“Supreme Court cannot examine my eligibility”

Can question of suitability or eligibility be excluded from judicial review even if there is a fact of conviction, asks CJI

While defending his appointment as the Central Vigilance Commissioner (CVC), P.J. Thomas on Monday made it clear that the Supreme Court could not examine his “suitability” or “eligibility” after it had been decided by the high-power committee headed by Prime Minister Manmohan Singh.

Senior counsel K.K. Venugopal, appearing for Mr. Thomas, made this submission before a three-judge Bench comprising Chief Justice S.H. Kapadia, and Justices K.S. Radhakrishnan and Swatanter Kumar. The Bench is hearing a writ petition filed by the Centre for Public Interest Litigation and others challenging the appointment of Mr. Thomas as CVC.

The CJI asked counsel: “Can the question of suitability or eligibility be excluded from judicial review even if there is a fact of conviction and if he is appointed to the post of CVC? Would you still say that the court should keep its hands off?”

Mr. Venugopal maintained that if Parliament in its wisdom had enacted the law (the CVC Act) laying down qualification for the post and there was no disqualification mentioned, the court could not add a further disqualification which was not provided for in the statute.

He contended that the selection, based on the subjective satisfaction of the appointing authority, could not be called in question.

Charge sheet issue

Mr. Venugopal pointed out that 153 Members of Parliament were facing charge sheets or had a criminal background, and they were deciding the laws for the country. This would show that mere pendency of a charge sheet was not a disqualification, and this would not affect the eligibility of Mr. Thomas for appointment to the post of CVC.

The CJI told counsel: “We [judges] preside over a committee to decide the appointment of members of the Administrative Tribunals. If relevant facts are not considered, our decisions can be struck down. Further, if full facts are known to the committee and if two opinions are not possible [on the suitability of a candidate] based on these facts, do you still say that such decisions are beyond judicial review?”

The CJI added: “What we are concerned here is whether the decision of the committee [to appoint Mr. Thomas as CVC] is vitiated by non-consideration of relevant facts. We intend to lay down certain guidelines for future.”

Justice Radhakrishan wanted to know whether the full facts including the order of the Kerala government dated November 30, 1999, granting sanction for prosecution of Mr. Thomas (for conspiracy) were placed before the committee.

Mr. Venugopal, quoting newspaper reports, said that at least two of the members of the committee — Union Home Minister P. Chidambaram and Leader of the Opposition in the Lok Sabha Sushma Swaraj — had expressed the view that the question of charge sheet pending against Mr. Thomas was in fact discussed at the meeting, and that a substantial amount of time was devoted to this subject.

The CJI, however, told counsel: “We don't go by newspaper reports.”

When Mr. Venugopal said that all files relating to the subject under discussion were kept in an ante-chamber and that the Secretary concerned was ready if any clarification was sought, the CJI said: “The agenda note is silent about the materials placed on the file. If it is silent how can the committee ask for clarification?”

To a specific question from the CJI to Attorney-General G.E. Vahanvati on whether the agenda papers were circulated in advance to the committee members, the A-G, while defending the procedure, replied: “No. Only the bio-data and no other material was circulated. Why the relevant materials were not circulated or what was circulated, I am not in a position to say. What they [the members] saw in the meeting, what they did, I am not aware of it.”

Mr. Venugopal submitted: “I [Mr. Thomas] cannot suffer for this.” But the CJI observed: “Why did the most relevant material not accompany the agenda papers? This is what is bothering us.”

Mr. Venugopal argued that Mr. Thomas was appointed Chief Secretary of Kerala, and once this appointment was made, the pendency of a charge sheet as well as the sanction had no value. However, Justice Radhakrishnan pointed out that Mr. Thomas had not challenged the order of sanction “which stands as on today” and “it has not been challenged.”