Saturday, May 19, 2012

ROLE OF THE CAG IN MEETING CHALLENGES OF GOOD GOVERANCE-A RESEARCH PAPER



Role of Comptroller and Auditor General of India (CAG) in Meeting Challenges of Good Governance and Upholding the Constitution of India –A Critique
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A SYNOPSIS

By  K P C Rao.,
 LL.B., FCS., FCMA.
Practicing Company Secretary, 
 kpcrao.india@gmail.com

I.       INTRODUCTION

“Fearless investigation is a ‘sine qua non’ of exposure of delinquent ‘greats’ and if the investigative agencies tremble to probe or make public the felonies of high office, white-collar offenders in the peaks may be unruffled by the law. An independent investigative agency to be set in motion by any responsible citizen is a desideratum.”

- V. R.KRISHNA IYER

Government audit in India has a long and illustrious history dating back to the middle of the 19th Century. However, the nature and significance of government/public audit are not well known to the people and even too many in Governments. In any society, and especially in democracy, it is necessary that the people have the knowledge and understanding of the machinery that helps significantly in ensuring accountability and, therefore, to the good governance of the country. After the constitution came into force in 1950, government audit in India acquired a new dimension within the constitutionally stipulated framework.

Our country has witnessed rapid changes in the financial administration and, accounting and audit arrangements, notably after Independence. The Constitution has provided for a uniform pattern of accounts for both the Union and State to be prescribed by the President on the advice of the Comptroller and Audit General (CAG). The Comptroller and Audit General’s (Duties, Powers and Conditions of Service) Act, 1971 passed in pursuance of the relevant constitutional provisions, has assigned him a variety of accounting and auditing responsibilities and authorized him to lay down for the guidance of the government departments the general principles of government accounting and the board principles in regard to audit of receipts and expenditure.

The history of the institution of the Comptroller and Auditor General is inevitably interviewed with the political, administrative and socio-economic developments in the country. Since Independence the country has witnessed transformation in practically every aspect of life. The integration and recognition of States, the adoption of the Constitution and the development of the country through centralized socio-economic planning along with many administrative innovations are but the main elements of this transformation. Whereas the integration of State and the Constitutional mandate for unified audit in a federal setup covering the accounts of the Union and of the States as also of other bodies and authorities, had vastly expanded the jurisdiction of the Comptroller &Auditor General, the massive investments in socio-economic development programmes and the growth of public enterprises – have increased the quantum of his work and given an altogether new dimension and depth to his scope of work.

Constitutional Provisions

Chapter V (Art.148-151) of the Constitution of India provides for the appointment and the Duties and functions etc., of Comptroller and Auditor - General of India as follows:

“CHAPTER V
Comptroller and Auditor-General of India

Article.148. Comptroller and Auditor-General of India:

(1)     There shall be a Comptroller and Auditor-General of India who shall be appointed by the President by warrant under his hand and seal and shall only be removed from office in like manner and on the like grounds as a Judge of the Supreme Court.
(2)     Every person appointed to be the Comptroller and Auditor-General of India shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.
(3)     The salary and other conditions of service of the Comptroller and Auditor-General shall be such as may be determined by Parliament by law and, until they are so determined, shall be as specified in the Second Schedule:
Provided that neither the salary of a Comptroller and Auditor-General nor his rights in respect of leave of absence, pension or age of retirement shall be varied to his disadvantage after his appointment.
(4)     The Comptroller and Auditor-General shall not be eligible for further office either under the Government of India or under the Government of any State after he has ceased to hold his office.
(5)     Subject to the provisions of this Constitution and of any law made by Parliament, the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor-General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor-General.
(6)     The administrative expenses of the office of the Comptroller and Auditor-General, including all salaries, allowances and pensions payable to or in respect of persons serving in that office, shall be charged upon the Consolidated Fund of India.

Article.149. Duties and powers of the Comptroller and Auditor-General:

The Comptroller and Auditor-General 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 and, until provision in that behalf is so made, shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States as were conferred on or exercisable by the Auditor-General of India immediately before the commencement of this Constitution in relation to the accounts of the Dominion of India and of the Provinces respectively.

Article.150. Form of accounts of the Union and of the States: 

The accounts of the Union and of the States shall be kept in such form as the President may,  on the advice of the Comptroller and Auditor-General of India, prescribe.

Article.151. Audit reports:

(1)     The reports of the Comptroller and Auditor-General of India relating to the accounts of the Union shall be submitted to the President, who shall cause them to be laid before each House of Parliament.
(2)     The reports of the Comptroller and Auditor-General of India 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.”

