner shall not be removed till 30th of June, 2024." 

Notably in a subsequent order dated June 5, 2023 by Justice Rajeev Ranjan Prasad recorded that the petitioner had shown to the High Court a copy of the notice contained in Memo No. 835 dated 27.05.2023 wherein the Anchal Adhikari, Aurai, Muzaffarpur has informed to the Sub-Divisional Officer that today is the date fixed for providing police force for purpose of removal of encroachment in connection with Encroachment Case No. 01 of 2014-15. Reference has also been made to a writ application filed by one Vinod Kumar Rai versus the State of Bihar and Others. The counsel for the petitioner had submitted that the petitioner has appeared in the encroachment case and filed a show cause reply on 31.03.2023 before the Circle Officer but no action has been taken thereon. It was further stated that one Vinod Kumar who is a ward member of Gram Panchayat Raj Dharharwa filed a writ application being CWJC No. 2552 of 2023 seeking removal of encroachment whereafter the Circle Officer issued notice for removal of encroachment. The petitioner was made party in CWJC No. 2552 of 2023. The petitioner was not been heard by the Circle Officer. He too had observed"Till next hearing of the matter, the respondents shall not
take any action towards demolition of the house of the petitioner which is said to be standing on the disputed land." 
 

Supreme Court echoes views of Bar and Bench on unwarranted attack on independence, dignity and majesty of highest Constitutional Court

In Vishal Tiwari vs. Union of India (2025), Supreme Court's Division Bench of Chief Justice of India and Justice Sanjay Kumar dismissed the writ petition seeking initiation of suo motu criminal contempt proceedings against  Nishikant Dubey, the respondent No. 4 for having made deliberate and scandalizing remarks against the Supreme Court of India and the Chief Justice of India; for a direction to the Union of India, Ministry of Home Affairs, to lodge a First Information Report under the Bharatiya Nyaya Sanhita, 2023; and for a direction to the Union of India, Ministry of Home Affairs, to issue an advisory to all Chief Secretaries to curb hate and provocative speeches by political parties and their leaders relating to the Waqf (Amendment) Act, 2025, and its hearing before the Court. This petition was filed under Article 32 read with Article 129 of the Constitution of India. 

The Court observed: "Normally, this Bench would not have heard this matter but as we are not inclined to issue notice and the Waqf matter [W.P. (C) Nos. 276/2025, 314/2025, 284/2025, 331/2025 & 269/2025] was heard by the two of us, we would dispose of the writ petition with some observations and, accordingly, we have proceeded to consider the issue."

The order dated May 5, 2025 reads: "Judicial pronouncements result in an order or a decision which may aggrieve a party or sometimes a section of the public. Critical analysis and objective criticism of an order’s reasoning or even its outcome is protected under the fundamental right to free speech and expression under clause (a) of Article 19(1) of the Constitution of India. The power of criminal contempt, however, is exercised by courts when publication by words, spoken or written, by signs, or by visible representation or otherwise, in terms of clause (c) of Section 2 of the Contempt of Courts Act, 1971, is with the intent to scandalize or lower the authority of the courts; or tends to scandalize or lower such authority; prejudices or interferes or tends to interfere with the due course of judicial proceedings; or interferes or tends to interfere with or obstructs or tends to obstruct the administration of justice in any manner. Exercise of the power of contempt, nevertheless, is discretionary."

It further reads: "We have examined the contents of the assertions made by respondent no. 4, which no doubt tend to scandalize and lower the authority of the Supreme Court of India, if not interfere or tend to interfere with the judicial proceedings pending before this Court, and have the tendency to interfere and obstruct the administration of justice. The statements made reflect the clear intent to impute motives to the Bench itself by naming the Chief Justice of India as “responsible for all the civil wars happening in India” and “in order to incite religious wars in this country, it is only and only the Supreme Court that is responsible”. Sections 3 and 4 of the Act carve out exceptions which, prima facie, are not attracted. There is no ‘civil war’ in India."

The Court observed: "In our opinion, the comments were highly irresponsible and reflect a penchant to attract attention by casting aspersions on the Supreme Court of India and the Judges of the Supreme Court. This apart, the statements show ignorance about the role of the constitutional courts and the duties and obligations bestowed on them under the Constitution. At the same time, we are of the firm opinion that courts are not as fragile as flowers to wither and wilt under such ludicrous statements. We do not believe that the confidence in and credibility of the courts in the eyes of the public can be shaken by such absurd statements, though it can be said without the shadow of doubt that there is a desire and deliberate attempt to do so. We, therefore, refrain from taking any action." 

