By P. Sesh Kumar, IAAS (Retd.), Former Director General, CAG of India
There is an old belief that every democracy ultimately survives not because of the politicians who govern it but because of the institutions that restrain them.
Governments come and go. Prime Ministers change. Political parties rise and fall. Yet the institutions created by the Constitution are expected to remain constant—impartial referees standing above political contestation, ensuring that power never escapes accountability. These institutions are not elected, yet they protect elections. They do not spend public money, yet they ensure that every rupee collected from citizens is properly accounted for. They rarely dominate television debates or election rallies, but they quietly determine whether constitutional government remains meaningful.
Among these institutions, two occupy an especially significant place. One safeguards the citizen’s vote; the other safeguards the citizen’s money.
The Election Commission of India is entrusted with preserving the integrity of the electoral process. The Comptroller and Auditor General of India—the CAG—is responsible for ensuring that governments spend public money according to law and with due regard for economy, efficiency and accountability. Together, they represent two of the Constitution’s most important checks on executive power.
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THE CONSTITUTION’S WATCHDOGS: GUARDIANS OF DEMOCRACY
The framers of the Constitution recognised the importance of these offices. They therefore surrounded them with extraordinary constitutional protection. Their salaries are charged directly to the Consolidated Fund of India, insulating them from financial pressure. Their service conditions cannot be altered to their disadvantage after appointment. Most importantly, they cannot be removed by the government of the day. The Chief Election Commissioner and the Comptroller and Auditor General enjoy protection comparable to that available to judges of the Supreme Court. Removal requires a complex parliamentary process, not executive displeasure.
Few public officials in India enjoy comparable constitutional security.
The expectation was obvious. Officers protected so comprehensively would speak fearlessly whenever the Constitution required them to do so.
History, however, has produced a more complicated story.
Over the past seven decades, India has certainly produced distinguished Chief Election Commissioners and Comptrollers and Auditors General. Yet only a handful have fundamentally altered the behaviour of governments or transformed public expectations of constitutional accountability. When citizens think of the Election Commission, one name almost inevitably comes to mind—T.N. Seshan. When they think of the CAG, they often remember Vinod Rai. The very fact that these names stand out illustrates the larger institutional puzzle. Why have extraordinary constitutional protections produced extraordinary institutional courage only occasionally? Why do some constitutional watchdogs become fearless guardians while others remain cautious administrators?
WHY APPOINTMENTS ALONE CANNOT GUARANTEE INDEPENDENCE
The answer most often offered is also the simplest. Governments appoint these officials. Governments naturally prefer individuals who will not cause unnecessary discomfort after assuming office. Reform, therefore, lies in changing the appointment process.
It is an attractive explanation because it is easy to understand.
Unfortunately, it is also incomplete.
Appointment certainly matters. It affects legitimacy. It influences public confidence. It shapes institutional expectations even before an officer assumes office. But if appointments alone explained everything, then every officer selected through the same opaque executive process should behave similarly. Indian constitutional history suggests otherwise.
The same appointment mechanism that produced T.N. Seshan also produced many Chief Election Commissioners who left office quietly. The same constitutional process that later appointed Vinod Rai had earlier and later appointed auditors whose names never entered popular memory.
Clearly, something more is at work.
That “something” lies at the intersection of institutional design, constitutional culture and human incentives. Independence, after all, is not simply a legal status conferred by constitutional text. It is a practice that must be exercised repeatedly. A constitutional office may possess immense authority on paper and yet become institutionally timid if the surrounding incentives favour caution over confrontation.
This distinction is becoming increasingly important today because the manner in which India’s constitutional watchdogs are appointed has itself become the subject of judicial scrutiny. Challenges concerning the appointment process of both the Chief Election Commissioner and the Comptroller and Auditor General are presently before the Supreme Court. Public debate has focused on whether the executive should continue enjoying overwhelming control over appointments or whether broader consultative mechanisms should replace the existing system.
These are important questions.
Yet they also risk narrowing the debate.
For the real issue is not merely who appoints constitutional watchdogs. It is whether the institutions themselves encourage independence once appointment has already taken place.
That distinction becomes evident when one revisits the constitutional philosophy behind these offices.
When the Constituent Assembly debated the architecture of independent India, it recognised that democracy could not survive merely through periodic elections. Governments exercising enormous administrative and financial powers required independent institutions capable of reviewing their actions. Elections had to be conducted impartially. Public expenditure had to be subjected to rigorous audit. The executive could not become the sole judge of its own conduct.
Accordingly, Article 324 vested the superintendence, direction and control of elections in the Election Commission. Article 148 established the office of the Comptroller and Auditor General as the guardian of the public purse. Although the constitutional language governing these institutions differs, the underlying philosophy is remarkably similar. Both offices were deliberately insulated from executive interference because both were expected to scrutinise executive action.