During the debates in the Constituent Assembly, Dr. B.R. Ambedkar, described the CAG as the most important functionary in the Constitution. The Constitution prescribes for this functionary an oath identical with that prescribed for the Chief Justice and Judges of the Supreme Court, including the words “I will uphold the Constitution and the laws” while a Minister of the Union swears or solemnly affirms only that he will act “in accordance with the Constitution”.

The form set out in the Third Schedule for this purpose is reproduced below:

THE THIRD SCHEDULE
Article s 75(4), 99, 124(6), 148(2), 164(3), 188 and 219

Forms of Oaths or Affirmations

IV
Form of oath or affirmation to be made by the Judges of the Supreme Court and the Comptroller and Auditor-General of India:-

"I, A.B., having been appointed Chief Justice (or a Judge) of the Supreme Court of India (or Comptroller and Auditor-General of India) do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws."

In the recent past, certain doubts have been expressed about the duties, powers and role of the Comptroller & Auditor General of India. Strangely, same issues are raised again when audit by the Comptroller & Auditor General is already well established by the Constitution, Laws, conventions and practices. Critics do not seem to have fully appreciated the significance of article 151 of the Constitution with enjoins the Comptroller & Auditor General to submit his Reports to the President who causes them to be laid before the Parliament. The audit approach is completely non-political, and Audit Reports are based on records and facts. And these reports got verified with utmost care and caution. The control by the Legislature over the expenditure of public money is one of the important features of our democratic polity. Parliamentary control is exercised through the reports of an independent authority viz., the Comptroller & Auditor General and his reports are based on scrutiny of relevant and complete material. Article 149 does not in any way circumscribe the Comptroller & Auditor General’s duties and powers of presenting reports under Article 151. In the past, whenever controversies arose about the scope and extent of audit, the Comptroller & Auditor General did get the support of the Public Accounts Committee and added to this is the recent support by the enlightened public interested in promoting the independence of the constitutional organs of democracy as envisaged by the Founding Fathers of the Constitution.

In modern times, the orientation of Government activities is more and more towards socio-economic programmes. There is a growing involvement of the State in providing social service and welfare support to the people. Public ownership in industrial, manufacturing and trading sectors has increased. In this changing scenario, auditing methods, practices and standards have had to change considerably. Governments have also embarked upon massive development efforts in the realm of science and technology. Audit of governmental efforts calls for not only conventional knowledge of finance and accounts but also insight into various disciplines such as economics, sociology, science and technology, besides general management. The Comptroller & Auditor General needs, therefore, to have free access to the required expertise whenever warranted.

The Comptroller & Auditor General, according to provisions of the Constitution, is neither an officer of Parliament nor a functionary of Government. He is an autonomous constitutional authority. His oath of office requires him to uphold the constitution and the laws and to discharge his duties without fear or favour, affection or ill will. It is the same as that of a Judge of Supreme Court and distinct from the oath prescribed for the Ministers of the Union. The oath binds the Comptroller & Auditor General to bear true faith to the Constitution and to uphold the integrity of India. The position assigned to him as a Supreme Audit Authority common to both the Union and the States could be regarded as part of the basic structure of the Constitution of India. In order to allow him to function effectively he should not only have appropriate status and powers but also certain immunity in legal terms. Though in a democracy conventions do regulate the conduct of others vis-à-vis a Constitutional functionary, there are aberrations visible at times. It is desirable to have a clear Constitutional or legal provision to avoid any action or other proceedings against the Comptroller & Auditor General or any person authorized by him for or in respect of the findings of any audit carried out in exercise or purported exercise of his functions. Such immunity is available to the Members of the Parliament and Legislatures under the Constitution.

Since the early 90’s India has witnessed a spate of major economic scams in different sectors of the economy. While millions of small investors have lost thousands of crores of rupees, the economic crimes have also caused havoc in the government managed institutions like Banks, Public Sector Undertakings, Telecom Department, Insurance Companies, etc., the magnitude and the new methods of committing economic crimes have been a cause of serious concern to the Government as well as to the people.

Economic offenders have exploited weakness in almost all areas of economic activity and siphoned off thousands of crores. Their   depredations will continue till the law makers plug loopholes in the effected system. But the economic offenders, as they have the knack of exploiting   weaknesses   in any system either traverse a territory or subvert the system which is their specialised field.

Economic crimes in India, like elsewhere, are linked to several other offences, or even organised crimes, having bearing on national security. Every day a greater degree of sophistication is being noticed in the activities of the criminals indulging in these activities. There is a growing recognition in the world that the economic offences are, many times, part of other serious crimes posing serious threat to the security of the nation. Problems such as international terrorism, narco-terrorism, money laundering, Intellectual Property Rights (IPR) violations, cyber crimes, import of hazardous substances etc. continue to occupy centre stage as the global threats. A multi-pronged approach by various arms of the Government could help in effectively dealing with this menace.