The order recalled that this Court in, In Re S. Mulgaokar, [(1978) 3 SCC 339] had observed that the judiciary is not immune from criticism, but when criticism is an obvious distortion or a gross misstatement, which is made in a manner designed to lower the respect of the judiciary and destroy public confidence, it should not be ignored. However, the power to initiate contempt is discretionary in its unsheathed exercise. Every commission of contempt need not erupt in an indignant committal or levy of punishment, however deserving it may actually be. It is so because judges are judicious, their valour non-violent and their wisdom springs into action when played upon by a volley of values, the least of which is personal protection. Courts believe in values like free press, fair trial, judicial fearlessness and community  confidence. Thus, courts need not protect their verdicts and decisions by taking recourse to the power of contempt. Surely, courts and judges have shoulders broad enough and an implicit trust that the people would perceive and recognize when criticism or critique is biased, scandalous and ill-intentioned. Each branch of the State in a democracy, be it the legislature, executive or the judiciary, especially in a constitutional democracy, acts within the framework of the Constitution. It is the Constitution that is higher than all of us. It is the Constitution which imposes limits and restrictions on the powers vested in the three organs. The power of judicial review is conferred by the Constitution on the judiciary. Statutes are subject to judicial review to test their constitutionality as well as for judicial interpretation. Therefore, when the constitutional courts exercise their power of judicial review, they act within the framework of the Constitution.

It underlined that "In the course of dispensation of justice, courts draw inspiration from consecrated principles. The judiciary, as an institution, is accountable to the people through various mechanisms. Arguments take place in open court. Decisions and judgments are reasoned. Judicial procedure ensures transparency and accountability. Judgments are put to scrutiny and critique. Decisions are debated and if required, corrected by exercise of right of appeal, review, in curative jurisdiction and by reference to a larger bench. The judiciary’s legitimacy and credibility are rooted in public trust and are maintained through fair, impartial and transparent decision-making."

The Court observed: "To deny the power of judicial review to the courts would be to rewrite and negate the Constitution, as the power of judicial review is one of the cornerstones of democracy. This power is conferred in express terms by Articles 32 and 226 by the framers of the Constitution and hinges on the system of checks and balances. We believe that the general public does know the relationship amongst the three wings of the Government and their different roles. They are aware of the function and the role of the judiciary, which is to judicially review the actions of the other branches and to evaluate whether the other branches are acting lawfully under the Constitution. Judicial decisions are made in accordance with legal principles and not in keeping with political, religious or community considerations. When citizens approach the court praying for exercise of the power of judicial review, they do so in furtherance of their fundamental and/or legal rights. The court’s consideration of such a prayer is the fulfilment of its constitutional duty."

The judgement concluded:"While we are not entertaining the present writ petition, we make it clear that any attempt to spread communal hatred or indulge in hate speech must be dealt with an iron hand. Hate speech cannot be tolerated as it leads to loss of dignity and self-worth of the targeted group members, contributes to disharmony amongst groups and erodes tolerance and open-mindedness, which is a must for a multi-cultural society committed to the idea of equality. Any attempt to cause alienation or humiliation of the targeted group is a criminal offence and must be dealt with accordingly." 

It is germane to recollect that Supreme Court Bar Association had passed a resolution dated April 21, 2025 condemning the "intemperate statement" made by Mr. Nishikant Dubey. Supreme Court Bar Advocates-On-Record Association had passed a resolution dated April 22, 2025 expressing "deep dismay and unequivocal condemnation" of the "factually baseless and deeply irresponsible" defamatory statement which amounted to "a direct and unwarranted attack on the independence, dignity and majesty of our country's highest Constitutional Court" which sought to "lower judiciary's authority in the eyes of the public." 

A statement of concern dated April 22, 2025 was issued saying "Be you never so high, the law is above you".           

It reads: "Taking note of the enduring faith of the people in the constitution and the judiciary in their quest for justice;
Recalling that the judiciary doesn't govern and the executive doesn't adjudicate;
Underlining that the constitutional intent of the Articles 141, 142, Article 145(3), is to empower the Supreme Court to "declare law", "do complete justice" and settle substantial constitutional questions;
Recognising the propensity of the Executive to engineer unquestioned obedience of the judiciary towards the Executive and alarmed by increasing  institutional confrontation;
Realising that if the executive can dodge accountability—by calling judges names, ignoring orders or complaining about interference—their legitimacy is undermined;
Speaking through its judgments, Supreme Court's message is: where Executive fails, we must step in. Not because we want to rule, but because it has to uphold the Constitution because even when elections give the Executive a strong mandate, it doesn't mean the Constitution takes a holiday;
Recalling that when the judiciary is made to retreat, history shows us what fills the vacuum is rarely democratic.
Underlining that people expect a system that works—and stays within its constitutional limits;
Taking note of the recent remarks by the Hon'ble  Vice President and one of the members of Parliament, Nishikant Dube and some others to make the Hon'ble Chief Justice of India and Hon'ble Supreme Court responsible for the tension gripping the society and the country as an attempt to defame the entire judiciary which is highly condemnable requiring a strong voice of legal fraternity and lovers of justice to maintain the majesty of law;
Concerned with a public perception of  lawlessness because of unreasoned and outrageous observations by demagogues, we appeal to brother advocates and fellow citizens to defend their courts of justice, the last resort for many against the government, the biggest litigant and the commercial czars, the unscrupulous political donors in order to safeguard against the possibility of emergence of unlimited government."

