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Of institutions, not individuals

The controversy - hardly an apt description of what happened on TV channels especially when representatives of political parties trade charges - relating to the appointment of the Central Vigilance Commissioner (CVC), while commencing on a shrill note has ended on what can truly be described as a fine moment for Indian constitutional democracy. Harish Salve writes.

india Updated: Mar 05, 2011 23:24 IST

The controversy - hardly an apt description of what happened on TV channels especially when representatives of political parties trade charges - relating to the appointment of the Central Vigilance Commissioner (CVC), while commencing on a shrill note has ended on what can truly be described as a fine moment for Indian constitutional democracy.

The Supreme Court, in a landmark judgement, struck down the appointment of the CVC. The prime minister in his statement has acknowledged folly and gracefully accepted the verdict. Following the Churchillian wisdom, the leader of the Opposition has acted with magnanimity in victory, has accepted the PM's explanation and suggested that they move on. This is not to suggest that the controversy will die out immediately - just that yesterday's newspapers, for a change, gladdened the heart.

It becomes necessary to understand what precisely the Supreme Court did and why it did so, and why it is a landmark in administrative jurisprudence. It will also be necessary to understand this nuance to appreciate that this judgement is not either judicial adventurism or any occasion to fuel the emotions underlying the ugly 'turf wars' between the executive and the judiciary.

Para 2 of the judgement begins with words worthy of quotation. It says: "The Government is not accountable to the Courts in respect of policy decisions. However, they are accountable for the legality of such decisions." This proposition is clearly stated and is immutable. The court clarifies that its judgement is strictly confined to the legality of the recommendation of the high-powered committee and is neither a comment on the allegations against PJ Thomas nor on the merits of the palmolein case that is pending.

The court painstakingly examined the records of the departments of the government in order to apprise itself of the 'decision-making process'. The judgement then points out - and this is important - that the 1999 ordinance (replaced later by the 2003 Act), making the CVC a multi-member commission and conferring upon it a statutory status, was to "improve the vigilance administration and to create the cultural integrity".

Little surprise that the court emphasised that the CVC is an 'institution' and, therefore, what is necessary to be kept in focus by the high-powered committee is not personal integrity but institutional integrity. This is an extremely important development of the jurisprudence in this area of the law. This legal premise logically leads to the examination of the proposition as to the implications upon institutional integrity of the appointment of a person against whom a chargesheet is pending. The judgement is careful enough to clarify that it does not discount the personal integrity of the candidate and says that "what we are emphasising is the institutional integrity of an institution like the CVC has got to be in kept in mind while recommending the name of the candidate..."

If you asked the right question, you would have got the correct answer. The high-powered committee asked itself whether Thomas is a person of integrity. The answer (even if in the affirmative) was irrelevant since it was an answer to a wrong question. Had the high-powered committee asked itself the question as to whether the institutional integrity of the CVC would be unaffected by the appointment of a person against whom there is a charge-sheet in a court of law, the answer would emphatically be in the affirmative.

In saying so, the Supreme Court has laid down a very important proposition of constitutional jurisprudence that has ramifications not merely upon the appointment of the CVC but should also be seriously considered in the context of the growing criminalisation of politics.

One of the reasons to oppose a disqualification of those against whom charges have been framed is that a person is presumed to be innocent until he is proven guilty, and that framing of charges is only on a prima facie basis. However, this presumption relates to the personal integrity of the incumbents. Here again, it depends on what question you ask: personal integrity or institutional integrity? The Parliament and the legislatures of the states - institutions that represent the will of the political sovereign - are vital institutions of democracy and as such should command public confidence as being representative of high levels of integrity.

Applying the test of institutional integrity, the question to ask is: is it compatible with institutional integrity of the Parliament and the state legislatures to have persons who have been charged with criminal offences? The answer to the question is clearly in the negative.

Institutional integrity must prevail over the presumption of innocence and the conclusion clearly must be that while a person in public life against whom charges have been framed may be presumed to be innocent, institutional integrity would suffer if such a person is permitted to become a member of the legislature.

The jurisprudence of institutional integrity is thus a constitutional development of great foresight, and as a student of constitutional law, I must salute the Supreme Court for having paved the way for a restructuring of institutions that unfortunately have suffered a grave fall in public perception and confidence.

Our prime minister is not just a fine economist but a senior statesman. The leader of the Opposition is also a venerated politician of great perspicacity. They have unanimously welcomed the judgement - and not just its conclusion that Thomas is no longer the CVC.

The state of disrepair of Indian democracy would surely spur them to recognise this jurisprudence of institutional integrity laid down by the Supreme Court and pave the way for fixing the 'ethical deficit' that is becoming the bane of contemporary governance.

Harish Salve is former
Solicitor General of India
The views expressed by the author are personal

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