The controversy over the appointment of Mr PJ Thomas as Central Vigilance Commissioner (CVC) had been sought to be reduced, self-servingly, by the Prime Minister and Congress party as a case of the BJP playing usual cynical politics.
Which is why the most heartening thing about the whole sorry episode was the role played by everyone — the opposition, the media, the civil society, and particularly the NGOs — Centre for Public Interest Litigation (CPIL) and Common Cause — and some eminent persons of unimpeachable credentials, such as former Chief Election Commissioner JM Lyngdoh and Prashant Bhushan —who petitioned against the appointment, and eventually, the Supreme Court itself.
What is specially satisfying about today's verdict by the Supreme Court quashing the impugned appointment of Mr PJ Thomas as CVC is the sense of relief that despite pervasive cynicism, the constitutional system and various institutions deliver whenever conscientious individuals have intervened and persisted in doggedly seeking justice.
At least till its January 27 affidavit, the government thought it could brazen it out [See the time line below] by suggesting that the PM was not even aware of the Palmolein case against Mr Thomas. [Writing as late as January 31, even the eminent constitutional lawyer Rajeev Dhavan stated, "Alas, it is stated on the interpretation of Attorney- General G. E. Vahanvati's arguments that our PM was not aware of this"] . Till Ms Sushma Swaraj stepped in and threatened to move SC herself.
Things changed rapidly thereafter.
Even the PM's party and government colleague, Mr P. Chidambaram, the other member of the High Power Committee [HPC] to select the CVC, decided that self-preservation lay in making it clear that the HPC
"was aware of the palmolein case; that no sanction for prosecution of Shri Thomas had been granted since 1999; that the case was pending in the Trial Court; that the Supreme Court had stayed the trial of the case; and that the then CVC had granted vigilance clearance in respect of Shri Thomas"
In short, the government was basing, as the SC also correctly emphasised, its decision on what it called the "vigilance clearance in respect of Shri Thomas".
The Prime Minister himself was very much a party to this decision. And that is where, given his repeated invocations of Caesar's wife, he would -- at least, should -- have known that it was not a question of Mr Thomas's eligibility, but a question of his "suitability" that was being raised by Ms Swaraj.
It should not have taken the Supreme Court to point out the obvious. But in the end, as it turned out though, it was left for the Supreme Court and the sagacity of the current Chief Justice Kapadia which ensured that the Court's right to interfere was "grounded in law" with this remarkable, landmark judgment that should at least act as a caution and temper "official arbitrariness" in the future.
And, as the former CEC J.M. Lyngdoh pithily put it, the SC judgment is "not an indictment of Thomas. It is an indictment of the Home Minister and Prime Minister."
While the law minister, just like the Attorney General earlier, has tried defending the indefensible, the PM at the least owes an explanation as to why he, along with his home minister, insisted on Mr Thomas's appointment.
Whose choice was Mr Thomas, afterall?
Incidentally, more than a month back, much after the deed was done, Rajeev Dhavan had succinctly come to the heart of the matter and shown the only way out, by suggesting a bit of statesmanship and a simple mea culpa:
The government's main interest ( other than Chidambaram's overtures) is to defend the PM and home minister to prove that they did not make a mistake. This is what makes this an issue of party politics. Why? India's badly run Parliamentary system is more interested in attacking the PM and those in power rather than force them into embarrassment and resignation. Such polarisation seems to take place on everything. The fact is that the PM and ministers do make mistakes.
They should admit them. But, they forbear because the Opposition will convert a peccadillo into a grave sin fit to preface resignation.
Statesmanship - admit and resign: In all this, questions of probity are lost. We should be interested in good governance rather than just a labyrinth of party politics.
The answer to the question whether a person accused of a scam should be CVC is that they should not be. Both the government and Thomas seem to have made this a mooch kaa sawal ( a matter of prestige). But it should not be.
Looking at the needs of good governance the answer should be simple. The PM and government should clearly admit they made a mistake. This would be the highest traditions of office. Likewise, Thomas should resign - not because he feels he is guilty but because it is in the public interest to do so.
Indian governance allows too many criminals accused of serious offences to hold office. It is time we cleaned up this practice in Parliament, politics and administration.
It is also time that the government learns to admit its mistakes.
He was of course being very charitable, suggesting how a virtue could once again be made out of a necessity, for in this case the "mistake", not to put too fine a point on it, seemed to be deliberate. Someone clearly thought they could get away as usual, just as they had at the time of the appointment of CEC Navin Chawla, or why, indeed, the President herself. And our efficient government and honest Prime Minister of course were as usual happy to fudge the issue by simply blaming the BJP bogeyman, and revelling in the complacency of that TINA feeling.
