Choice challenged

The appointment of P.J. Thomas as the Central Vigilance Commissioner comes under Supreme Court scrutiny.

in New Delhi

ON November 8, a Supreme Court Bench comprising Chief Justice S.H. Kapadia and Justices K.S. Radhakrishnan and Swatanter Kumar asked the Attorney-General, G.E. Vahanvati, whether Central Vigilance Commissioner P.J. Thomas was an outstanding civil servant as required by the Central Vigilance Commission Act.

The Bench was yet to get a firm reply to the question on December 6, when it heard a public interest petition challenging Thomas' appointment. The file relating to the CVC's appointment, which was made available to the court, also failed to answer the question. The court issued notice to Thomas and the Central government. The A-G accepted the notice on behalf of the Centre and offered to file a reply in six weeks, but told the court that he could not accept the notice on behalf of Thomas.

The Centre's as well as the A-G's tactical distancing from Thomas appeared to be a fallout of the latter's refusal to resign before the December 6 hearing. This led to the court issuing a notice to the CVC himself, asking him whether he was competent to hold the post in view of the challenge to his appointment by two non-governmental organisations, the Centre for Public Interest Litigation (CPIL) and Common Cause, which routinely take up public interest cases.

The court fixed January 27 as the next date of hearing, even as suspense mounted as to whether Thomas would continue as the CVC. This was in view of the serious allegation that he could not be considered an outstanding civil servant when a charge sheet was pending against him in the Kerala palmolein import case.

For the Supreme Court, what mattered was not whether Thomas was innocent of the charges against him in that case but whether he was an outstanding civil servant, and if the answer was yes, whether the pending charge sheet cast a shadow on his outstanding personality. It appeared as though the A-G had no ready answers, even though on November 8 he denied the allegations in the petition as incorrect and said that Thomas had no role in the palmolein import case as he had only implemented the State Cabinet's decision.

The Supreme Court, in the landmark judgment in the Vineet Narain case in 1996, had said the following:

The Central Vigilance Commission shall be given statutory status. Selection for the post of Central Vigilance Commissioner shall be made by a Committee comprising the Prime Minister, Home Minister and the Leader of the Opposition from a panel of outstanding civil servants and others with impeccable integrity to be furnished by the Cabinet Secretary. The appointment shall be made by the President on the basis of the recommendations made by the Committee. This shall be done immediately.

Section 4 (1) of the Central Vigilance Act, 2003, incorporated this judgment as follows:

The Central Vigilance Commissioner and the Vigilance Commissioners shall be appointed by the President by warrant under his hand and seal:

Provided that every appointment under this sub-section shall be made after obtaining the recommendation of a Committee consisting of

(a) the Prime Minister Chairperson;(b) the Minister of Home Affairs Member;

In their petition, both the CPIL and Common Cause pointed out that the Leader of the Opposition was specifically included in the selection committee because the CVC was supposed to act as a watchdog over the Central government. It was done also to avoid a situation where the government appointed its own person, a political party worker or a bureaucrat it favoured, the petitioners said. They reasoned that the presence of the Leader of Opposition in the selection committee would make the selection fair, bipartisan and politically neutral, and also ensure that the appointed person did not feel any obligation to his political masters. The Leader of the Opposition, therefore, was the most critical member of the selection committee, the petitioners argued.

However, in Thomas' case, Prime Minister Manmohan Singh and Home Minister P. Chidambaram recommended his selection despite the fact that the Leader of the Opposition, Sushma Swaraj, objected to his selection. Therefore, the petitioners contended, her presence in the selection committee was rendered meaningless. They suggested that when the Supreme Court and Parliament held that the CVC would be selected by the three-member committee, which included the Leader of Opposition, it was patently obvious that the decision should be made unanimously or by consensus. It was nowhere said that the committee would decide by majority; such interpretation would make the presence of the Leader of the Opposition meaningless, the petitioners argued.

Palmolein import scam

Thomas was chargesheeted in the palmolein import scam when he was Secretary in the Ministry of Food and Civil Supplies in Kerala. The very fact that an officer of such seniority was chargesheeted showed that there was a strong prima facie case and evidence against him, the petitioners argued. The right to information (RTI) replies from the court concerned revealed that proceedings against him were still on and he was an accused. He was out on bail, they said in their petition.

The petitioners also alleged that Thomas, as Secretary to the Government of India in the Department of Telecommunications (DoT), was involved in the cover-up of the 2G spectrum allocation scam. They said that Thomas, as Telecom Secretary, had asked the opinion of the Joint Secretary of the Law Ministry on whether the Central Vigilance Commission and the Comptroller and Auditor General of India (CAG) had any role in the investigation of the 2G spectrum scam. The seven-page reply of the Law Ministry, which came on the day after Thomas made the request, stated that since spectrum allocation was a policy matter, both the CVC and the CAG had no role in examining the same, the petitioners claimed.

As per the judgment in the Vineet Narain case and the Act of 2003, a major function of the CVC is to exercise superintendence and control over the anti-corruption work carried out by the Central Bureau of Investigation (CBI). One of the major tasks of the new CVC, the petitioners said, was to monitor the investigation that was being carried out by the CBI into the 2G spectrum allocation scam; the first information report (FIR) in this case was registered by the CBI at the instance of the CVC. Therefore, they argued, Thomas' appointment was bad in law since it was a settled principle of law that no one can be a judge in his own cause.

The petitioners further pointed out that 69 of the 122 telecom licencees (who were allotted 2G spectrum) did not roll out their services. Although this had become clear during the time Thomas served as Telecom Secretary, he took no action, the petitioners alleged. The Telecom Regulatory Authority of India (TRAI) had recommended cancellation of the 69 licences, they pointed out.

As CVC, Thomas has recused himself from supervising the CBI's investigation into the 2G scam before another Bench of the Supreme Court, which is hearing the CPIL's public interest petition on the matter. But his recusal is unlikely to ease the pressure of public opinion that he should quit office in deference to the Supreme Court's concern.