Significantly, Article 13 of the Constitution of India deals with laws inconsistent with or in derogation of the fundamental rights. It reads: 

1. All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Pan, shall, to the extent of such inconsistency, be void.

2. The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

3. In this article, unless the context otherwise requires,-

(a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

(b) "laws in force" includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

4. Nothing in this article shall apply to any amendment of this Constitution made under article 368.

 

Article 13 (1) discusses the laws which were made before the commencement of the Constitution (26 January 1950) and Article 13 (2) delves about the laws which are made after the Constitution is in place.

​Article 13 (1) states that all the laws which are made before the Constitution will be void as long as they are violating the provisions of the Fundamental Rights. It further states that only that part of the law which will be void which is against the provisions of the constitution and not the whole law itself. This guarantee is against the existing laws and future laws and not to the laws which are made before the commencement of the constitution.

​Article 13(2) states that all the laws which are made after the commencement of the Constitution are void to the extent of the infringement of the Fundamental Rights given in part 3 of the Constitution.

The ‘Doctrine of Eclipse’ asserts that all the Pre-Constitutional laws which are against the fundamental rights of the Indian Constitution will become dormant and not dead. They will remain dormant as long as the state does not amend the law and its infringing nature. So this doctrine applies to only Article 13(1) of the Indian Constitution.

In Keshavan Madhvan Menon v. State of Bombay, the court said that the law which is infringing the rights of the citizens after the commencement of the constitution is ‘void ab initio’ for the citizens of the country but it will remain enforceable for the non-citizens and companies. The doctrine of Eclipse makes the law unenforceable but it doesn’t make the law void ab initio.

The ‘doctrine of Waiver’ means that a person who is receiving a right or a privilege can waive that right according to his will. Once the right is waived by the individual then they cannot claim it back. In Behram v. State of Bombay, it was decided by the court that the rights which are given in part 3 of the constitution cannot be waived by an individual.

The ‘Doctrine of Separability’ means that if a part of a law is against the provisions of the constitution then only that offending part will be declared as void and not the whole statute. This doctrine is applied in both Article 13 (1) and Article 13 (2) of the Indian Constitution. In R.M.D.C. v. Union of India, AIR 1957, Supreme Court has given some rules relating to this doctrine:

“1. It is important to understand the intention of the legislature before using this doctrine.

2. When separation of invalid part of the statute is very difficult then the whole law will be held as invalid.

3. If after deleting the invalid part, the valid part has no value left to it then the whole act will be rejected in its entirety.”

Article 13(3) (a) defines “Law”. According to this section, Law includes any ordinance, order, bye-Law, rule, regulation, notification, custom or usages. This definition of law is given a wide meaning so that it can be added to a wide variety of state instrumentalities.

In Ahmedabad Women Action Group v. Union of India, AIR 1977, Supreme Court said that personal laws (Hindu Law, Muslim Law, and Christian Law) are not part of the definition of Law under Article 13. The Bye-Laws made by the Cooperative Societies are also not part of the definition of Law.

There have also been other discussions on whether “Law” includes constitutional amendments. ​This question was first decided in the case of Shankari Prasad v. Union of India AIR 1951. In that case, the Supreme Court held that the word law under Article 13(2) doesn’t include a constitutional amendment. This entailed that the Parliament has power to amend the Fundamental Rights according to their will.

​Later in the case of Golak Nath v. State of Punjab, AIR 1967, the Supreme Court overruled the Shankari Prasad verdict and stated that the word ‘Law’ in Article 13(2) includes the constitutional amendments. If any constitutional amendment is infringing the Fundamental rights then that amendment will be void.

​To nullify the Golak Nath decision the Parliament passed the 24th Amendment Act, 1971, wherein parliament added Clause 4 in Article 13 which stated that nothing in Article 13 shall apply to any amendment of this Constitution made under Article 368.

​Later in the case of the Kesavananda Bharati v. the State of Kerala, AIR 1973, the constitutionality of the 24th Amendment was held valid. So the present position of the word “Law” is that a Constitutional Amendment does not include the word. This gives the Parliament the power to amend the provisions of the Fundamental rights as long as they align with the basic structure doctrine of the Indian Constitution. 

