BITE THE BULLET ON THOMAS

THE controversy about P. J. Thomas' appointment as Central Vigilance Commissioner ( CVC) cannot be brought to a dignified end. It is not necessary to emphasise that the CVC is an important post — an effective culmination to the clumsy steps taken after the Santhanam Committee Report of 1964. The Supreme Court in the Hawala case ( reported 1998) recreated the CVC in profiling this post as an independent post crucial to governance. This was statutorily achieved through the Central Vigilance Commission Act, 2003 — apart from some monkey tricks by the bureaucracy to immunise investigation against them.

The Act of 2003 provides that the recommending authorities shall be the Prime Minister, home minister and the Leader of Opposition in the Lok Sabha ( Section 4). Thomas' appointment was made over the dissent of Sushma Swaraj who, allegedly, based her discomfiture on the fact that Thomas was an accused in the Kerala palmolein export case.

Suitability

The CVC and other vigilance commissioners ( VCs) have a single four- year term except that VCs can have a further single four year term as CVC ( Section 5). VCs and CVCs will not be eligible for any other post in the Union or states. The VCs and CVCs can resign if they want to ( Section 5). But they cannot be removed except by a special reference to the Supreme Court to prove their misbehaviour or incapacity ( Section 6). But if they are guilty of an offence of moral turpitude, insolvency, acceptance of paid office, or have financial or other interests prejudicial to their functions or accepting some other, become infirm of mind and body, they can be removed by the President ( Section 6). The powers of the commission are huge ( Section 8) including the much needed oversight of the CBI and the Prevention of Corruption Act cases.

The controversy: The CVC's post is much too important and independent a post for the wrong person to be appointed. What is the meaning of " wrong"? Here the Supreme Court has generally made a distinction between " eligibility" ( which is a narrow test) and " suitability" ( which is a wider test). The narrow " eligibility" test requires CVCs and VCs to simply be bureaucrats in an All India Service with experience and expertise in vigilance, policy making, police or other administration or, if in a public corporation with experience in insurance, banking, vigilance and investigation. If only the " eligibility" test was applied, just about any IAS, IPS and senior officers of public corporations would be eligible. The " eligibility" conditions are so narrow that discretion to appoint anybody is vast. There are some doubts that Thomas was brought to Delhi to make him eligible. Even so, Thomas's appointment cannot really be faulted on the narrow demands of the " eligibility" test.

This is what makes the " suitability" test crucial and important. Is he the right person for the job? Or, is all this now a political squabble triggered off by Public Interest Litigation ( PIL) vigilantes including my friend, the omnipresent Prashant Bhushan. The joker in the pack is the criminal proceedings pending against Thomas which Sushma Swaraj says was the issue on which she dissented at the recommendation meeting of which she was a party. Alas, it is stated on the interpretation of Attorney- General G. E. Vahanvati's arguments that our PM was not aware of this.

Sushma Swaraj says that she is willing to file an affidavit that the PM did know because she brought the issue up. Clearly, if the PM did not know, he should have known. If he did know, why was this not a relevant factor as far as " suitability" was concerned?

Judiciary

The court's power: The real question relates to the Supreme Court's ( SC) power to interfere. The SC is accused of excessive interference in everything. Chief Justice Kapadia feels that the Court's right to interfere must be grounded in law and not simply because it does not agree with the government and feels someone else would be more " suitable". The SC is in a mood of judicial restraint and may refuse to interfere.

But, that is yet to be seen. The SC can interfere on one ground for two reasons.

The ground is rooting out corruption that is essential to good governance which is not just the province of parliamentary control but part of the life and ' liberty' fundamental right provisions of Article 21. This raises the theoretical question as to whether Parliament or the courts should control " bad governance". Given the hawala, forest, police and s*x discrimination cases, the controversy is stale because under the Constitution as it is interpreted today, both have a role.

But the SC's reasons for inquiry can be twofold: ( i) examining eligibility conditions under the writ of quo warranto ( a narrow inquiry) ( ii) examining the reasonableness of the decision ( a wider test which may stray into question of suitability to a limited extent). The ' remove- Thomas' lobby says that the lines between, " suitability" and " eligibility" are thin. But the more important consideration is: Was the ' charge against Thomas' a significant factor which should have been taken into account and given due weightage in the decision to appoint him CVC? If it has not been taken into account and given a due weightage, the very appointment is flawed, void and illegal. If not, Thomas's appointment is valid and he cannot be removed except by special complicated procedures.

Probity

Saving government's face: How does the government get out of this? Will the Court help the government? Thomas wants the government to fight. Once his appointment is declared valid, he is on a cushy wicket.

He has security of tenure for four years and can be removed if convicted or after a special presidential reference to the SC. At present the government supports Thomas, but for different reasons. The government's main interest ( other than Chidambaram's overtures) is to defend the PM and home minister to prove that they did not make a mistake. This is what makes this an issue of party politics. Why? India's badly run Parliamentary system is more interested in attacking the PM and those in power rather than force them into embarrassment and resignation. Such polarisation seems to take place on everything. The fact is that the PM and ministers do make mistakes.

They should admit them. But, they forbear because the Opposition will convert a peccadillo into a grave sin fit to preface resignation.

Statesmanship — admit and resign : In all this, questions of probity are lost. We should be interested in good governance rather than just a labyrinth of party politics.

The answer to the question whether a person accused of a scam should be CVC is that they should not be. Both

the government and Thomas seem to have made this a mooch kaa sawal ( a matter of prestige).

But it should not be.

Looking at the needs of good governance the answer should be simple. The PM and government should clearly admit they made a mistake. This would be the highest traditions of office. Likewise, Thomas should resign — not because he feels he is guilty but because it is in the public interest to do so.

Indian governance allows too many criminals accused of serious offences to hold office. It is time we cleaned up this practice in Parliament, politics and administration.

It is also time that the government learns to admit its mistakes.