After the Supreme Court nullified the appointment of PJ Thomas as India’s Central Vigilance Commissioner (CVC), Congress spokespersons took heart that the court had at least upheld the ‘majority principle’. It had agreed that the committee that chooses the CVC need not decide unanimously. Is this a moral victory for the government, or are the woods being missed for the trees?
It is necessary to see the CVC’s appointing process in context. In the 1990s, as the hawala and other scandals buffeted the political class, the Supreme Court set about strengthening the CVC as India’s top anti-corruption watchdog. In a December 1997 judgement, it asked for the Central Vigilance Commission to be made a statutory body and given superintendence over the Central Bureau of Investigation (CBI). It said the CVC would be appointed by a panel comprising the prime minister, home minister and leader of the Opposition in the Lok Sabha.
In 2003, Parliament passed the CVC Act to enable implementation of this judgement. It didn’t give the CVC the autonomy the court had hoped for, but nevertheless it seemed to adhere to the spirit of 1997. By making the CVC’s selection bipartisan, it was hoped the government and the Opposition could agree on one name — among hundreds of secretary-level officers — to head India’s leading anti-corruption authority.
In Thomas’ case, the PM and home minister insisted on him, while the leader of the Opposition dissented. The government’s position in court was that the majority view was enough and it wasn’t obliged to seek unanimity. How does one see this? Do the CVC’s three selectors come to the table as autonomous individuals, with uncoordinated selection lists? If the PM and home minister are determined to push through the government’s candidate, why have this charade of consulting the leader of the Opposition at all?
On the other hand, can the Opposition, which has lost the previous election, be given a veto on decisions that are in the domain of the government, which has after all won a mandate? These are tricky questions, best avoided. Indeed, they neglect the appeal for unanimity implicit in the 1997 judgement.
Of course, the issue of principle is linked to that of personality. In arguing its case, the UPA government cited a precedent from 1999, when a committee comprising the then PM and home minister (both BJP), Lok Sabha speaker (Telugu Desam) and leaders of the Opposition in the two Houses of Parliament (both Congress) chose the chairman of the National Human Rights Commission. The Congress representatives proposed Justice AH Ahmadi. They were outvoted by the others, who opted for Justice JS Verma.
In invoking this example, the UPA made its point about unanimity being ideal but not mandatory. Even so, it let slip a decidedly clumsy comparison. Ahmadi has had a mixed record since leaving the Supreme Court. He was controversial as chair of the trust governing the Bhopal Memorial Hospital set up by Union Carbide for victims of the 1984 gas leak. It has been alleged that patients at the hospital — survivors of the gas leak — were subjected to drug trials by pharmaceutical companies without their consent. This would make Ahmadi an odd choice for any sort of human rights capacity. In contrast, Verma is cherished as among India’s finest jurists. As with Thomas, why did the Congress believe Justice Ahmadi was more suitable than anyone else? The answer would be fascinating.
(Ashok Malik is a Delhi-based political commentator)
*The views expressed by the author are personal.