 

The Constitution (Twenty-Four Amendment) Act, 1971, enables Parliament to dilute Fundamental Rights through Amendments of the Constitution.

 

The 24th Amendment was effected to abrogate the Supreme Court ruling in I.C. Golaknath and Ors. vs State of Punjab and Anrs. The Supreme Court delivered its ruling, by a majority of 6-5 on February 27, 1967. 

 

The Court has held that an amendment of the Constitution is a legislative process, and that an amendment under article 368 is "law" within the meaning of article 13 of the Constitution and therefore, if an amendment "takes away or abridges" a Fundamental Right conferred by Part III, it is void. 

 

Article 13(2) reads, "The State shall not make any law which takes away or abridges the right conferred by this Part and any law made in contravention of this clause shall, to the extent of contravention, be void." 

 

The Court has ruled that Fundamental Rights included in Part III of the Constitution are given a "transcendental position" under the Constitution and are kept beyond the reach of Parliament. The Court also held that the scheme of the Constitution and the nature of the freedoms it granted incapacitated Parliament from modifying, restricting or impairing Fundamental Freedoms in Part III.

 

Why is government avoiding transparent system of appointment for Comptroller and Auditor General (CAG) of India?

The appointment to the post of Comptroller and Auditor General (CAG) of India, CAG an oversight agency is based on an opaque and arbitrary method. Although the case Anupam Kulshreshtha vs. Union of India (2024) assailing the procedure for appointment of the CAG has been listed twice since January 2024 but is yet to come up for hearing because the government has not filed its response to the notice issued by the Court on January 25, 2024. The government seems to be delaying proceedings by not filing its response. 

The petition is signed by Anupam Kulshreshtra, Arun Kumar Singh and Sangita Chandrakant Choure who are former deputy CAGs.  They are seeking interpretation of Article 148 of the Constitution by prescribing a collegium system for appointments of the CAG, a constitutional position that enjoys the same status as a judge of the Supreme Court. Both judges and CAG's are appointed by the President. They have retirement age fixed at 65. Their removal from the office is done by both Houses of Parliament through impeachment procedure. The case was filed on January 5, 2024. It registered on January 13, 2024 and verified on January 22, 2024. It is pending before a 3-judge bench of Chief Justice of India and Justices J.B. Pardiwala and Satish Chandra Sharma.

The petition has challenged the vacuum in Article 148, which prescribes the appointment of CAG but lacks any specified procedure. The petitioner has cited Constituent Assembly debates. Dr. B.R. Ambedkar underlined the importance of CAG as "the most crucial officer in the Constitution". Its duties should be as independent as those of the judiciary, free from any executive or legislative influence. The collegium should comprise the speaker of Lok Sabha, Leader of the Opposition in Lok Sabha, chairman, Public Accounts Committee and the Chief Justice of India or his nominee.

Despite numerous petitions to the Court, transparency in the appointment to this constitutional post has not been ensured. A petition by Common Cause was filed in March 1996 in the Supreme Court seeking directions to evolve and follow a policy, including guidelines prescribing the requisite qualification/ experience, for the appointment but the petition was rejected.' In 2007, Public Cause Research Foundation filed a similar petition but was rejected. The issue raised with the Chairman of the PAC on November 23, 2012 in vain.  A related petition was on June 3, 2013. Dr. B P Mathur, former deputy CAG and a governing council member of Common Cause, as well as Kamal Kant Jaswal, director of the society, filed a writ petition along with several former public servants. It was alleged that the CAG appointment was liable to be declared void for being arbitrary and made through a procedure unable to stand the test of constitutionality. The Court had asked the petitioner to approach the High Court. A petition was filed in Delhi High Court, which was dismissed on August 13, 2014.  A special leave petition was filed in Delhi High Court in September 2014 but the same was dismissed on February 11, 2015 because Supreme Court had chosen not to entertain it.

Noted parliamentarian, Gurudas Dasgupta had written to the then Prime Minister on May 25, 2012 seeking a collegium to choose the CAG. The National Commission to Review the Working of the Constitution headed by Justice M.N. Venkatachaliah observed: “the appointment of the C&AG should not be the exclusive purview of the executive and a high level committee consisting of the Prime Minister, the Union Finance Minister, the Speaker of the Lok Sabha, the Leader of the Opposition and the Chairman of the Public Accounts Committee should be empowered to make the appointment...The Commission would, however, recommend that a healthy convention be developed to consult the Speaker of the Lok Sabha, before the Government decides on the appointment of the C&AG so that the views of the PAC are also taken into account.” 