If only the PM and his party president realised that the country doesn't like daily insults to its intelligence and is more than mature enough to handle simple, unambiguous admissions of genuine mistakes or even of an error -- or a blunder, as in this case. In fact, this is the time when only an expression of graceful humility and honesty is required. Mr Moily needs to be advised to stop playing pot, kettle and black forthwith.
Some important dates and the flip-flop of Manmohan Singh's UPA government are detailed below:
Sep 3, 2010: The prescribed high-power committee of Prime Minister Manmohan Singh, home minister P. Chidambaram and leader of opposition in Lok Sabha met to finalise the appointment of the new Central Vigilance Commissioner (CVC) out of three names that had been chosen by the government.
Sushma Swaraj later revealed that when asked for her views by the PM, she objected to Telecom Secretary PJ Thomas' name because of his involvement in the Palmolein import graft case.
[The Palomolein graft case related to loss to the tune of Rs 2.32 core allegedly caused to the exchequer by import of Palmolein through a Malaysia based firm at exorbitant rates in 1991-92 when late congress leader K Karunarakan was the chief minister of Kerala and P J Thomas the Food Secretary and a member of the Board of the Kerala State Civil Supplies Corporation. Thomas figures as the eighth accused in the chargesheet filed by the Vigilance and Anti-corruption Bureau in 2003.]
She said that she even asked the PM to take a day more to get her objections enquired into, but he said that since it was already a Friday and the new CVC had to be sworn in on Sep 7, i.e. the coming Tuesday after the weekend, there was no time to waste.
She said she told them they could appoint either of the other two names, viz. Secretary, Chemicals and Petro Chemicals, Mr Chatterjee or Fertliser Secretary Mr Krishnan but was over-ruled and the PM insisted that while her dissent would be noted, they had decided to appoint Mr Thomas as the CVC.
In addition to her dissent being noted in the letter of recommendation, she also put her dissent on record additionally by writing: "I disagree" on the letter.
Sep 5, 2010: BJP alleged that the decision to appoint PJ Thomas as the new CVC was to cover up the 2G spectrum scam and alleged irregularities in the Commonwealth Games related projects and the decision was "unacceptable" to the BJP. The party also described the proceedings of the meeting of September 3 as detailed above.
Sep 6, 2010: Prime Minister Manmohan Singh in his interaction with print editors was asked about the meeting of the high-power committee to appoint the CVC:
Q.33 Sir, on the appointment of the new CVC, the BJP has come out with strong criticism of the way you handled the meeting and that you were stubborn regarding their objections to the appointment.
Manmohan Singh: If you were to go by what the BJP is saying – they will continue to say what they say what they do. I think what we have done is the right thing, of all the three persons whose names were under consideration, we have chosen the best possible person. And beyond that, I would not like to say anything at this stage.
Sep 7, 2010: Telecom Secretary PJ Thomas is sworn is as CVC, BJP boycotts the ceremony and complains to President Patil about the manner of appointment. Sushma Swaraj, the leader of opposition in Lok Sabha, explains her party's decision: "I went to apprise the President about why I had given a dissent note in the CVC selection committee against P J Thomas. I felt that she would only be knowing what she had read about the issue in newspapers. I gave her all the details of what transpired in the meeting and why and for what reasons I opposed the candidature of Thomas,"
Sep 27, 2010: Kerala Chief Minister V S Achuthanandan questioned the appointment of P J Thomas as Central Vigilance Commissioner, saying he still figured as an accused in a graft case relating to import of palmolein.
Oct 18, 2010: A petition was jointly filed by NGOs, Centre for Public Interest Litigation (CPIL) and Common Cause, and some eminent persons like former Chief Election Commissioner J M Lyngdoh, in the Supreme Court challenging the appointment of PJ Thomas as CVC.
The petitioners contended that Thomas could not be considered as a person of "impeccable integrity" as he was chargesheeted in the Palmoleine export scam when he was Secretary in Kerala Ministry of Food and Civil Supplies and had secured bail from a local court. The PIL said Thomas also could not be appointed as CVC on account of "conflict of interest" as till recently he was serving as the Secretary in Telecom Ministry and there was allegation that he was involved in the cover-up of the 2G spectrum allocation scam, which, according to the petitioners, has caused a loss of Rs 70,000 crore to the state exchequer. The petition sought a direction to set aside the appointment of Thomas as CVC contending that despite objection from the Leader of the Opposition his name was considered for the post.