Dr. B.R. Ambedkar famously described the Comptroller and Auditor General as perhaps the most important officer under the Constitution because the office was intended to ensure that Parliament—not the executive—retained effective control over public finances. The Election Commission performed a similarly vital democratic function by ensuring that political competition remained credible.
Neither institution was intended to serve the government.
Both were intended to serve the Constitution.
This constitutional vision explains why the protections surrounding these offices remain unusually robust even today.
Yet constitutional protection alone has never guaranteed constitutional courage.
That lesson was demonstrated most dramatically by one man.
THE SESHAN EFFECT: WHEN ONE MAN CHANGED AN INSTITUTION
When Tirunellai Narayana Iyer Seshan assumed office as Chief Election Commissioner in 1990, the Election Commission already possessed every significant constitutional power that later made him famous. Nothing in the Constitution suddenly changed on the day he took office. The Model Code of Conduct already existed. The Commission already possessed authority over election administration. It already enjoyed constitutional independence.
What changed was not the institution.
What changed was the willingness to use its powers.
Before Seshan, elections in many parts of India had become associated with practices that citizens had gradually come to regard as inevitable—booth capturing, intimidation of voters, unrestrained use of money, violation of campaign norms and open disregard for the Model Code of Conduct. The Election Commission often appeared more like an administrative coordinator than an independent constitutional authority.
Seshan refused to accept that understanding.
Almost overnight, political parties discovered that constitutional authority, when actually exercised, could be profoundly disruptive. Election schedules were reconsidered. Violations of the Model Code attracted unprecedented scrutiny. Administrative officials suddenly found themselves accountable to an institution that had decided to interpret its constitutional mandate seriously.
The transformation extended beyond legal procedure.
It altered public psychology.
For perhaps the first time, ordinary citizens began to believe that the Election Commission could compel even powerful political parties to obey rules that previously seemed largely symbolic. The office ceased to be an obscure constitutional body and became one of the most visible institutions in Indian public life.
Interestingly, none of this was a consequence of appointment reform.
Seshan himself had been appointed through exactly the same executive process that critics today regard as fundamentally inadequate. His appointment carried none of the transparency, consultation or multi-member scrutiny now demanded in constitutional litigation. Yet his tenure fundamentally reshaped the public understanding of electoral accountability.
This should caution us against overly simple institutional conclusions.
A transparent appointment process may increase confidence in an institution.
It cannot guarantee how the individual will exercise constitutional authority after assuming office.
At the same time, Seshan’s remarkable tenure also revealed another truth that receives far less attention.
Even when the Constitution succeeds in producing an exceptionally independent office-holder, institutions possess ways of limiting that independence without formally removing the individual.
The response to Seshan did not come through impeachment. It came through institutional redesign.
In 1993, the Union Government expanded the Election Commission from a single-member institution into a multi-member body by appointing two Election Commissioners alongside the Chief Election Commissioner. Constitutionally, the move was permissible because Article 324 itself contemplates the appointment of additional Election Commissioners. The Supreme Court later upheld the validity of this arrangement.
Legally, therefore, there was little controversy.
Institutionally, however, the episode carried a profound lesson.
A constitutional watchdog need not always be weakened through direct interference. Sometimes the balance of authority can be altered simply by changing the structure within which decisions are taken. A Chief Election Commissioner who previously exercised singular authority now became one among three members whose decisions would increasingly depend upon majority opinion.
Seshan was not removed.
He was outvoted.
That distinction is critical because it demonstrates that constitutional independence involves much more than security of tenure. Institutional design—the composition of decision-making bodies, the treatment of dissent and the procedures governing collective decision-making—can shape outcomes just as powerfully as the appointment process itself.
It is a lesson that would acquire renewed significance nearly three decades later.
The Curious Case of India’s Constitutional Guardians
If T.N. Seshan demonstrated how a determined constitutional authority could redefine an institution, the events that followed over the next three decades illustrated something equally important—that institutional independence can slowly erode without a single constitutional provision ever being amended.
Democracies rarely dismantle their watchdogs dramatically. There are no tanks outside constitutional offices, no midnight ordinances abolishing institutions, no public declarations that accountability has become inconvenient. Modern democracies have developed subtler methods. Institutions remain intact. Constitutional protections continue to exist. Offices retain their prestige. Yet, over time, their ability to inconvenience governments begins to shrink.
The story of the Election Commission after Seshan is, in many ways, the story of this gradual transformation.
For years after his retirement, the Commission continued to enjoy enormous public respect. The standards set during his tenure shaped public expectations of electoral integrity. Every Chief Election Commissioner who followed inherited not only constitutional powers but also an institution that had acquired unprecedented public legitimacy.
