DEFECTIVE LAW FACILITATES WRONG APPOINTMENT
The UPA government’s blatant decision to plant their own man, P. J. Thomas in the office of the Chief Vigilance Commissioner, despite strong opposition by the leader of the opposition, has sparked off a huge political controversy. The BJP, calling the Government’s decision “sad and shocking,” took the matter right up to the President, requesting her not to sign the order of appointment. Now that the appointment has been made and the matter has become a fait accompli, it calls for dispassionate discussion.
The BJP objected to this appointment mainly on the ground that P. J. Thomas did not have the right credentials for the job. In past, there were allegations against Thomas’s alleged involvement in the palm oil import scam in Kerala. Though he had been absolved of the charges in an inquiry, the BJP argued - and rightly so - that the man occupying such an important post must be spotlessly clean. The BJP also fears that this appointment has been made by the government to cover up the 2G spectrum scam, in which accusations have been leveled against the Telecom Minister A Raja.
The appointment of Thomas cannot be faulted on grounds of law. The legal provision for the appointment is contained in Section 4 (1) of the Central Vigilance Commission Act, 2003. It says that the appointment shall be made by the President after obtaining the recommendation of a Committee consisting of the Prime Minister as the chairperson, Home Minister as one member and the leader of opposition as another member. The Act does not require the recommendations of the committee to be unanimous. It does not say that the appointment can be made only when all three members of the Committee agree on a name.
Similarly, the Act is also surprisingly and conspicuously silent about the integrity record of appointees to the post. All that Section 3 (3) of the Act requires is that the chief and the other members of the Commission shall be appointed from amongst persons “(a) who have been or are in an All-India Service or in any civil service of the Union …. having knowledge and experience in the matters relating to vigilance, policy making and administration including police administration” or (b) who have held office or are holding office in a corporation or a company owned or controlled by the Central Government and persons who have “expertise and experience in finance, law, vigilance and investigations” Thus while the Act insists on having persons with administrative and other types of experience, it is definitely mute about their integrity antecedents.
However, what is legal need not necessarily be legitimate. The BJP’s objection that the Chief Vigilance Commissioner must be spotlessly clean has considerable merit. The legislation governing the structure and working of CVC owes its existence to the judgement delivered by the Supreme Court of India in December 1997 in the Havala case. Besides directing that the Commission must be given a statutory cover, the Judgement also said that selection for the post of Central Vigilance Commissioner should be made by the Committee “from a panel of outstanding civil servants and others with impeccable integrity.” The CVC Act conveniently omitted the category of “others” and confined the selection to a panel of civil servants or office bearers of public sector undertakings of the central government. The Act did not even insist on having officers who were “outstanding” or have “impeccable integrity.” Being a central government employee with certain experience alone was enough.
However, the CVC Act was passed by the Parliament in 2003 when the BJP was ruling at the centre. That was the time when the BJP should have ensured inclusion in the legislative enactment of “impeccable integrity” clause and widening of the circle from which recruitment could be made to this post.
Another objection to this appointment has been raised by referring to P.J.Thomas’s decision as Secretary, Telecom to obtain views of the Ministry of Law whether the CAG or CVC could question the policy decisions of the government. Here again, law, with its inadequacies and shortcomings, comes to the rescue of the government. Section 8(1) (h) of the CVC Act requires the CVC to “exercise superintendence over the vigilance administration,” but with a proviso, which says that “nothing contained in this clause shall be deemed to authorise the Commission to exercise superintendence over the vigilance administration in a manner not consistent with the directions relating to vigilance matters issued by the Government and to confer power upon the Commission to issue directions relating to any policy matters.” There is no cut and dried definition of what constitutes a policy matter and the Act made no attempt to describe it. Prior to the enactment of the CVC Act, the CVC’s working was governed by The Resolution of the Government of India No. 24/7/64-AVD dated February 11, 1964 with which it was set up on the recommendations of the Santhanam Committee on Corruption. The Resolution had no such clause. It required the Commission to “exercise general check and supervision over vigilance and anti-corruption work,” but simultaneously authorised it to “initiate at such intervals as it considers suitable review of procedures and practices of administration in so far as they relate to maintenance of integrity in administration.” These powers were diluted through law passed in 2003 to govern the working of the Central Vigilance Commission.
The need of the UPA government to have its own man as Central Vigilance Commissioner has probably been guided by another consideration, which has not received adequate notice. The present Director CBI is retiring very shortly. The Central Vigilance Commissioner is the chairperson of the committee which selects the officer for the post of Director CBI.
The CVC Act, 2003 is not only inadequate and deficient but also mischievous in many ways. This is the law which legalised a set of executive instructions known as the Single Directive, which were held by the apex Court in the Havala case judgement as contrary to law. It also introduced a system of dual control over the CBI. The Act did all it could to dilute the judgement of the highest Court in one of the most important criminal cases decided by it since Independence and to weaken the two important offices meant to check corruption in the country - the CVC and the CBI.