Nov 8, 2010: The SC asked for the file relating to Mr PJ Thomas' appointment as the CVC:
Attorney General Goolam E. Vahanvati, opposing the above said the statements made in the petitions were not correct.
Vahanvati said Thomas had no role in the Palmoleine export case and there was a position taken to withdraw the case against him.
Further, there was no sanction to prosecute him in the case as he has no role in the scam, the Attorney General claimed.
He said it was the cabinet which had taken the decision on the issue of Palmoleine export and a case under Prevention of Corruption Act is not made out against him.
Vahanvati said Thomas was brought to the Centre from Kerala on the recommendation of the state government before taking up the job of Telecom Secretary.
Nov 22, 2010: The Supreme Court raised questions about the controversial appointment of PJ Thomas as CVC and asked for the file concerning his appointment:
"Without looking into the file, we are concerned that if a person is an accused in a criminal case how will he function as CVC?"
"Let us proceed on assumption that at every stage there will be allegations that you should not process a file as Central Vigilance Commissioner as you are accused in a criminal case. How will you function as CVC?," the bench said, adding: "In every case the CBI has to report to him."
"Under the service jurisprudence, a person cannot even be considered for promotions when a chargesheet is pending against him," said the bench.
"At this stage as a chargesheet is pending against him since 2002, he is not even considered to be promoted. We are only suggesting whether he will be able to function as CVC. He himself will be an embarrassment," it said.
"Since this matter is very important, we will structure our order on this basis," the court said.
The court's posers regarding Thomas's appointment prompted a sharp response from Attorney General G E Vahanvati who said if the kind of allegations levelled against him are considered then all judicial appointments would be open to scrutiny. The AG said all procedures have been followed in the case of Thomas' appointment.
Nov 30, 2010: The Supreme Court questioned the PJ Thomas's moral right to supervise CBI's probe into the 2G spectrum scam as he himself was telecom secretary at the relevant point of time.
"CBI is functioning under the CVC, at that time he (Thomas) was functioning as telecom secretary. It would be difficult for him to objectively monitor. He had justified the action which are being subjected to scrutiny by this court and CBI. It would be difficult for him to objectively supervise," a bench comprising Justices G S Singhvi and A K Ganguly said
Dec 6, 2010: Supreme Court issued notice to CVC Thomas in response to Public Interest Litigations (PILs) and petitions filed by the NGO, Centre for Public Interest Litigation (CPIL) and some other eminent persons, including former Chief Election Commissioner J M Lyngdoh, against his appointment.
Jan 17, 2010: The UPA strongly defended PJ Thomas, saying he was an "outstanding officer" with "impeccable integrity".
Jan 27, 2010: The UPA's legal defence tried playing it too clever by half. Attorney General G E Vahanvati argued before the SC that PJ Thomas was appointed as the CVC on the basis of vigilance clearance and the issue of chargesheet and sanction for his prosecution in corruption case was not placed before the panel.
"The vigilance clearance is granted on the letter by Cabinet Secretary to the Department of Personnel and Training. The CVC granted clearance (for appointment of PJ Thomas as Secretary Parliamentary Affairs) on October 6, 2008. This is the basis on which we have acted. This is the legitimate way in which we proceeded"
However, the SC bench wanted to know from the senior-most law officer if keeping the materials about the pending case against Thomas away from the high-powered committee did not vitiate the selection process. Vahanvati replied that not placing the facts about the Palmolein import case would not vitiate the selection process and repeatedly said there was no reference of the case before the panel:
"The fact that there was a pending case and he was an accused was not brought before the committee"
"It was not before the committee. The material pertaining to the sanction for prosecution under section 120B of the Indian Penal Code was not before the committee. The bio-data did not reflect this aspect before the committee."
As soon as this was reported by news channels, it was rubbished as baseless and an "untruth" by leader of opposition in Lok Sabha, Sushma Swaraj. The AG had to come up for an unusual appearance outside the court to offer a legalistic and technical explanation :
He said during the morning court proceedings a specific query was raised as to whether the papers and the file pertaining to the Palmolein case pending against Thomas, the request for sanction of prosecution against him and the subsequent correspondence were circulated before members of the committee.
"I made a statement from the record that the papers and file were not circulated," the AG said, adding that when the counsel for the petitioner claimed that Swaraj had orally raised the issue, he had observed she had made a noting, "I disagree".
