SC issues notice in 'Common Cause' PIL seeking quashing of Appointments of new CVC & VC

The Supreme Court today issued notices to the Union Government, new CVC Mr. K.V. Choudhary and new VC. Mr. T.M. Bhasin in a PIL filed challenging their appointments as being contrary to the directions issued by the Apex Court in Vineet Narain case (1998) 1 SCC 226 and Centre for Public Interest Litigation (CPIL) case (2011) 4 SCC 1.

The PIL was filed jointly by the NGO ‘Common Cause’, former Chief of Naval Staff Admiral L. Ramdas, Former Secretaries to the Government of India, E.A.S Sarma and R. Ramaswamy Iyer, Dr. B.P. Mathur, former Deputy CAG, and S. Krishnan, former member, Department of Posts.

The petitioners have challenged the appointments of new CVC Mr. K.V. Choudhary and new VC. Mr. T.M. Bhasin as illegal and void as they violate the principles of ‘impeccable integrity’ and ‘institutional integrity’ laid down in the landmark judgments of the Apex Court in Vineet Narain case (1998) 1 SCC 226 and Centre for Public Interest Litigation (CPIL) case (2011) 4 SCC 1.

While Chaudhary was appointed as the CVC on June 6, this year, Bhasin took charge as the VC on June 11.

The petitioners outlining the backdrop in which the petition came to be filed has invited the attention of the SC to its ruling in the CPIL case (supra) wherein the Apex Court declared the recommendation of the selection committee to the President for appointment of the then CVC as non est in law. This was so held since the SC found that the appointment would dilute the integrity of the statutory institution of the Central Vigilance Commission. The Supreme Court had held that the test is whether the individual would be able to perform his duties. The petitioners submit in their PIL that the ratio of the CPIL judgment is squarely applicable in the present case.

In CPIL case the Supreme Court in its detailed judgment had held:

If a duty is cast under the proviso to Section 4(1) on the 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.

The HPC must also take into consideration the question of institutional competency into account. If the selection adversely affects institutional competency and functioning then it shall be the duty of the HPC not to recommend such a candidate. Thus, the institutional integrity is the primary consideration which the HPC is required to consider while making recommendation under Section 4 for appointment of Central Vigilance Commissioner. In the present case, this vital aspect has not been taken into account by the HPC while recommending the name of Shri P.J. Thomas for appointment as Central Vigilance Commissioner.

We do not wish to discount personal integrity of the candidate. What we are emphasizing is that institutional integrity of an institution like CVC has got to be kept in mind while recommending the name of the candidate. Whether the incumbent would or would not be able to function? Whether the working of the Institution would suffer? If so, would it not be the duty of the HPC not to recommend the person.

In this connection the HPC has also to keep in mind the object and the policy behind enactment of the 2003 Act… These provisions indicate that the office of the Central Vigilance Commissioner is not only given independence and insulation from external influences, it also indicates that such protections are given in order to enable the Institution of CVC to work in a free and fair environment. The prescribed form of oath under Section 5(3) requires Central Vigilance Commissioner to uphold the sovereignty and integrity of the country and to perform his duties without fear or favour. All these provisions indicate that CVC is an integrity institution.

This is what we have repeatedly emphasized in our judgment – institution is more important than individual(s). For the above reasons, it is declared that the recommendation made by the HPC on 3rd September, 2010 is non-est in law.

The Supreme Court in the above CPIL case judgment not only quashed the appointment of the CVC, but also passed important directions to be followed for its selection. Supreme Court nter alia directed thatall the civil servants and other persons empanelled shall be outstanding civil servants or persons of impeccable integrity” and also that “The empanelling authority, while forwarding the names of empanelled officers/persons, shall enclose complete information, material and data of the officer/person concerned, 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, are specifically brought to the notice of the Selection Committee.”

The Supreme Court also further directed that the Selection Committee may adopt a fair and transparent process of consideration of the empanelled officers.

Citing representations submitted by Prashant Bhushan, counsel for the petitioners to the Prime Minister (with copies to the Home Minister and Finance Minister) delivered on 20.05.2015 pointing out why Chaudhary is not eligible and suitable for the position of the CVC as also the letters written by Ram Jethmalani, senior advocate and Member of Parliament, on 26.05.2015 and 02.06.2015 to the Prime Minister requesting him not to select Chaudhary as the CVC stating that he “by no means has a clean record” the petitioners have stated that the appointment of Chaudhary violates the principles of ‘institutional integrity’ and ‘impeccable integrity’ of the CVC as laid down by the Supreme Court in its landmark judgments.

 The petitioners have cited the nexus between Chaudhary and former CBI director Ranjit Sinha who according to the petitioners gave mutual clean chits to each other in the investigations being carried out by agencies under them, as also Chaudhary’s involvement in the ‘stockguru scam’ to substantiate their contention that the appointment made by the Centre does not fulfill the requirement of impeccable integrity as is required for the position of the CVC, and his appointment is arbitrary, illegal and in violation of the principle of institutional integrity.

 With respect to the newly appointed Vigilance Commissioner Bhasin, the petitioners point out that he was indicted in a detailed inquiry by the Central Vigilance Commission in 2013 for forging and tampering with appraisal report of the then General Manager of the Indian Bank, which is a criminal offence.

The petitioner have also drawn the attention of the Court to the fact that former Union Minister and currently a senior member of the ruling party Mr. Subramanian Swamy had written a strongly worded letter to the Prime Minister on 11.06.2015 stating that charge against Respondent No. 3 (Bhasin) is “very serious” and the recommendation of the selection committee to appoint Respondent No. 3 as VC must be withdrawn. He said “finding of moral turpitude by CVC of Mr. Bhasin makes him unfit to keep the position of Vigilance Commissioner.

The petitioners have thus averred that the Union Government has appointed a person who has himself been severely indicted for serious criminal conduct by the same Commission of which he is now a part. Thus, by no stretch of imagination he can be said to have impeccable integrity or unblemished record as is required as per law. Hence his appointment is liable to be quashed, the petitioners have pleaded in their petition.

The petitioners have complained to the SC that complete non-transparency was followed by the Central Government in making the appointment of the CVC and VC. “There was no system followed and there was no scope for public inputs. The representations or inputs made against Respondent No. 2 and 3 were not duly considered. This complete non-transparency renders the appointment void and illegal, and in violation of Article 14 of the Constitution of India.”

They have also taken a ground that non-production of serious adverse material & representations against Chaudhary and Bhasin would vitiate the appointment process and in case the said material was produced and despite that the appointment was made, then that appointment would be mala fide, arbitrary and illegal, as per the judgment of SC in CPIL case.

The petitioners through their counsel Mr. Prashant Bhushan have accordingly sought for setting aside the appointments of Chaudhary and Bhasin as CVC and VC.