Judicial check

The quashing of the appointment of P.J. Thomas as the CVC shows the judiciary can go beyond the express provisions of law to render justice.

THE Indian Constitution does not envisage strict separation of powers among the three branches of the government the executive, the legislature and the judiciary. This flexibility permits marginal incursions though one branch cannot usurp the essential functions of the other.

One of the essential functions of the judiciary is to act as a check on the functioning of the other branches, to prevent administrators and legislators from converting the state into a despotic regime. This kind of judicial intervention in emergency situations has been considered absolutely necessary and legitimate.

The Supreme Court's March 3 judgment quashing the appointment of P.J. Thomas as the Chief Vigilance Commissioner (CVC) was one such intervention. It has raised the question whether the Indian judiciary has taken upon itself the role of an activist, although the term judicial activism has lent itself to varied interpretations.

The Supreme Court Bench comprising the Chief Justice of India, S.H. Kapadia, Justice K.S. Panicker Radhakrishnan and Justice Swatanter Kumar held in its judgment that the High Powered Committee's (HPC) recommendations made to the President on September 3 last year to appoint Thomas was non-est in law (meaning void ab initio) because it was arbitrary.

Reports in the media had suggested that the President appointed Thomas on the basis of a split recommendation by the three-member HPC. Two of its members, Prime Minister Manmohan Singh and Home Minister P. Chidambaram, had favoured his appointment from a panel of three candidates, while the Leader of Opposition, Sushma Swaraj, had opposed it and submitted a dissent note.

The Bench, in fact, did not find that the majority members of the HPC improperly or unjustly rejected Sushma Swaraj's dissent. What it found, however, was that Sushma Swaraj had brought to the committee's notice the fact that Thomas was unsuitable for the post because he was (and is) an accused in the criminal case (CC 6 of 2003) pending in the court of the Special Judge, Thiruvananthapuram, with respect to offences under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, and under Section 120B of the Indian Penal Code (IPC) in a case relating to palmolein import by Kerala. The Centre for Public Interest Litigation, one of the petitioners in this case, had also alleged that Thomas had played a big part in the cover-up of the 2G spectrum allocation, now under investigation by the Central Bureau of Investigation and a Joint Parliamentary Committee.

However, the facts in the palmolein case were more than sufficient for the Supreme Court to conclude that the HPC's recommendation was mala fide. In 1991, Thomas was Secretary to the Department of Food and Civil Supplies in the Kerala government when the State decided to import 30,000 tonnes of palmolein. After obtaining necessary permission from the Centre, Kerala imported 15,000 tonnes in January 1992.

The Comptroller and Auditor General (CAG), in its report dated February 2, 1994, took exception to the procedure adopted for the import. The 38th report of the Kerala Legislative Assembly Committee on Public Undertakings dated March 19, 1996, alleged that under the pretext of urgency the deal was conducted without inviting global tenders and that this had resulted in the loss of more than Rs.4 crore to the exchequer.

When the Left Democratic Front (LDF) came to power in May 1996, a first information report (FIR) was registered against K. Karunakaran, Chief Minister in the previous United Democratic Front (UDF) government, and six others for causing loss to the exchequer. The LDF government accorded sanction to prosecute the accused in November 1999. Thomas' name was added as an accused in December 1999, and the State government sought sanction from the Department of Personnel and Training (DoPT), Government of India, to prosecute him.

Meanwhile, Karunakaran challenged the FIR filed against him and others, first in the Kerala High Court and, after failing to get relief, in the Supreme Court. In March 2000, the Supreme Court dismissed Karunakaran's appeal on the grounds that the FIR could not be held to be the result of mala fides or actuated by extraneous considerations.

The menace of corruption cannot be permitted to be hidden under the carpet of the legal technicalities, the court observed. The Supreme Court also approved the government order granting sanction to prosecute the accused.

In its March 3 judgment, the Bench regretted that the HPC had not considered this order as binding on it. In the charge sheet filed before the trial court, in paragraph 7, a definite role was attributed to Thomas, and allegations were made against him; yet the HPC chose to ignore it.

The Prime Minister's observation in Parliament, after the court's verdict, that he was not aware of the pending charge sheet against Thomas surprised observers. Although Manmohan Singh accepted responsibility for choosing Thomas and described his selection as an error of judgment (he even hinted that the DoPT had erred in ignoring the charge sheet against Thomas while preparing the note for the HPC), misgivings regarding who actually managed to secure the HPC's consent for Thomas remained because the Supreme Court's pointed questions went unanswered.