"Accordingly," Vahanvati said, "it was not possible for me to tell the court that what was or not discussed amongst the members of the committee at the meeting."
The AG said he had never stated that the Palmolein case was not discussed by the committee.
Replying to questions, he said, "what was discussed was not relevant to the query. It may have been discussed. I don't know. There are no details".
By then the government "sources" were already bemoaning the fact that the CVC was refusing to resign voluntarily, despite suggestions to that effect from the highest quarters, even as the UPA tried unsuccessfully to put up a brave-front in the SC.
They were back once again today, blaming the CVC for not having voluntarily resigned earlier.
PS: Just by the way, as a word of unsolicited advice to Ms Sushma Swaraj and the BJP: perhaps it would help the cause of her party if it believed in issuing press-releases in English as well. This blogger may have been able to follow her detailed statement of February 2 in Hindi, but he is not sure how many of the opinion-makers out there in English publications would have bothered to.
Full text of the judgement is here.
The following parts of the court's judgement place the matter in some perspective, as it clearly accepts the petitioners' charge of "conflict of interest" and addresses the question of "suitability":
If the selection adversely affects institutional competency and functioning then it shall be the duty of the HPC not to recommend such a candidate. Thus, the institutional integrity is the primary consideration which the HPC is required to consider... In the present case, this vital aspect has not been taken into account by the HPC while recommending the name of Shri P.J. Thomas for appointment as Central Vigilance Commissioner.
We do not wish to discount personal integrity of the candidate. What we are emphasizing is that institutional integrity of an institution like CVC has got to be kept in mind while recommending the name of the candidate.
Whether the incumbent would or would not be able to function? Whether the working of the Institution would suffer? If so, would it not be the duty of the HPC not to recommend the person.
...If a statutory body like HPC, for any reason whatsoever, fails to look into the relevant material having nexus to the object and purpose of the 2003 Act or takes into account irrelevant circumstances then its decision would stand vitiated on the ground of official arbitrariness...
...We should not be understood to mean that the personal integrity is not relevant. It certainly has a corelationship with institutional integrity. The point to be noted is that in the present case the entire emphasis has been placed by the CVC, the DoPT and the HPC only on the bio-data of the empanelled candidates. None of these authorities have looked at the matter from the larger perspective of institutional integrity including institutional competence and functioning of CVC.
Moreover, we are surprised to find that 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 Shri P.J. Thomas. Whether State should initiate such proceedings or the Centre should initiate such proceedings was not relevant. What is relevant is that such notings were not considered in juxtaposition with the clearance of CVC granted on 6th October, 2008. Even in the Brief submitted to the HPC by DoPT, there is no reference to the said notings between the years 2000 and 2004. Even in the C.V. of Shri P.J. Thomas, there is no reference to the earlier notings of DoPT recommending initiation of penalty proceedings against Shri P.J. Thomas. Therefore, even on personal integrity, the HPC has not considered the relevant material.
The learned Attorney General, in his usual fairness, stated at the Bar that only the Curriculum Vitae of each of the empanelled candidates stood annexed to the agenda for the meeting of the HPC. The fact remains that the HPC, for whatsoever reason, has failed to consider the relevant material keeping in mind the purpose and policy of the 2003 Act. The system governance established by the Constitution is based on distribution of powers and functions amongst the three organs of the State, one of them being the Executive whose duty is to enforce the laws made by the Parliament and administer the country through various statutory bodies like CVC which is empowered to perform the function of vigilance administration. Thus, we are concerned with the institution and its integrity including institutional competence and functioning and not the desirability of the candidate alone who is going to be the Central Vigilance Commissioner, though personal integrity is an important quality. It is the independence and impartiality of the institution like CVC which has to be maintained and preserved in larger interest of the rule of law [see Vineet Narain (supra)].
While making recommendations, the HPC performs a statutory duty. Its duty is to recommend. While making recommendations, the criteria of the candidate being a public servant or a civil servant in the past is not the sole consideration. The HPC has to look at the record and take into consideration whether the candidate would or would not be able to function as a Central Vigilance Commissioner. Whether the institutional competency would be adversely affected by pending proceedings and if by that touchstone the candidate stands disqualified then it shall be the duty of the HPC not to recommend such a candidate. In the present case apart from the pending criminal proceedings, as stated above, between the period 2000 and 2004 various notings of DoPT recommended disciplinary proceedings against Shri P.J. Thomas in respect of Palmolein case. Those notings have not been considered by the HPC.
Full text of the judgement is here.