Embattled CVC P J Thomas told the Supreme Court that his appointment as Central Vigilance Commissioner cannot be subject to judicial review and that it does not not get vitiated merely because of chargesheet pending against him in a corruption case.
Thomas' counsel K K Venugopal put forward arguments saying that even under electoral law convicted MPs and MLAs continue in their office pending their appeal against conviction in criminal cases. However, a Bench headed by Chief Justice S H Kapadia, said "if there is a fact of conviction and if a person is appointed, can we say there can be no judicial review of the appointment. Today on account of judicial review, we can even strike down Constitutional amendments."
Venugopal argued that the appointment does not get vitiated merely because of the pending chargesheet against the official as there is no express provision in the CVC Act to disqualify a person on such grounds. He was responding to the question whether the decision on Thomas' appointment is not vitiated by the non-circulation of the relevant materials like the pending chargesheet and grant of sanction by the Kerala government in 1999 for his prosecution.
Venugopal said since the statute qualifies and disqualifies the eligibility and suitability of the person to be appointed as CVC, the selection is based on the subjective satisfaction of appointing authority. The covernment also told the court that the entire file of controversial Thomas was not placed before the members of the high-powered panel headed by Prime Minister Manmohan Singh which decided the the appointment.
Attorney General G E Vahanvati replied in negative to a query from the Bench which wanted to know "was the entire file circulated along with the agenda paper among the members who are appointing authority". Vahanvati, however, said he was not personally aware what transpired, what the panel said, what they did and what was circulated between the members when the agenda paper was placed before them. He replied by saying "no" when the Bench wanted to know, was the material relating to the sanction granted for Thomas' prosecution in 1999 placed before the panel.
"With the agenda papers, it should have been placed before the members," the Bench, also comprising Justices K S Radhakrishnan and Swatanter Kumar, said. "Why the relevant material were not circulated and what was circulated I am not in a position to say," the attorney general said while denying that there was any violation of the procedure in the appointment of Thomas as CVC.
At this point, senior advocate K K Venugopal, appearing for Thomas, said for all these aspects he cannot suffer. However, the Bench shot back saying "don't you think that the agenda paper is supposed to contain all the information and if the agenda is silent they (members of panel) can ask for the relevant materials. Why was the most relevant material not not accompanying the agenda papers. This is what bothering us," the Bench said when it did not get direct answer from Venugopal. The senior advocate supported the appointment of Thomas as CVC by referring to the provisions of the election law under which convicted MPs and MLAs continue in office pending their appeals against the conviction. He claimed that 28 per cent of the MPs (153 out of 435) now have criminal cased pending against them.
The apex court, which posed several questions to Venugopal, said "we intend to lay down guidelines for future appointments and we are not on this case particularly". Thomas was appointed CVC on September 7 last year, but various civil societies like Centre for Public Interest Litigation (CPIL) and some eminent persons including former Chief Election Commissioner J M Lyngdoh have moved the apex court against his appointment as the anti-corruption watchdog.
The petitioners have contended that Thomas cannot be considered as a person of "impeccable integrity" as a charge sheet against him was filed in the Palmolein import scam when he was a secretary in the Kerala Ministry of Food and Civil Supplies. He had secured bail from a local court. The petitioners also alleged that he was appointed against the procedure despite opposition from Leader of the Opposition in Lok Sabha Sushma Swaraj who was part of the three-member selection panel headed by the prime minister.
The petitioners also said he could not be appointed the CVC on account of "conflict of interest" as till recently he was serving as telecom ministry secretary and that there was allegation that he was involved in the "cover-up" of the 2G spectrum scam, which has allegedly caused a huge loss to the state exchequer.
