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?The judgment of the Supreme Court in the PIL filed by the Centre for Public Interest Litigation and Common Cause to challenge the appointment of Mr. P.J. Thomas as the Central Vigilance Commissioner has done much to reinforce the faith of the people of India in the wisdom and objectivity of the Apex Court and, above all, its capacity for creative interpretation of the bald text of a statute, infusing it with the principles of equity, natural justice and good governance.
While setting aside the impugned appointment as a nullity, the Court has enunciated a new jurisprudence of institutional integrity and held that the appointment, at the helm of the country’s highest integrity institution of a person against whom a charge of corruption was pending, undermined the effectiveness and integrity of the institution. The impropriety of the appointment was further compounded by the arbitrary manner in which the field of selection was restricted to candidates from a particular background and the fact that relevant information concerning the charges against Mr. Thomas was withheld from the High Powered Committee constituted to select the Central Vigilance Commissioner under the Central Vigilance Commission Act of 2003. The Court has made it clear that the personal integrity of Mr. Thomas or the merits of the case against him had no bearing on the issue under adjudication.
Although the judgment in the case of Mr. P.J. Thomas has widely been welcomed as a breath of fresh air, it is far from certain that it will have much of an impact in the dark, fetid corridors of power, where appointments to high constitutional and statutory bodies are decided upon, often on considerations other than the requirements of the job and the credentials of the appointee. By and large, these appointments are perceived as rewards for services rendered to the powers that be and entail an expectation of future subservience.
The arbitrariness and abuse of executive discretion in such appointments has repeatedly been highlighted by concerned social activists and political analysts. It is unfortunate that the PILs filed in this regard in 1996 and 2008 did not receive the attention that they deserved. In hind sight, one may surmise that the Apex Court refrained from intervening in the matter because neither the Constitution nor the Comptroller and Auditor General’s (Duties, Powers and Conditions of Service) Act, 1971 contains any express provisions delineating the criterion of eligibility, the field of selection and the procedure to be followed in the selection as are to be found in the Central Vigilance Commission Act,
?2003, which was framed to give effect to the detailed directions of the Supreme Court in Vineet Narain’s case for empowering the Central Vigilance Commission. Under the circumstance, the executive can exercise much greater discretion in respect of appointment of the Comptroller and Auditor General, notwithstanding the fact that in the eyes of the founding fathers of the Constitution, this office was even more important than the Chief Justice of India. For this reason, it has been contended that if Mr. Thomas were to be appointed as the Comptroller and Auditor General of India, the Supreme Court would have found it difficult to quash his appointment.
Since 1996, Common Cause has approached every possible authority and forum, including the Supreme Court, in an effort to introduce greater rationality and transparency in the system of appointment of the Comptroller and Auditor General of India. We have sought to institutionalize a system whereby only a meritorious person possessing the requisite qualifications, experience and vision is appointed to this high office, and not a hand-picked serving Secretary approaching the age of superannuation, as has been the practice since 1976. We have also underlined the probability of a conflict of interest that is bound to arise when such an appointee is called upon to scrutinize the functioning of his erstwhile department.
It is not our intention to suggest that a person appointed as the Comptroller and Auditor General through the flawed system prevailing today should necessarily be unequal to the demands of his Constitutional office. The current incumbent, for example, has acquitted himself with credit in painstakingly unravelling complex cases of grand corruption involving the top echelons of the political- bureaucratic power structure. It has more to do with his individual character and work ethic than the inherent strengths of the selection process leading to his appointment, which is palpably arbitrary, opaque and unaccountable.
This is equally true of appointments to other Constitutional and statutory offices. Many of the appointments made in the recent past have been made for considerations other than merit and served to devalue the institutions they have been foisted upon. The case of Mr Navin Chawla should still be fresh in the public memory. He had earned considerable notoriety for his excesses during the Emergency and was known for his proximity to the Congress Party and its first family. Not only was he appointed as Central Election Commissioner by the first United Progressive Alliance government, he was also elevated to the office of the Chief Election Commissioner despite a scathing appraisal by his predecessor. There have been equally questionable appointments to the Central Information Commission and countless regulatory bodies and National Commissions.
