New Delhi: Embattled CVC P J Thomas on Monday
told the Supreme Court that his appointment as Central
Vigilance Commissioner cannot be subject to judicial review
and that it does not get vitiated merely because of
chargesheet pending against him in a corruption case.
Thomas counsel K K Venugopal today put forward
arguments saying that even under electoral law convicted MPs
and MLAs continue in their office pending their appeal against
conviction in criminal cases.
However, a Bench headed by Chief Justice S H Kapadia,
said "if there is a fact of conviction and if a person is
appointed, can we say there can be no judicial review of the
"Today on account of judicial review, we can even
strike down Constitutional amendments."
Venugopal argued that the appointment does not get
vitiated merely because of the pending chargesheet against the
official as there is no express provision in the CVC Act to
disqualify a person on such ground.
He was responding to the question whether the decision
on Thomas` appointment is not vitiated by the non-circulation
of the relevant materials like the pending chargesheet and
grant of sanction by the Kerala Government in 1999 for his
Venugopal said since the statute qualifies and
disqualifies the eligibility and suitability of the person to
be appointed as CVC, the selection is based on the subjective
satisfaction of appointing authority.
Government also told the court that the entire file of
controversial Thomas was not placed before the members of the
high-powered panel headed by Prime Minister Manmohan Singh
which decided the appointment.
Attorney General G E Vahanvati replied in negative
to a query from the Bench which wanted to know "was the entire
file circulated along with the agenda paper among the members
who are appointing authority".
Vahanvati, however, said he was not personally aware
what transpired, what the panel said, what they did and what
was circulated between the members when the agenda paper was
placed before them.
He replied by saying "no" when the Bench wanted to
know, was the material relating to the sanction granted for
Thomas` prosecution in 1999 placed before the panel.
"With the agenda papers, it should have been placed
before the members," the Bench, also comprising Justices K S
Radhakrishnan and Swatanter Kumar, said.
"Why the relevant material were not circulated and
what was circulated I am not in a position to say," the
Attorney General said while denying that there was any
violation of the procedure in the appointment of Thomas as
At this point, senior advocate K K Venugopal,
appearing for Thomas, said for all these aspects he cannot
However, the Bench shot back saying "don`t you think
that the agenda paper is supposed to contain all the
information and if the agenda is silent they (members of
panel) can ask for the relevant materials".
"Why was the most relevant material not not
accompanying the agenda papers. This is what bothering us,"
the Bench said when it did not get direct answer from
The senior advocate supported the appointment of
Thomas as CVC by referring to the provisions of the election
law under which convicted MPs and MLAs continue in office
pending their appeals against the conviction.
He claimed that 28 per cent of the MPs (153 out of
435) now have criminal cased pending against them.
The apex court, which posed several questions to
Venugopal, said "we intend to lay down guidelines for future
appointments and we are not on this case particularly".
Thomas was appointed CVC on September 7 last year, but
various civil societies like Centre for Public Interest
Litigation (CPIL) and some eminent persons including former
Chief Election Commissioner J M Lyngdoh have moved the apex
court against his appointment as the anti-corruption watchdog.
The petitioners have contended that Thomas cannot be
considered as a person of "impeccable integrity" as a charge
sheet against him was filed in the Palmolein import scam when
he was a secretary in the Kerala Ministry of Food and Civil
Supplies. He had secured bail from a local court.
The petitioners also alleged that he was appointed
against the procedure despite opposition from Leader of the
Opposition in Lok Sabha Sushma Swaraj who was part of the
three-member selection panel headed by the Prime Minister.
The petitioners also said he could not be appointed
the CVC on account of "conflict of interest" as till recently
he was serving as telecom ministry secretary and that there
was allegation that he was involved in the "cover-up" of the
2G spectrum scam, which has allegedly caused a huge loss to
the state exchequer.