Yet legitimacy is a fragile asset. It survives only when institutions continue exercising the authority that earned public confidence in the first place.
One episode, more than any other in recent years, exposed how fragile that confidence could become.
During the 2019 General Election, the Election Commission received several complaints alleging violations of the Model Code of Conduct by prominent political leaders. These were precisely the kind of complaints that had once transformed the Commission into one of India’s most respected constitutional institutions. Citizens naturally expected the Commission to deliberate independently and record its conclusions with complete transparency.
What emerged instead was an uncomfortable debate about institutional dissent.
Election Commissioner Ashok Lavasa reportedly disagreed with the majority view in several cases involving alleged violations of the Model Code of Conduct. According to public reports, he argued that his dissenting opinions should form part of the Commission’s official record. The majority disagreed, and the Commission’s published orders did not reflect his differing views. The disagreement was not merely procedural. It went to the heart of how a multi-member constitutional institution ought to function.
Courts routinely publish dissenting judgments. A dissenting opinion may not determine the outcome of a case, but it becomes part of the institutional record. Future courts may rely upon it. Scholars may debate it. Legislatures may eventually accept it. Most importantly, citizens are allowed to know that disagreement existed.
The Election Commission followed a different path.
When dissent disappears from the public record, citizens are left with the impression of unanimity even where none existed. Institutional disagreement becomes invisible. The public sees only the conclusion, not the deliberation that produced it.
That distinction is more important than it may initially appear.
A constitutional institution derives its authority not merely from the decisions it reaches but from the confidence citizens have in the fairness of its decision-making process. When dissent is hidden, transparency suffers. More importantly, future members of the institution learn an unmistakable lesson: disagreement may be permitted internally, but it need not survive into the public domain.
Lavasa eventually resigned before becoming Chief Election Commissioner and accepted an international assignment. No court has ever concluded that subsequent events affecting him or members of his family were linked to his institutional positions, and any such inference would be speculative. Yet constitutional institutions do not function only through formal rules. They are also shaped by perception.
Public servants observe what happens to those who disagree.
The most powerful institutional signals are often those that require no explicit instruction.
No one needs to tell future office-holders to be cautious if experience itself performs that function.
The Lavasa episode therefore teaches a lesson different from the Seshan story.
Seshan demonstrated the possibilities of constitutional courage.
Lavasa exposed the vulnerability of institutional dissent.
Together, they reveal why appointment alone cannot explain institutional behaviour.
A courageous individual may enter office.
Whether the institution allows that courage to influence outcomes is an entirely different question.
It is against this background that the debate over appointments assumed renewed constitutional importance.
For decades, appointments to the Election Commission followed executive convention because Parliament had never enacted a comprehensive law under Article 324 regulating the process. The Constitution had envisaged that Parliament could legislate on the subject, but successive governments allowed the convention to continue. The executive effectively selected Election Commissioners, and the President formally appointed them.
The absence of a statutory framework eventually reached the Supreme Court.
In 2023, while deciding the Anoop Baranwal case, the Court observed that constitutional independence required appointments that inspired public confidence. Pending legislation by Parliament, it directed that appointments should be made by a committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India.
The judgment was widely welcomed as an attempt to dilute exclusive executive control over appointments. At the same time, the Court itself recognised that this arrangement was only temporary. The Constitution had expressly authorised Parliament to enact a law governing appointments. Until such legislation emerged, the Court considered its interim arrangement necessary to preserve institutional independence.
Parliament responded later that year.
The Chief Election Commissioner and Other Election Commissioners Act, 2023 replaced the Chief Justice of India on the selection committee with a Union Cabinet Minister nominated by the Prime Minister. The committee would now consist of the Prime Minister, the nominated Cabinet Minister and the Leader of the Opposition.
Supporters argued that Parliament had merely exercised the authority explicitly granted by the Constitution. Critics responded that replacing the Chief Justice with another member of the executive effectively restored executive dominance in a different institutional form. The challenge to the legislation remains pending before the Supreme Court.
The constitutional arguments are undoubtedly important.
Yet they also risk distracting attention from a more fundamental issue.
Suppose tomorrow the Supreme Court strikes down the present law and directs that appointments must involve a broader collegium.
Would that alone guarantee another T.N. Seshan?
History suggests otherwise.
Institutions do not become independent simply because appointment committees become larger.
Committees confer legitimacy.
They cannot manufacture courage.
This becomes even more evident when one turns from the Election Commission to India’s other great constitutional watchdog.
THE CAG APPOINTMENT PARADOX: TRANSPARENCY OR TRADITION?