Besides the investigating agencies, Auditors could play a significant role in their prevention and detection. Through a thorough understanding of the key areas of risk and modus operandi adopted in committing the crimes, Auditors could effectively plan their audit engagements focusing on the identified areas of risk.

Therefore, as the head of Indian Audit and Accounts Department, it is the   duty of CAG   to uphold the constitution of India and laws of the Parliament in the field of financial administration. CAG is appointed by the President of India by a warrant under his hand and seal.

Duties & Functions of CAG

Audit of government accounts (including the accounts of the state governments) in India is entrusted to the CAG of India who is empowered to audit all expenditure from the revenues of the union or state governments, whether incurred within India or outside. Specifically, audits include:

a)     Transactions relating to debt, deposits, remittances, Trading, and manufacturing,
b)     Profit and loss accounts and balance sheets kept under the order of the President or Governors,
c)     Receipts and stock accounts.

In other words, the Comptroller and Auditor General (CAG) of India is an authority, established by the Constitution of India, who audits all receipts and expenditure of the Government of India and the state governments, including those of bodies and authorities substantially financed by the government. The CAG is also the external auditor of government-owned companies. The reports of the CAG are taken into consideration by the Public Accounts Committees, which are special committees in the Parliament of India and the state legislatures.

It is known fact that public accountability and probity are essential for rooting out corruption, and audit can emerge as a key instrument of good governance.

Organization of the Indian Audit and Accounts Department

The Comptroller and Auditor General of India discharge his multifarious duties through the Indian Audit and Accounts Department. The Department consists of about fifty thousand employees and is functionally organised into 104 specialised formations throughout the country.

At the apex of the Indian Audit and Accounts Department is the office of the Comptroller and Auditor General which directs, monitors and controls all activities connected with audit, accounts and entitlement functions of the Department. It is responsible for development of organisational objectives and policies, audit standards and systems, management of the manpower and material resources of the Department and final processing and approval of the Audit Reports. For carrying out these responsibilities, it has been organised on a functional basis and there are separate divisions dealing with Accounts and Entitlements, Civil Audit, Railway Audit, Commercial Audit, Revenue Audit, Administration of Cadres, Training, Organisation and Methods, Inspection of field offices, EDP etc. These divisions are headed by the Deputy / Additional Deputy Comptroller and Auditor General and Principal Directors.

Offices of the Accountants General (Audit) are responsible for audit of all receipts and expenditure of the Provincial Governments, and audit of Provincial Government companies, corporations and autonomous bodies.

Offices of the Principal Directors of Audit are responsible for audit of the activities of the Federal Government, including Civil Ministries and Departments, Overseas Establishments, Defense, Indian Railways and Posts and Telecommunications.

There is a separate organisational set up for the audit of Federal Public undertakings. At the apex of this organisation is the Deputy Comptroller and Auditor General (Commercial). The organisation is responsible for:-

(1)     Test Audit/Supplementary Audit of transactions of Government Companies/ corporations, which finds final expression in an annual Audit Report bringing out selected topics of interest relating to them.
(2)     In-depth performance appraisals of selected companies/ corporations, each such appraisal taking the form of a separate Audit Report.
(3)     Certification of the annual accounts of companies and corporations including comments on the reports of Chartered Accountants, who conduct the primary audit of these companies.
(4)     Preparation of a report on systems deficiencies reported by Chartered Accountants on the basis of directions by the Comptroller and auditor General.
(5)     Besides, there are also twenty six Offices of the Accountants Generals (Accounts and Entitlements) which handle the Accounting and Entitlement functions of the Provincial Governments.
(6)     The audit activities are divided into convenient groups headed by Deputy Accountants General/Senior Deputy Accountants General who report to the Accountant General. These officers are designated as Deputy Directors / Directors under the control of Principal Directors of Audit, in respect of Audit of Federal Government activities. The initial work of auditing (as well as accounting and entitlement functions still remaining with the Comptroller & Auditor General) is done in the various field formations of the organisation by auditors, clerks and accountants under the guidance and supervision of Assistant Audit Officers and Assistant Accounts Officers, who are in turn supervised by Accounts Officers or Audit Officers, Audit parties supervised by Audit Officers inspect the departmental offices and other organisations periodically and present inspection reports on their findings. Some of these parties conduct efficiency-cum-performance appraisals of elected projects/ programmes of the Provincial Governments / Federal Government.