A particularly egregious case of abuse of executive discretion relates to the appointment in May 2009 of Mrs Omita Paul, a retired officer of the Indian Information Service, as Central Information Commissioner. She had long been associated with Mr Pranab Mukherjee and served as his Officer on Special Duty/Advisor during his passage to the Planning Commission and the ministries of Commerce, Defence and External Affairs. Evidently, she had to be rewarded for her loyalty with a sinecure, given the uncertainty of the outcome of the general elections, which were underway. Returned to power, the United Progressive Alliance government lost no time in appointing her as Advisor to Mr Mukherjee in his new ministry of Finance. Mrs Paul’s tenure in the Central Information Commission, which commenced on May 13, 2009, ended with her resignation on June 26, 2009, a day after her appointment as Advisor to the Finance Minister. The exigencies of public service are truly inscrutable! When her appointment as Central Information Commissioner was challenged on the grounds of violation of the Model Code of Conduct, the Election Commission of India headed by the redoubtable Mr Navin Chawla held that the Code did not apply to statutory appointments!
The practice of appointing favoured, pliable bureaucrats and party loyalists to high offices is by no means confined to the dispensation currently in power at the Centre. State governments of various political affiliations are in fact afflicted by an aggravated form of this malady. State Public Service Commissions, a hallowed Constitutional institution, are routinely packed with dubious politicians and retired officials, who are every now and then hauled up for flagrant corruption in recruitment to state services. State Information Commissions, populated mostly by faithful retainers and acolytes of Chief Ministers and party big-wigs, exert themselves to subvert the Right to Information Act.
Clearly, the system of appointments to the institutions of governance, which have been accorded an exalted status in the country’s legal framework, is in the need of a thorough overhaul. The laws governing these institutions show a great deal of diversity in the extent of detailing in the provisions concerning eligibility criteria, zone of consideration and method of selection of their top functionaries. Laws of recent vintage contain relatively elaborate provisions in this regard. However, in-built safeguards against the abuse of executive discretion are either absent or inadequate. In some of the laws, an effort has been made to raise the credibility of the appointment process by prescribing a selection committee and including the leader of opposition in it. Experience has shown that this is not sufficient to ensure the objectivity of the selection process. At the institutional level, there is a commonality of interest and mutual accommodation between the leaders of the ruling party and the opposition. The appointment of Mrs Omita Paul mentioned above was, after all, cleared by the leader of opposition. The controversial selection of Mr P J Thomas, where the leader of opposition had recorded a dissenting note, is an exception, rather than the norm. Even in this case, the Supreme Court did not buy the argument that the selection committee should have arrived at its decision by consensus; it faulted the selection on the ground that vital information regarding the criminal case against Mr Thomas was withheld from the selection committee. In this situation, it will be unrealistic to expect the courts to supply the deficiency in the relevant statutes by laying down the guidelines for preventing the abuse of discretionary powers and ensuring transparency and accountability in the process of selection for Constitutional and statutory offices.
The stimulus for effecting the desired change will have to come from the long-suffering people of India, who have been a helpless witness to the steady decline of the institutions of our polity. The civil society campaign for an effective Lokpal law has shown how a paradigm shift in the arcane process of law making can be brought about. The Jan Lokpal Bill formulated by civil society, which serves as the starting point for the joint drafting panel, contains elaborate provisions for ensuring that the selection process is independent, broad-based, objective and transparent. The guidelines laid down by the Supreme Court in the CVC case have set the gold standard for the levels of diligence and transparency required in the process of selection commencing with the preparation of the panel of candidates. Taken together, these formulations will provide the elements around which a reform of the system of appointment to high Constitutional and statutory offices needs to be undertaken. The task is enormous, given the vast number and diversity of framework laws. But it is an undertaking whose time has come.