The CAG's audit reports are submitted first to the President in case of the Union and to the Governor in the case of States. The reports then make their way to the Parliament or State Assembly. Once tabled in the Parliament or the State Assembly, the reports are referred to the PAC for examination. The functioning of the  An independent CAG is necessary for the credibility of reported financial information of the government. It impacts both the Parliament and the PAC. The lack of transparency and indifference towards the professional qualification of CAG has been under scanner for long. 

In February 1996, Chairman of PAC took up the CAG selection issue with the President and Prime Minister. He had demanded a selection criteria for CAG. He suggested that the PM and Leader of Opposition in Lok Sabha jointly choose the right candidate.  Later, at a conference of the central and state PACs, Dr. Murli Manohar Joshi, the then PAC Chairman, recommended that the control of the executive be minimised, if not eliminated altogether. It was suggested that a small collegium or screening committee could examine the candidates and recommend a panel of three to the President to make a choice out of this candidate pool. But this suggestion has not been paid any attention so far. 

It has come to light that some 30% of the documents demanded by CAG officials are denied to them. A suggestion has been made to amend the Comptroller and Auditor-General's (Duties, Powers and Conditions of Service) Act, 1971 to bring all private-public partnerships (PPPs), Panchayati Raj Institutions and societies getting government funds within the ambit of the CAG. The enhancement of CAG's powers to access information under the Audit Act was also proposed. The PPP model has become a favourite mode of executing big infrastructure projects worth millions of rupees and these projects may or may not come under the audit purview of the CAG, depending on sources of funds and the nature of revenue sharing agreements between the government and the private entities. It has been estimated that 60 percent of government spending does not come under the scrutiny of the CAG. The current system was open to "manipulation and partisanship".

History

During the period 1860 and 1950, India had 17 CAGs.  The last one during this period was V. Narahari Rao who held the position from 1948 to 1950. After the adoption of the Constitution of India, he held the position for additional four years.

The Office of the Comptroller and Auditor General had its beginning in 1858—the year the British Crown took over the reigns of governing British India from the East India Company. At that time, the designation was Accountant General to Government of India. Prior to that, under the East India Company, upto the year 1857, ‘accounts of the three Presidencies of Bengal, Madras and Bombay were prepared separately’. In 1857, it was decided to constitute a combined Department called General Department of Account and appoint an Accountant General to Government of India. The arrangements were effective from 1 May 1858. In 1860, these posts were amalgamated to create the post of first Auditor General who had both accounting and auditing functions. ‘When the Department was further reorganised, in 1862, the Financial Secretary became the head of Financial Department, which included the Departments of Accounts and Audit. The Auditor and Accountant General to the Government of India became the head of those Departments, charged with the duty of bringing the accounts of the Indian Empire together and responsible to the Government of India for the correct performance of the mechanical duties of Accounts and Audit as distinguished from administrative matters coming within the province of the Finance Secretary’. ‘Broadly to this post may be traced the genesis of the present post of the Comptroller and Auditor General of India, though it had yet a long time to grow to attain its present responsibilities, independence and constitutional status and underwent several changes in its designation from time to time in that process’.

In 1866, the designation of Auditor General of India and Accountant General to the Government of India was changed to Comptroller General of Accounts. In 1884, the designation was changed to Comptroller and Auditor General of India. The Government of India Act, 1919 gave him a statutory recognition and redesignated him as Auditor General in India who was appointed by the Secretary of State in Council and held office ‘during His Majesty’s pleasure’. Subsequently, under Government of India Act, 1935, he was designated as Auditor General of India. The 1935 Act made an important change viz. the appointment of CAG was done by the King of England and not by the Secretary of State. Other two notable features of the Act were (i) he could be removed from office ‘in like manner and on the like grounds as a judge of the Federal Court’, (ii) on vacating office, Auditor General was debarred from holding any office under the Crown in India. These features were designed to ensure his independence. His responsibilities included accounting and audit of the Government of India, and eleven Provincial Governments. 

The Government of India Act, 1935 laid down the provisions for appointment and service conditions of the Auditor General. Duties and functions of the Auditor General of India were de-rived mostly from Sections 166 to 169 of Government of India Act, 1935. The accounting functions of the Auditor General of India were incorporated in this Act as follows:
‘The accounts of the Federation shall be kept in such form as the Auditor General of India may, with the approval of the Governor General, prescribe and, in so far as the Auditor General of India may, with the like approval, give any directions with regard to the methods or principles in accordance with which any accounts of Provinces ought to be kept, it shall be the duty of every Provincial Government to cause accounts to be kept accordingly’. 