II.   AIMS / OBJECTS OF THE STUDY

The following are the objectives of the study:-

1)     To examine the scope and ambit of the purview of CAG audit based on the relevant provisions of the Constitution of India.
2)     To study the experiences and findings of the International Professional Organisations / Audit Commissions  like INTOSAI (International Organization of Supreme Audit Institutions), ASOSAI (Asian Organisation of  Supreme Audit Institutions), IASB ( International Accounting Standard Board)  etc, with a view to convergent with the international best practices  in  audit reporting.
3)     To study the pronouncements issued by the professional bodies in various countries on generally accepted auditing standards/ principles (GAAS/GAAP) regulate the auditing practice and also  international financial reporting standards (IFRS) and to what extent it is desirable that India to converge with these pronouncements.
4)     To study the role of the CAG in detection and prevention of Fraud and Corruption
5)     To study the nexus between Fraud and Corruption.
6)     To find out the reasons for the controversy over the scope and purview of the CAG’s audit.
7)     To study the impact of Corruption on the public life.
8)     To suggest ways and means to improve the institutional mechanism in detection and prevention of fraud and Corruption.
9)      To improve the transparency and accountability by adopting good governance practices in keeping the accounts of the Union and the States.
10)To give reasons for the suggestions based on empirical research.

III.   SIGNIFICANCE OF THE TOPIC OF RESEARCH

The role of the CAG is very significant in Detection and Prevention of Fraud and Corruption. Examining the root causes of corruption in India and understanding its several manifestations is necessary to place the problem in its context and is an essential prerequisite for policy formulation. India’s stellar performance in rankings on growth indicators and its innovative approaches to poverty alleviation are often compromised by absence of noticeable efforts in governance reforms for ensuring high levels of integrity, enhanced transparency and probity in public and corporate life. It is a commonly held view that political and bureaucratic corruption, public funds embezzlement, fraudulent procurement practices and corruption in the enforcement and regulatory institutions and consumer exploitation by private companies/ contractors plague Indian public life. Studies and public surveys have reinforced this public perception and have consistently shown that corruption persists in India despite many steps by the government.

Corruption and fraud are generally interlinked. In fact corruption is a special type of fraud and treated as such in many jurisdictions. Fraud and Corruption both pose serious challenges to audit, as they seek to mislead and distort the true state of financial and non-financial affairs of the entity. Fraud awareness or recognition amongst public auditors is necessary to play a vigilant role in containing frauds by ensuing correction of system deficiencies and building up effective system controls and checks in the audited entities. 

Fraud should be distinguished from error. The distinguishing factor between fraud and error is whether the underlying action is intentional or unintentional. Fraud may involve:

i)       manipulation, falsification or alteration of records or documents;
ii)    misappropriation/ misapplication of assets;
iii)  suppression or omission of the effects of transactions from records or documents;
iv)   recording of transaction without substances; and
v)     misapplication of accounting policies.

Forms of Corruption

Corruption in India has multiple channels of expression. One of the ways of advancing our understanding of the problem is to distinguish between the many forms it takes. A widely accepted distinction, one that can be applied to the Indian context, is that between petty and grand corruption. Petty corruption is either the collusive or coercive action of a public official vis-a-vis a member of the public to subvert the system over relatively small transactions. It therefore mostly involves down the line public officials. Grand corruption is the subversion of the system by senior government officials and formations of the political executive, usually in collusion with private sector players. In India both forms of corruption are prevalent as result of which corruption has become endemic to Indian society. It is also noteworthy that even a matter as important as national security could be at risk due to various forms of corruption.
    
Impact of Corruption

Globally, there is a general consensus amongst most academics and policy makers that the debilitating effects of corruption permeate through all aspects of public life. Several studies have shown that corruption not only stifles growth, it also perpetuates inequalities, deepens poverty, causes human suffering, dilutes the fight against terrorism and organised crime, and tarnishes India’s image globally. The impact of corruption is multi fold, encompassing: political costs, economic costs, social costs, environmental costs and issues of national security.

(a)   Political Costs
The political costs of corruption are manifested in weakened public trust in political institutions, reduced political participation, perversion of the electoral process, restricted political choices available to citizens and loss of legitimacy of the democratic system.

(b)   Economic Costs
Corruption reduces economic efficiency by misallocation of resources in favour of rent seeking activities, increasing the cost of public transactions, acting as an additional tax on business thereby reducing investment, reducing genuine business competition.

(c)   Social Costs
The effect of corruption on the social fabric of society is perhaps the most alarming damage of all. It undermines people's trust in the political system, in its institutions and its leadership. Corruption distorts the value systems and wrongly attaches elevated status to occupations that have rent seeking opportunities. This results in a disillusioned public, a weak civil society, which attracts unscrupulous leaders to political life. Eventually, there is a risk that demanding and paying bribes could become the norm.

(d)   Environmental Costs
Environmental degradation is an indirect but serious consequence of corrupt systems. Environmentally devastating projects are given preference in funding, because they are easy targets for siphoning off public money into private pockets.