On January 18, 2001, an Under Secretary in the DoPT put up a note that a regular departmental inquiry should be held against Thomas and another accused (in the palmolein case), Jiji Thomson. On February 18, 2003, the DoPT made a reference to the Central Vigilance Commission on the issue. The commission, through its letter dated June 3, 2003, concurred with the DoPT that penalty proceedings against Thomas and Thomson were justified. Yet the matter remained pending. The DoPT prepared a similar note on February 24, 2004.

However, on January 24, 2005, the UDF government in Kerala wrote to the DoPT expressing its wish to withdraw the request for sanction to prosecute the officers, including Thomas. By another letter to the DoPT on November 4, 2005, the State government took the position that the allegations made by the investigating agency were invalid and the cases and the request for sanction to prosecute Thomas should be withdrawn.

After the return of the LDF to power in Kerala in May 2006, the government sought to withdraw the January 2005 letter to the DoPT and continue the prosecution. Therefore, it reiterated its request for grant of sanction by the Central government. Karunakaran challenged this and the continuing efforts at prosecution. The High Court dismissed his plea. His appeal in the Supreme Court in 2006 against this also failed.

Karunakaran later raised the plea of mala fide against the Kerala government in the High Court. On reconsideration, the High Court dismissed this petition, too. Karunakaran appealed against this order in the Supreme Court and obtained a stay on the proceedings before the trial court. This appeal remained pending until December 23, 2010, when it abated following the demise of Karunakaran.

Meanwhile, the commission, on June 25, 2007, in its letter to the DoPT, gave a clean chit to Thomas and Thomson, observing that they acted in accordance with a legitimately taken Cabinet decision and that they neither caused any loss to the State government nor derived any benefit from the transaction. The commission thus recommended dropping of the proceedings and accorded vigilance clearance to Thomas on October 6, 2008.

Sequence of events

In its judgment on March 3, the Supreme Court Bench recalled this sequence of events to question why the commission had changed its view.

The Bench recalled that there were at least six notings of the DoPT between June 26, 2000, and November 2, 2004, recommending penalty proceedings against Thomas. But these notings were mysteriously missing both in the vigilance clearance accorded to Thomas in October 2008 and in the DoPT note for the HPC on September 1, 2010.

The Bench observed that if a statutory body like the HPC, for any reason whatsoever, failed to look into the relevant material relating to the object and purpose of the Central Vigilance Commission (CVC) Act, 2003, or take into account relevant circumstances, then its decision would stand vitiated on the grounds of official arbitrariness.

The Bench regretted that the commission, the DoPT and the HPC placed emphasis only on the bio-data of the three empanelled candidates. None of these authorities, it said, looked at the matter from the larger perspective of institutional integrity, including institutional competence and the functioning of the CVC.

The Bench also noted that even on the matter of personal integrity, the HPC had not considered the relevant material, as Thomas' bio-data did not mention the DoPT's notings recommending penalty proceedings against him. The HPC, the Bench held, should consider whether the candidate would be able to function as a CVC, maintaining the independence and impartiality of the institution. If institutional competency was affected by the pending proceedings and if by that touchstone the candidate stood disqualified, then the HPC should not recommend him, the Bench held.

It directed that in future, if there was a disagreement among the members of the HPC, the reasons for overruling a dissent by the majority should be recorded. Secondly, it held that the zone of consideration for the CVC's appointment should not be restricted to civil servants. The Bench also advised the HPC to adopt a fair and transparent process of consideration of the empanelled officers, including facts about any adverse remarks against them.

The judgment has the potential for broader application. Some observers opine that if the office of the CVC requires institutional integrity as a fundamental feature, so do other institutions such as Parliament and the judiciary. Therefore, the incumbents of these institutions, too, should be above reproach. Thomas, in his submissions during the hearing of the case, did point out that there were any number of charge-sheeted politicians in Parliament and in the State Assemblies. The argument failed to cut ice with the Kapadia Bench, which ignored it in its judgment. But it does leave enough ground for any aggrieved citizen to challenge the election of a charge-sheeted person to any of our legislative bodies.

Thomas' counsel, Wills Matthews, has revealed that he intends to file a review petition in the Supreme Court against the judgment as under the CVC Act, the CVC can be removed from office by the Supreme Court only through a presidential reference. Although the Supreme Court acted in the absence of a presidential reference, it is fairly settled that it can go beyond the express provisions of law to render justice in a case.