The detailed accounting functions were, however, specified in the Audit and Accounts Order, 1936. The accounts of the Central Government were compiled by the Accountant General, Central Revenues (AGCR) and of the Provinces by the respective Accountants General. The annual accounts of each Government called Finance Accounts were prepared and submitted to the Central and Provincial Governments on prescribed due dates. The Auditor General of India was also responsible for preparation of a combined Finance and Revenue Accounts incorporating a summary of the accounts of the Union and the States for the preceding year and particulars of balances and outstanding liabilities for submission to the Government of India. This document comprised (1) General accounts and (2) Subsidiary accounts and was prefaced by an introductory note in which a brief and general description of the structure of the government accounts was given.  

The auditing functions of the Auditor General of India were also detailed in Audit and Accounts Order, 1936. The Auditor General of India was required to audit all expenditure of the Federation and all Provinces, all transactions of these Governments relating to debt, deposit, sinking funds, advances, suspense accounts and remittances and trading/ manufacturing, profit and loss accounts and balance sheets of any department of Government.

The Auditor General of India was also required to audit the receipts of any department, if so required by the Governor General or the Governor of a Province for which Governor General or Governor of the Province might make regulations after consultation with the Auditor General of India. The Governor General was also empowered to appoint any independent officer to audit sanctions to expenditure accorded by Auditor General of India. The Auditor General of India was required to submit a report on his audit to the Governor General/ Governors for laying before the respective Legislatures. The Auditor General of India was also entrusted with some other miscellaneous duties. The Auditor General had a special right to compel a reference to the Secretary of State, where, in the course of his audit, ‘he found that any authority in India had usurped a power retained absolutely by the Secretary of the State’.

The Auditor General of India those days also acted as advisor to the Finance department regarding the application of financial rules and orders. He submitted his Reports in two separate volumes, Audit Report on Appropriation Accounts and Audit Report on Finance Accounts. Both these Reports were presented to Legislatures concerned. The reports were, as even today, ‘a detailed, dispassionate account and were devoid of any expression suggesting a political opinion or a bias’. 

Relevant Judgements

 

Arvind Gupta vs. Union of India (2013) Supreme Court Cases 293, (Before Justices R.M. Lodha  and Anil R. Dave)

Powers of CAG to Conduct Performance Audit

In this case decided by the Supreme Court, the Petitioner submitted that CAG of India has no power to give performance audit report and the provisions in the Regulations of Audit and Accounts, 2007 framed under the CAG (DPC) Act, 1971 empowering the CAG to conduct performance audit is violative of the Constitution.

The Supreme Court held that the CAG's functions to carry out examination into economy, efficiency and effectiveness with which the Government has used its resources, is in-built in the 1971 Act. Performance Audit Reports prepared under the Regulations have to be viewed accordingly. The Court observed no unconstitutionality in the Regulations.

Extracts of the Judgement

Writ Petition(C) No. 393 of 2012, decided on October 1, 2012

    We have heard Mr. Santosh Paul, learned counsel for the petitioner. The learned counsel for the petitioner submits that the Comptroller and Auditor General of India (CAG) has no power to give performance audit report and the Regulations on Audit and Accounts, 2007 (for short “the Regulations”) framed under the Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act, 1971 (for short “the 1971 Act”) empowering CAG to conduct performance audit are violative of the Constitution.
    Article 149 of the Constitution of India provides that CAG shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States and of any other authority or body as may be prescribed by or under any law made by Parliament. In pursuance of Article 149 of the Constitution, the 1971Act has been enacted. Amongst other provisions in the 1971 Act, Section 16 provides that:

    “16 Audit of receipts of Union or of States – It shall be the duty of the Comptroller and Auditor General to audit all receipts which are payable into the Consolidated Fund of India and of each State and of each Union Territory having a Legislative Assembly and to satisfy himself that the rules and procedures in that behalf are designed to secure an effective check on the assessment, collection and proper allocation of revenue and are being duly observed and to make for this purpose such examination of the accounts as he thinks fit and report thereon.”
    CAG's function to carry out examinations into economy, efficiency and effectiveness with which the Government has used its resources is inbuilt in the 1971 Act. Performance audit reports prepared under the Regulations have to be viewed accordingly. We find no unconstitutionality in the Regulations. Moreover, Article 151 of the Constitution provides that the reports of CAG relating to the accounts of the Union shall be submitted to the President, who shall cause them to laid before each House of Parliament and the reports relating to the accounts of a State shall be submitted to the Governor of the State who shall cause them to be laid before the legislature of the State. The audit reports which are submitted byCAGare, thus, subject to scrutiny by Parliament or the legislature of the State, as the case may be.
    The writ petition is wholly misconceived and is dismissed accordingly.

