...the Judicial Rebuff

Mr. P. J. Thomas
Photo courtesy: The India Today

ONE Big blow and Indian government fainted!! PM has to accept his responsibility and LM has to admit failure of the system.
     “½ +1” will not always do… If you call this mathematical verbalism as democratic go then Democracy is not enough. “If there is majority rule, Rule of law is ensured.” If this is the belief, then E.M. Foster has to come once again to teach this Democracy -“I do not believe in Belief”. On September 03, 2010, Singhji and Chidambaramji might have overruled the opposition leader by a majority but Hon’ble Supreme Court in Centre for PIL & Anr. v. Union of India & Anr., overruled the Overruling, saying the High Powered Committee’s (HPC) selection of Mr. P. J. Thomas as Chief Vigilance Commissioner (CVC) under Section 4(1) of the Central Vigilance Commission Act, 2003 was “non-est in law”.

“Government is not accountable to the courts in respect of policy decisions. However, they are accountable for the legality of such decisions." While rendering a judgment, which is strictly confined to the legality of the recommendation, the court moved On with these lines… They differentiated ‘legality’ from ‘merit’, and ended up talking about the “larger perspective”, which CVC, DoPT and HPC failed to foresee.

     When No Law is infringed, under Sec 4 of the Act, it was hard for the court to reach a conclusion with regard to Thomas's appointment. The underlying abstraction in the minds of the judges, which can be piled up, is that they were not satisfied with the existing. Something was missing and the entire 73 page judgment was narration of that ‘something’.
….Appointment can’t be based on Bio Data.
...Institution is more important than an individual.
..Eligible persons should be without blemish whatsoever.
All these are valid and justified grounds. But somehow the court reached to the abstract conception of "Institutional Integrity", which is not a reasonable basis. In page 30 of the judgment, Justice Kapadia said,

“…in the present case the recommending authority (High Powered Committee) has gone by personal integrity of the officers empanelled and not by institutional integrity.”

However Section 4 of the Act says nothing about the institutional integrity. But in p. 32 of the judgment, the court categorically stated- the institutional integrity is the primary consideration which the HPC is required to consider while making recommendation and this vital aspect has not been taken into account in the present case. But I failed to understand what institutional integrity they are talking about? Every public office ought to be an office of integrity. It may be CVC, the Election Commission, the CAG or any other office. Is this integrity not appropriate for judiciary? The court should have defined what they meant by it. Do they mean, sacred? public trust? corrupt less? concerned? or what?

Appointments are always made on personal integrity. I agree between 2000 and 2004, the notings of DoPT dated 26th June, 2000, 18th January, 2001, 20th June, 2003, 24th February, 2004, 18th October, 2004 and 2nd November, 2004 have all observed that penalty proceedings may be initiated against Thomas. But at the same time, it cannot be ignored that the CVC vide its letter dated 25th June, 2007 informed the Ministry that:

“The case has been re-examined and Commission has observed that no case is made out against S/Shri P.J. Thomas…”

     It is rightly marked that no reasons are available as to why CVC had changed its earlier stand. But a presumption can’t be made as to Absence of reason means there is something fishy. So, the court should have gone to the extent of getting an answer to this question. Well! I agree when they say, if the selection adversely affects institutional competency and functioning then it shall be the duty of the HPC not to recommend such a candidate.

However the court rightly faulted the HPC for its failure to consider relevant materials. The key word in proviso to Section 4(1) is the word “recommendation”. While making the recommendation, the HPC performs a statutory duty. And the word ‘recommendation’ in the proviso stands for an "informed decision". Therefore the court is right when it looked into the matter as to whether relevant materials and vital aspects were taken into account or not. The observation that those notings were not considered in juxtaposition with the clearance of CVC granted is relevant as the decision to recommend has got to be an informed decision. If HPC, for any reason whatsoever, fails to look into the relevant materials then its decision would stand vitiated on the ground of official arbitrariness.

Secondly, an interesting point was made by the petitioner that the recommendation of the HPC has to be unanimous as the intention was to introduce bipartisanship and political neutrality. In Vineet Narain’s case the Court had observed that the Committee would decide by unanimity or consensus. It is no where stated that the Committee would decide by majority. Moreover, it was argued by Mr. Prashant Bhushan that if unanimity is ruled out then the very purpose of inducting the Leader of Opposition in the process of selection will stand defeated. But the court rejected the submission.

     The Court was right in saying- Conferment of such a power on one of the members would amount to ‘Judicial Legislation’. But I disagree when the court talked about conferment of a “veto right”, because there is provision of recording. A member is not absolved just by showing his hand or objecting, as he has to give reasons. How you found out that Mrs. Swaraj had objected? It was recorded. Ohh! The court itself in its direction also had made a point that member dissenting should give reasons. So, why ‘No’ to unanimity? Mind you, Public confidence will be enhanced.

     Anyway, the bench comprising CJI S H Kapadia, Justice K S Radhakrishnan and Swatanter Kumar laid down stringent guidelines for future appointments and quash the present appointment. This "Judicial Rebuff" can be said as a resurgent judicial activism under the leadership of CJI but somewhere or other, ‘Rule by Law’ have to bob up when ‘Rule of Law’ goes missing in political technicalities.