(e)   Issues of national security
Corruption within security agencies can lead to a threat to national security, including through distortion of procurement, recruitment of ineligible persons, providing an easy route for smuggling of weapons and terrorist elements into the country and money laundering.

Nexus between Fraud and Corruption

1)     Corruption and fraud are not mutually exclusive. There is in most cases nexus between the two.
2)     Fraud is most likely to involve deliberate misrepresentation of information that is recorded and summarized by an entity; its impact can be compared to an accounting error and would involve issues such as measurement, occurrence, and disclosure. Fraud poses a serious problem from an audit perspective because it is normally accompanied by efforts to cover/ falsify/ misdirect the entity records and reporting. Thus, fraud can directly affect the financial statements and records of the audited entity.
3)     Quite often, the efforts to misrepresent may involve the management itself. When management gets involved in the preparation of fraud, the activity assumes the proportion or the additional bearing of corruption. Fraud and corruption are therefore interlinked, although certain types of fraud do not necessarily qualify for being viewed as corruption and can be perpetrated by an individual or a small group to cover lapses.
4)     One problem which corruption poses for audit is that it is linked with the acts of bribery. It is possible to conceive of situations where bribery may have a direct impact on financial statements. For example, where a tax officer collects a bribe from an entity to provide a tax relief or where an entity pays an influential decision maker a bribe to secure a contract. In such situations the issue of proper disclosure is involved because the corrupt practice of the illegal payment / expense is normally covered up through an accounting, compliance or reporting fraud.
5)     In some cases, corruption may have only a consequential, and not a visible and direct effect on the accounting records, for example, when the quality specifications are compromised in a supply order to benefit a supplier.
6)     In many instances corruption does not necessarily reflect in the transactions that are recorded and reported by the entity. This especially applies to situations where a position of authority or discretion available under rules is misused by an official. Such corruption does not normally get reflected in information that comes in the purview of audit, for example, when a tax officer collects bribery to give a refund which is lawfully due to a taxpayer. Thus, whereas the loss to the auditee is usually fairly apparent in cases of fraud, in the case of corruption, the corrupt employee may benefit from the act, but there may not be any loss to the auditee or effect on financial information.
7)     Both fraud and corruption are without proper authority and involve breach of trust and therefore are illegal or irregular. They also involve an element of non-transparent conduct or behaviour. In fact corruption is a special type of fraud and treated as such in many jurisdictions. In any case audit teams/officers should be well aware of the complex distinction as well as correlation between the two.


IV.    RATIONALE OF  STUDY

In recent years, there has been a paradigm shift in the manner in which public funds are generated, expended and managed and there is a Controversy over the Scope & Purview of CAG’s Audit. About 67 per cent of Central Plan and non-Plan grants have been disbursed directly to implementation agencies like NGOs; developmental funds are directly transferred to urban local bodies; Panchayati Raj Institutions (PRIs) and infrastructure projects are substantially financed through public private partnerships. Therefore, the Eleventh Plan document calls for strengthening the watchdog role of CAG to ensure probity, transparency and accountability, in view of the new ways of allocating more than 50 per cent of public funds.

In the recent past there is a debate in the media, more so after the Report on spectrum 2G by the CAG, whether questioning the (economic) policy decisions of the government is within the ambit of CAG?

Before attempting this question let us understand what is an Economic Policy? In general parlance, Economic Policy is an attempt to devise government actions and to design institutions that might improve economic performance.  The creation of specific policies for achieving economic goals of the society is not simple and easy matter.

Steps for making an Economic Policy include setting clear economic goals to be achieved, examining and considering the possible effects of alternative policies designed to achieve the economic goal and evaluation of the effectiveness of the policies. The process of evaluation should be continuous. If any drawback is found in it at any stage, it should he improved.

To answer this question one has to consider the following hypothetical situations:

(i)       the financial implications of a policy were not gone into at all before the decision was made;
(ii)     the assessment of financial implications was quite clearly wrong;
(iii)   the numbers were correct but the reasoning behind the decision was specious or fallacious; or
(iv)   the financial implications in fact turn out to be far higher than the assessment on which the decision was made.

Certainly, in the aforesaid situations, it is the duty of the CAG's a matter of accountability to comment on these policy decisions of the government and if the CAG is bound by his (or her) oath of office to uphold the Constitution it is well within the CAG's mandate.

In other words, it is the duty of the CAG to comment on a scheme or policy that selectively confers benefits from public funds on an individual or group to the exclusion of others on no stated grounds, or on grounds which seem questionable and it amounts to unconstitutional if CAG refrain from commenting on the prima facie findings which comes to his knowledge while carrying out the audit.

Further, other activities that the CAG has been undertaking, such as propriety audit, performance evaluations, and so on, are clearly well within his ambit, as different modalities of ensuring accountability. This understanding is based on century-old traditions, and international consensus.