Reghu Nath Kelkar Vrs. Union of India and others in the High Court of Bombay Public Interest Litigation No. 40 of 2008 Decided on: 24-3-2009 (Before Swatanter Kumar, CJ and D.Y. Chandrachud, J)
 

Powers of CAG regarding time, scope and extent of audit

In this case decided by the High Court of Bombay, an allegation was made about the failure of the CAG to conduct a comprehensive audit. The Court considered scope of Section 23 of the CAG (DPC) Act. The Court observed that the time, scope and extent of audit are all matter which fall within the jurisdiction of the CAG and is not a matter on which Court ought to tread.
 

Extract of Judgement

9. In so far as prayer Clause (b) of the Petition is concerned, an affidavit has been filed on behalf of the Comptroller and Auditor General in which it has been stated that receipts and disbursements under the Market Stabilizations Scheme are duly budgeted in the receipt and expenditure budget which is subject to parliamentary control. The account of the Ministry of Finance and appropriation account of the Government of India are audited at 'regular frequency' by the Comptroller and Auditor General. Under Section 23 of the Comptroller andAuditor General (Duties, Powers and Conditions of Service) Act, 1971 the scope and extent of audit is determined by the Comptroller and Auditor General. The Comptroller and Auditor General reports his findings to Parliament by submitting audit reports under Article 151 of the Constitution. The Reserve Bank of India has clarified that funds collected from the sterilization of liquidity by the Market Stabilization Scheme form part of the Consolidated Fund of India and are hence, deemed to be audited by the Comptroller and Auditor General.

10. The Petitioner, however, relies upon a response received to a query under the Right to Information Act in which it has been disclosed by the Comptroller and Auditor General on 19th June, 2008 that no specific audit in respect of the borrowings of the Central Government under the Market Stabilization Scheme was conducted since 2004 nor was there any specific audit of the application of funds borrowed thereunder. The Comptroller and Auditor General has also clarified that no audit has been conducted in respect of the currency and Gold Revaluation Account in the balance-sheet of the Reserve Bank of India since the accounts of the Reserve Bank of India do not fall under the audit jurisdiction of the Comptroller and Auditor General in response to the query for information that no specific audit was conducted either in respect of the borrowings or the application of funds under the Market Stabilization Scheme since 2004 does not in our view detract from what has been stated in the affidavit filed on behalf of the Comptroller and Auditor General. The affidavit discloses that under Section 23 of the Act the scope and extent of audit is determined by the Comptroller and Auditor General and that the accounts of the Ministry of Finance as well as the appropriation account of the Government of India are audited at regular frequency by the Comptroller and Auditor General. The timing, scope and extent of audit are all matters which fall within the jurisdiction of the Comptroller and Auditor General and this is certainly not matter on which the Court ought to tread. There is neither a constitutional nor statutory dereliction of duties by the Comptroller and Auditor General and it is undoubtedly for the Comptroller and Auditor General to consider whether and if 

so to what extent a specific audit should be undertaken.
 

National Dairy Development Boards vs. CAG of India. in the High Court of Delhi, W.P. (Civil) 4834 OF 1998 Decided on: 27-1-2010 (Before Justice Sanjeev Khanna)

Powers of CAG to conduct audit

In this case decided by the Delhi High Court, the powers of the CAG to conduct audit under section 14, 15 and 19 of the CAG (DPC) Act was considered. The Petitioner challenged the authority of the CAG to invoke and exercise the powers under Section 14 (2) of the 1971 Act to conduct audit of accounts of the NDDB which is governed by its own Act viz. NDDB Act, 1987, and which has a provision of overriding effect to theNDDBAct over any other law. The Court laid down the following preposition:-

I. CAG Act is a Special Act as distinguished from a General Act.

II. CAG's power to audit under Section 14(1) can be curtailed, conditional or even prohibited under any law applicable to the Body orAuthority.

III. Section 14 (2) is an independent section which will apply once the conditions mentioned in the said Section are satisfied and the fact that the body or authority cannot be subject to audit under Section 14 (1) is irrelevant.

IV. Section 15 confers power to undertake scrutiny of the accounts/records of the sanctioning authority to ensure that proper procedure was followed while sanctioning any grant/loan.

V. Section 15 and Section 14 (2) are independent sections and come into operation when the pre conditions mentioned therein are satisfied. Section 15 cannot be read to override Section 14 (2) or vice-versa.

VI. The provisions of the Section 19 are clarificatory in nature. Section 19 (2) does not override the provisions of Section 14 (2) and other provisions of the CAG (DPC) Act. Section 19(2) protects the power and right given to the CAG to audit accounts of Corporations under the Law made by Parliament by which they are established. This means that CAG can conduct audit under Section 14 (1), 14 (2) or 15 of the CAG Act in respect of any corporation when under the respective legislation annual financial audit is not undertaken by the CAG.
 

