We should cheer now! Thursday’s Supreme Court landmark judgment annulling PJ Thomas’s appointment as CVC gives nepotism a kick in the pants. This order contains instructions for ensuring transparent selections of constitutional authorities such as State & Central Information Commissioners, members of Human Rights Commission, Minorities Commission, etc. We can use these ‘legal gems’ in our letter-baazi, complaints, RTI applications & writ petitions.
In this copy of the SC judgment, these 10 directives are shown in the right margin in Red Roman Numerals: http://tinyurl.com/SC-sacks-CVC1
These are also listed below.
Ten Directives for Transparent Selection:
I. High Courts must entertain when appointments are challenged. “We reiterate that Government is not accountable to the courts for the choice made but Government is accountable to the courts in respect of the lawfulness/legality of its decisions when impugned under the judicial review jurisdiction.”(Pg 52, Point 45)
II. Recommendation made without due procedure are null & void. “If a duty is cast under the proviso to Section 4(1) on the High Powered Committee (HPC) to recommend to the President the name of the selected candidate, the integrity of that decision making process is got to ensure that the powers are exercised for the purposes and in the manner envisaged by the said Act, otherwise such recommendation will have no existence in the eye of law.” (Page 2, point 2).
III. CVC is defined as an “Integrity Institution”. (The same definition may stretch to Information Commissions.) “In our opinion, CVC is an integrity institution. This is clear from the scope and ambit (including the functions of the Central Vigilance Commissioner) of the 2003 Act. It is an Institution which is statutorily created under the Act. It is to supervise vigilance administration. The 2003 Act provides for a mechanism by which the CVC retains control over CBI. That is the reason why it is given autonomy and insulation from external influences under the 2003 Act.” (Page 22, Point 26.)
IV. The key issue is Institutional Integrity, not Personal Integrity. “The constitution of CVC as a statutory body under Section 3 shows that CVC is an Institution. The key word is Institution. We are emphasizing the key word for the simple reason that in the present case the recommending authority (High Powered Committee) has gone by personal integrity of the officers empanelled and not by institutional integrity.” (Point 28, page 30)
V. Recommendation of Selection Committee must show a proper thought-process. “The word ‘recommendation’ in the proviso stands for an informed decision to be taken by the HPC on the basis of a consideration of relevant material keeping in mind the purpose, object and policy of the 2003 Act. As stated, the object and purpose of the 2003 Act is to have an integrity Institution like CVC which is in charge of vigilance administration and which constitutes an anti-corruption mechanism. In its functions, the CVC is similar to Election Commission, Comptroller and Auditor General, Parliamentary Committees etc. Thus, while making the recommendations, the service conditions of the candidate being a public servant or civil servant in the past is not the sole criteria.” (Point 28, page 31-32).
VI. The logic of decision-making process must be self-evident. “Appointment to the post of the Central Vigilance Commissioner must satisfy not only the eligibility criteria of the candidate but also the decision making process of the recommendation. The decision to recommend has got to be an informed decision keeping in mind the fact that CVC as an institution has to perform an important function of vigilance administration. (Point 33, page 36)
VII. The touchstone is Public Interest. “When institutional integrity is in question, the touchstone should be ‘public interest’ which has got to be taken into consideration by the HPC and in such cases the HPC may not insist upon proof ” (i.e. conclusive proof of the candidate being corrupt or ineligible.) “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. 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. 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.” (Point 33, page 37)
VIII. Don’t consider only civil servants. “No reason has been given as to why in the present case the zone of consideration stood restricted only to the civil service.” (Point 55, page 68).
IX. Step-by-step instructions for selection procedure, incl. how list of candidates will be prepared (Point 55, pg 68 onwards):
(a) Record reasons, especially if there’s dissent. “As in the present case, if one Member of the Committee dissents that Member should give reasons for the dissent and if the majority disagrees with the dissent, the majority shall give reasons for overruling the dissent. This will bring about fairness-in-action. Since we have held that legality of the choice or selection is open to judicial review we are of the view that if the above methodology is followed transparency would emerge which would also maintain the integrity of the decisionmaking process.”
(b) Don’t restrict selection to civil servants. “In future, the zone of consideration should be in terms of Section 3(3) of the 2003 Act. It shall not be restricted to civil servants.”
(c) Impeccable integrity. “All the civil servants and other persons empanelled shall be outstanding civil servants or persons of impeccable integrity.”
(d) Rational criteria, recording of reasons. “The empanelment shall be carried out on the basis of rational criteria, which is to be reflected by recording of reasons and/or noting akin to reasons by the empanelling authority.”
(e) Fixing accountability for empanelment. “The empanelment shall be carried out by a person not below the rank of Secretary to the Government of India in the concerned Ministry.”
(f) Don’t withhold information. “The empanelling authority, while forwarding the names of the empanelled officers/persons, shall enclose complete information, material and data of the concerned officer/person, whether favourable or adverse. Nothing relevant or material should be withheld from the Selection Committee. It will not only be useful but would also serve larger public interest and enhance public confidence if the contemporaneous service record and acts of outstanding performance of the officer under consideration, even with adverse remarks is specifically brought to the notice of the Selection Committee. ”
(g) Transparent screening procedure. “The Selection Committee may adopt a fair and transparent process of consideration of the empanelled officers.”
X. A precedent is set for quashing of Commissioner’s appointment by court. No need for roundabout methods to remove CIC/SIC! “The impugned appointment of Shri P.J. Thomas as Central Vigilance Commissioner is quashed.” (Point 56, page 71)
Benefits from this Judgment:
A. HALF THE BATTLE IS WON FOR ARVIND KEJRIWAL’S SLP, which was recently admitted by Supreme Court. The Special Leave Petition challenges non-transparent selection of Information Commissioners. Gist of petition: http://tinyurl.com/Kejriwals-SLP1
B. EXPECT VICTORY ON MANY FRONTS. In 2010, Andhra Pradesh High Court and Tamil Nadu High Court admitted writ petitions filed by Madhav Vishnubhatta challenging the arbitrary selection of Chief State Information Commissioners. In Tamil Nadu, the Chief SIC was appointed by the CM’s selection committee, disregarding dissent expressed by opposition leader Jayalalitha. Details of many such unfair appointments: http://tinyurl.com/BadSelection
C. THE CLEAN-UP WILL OPEN UP HUNDREDS OF POSTS AT CENTRAL AND STATE LEVELS. The government will have to consider ‘eminent citizens’ like you all for all such posts, as opposed to political chamchas: http://tinyurl.com/How-Babus-Steal-Power