In the CAG's report on the 2G case, the notional loss figure of ` 176,000 crores has been much criticised. The report in fact makes it clear that it is difficult to arrive at a firm figure of loss, calculates it in three different ways through different methods, and makes no claim that any of the figures is definitive. However, the media delight in reporting that the CAG's figures have been questioned by various people, and a Cabinet Minister immortalised himself by claiming that there was zero loss. Whereas, the former auditor, Mr. R. P. Singh [1]  says he stands by ` 176,000 crores reported by CAG[2], who is vested with the powers under Article 149 of the constitution and rules and regulations governing the CAG.

That leads us to the relationship between the CAG and the Public Accounts Committee (PAC) and the Committee on Public Undertakings (COPU). The CAG finalises his reports after taking the government's and PEs' responses to his initial queries and observations and his draft reports, signs them, and submits them to the President of India, who causes them to be laid before Parliament. They are then taken up by the PAC and COPU. It is not the Reports that are under examination but the Ministries and other government offices and PEs, on the basis of those Reports. The CAG assists and advises the parliamentary committees in that examination.

Unlike the CAG of the U.K. (an officer of Parliament) or the CG of the U.S. (a part of the Legislative Branch), the Indian CAG is not an officer of Parliament, but an independent constitutional functionary. The reason for this is that the CAG is CAG for the Union as well as the States, which is a unique feature of the Indian quasi-federal system.

Regarding the controversy as to publicity, it may be said that the CAG's reports have suffered from too little and not too much publicity. One of the major weaknesses of the Indian system is that very few of the CAG's reports are widely known, and that not all of them get discussed in Parliament. Some years ago, press conferences began to be held after the Audit Reports were placed before Parliament, and that practice continues. This is not a new departure. If the CAG is to become more effective as an institution for the enforcement of accountability, it is necessary that Audit Reports be more widely known and discussed. The people have a right to know their contents. If, as a result of the CWG and the 2G controversies, the CAG and his reports are now better known than before, that is a very good development.

Even during British rule there was an Auditor General, and traditions of the independence and objectivity of that office were fairly strong. Gradations of audit were recognised proceeding from simple vouching and expenditure audit through regularity audit, audit of authorisation, audit of the sanctions themselves, and propriety audit, to what used to be called ‘Higher Audit'. After the constitution, the CAGs have been following that tradition and adding some technical and methodological innovations.

Internationally, there are Auditors General, Comptrollers General, Audit Commissions, and other forms of what are known as Supreme Audit Institutions (SAIs) not only in democratic countries, but even in authoritarian systems. In India, the CAG is the SAI. There are professional organisations such as the International Association of Supreme Audit Institutions (INTOSAI)[3] and the Asian counterpart (ASOSAI[4]) in which the Indian SAI plays an important part, and is held in high esteem. The International Organisation of Supreme Audit Institutions (INTOSAI) operates as an umbrella organisation for the external government audit community. For more than 50 years it has provided an institutionalised framework for supreme audit institutions to promote development and transfer of knowledge, improve government auditing worldwide and enhance professional capacities, standing and influence of member SAIs in their respective countries. The relevant point in the present context is that the Indian CAG has not stretched the audit function beyond the functions performed by other SAIs.

For instance, the National Audit Office of the U.K. has published, among others, reports on: Information and Communications Technology in Government: Landscape Review; Delivering Regulatory Reform; Assessing the Impact of Proposed New Policies; and so on. Some of the reports of the U.S. Government Accountability Office include those on; The U.S. Postal service (“Mail Trends Highlight Need to Fundamentally Change Business Model”); Aviation Safety (“Status of FAA's Actions to Oversee the Safety of Composite Airplanes”); Electronic Waste: Strengthening the Role of the Federal Government in Encouraging Recycling and Reuse; and so on. Having regard to those examples, it can hardly be said that the CAG of India has been guilty of over-reach.

Overall, India has a strong potential for being a reasonably corruption-free society, if politicians accept corruption as a serious problem and consciously take measures to deal with it. If this does not happen, then there is hope in the institution of the judiciary and the civil society to bring about structural changes by forcing reform. The bureaucracy can also construct its own framework of rules, procedures, actionable code of conduct so as to enforce norms of probity, transparency, and openness.

In an ideal world, the judiciary would stick to interpreting the law and refrain from treading on the domain of the legislature or the executive. But in an environment where justice is constantly being subverted, it is arguable that the courts are left with no choice but to step beyond their traditional domain and prod the executive into discharging its constitutional responsibilities.

In recent times, the Supreme Court has assumed a supervisory role in the CBI's investigation of the 2G scam, asking the agency to act against “persons who think themselves to be the law” and demanding to see the charge sheet before it is filed.