Arun Kumar Aggarwal vs.Union of India in the Supreme Court of India W.P. (Civil) 469 OF 2012 Decided on: 9-5-2013 (Before Justice K. S. Radhakrishnan and Justtice Dipak Misra)

CAG Audit Report as a basis for grant of relief or initiating action

In this case the Supreme Court considered, whether a CAG Audit Report by itself can be accepted by the Court to grant relief or as a basis for initiating action. The Court held that CAG's Report is always subject to scrutiny by the Parliament and it is for the Parliament to decide whether after receiving the report to make its comments on the CAG's report.
 

Extracts of the Judgement

We have referred to the report of the CAG, the role of the PAC and the procedure followed in the House, only to indicate that the CAG report is always subject to scrutiny by the Parliament and the Government can always offer its view on the report of the CAG.

The question that is germane for consideration in this case is whether this court can grant reliefs merely placing reliance on the CAG's report. The CAG's report is always subject to parliamentary debates and it is possible that PAC can accept the ministry's objection to the CAG report or reject the report of the CAG. The CAG, indisputably is an independent constitutional functionary, however, it is for the Parliament to decide whether after receiving the report i.e. PAC to make its comments on the CAG's report.

We may, however, point out that since the report is from a Constitutional functionary, it commands respect and cannot be brushed aside as such, but it is equally important to examine the comments what respective ministries have to offer on the CAG's report. The Ministry can always point out, if there is any mistake in the CAG's report or the CAG has inappropriately appreciated the various issues.
 

V. Shri S. Subramaniam Balaji vs. the Government of Tamil Nadu and others. in the Supreme Court of India Civil Appeal 5130 of2013 Decided on: 25-7-2013 (Before Justice P Sathasivam and Justice Ranjan Gogoi)

Duty of CAG regarding examination of expenditure

In this case decided by the Supreme Court, the Petitioners prayed that CAG of India has a duty to examine expenditures even before they are deployed. The Court while considering the various issues observed that in addition to the Legislative control, the founding fathers of the Constitution have also thought it fit to keep a check on Government account and expenses through the agency outside the Legislature also. Article 148 has created a Constitutional functionary in the form of CAG of India. CAG examines the propriety, legality and validity of all expenses incurred by the Government and exercises effective control over the Government accounts.

Extracts of the Judgement

The Comptroller and Auditor General of India is a Constitutional functionary appointed under Article 148 of the Constitution. His main role is to audit the income and expenditure of the Governments, Government bodies and State-run corporations. The extent of his duties is listed out in the Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act, 1971. The functioning of the Government is controlled by the Constitution, the laws of the land, the Legislature and the Comptroller andAuditor General of India. CAG examines the propriety, legality and validity of all expenses incurred by the Government. The office of CAG exercises effective control over the government accounts and expenditure incurred on these schemes only after implementation of the same. As a result, the duty of the CAG will arise only after the expenditure has incurred.

The Comptroller and Auditor General of India is a Constitutional functionary appointed under Article 148 of the Constitution. His main role is to audit the income and expenditure of the Governments, Government bodies and State-run corporations. The extent of his duties is listed out in the Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act, 1971. The functioning of the Government is controlled by the Constitution, the laws of the land, the Legislature and the Comptroller andAuditor General of India. CAG examines the propriety, legality and validity of all expenses incurred by the Government. The office of CAG exercises effective control over the government accounts and expenditure incurred on these schemes only after implementation of the same. As a result, the duty of the CAG will arise only after the expenditure has incurred. 

Current Scenario

Since independence, there have been 15 incumbents to hold the post of CAG including the present CAG K. Sanjay Murthy. Independent India’s first CAG was V. Narahari Rao (1948–1954) and subsequent two incumbents who followed him, A.K. Chanda (1954–1960) and A.K. Roy (1960–66), belonged to the Indian Audit and Accounts Service (IA&AS). The fourth CAG S. Ranganathan (1966–1972), was from the Indian Civil Service (ICS) while the fifth CAG A. Baksi (1972–1978) was again from the Indian Audit and Accounts Service. 

From sixth CAG Gian Prakash (1978–1984) onwards, T. N. Chaturvedi (1984–1990), C.G. Somiah (1990–1996), V.K. Shunglu (1996–2002), V. N. Kaul (2002–2007), Vinod Rai (2008- 2013), Shashi Kant Sharma (2013-2017), Rajiv Mehrishi (2017-2020), Girish Chandra Murmu (2020-   2024) and K. Sanjay Murthy (2024-2029) all incumbents have come from the IAS.  

In the present set up, a panel of names is suggested by the cabinet secretary to the Prime Minister who then recommends his selection to the President. So far only an officer holding the rank of Secretary to the Government of India has been appointed as CAG. The absence of a prescribed procedure by way of a selection committee, criteria and qualifications for appointments is against the constitutional mandate.