Saturday, July 22, 2017

Audit Ain’t the Demon you think it is, if you haven’t Strayed!

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In our genteel government ecosystem, audit is reviled, punned, demonized – and rarely welcomed. There are many humours that keep bobbing up from time to time to subtly soften the brutalities of its findings. Some are malicious, some humorous to a T; but for me, the one that takes the cake concerns the four-legged animals. The orders on the subject prescribed that when an animal died, the hide and skin of the dead must be accounted for in the ledger. Some animals had strayed, enquiry was conducted, and their loss was duly noted. But the auditor was horrified. Enquiry was fine, but what about the hides and skins that remained unaccounted for. Livid, he shot off his observations. Riled, the executive officer otherwise known for congenital analgesia with no innate pain sensors exhaled a small laugh and sprung into action: “I’m sorry the animals’ hides and skins couldn’t be accounted for in the ledgers, for the poor dears didn’t leave them behind when they strayed!”

But, now on to the sombre part. Audit indeed is serious business, as much for the auditor as for the auditee. Not too long along, the audit findings of the CAG on Commonwealth Games, 2G, Coalgate and a string of others that followed in close succession brought to the fore the shenanigans that otherwise would not have been put out in the public domain. Notwithstanding the laughable “zero-loss” statement of Kapil Sibal, it is well to remember that in a democratic set-up, along with executive and legislative separation of powers, there are conscious in-built institutionalized checks and balances in the form of constitutional audit and judicial review, not to speak of the media oversight. Each role while being separate and distinct with boundaries drawn is subject to and relies on the other to keep the wheel of accountability well-oiled and ticking. It calls for respecting others’ role in fulfillment of their assigned mandate; and with the judiciary playing the umpire overseeing transgressions and interference, if any, by any of the institutions.

So, when judiciary, the constitutional umpire of matters just and transparent, refuses to audit itself and recuses to be the Caesar’s wife, there indeed is a cause for concern. It is like the fence eating the crop! The recent Jharkhand High court’s order of June 20 recalling its earlier order directing the Principal Accountant General to audit the accounts of three judicial institutions is puzzling; it ex facie smacks of shielding the Jharkhand Legal Services Authority (JHALSA), the Jharkhand Judicial Academy (JJA), and the National University of Study and Research in Law (NUSRL), Ranchi from seeming mis-and-malfeasance. This, naturally, has evoked sharp criticism from lawyers and the Jharkhand high court advocates’ association has submitted a petition, signed by 50 practicing lawyers, to the state bar council seeking its intervention.

Worse still that this was done against the background that not too far ago, NUSRL students had launched protest demanding complete administrative overhaul, audit and publication of financial records. This makes it hugely troubling. “It is well established that review jurisdiction,” as the legal magazine Bar and Bench said, “should be exercised by courts sparingly. The Supreme Court, in Sow Chandra Kanta And Another vs Sheik Habib had held: ‘A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility’. In this case, it seems that the High Court has protected these institutions from scrutiny.”

Regularity and propriety audit are diagnostic tools aimed at looking at innards of an institution, much as medical equipments help sight the body’s health, with its warts and all – zeroing on how much the cancer has metastasized. How wrong the order is can be seen metaphorically just by boxing the risible lines of an English court cited in the judgment: “Even God himself did not pass sentence upon Adam before he was called upon to make his defence,” with “Caesar’s wife should always be above suspicion!” The surmise is telltale. As is said, not only must you be honest but you’ve to be seen to be so. The audit directed by the earlier bench headed by the Chief Justice – who ex officio is the Patron of the Jharkhand Legal Services Authority (JHALSA) and of the Jharkhand Judicial Academy (JJA), and the Chancellor of the National University of Study and Research in Law (NUSRL), Ranchi – was a step in the right direction to set the house in order.

There is no better institution to audit than the constitutional auditor. In any case, as per extant subject orders, any organization receiving full or partial funding from the government of India (read public funds) is subject to audit by the Comptroller and Auditor General or by offices under his charge. As the Chief Justice’s order of June 7, 2017 said in directing the audit, it was to ensure “transparency in the administration” and in the “interest of justice”. Whoever can complain of transparency and/or justice in public spending? Regularity and propriety audit can thrown up and bring to light all instances of wrong doings, if they are any.

The recall of this order by another bench in such unholy haste – within 10 days of retirement of the Chief Justice who passed the order – to say the least, is reprehensible: not only does it negates transparency and impugns justice but very likely shrouds the goings-on in the three institutions by shielding them from audit and foisting summary opacity. It seeds the suspicion that there possibly are things to hide from audit. Any honest Chief Executive of an organization welcomes audit to beware of the ground under his feet. No head of an organization shies away from getting to know the quicksand it stands on. No one blanches from audit if there is nothing to hide – audit ain’t the demon for the upright and the straitlaced. Far from eroding “public confidence in these Institutions” and not being in the “public interest” as the second order of June 20 says, the truth is just the contrary: sunlight is the best disinfectant, and audit sunshine can only enhance the “reputation” of these three institutions, and not detract from it. The simple inference one is apt to draw is that perhaps the institutions have strayed and indeed have things to hide! Rectitude and internal moral compass do not seem to be their ethical vocabulary.

It is about time for the Supreme Court to take note of such transgressions and zero in on the fallacies and flaws of the Jharkhand High Court judgment of June 20, 2017, issues strictures and directs a special audit. Such desecrations of budgetary outlays from the Consolidated Funds of India cannot – and shouldn’t – be allowed to go on with impunity. It needs no stressing that the taxpayer must get to know how his own precious money is spent by the judicial archbishop of the nation. In the wake of Justice Karnan’s case when judicial reputation has taken a severe beating, it shall doubtless help restore greater credibility – even bring laurels – to the apex Court, on whom ordinary citizens of this country repose such unremitting faith and respect.

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