If the Election Commission protects democracy through elections, the Comptroller and Auditor General protects democracy through public finance.
Every welfare scheme, infrastructure project, defence procurement, subsidy programme and tax policy ultimately depends upon public money. Parliament authorises that expenditure. The executive incurs it. The CAG examines whether it has been spent lawfully, efficiently and for the purposes approved by the legislature.
Dr. B.R. Ambedkar once described the Comptroller and Auditor General as perhaps the most important functionary under the Constitution because effective parliamentary control over public finance would be impossible without independent audit.
Curiously, despite this immense responsibility, public attention has rarely focused on how the CAG himself is appointed.
Unlike the Election Commission, where the debate has recently become politically visible, the appointment of the CAG has remained remarkably opaque since Independence.
Article 148 provides that the Comptroller and Auditor General shall be appointed by the President by warrant under his hand and seal.
The Constitution deliberately protects the office after appointment. Removal requires a process comparable to that applicable to Supreme Court judges. Service conditions are protected. Salary is charged upon the Consolidated Fund of India.
But the Constitution says almost nothing about how the choice is to be made.
Over the decades, this constitutional silence has gradually evolved into an executive convention.
The Cabinet Secretariat prepares names.
The Prime Minister recommends one.
The President signs the warrant.
No statutory selection committee exists.
No public shortlist is prepared.
No objective eligibility criteria have ever been prescribed.
No consultation with Parliament is required.
No explanation accompanies the final choice.
Ironically, several statutory institutions with significantly narrower responsibilities follow more elaborate appointment procedures than the constitutional office responsible for auditing the expenditure of the Union Government itself.
This raises an obvious question.
If appointment transparency has become central to debates concerning the Election Commission, why should the office responsible for auditing trillions of rupees continue following a process that remains almost entirely invisible?
Three petitions presently before the Supreme Court ask precisely that question. They seek greater transparency, objective eligibility criteria and a broader consultative mechanism for appointing the CAG. Whether the Court eventually intervenes remains uncertain. But the litigation itself reflects growing discomfort with a system that has changed remarkably little since 1950.
Yet even here, the manuscript urges caution against embracing easy solutions.
Transparency is unquestionably desirable.
Consultation strengthens legitimacy.
Objective criteria reduce arbitrariness.
But none of these automatically produces institutional independence.
The real question is not merely who appoints the auditor.
It is who becomes eligible to be appointed in the first place.
Over recent years, the office of the Comptroller and Auditor General has increasingly become the destination of recently retired Secretaries to the Government of India. Individually, these officers possess impeccable administrative credentials and decades of public service. There is no suggestion that integrity is lacking.
The concern is institutional rather than personal.
Can an officer who has spent an entire career implementing executive policy immediately assume responsibility for auditing the executive with complete institutional distance?
The question is not one of honesty.
It is one of perspective.
A career administrator inevitably develops habits of governance. An auditor must cultivate habits of scrutiny. Those are not always identical.
The Constitution, however, prescribes neither qualifications nor disqualifications. It does not insist upon experience in public audit or accounting. Nor does it require a cooling-off period between holding senior executive office and assuming responsibility for auditing decisions taken by former colleagues.
These structural questions rarely dominate public debate because appointments themselves attract disproportionate attention.
But institutional history suggests that the deeper challenge lies elsewhere.
The framers of the Constitution assumed that secure tenure would naturally produce fearless institutions.
Experience suggests that secure tenure is only the foundation.
Institutional culture, organisational design, transparency in decision-making and the incentives surrounding public office together determine whether constitutional independence remains a living principle or gradually becomes a constitutional formality.
That is the paradox at the heart of India’s accountability architecture.
We have created watchdogs with extraordinary constitutional protection.
Yet we continue searching for extraordinary individuals capable of making those protections meaningful.
The Republic cannot indefinitely depend upon finding another T.N. Seshan—or another Vinod Rai.
Institutions must be designed so that independence becomes the norm rather than the exception.
For if constitutional courage depends entirely upon exceptional personalities, then the Constitution itself has been asked to perform a task it was never designed to accomplish.
The question, therefore, is no longer simply who appoints India’s constitutional guardians.
It is whether the institutions they inherit are capable of sustaining independence long after the appointment ceremony is over.
(To Be Continued in Part 2, which will examine why, even when India’s constitutional watchdogs produce powerful findings, the accountability system often fails to act on them.)
About The Author– Mr. P Sesh Kumar is a retired 1982-batch officer of the Indian Audit and Accounts Service (IA&AS) who served as Director General of Audit at the Comptroller & Auditor General of India.
Disclaimer—(The views and opinions expressed in this article are solely those of the author and do not necessarily reflect the views of Indian Masterminds. For feedback or queries, please write to [email protected].)
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