Assuming that the supreme court coming to a feeling that it need not waste sufficient time for monitoring the cases on hand such as 2G Scam, Hawala, Black Money etc., etc., including the day-to-day public interest and private interest litigations the judicial activism will have its natural death and the supreme court will proceed according to the rule book without venturing out of it whereby giving the political setup the much need escape route. This is crucial considering that in all these scams all the political parties have some considerable part or benefit.  Any logical end to the scam will have a terrible damaging impact on all the parties.  The politicians will have the ultimate say in the matter.

V.    HYPOTHESIS

The frame work of hypothesis is based on the following jural postulates:

1)     The Constitution of India has provided for creation of Supreme Audit Institution (SAI) known as CAG of India.
2)     This Supreme Audit Institution is mandated by the Constitution of India to uphold the Sovereignty and Integrity of India and also to uphold the Constitution and the laws.
3)     This Supreme Audit Institution expected to contribute for enhancement of the quality of the democracy through credible, balanced and timely reporting on Public Finance and Governance.
4)     This Supreme Audit Institution (SAI) expected to provide independent assurance to all the stake holders, the legislature, the executive and the public, that the public funds are being used efficiently and for the intended purposes.
5)     This Supreme Audit Institution is expected to discharge its functions with Independence, Objectivity, Reliability, Professional Excellence, Transparency and Positive Approach
6)     It is expected that this Supreme Audit Institution make full use of the powers delegated to it in discharging its functions.
7)     It is assumed that the examination of system for Detection and Prevention of Fraud and Corruption is an integral part of all Regularity Audits and also of Performance Audits.
8)     This   Supreme Audit Institution is expected to make use of the experiences and findings of the International Professional Organisations / Audit Commissions etc.
9)     Right to information of a citizen is an integral part for the success of democracy.

VI.   METHODOLOGY

As is well-known at the present day, a research scholar cannot depend upon any one particular method for the preparation of a thesis. A combination of different methods is required to achieve the best possible results. Thus a Historical-cum Analytical method has been applied mainly in the preparation of the present work. Where ever necessary, comparative and critical methods also are employed to have a detailed study of the subject under consideration.

VII.    SOURCES OF INFORMATION

The required materials for the thesis have been collected mainly by applying the doctrinal approach. This approach deals with formal sources of law like legislation, case law, text books, articles etc. It is basically textual in approach as contrasted to non-doctrinal approach which is primarily contextual in nature. In the preparation of this thesis, by adopting the above-mentioned technique, data have been collected from various enactments, professional pronouncements, Research publications/Guidance notes/ opinions  of the professional bodies,  and General Standards, Field Work Standards, & Reporting Standards followed by theses professional bodies, Reports of the Law Commission of India, Literature Reports of the CAG / land mark judgments of Supreme Court, High Courts, also cases decided by the Courts, Authoritative Text Books, etc.

VIII.    CHAPTERISATION

The thesis is divided into 6 chapters as under:

Chapter – I

Introduction: In this chapter an outline of the scheme of research intended for the thesis is brought out.  The objectives of the study, methodology, sources of information are also discussed in this chapter.

Chapter – II

Different facets of Fraud and Corruption: In this chapter different types of Frauds and different forms of Corruption are discussed. The impact of Corruption on the public life, has also been elaborately brought out.

Chapter – III

Appointments, Duties and Functions of CAG: In this chapter the relevant constitutional and legal provisions as to the Appointment of Comptroller Auditor General of India, together with the terms and conditions of appointment and also the Duties and Functions of the CAG have elaborately discussed. The mandate given to CAG to uphold the Constitution & Other Legal obligations and the controversy thereon together with Scope and Ambit of CAG’s audit is brought out elaborately in this chapter.

Chapter – IV

The Role of CAG in Detection and Prevention of Fraud and Corruption: In this chapter, different techniques and other methods being adopted by the CAG in Detection of Fraud and Corruption cases are elaborately discussed together with the nexus between the fraud and corruption. Also the importance of highlighting the short comings / reportable incidents in CAG report to ensure Prevention of Fraud and Corruption cases is discussed in this chapter.

Chapter – V

Reforms needed in the Institution of CAG: In this chapter reforms needed in strengthening the Institution of CAG in tune with the International Accounting practices and auditing standards. While doing so, our past experiences especially after the Independence and the experiences of the International professional bodies like INTOSAI, ASOSAI etc., are taken into consideration.

 Chapter – VI

Conclusion & Recommendations: In the last chapter, a brief summary of the thesis to ensure the effective functioning of CAG and to transform the ‘audit institution’ as a catalyst for good governance. A set of findings and observations, together with recommendations of the Researcher are furnished below:
                                                
1)     The constitutional provisions and the provisions of the CAG's Act do hold the potential to make the CAG a forceful authority. Therefore, it is imminent that the CAG should make full use of that potential.

2)     The findings of Audit should not only be reported to the President and Parliament as close to the events as possible, but also made known simultaneously to the media and the public, with some explanations to aid understanding.

3)     As all the matters reported upon by CAG have not been discussed in Parliament or in the State Legislatures or in the media, it is important to rescue at least some of the important cases from falling into oblivion. But many past errors, deficiencies, irregularities and so on may still deserve attention despite the passage of time.

4)     The mandate of Government Audit is broader than solely that of financial statement auditor and includes responsibility for verification of regularity and performance. Hence, the auditor should be aware of the possibility of fraud not only in the preparation and presentation of financial statements but in other areas covered by regularity (compliance) and performance audits as well.

5)     While acknowledging the importance of a larger vision and a broader perspective, the audit should also focus on light irregularities, improprieties and fraud. That is the Department's core function, and the pursuit of higher aims should not be at the expense of the core function.

6)     To be more meaningful, the audit must widens its horizons and attempts to examine efficiency or ‘cost-effectiveness' or propriety, as the supreme audit institutions of many countries do so as a matter of course.

7)     Examination of system for detection and prevention of fraud and corruption will be an integral part of all regularity audits and also of performance audits. At the commencement of each audit, information about the fraud and corruption awareness, detection and prevention policy and related environment should be collected from the audited entity management. During the course of audit work, the audit terms/officers should be vigilant and seek explanations.

8)     In most of the cases, the qualifications / adverse remarks of the audit that have figured in public debates have come to light in other ways. The CAG's reports have come later and have in some cases confirmed and substantiated or modified the general impression of wrongdoing already created by the media. There is a need for the CAG to rediscover the role of auditors as financial and accounting detectives.

9)     The supreme audit institutions in some countries not only act as examining agency but also investigation agency. Therefore it is desirable that the CAG is entrusted with the power of investigation also wherever he thinks fit to take up the investigation in the public interest.

10)Though corruption is clandestine and takes place outside the books, it is likely to leave tell-tale marks here and there. Even from well-maintained books, a whiff of corruption may rise. Audit can remain alert to such indirect indications and develop a nose for the smell of corruption. Therefore, it is desirable to introduce such an orientation to the Audit.

11) In keeping with INTOSAI's motto, 'Experientia mutua omnibus prodest', the exchange of experience among INTOSAI members and the findings and insights which result, are a guarantee that government auditing continuously progresses with new developments.

In the light of this study, the researcher views that it is imperative for us to have a sound institutional mechanism for containing corruption, strengthening accountability, promoting good governance and thereby for enhancing the quality of democracy.

Every effort has been made to make the thesis as exhaustive and as comprehensive as possible.

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[A Research proposal submitted to A P University of Law]


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Further Readings
Books
1)     H.M.Seervai: Constitutional Law of India (in 2 volumes) 4th Edition., Universal Book Traders, New Delhi.
2)     Constituent Assembly Debates (Official report), in (5 books and 12 volumes) Lok Sabha Secretariat, New Delhi.
3)     The Constitution of India –Selective comments by P M Bakshi, Universal Law Publishing Co.
4)     Administrative Law-Text and Materials by Beatson, Marthews and Elliotts- Oxford University Press, 2007

Legislation, Orders and Ordinances
1)     The Constitution of India
2)     The Comptroller and Audit General’s (Duties, Powers and Conditions of Service) Act, 1971
3)     The Companies Act, 1956

Newspapers and Magazines
1)     Chartered Accountant, Monthly Journal of ICAI.
2)     Chartered Secretary; Monthly Journal of ICSI.
3)     Management Accountant; Monthly Journal of ICWAI.
4)     Chartered Secretary, Monthly Magazine of ICSA, London.

Web-sites
1)     www.cag.gov.in
2)     www.mca.gov.in
3)     www.intosai.org/en/portal/
4)     www.icai.org.in
5)     www.icwai.org
6)     www.icsi.in
7)     www.icsa.org.uk
8)     www.aicpa.org



[1] Mr R. P. Singh was then director general audit (Post &Telecommunications) heading the field team that conducted the 2G audit.
[2] Times of India, dated 28/10/2011
[3] INTOSAI is an autonomous, independent and non-political organisation. It is a non-governmental organisation with special consultative status with the Economic and Social Council (ECOSOC) of the United Nations.
[4] Asian Organization of Supreme Audit Institutions (ASOSAI), established in 1978. ASOSAI's major objective is providing SAIs with opportunities for training and continuing education for government auditors in pursuit of the goal of improving audit quality and performance.

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