Very interesting! The Chief Vigilance Commissioner has to prove that corrupt officers are accused. But in India, he himself is an accused. The Supreme Court (the Chief Justice of India, CJI) is urging Manmohan’s Government of India’s (GoI) response through Attorney General of India (AGI) for observing norms of propriety, justice and respect the guidelines prescribed by Supreme Court in a 1998 Judgment, in selecting Chief Vigilance Commissioner (CVC), who need to keep vigilance over all investigating bodies of the nation including CBI.
The Centre for Public Interest Litigation (CPIL) and former Chief Election Commissioner J. M. Lyngdoh had, in two writ petitions, pointed out that the apex court in the Vineet Narain case had stated that only a person of “impeccable integrity” could be appointed CVC. “The requirement of ‘impeccable integrity’ has been bypassed in cavalier fashion whereby Mr. P. J. Thomas has been appointed to the post of the CVC despite having a highly dubious and suspect integrity as the facts of the writ petition reflect,” Lyngdoh said.
The Supreme Court criticised the Centre for appointing Telecom Secretary Thomas CVC despite the pendency of a chargesheet against him in a criminal case. Thomas is an accused in the Palmolein import case. As Telecom Secretary, Thomas did nothing to prevent 2G spectrum scam. The court has been unsparing on the Centre over the 2G scam and has also questioned the PM’s “inaction” over complaints raised by Janata Party president Subramanian Swamy. (http://indiatoday.intoday.in/site/Story/119289/LATEST%20HEADLINES/choice-of-new-cvc-under-sc-scanner.html)
Response of GoI
The AGI Vahanvati is defending the Government and accused CVC before a bench comprising Chief Justice S. H. Kapadia, Justice K. S. Radhakrishnan and Justice Swatanter Kumar.  AGI said the process set out under the Central Vigilance Commission Act, 2003, was followed and “impeccable integrity” was not an eligibility criterion for the selection of the CVC. (India Today News Report by Gyanant Singh from New Delhi, November 9, 2010)
The GoI was speaking through AGI and claimed that the guidelines of 1998 judgement need not be followed because the GoI made a law called Chief Vigilance Commission Act 2003, the rules prescribed in which would alone be relevant for appointment. According to 2003 Act a person of impeccable integrity is not criteria but it is enough if he is an ‘outstanding civil servant’.
Them Chief Justice asked if “outstanding civil servant” was not just a suitability criteria but also an eligibility criteria for a CVC, then the government would have to produce records indicating outstanding service.
A Supreme Court proceedings reporter wrote:  But this did not stop the court from posing some difficult questions. Finding it difficult to defend the appointment, the attorney general at one point lost his cool. “If integrity is the criterion, every judicial appointment will be subject to scrutiny. Every judicial appointment will be challenged,” Vahanvati said. The court, however, overlooked the apparent suggestion that appointment of judges also could be questioned. “We are not even on integrity but will he be able to function? In every matter, he will himself face embarrassment,” Justice Kapadia said. (India Today News Report by Gyanant Singh from New Delhi, November 23, 2010)
But Vahanavati is right on that point. Integrity should be criterion for appointment to all high profile cases including Ministers and judges (AGI too) and such appointments should be subjected to judicial scrutiny.
Though the attorney general admitted that Thomas had been charge-sheeted in 2000  stating that the appointment had been made as per the provisions of the 2003 Act which came subsequently. He said though a charge-sheet had been filed, sanction for prosecution had not been granted.
Is charge sheet a gospel truth?
“But there will be objections at various stages,” Justice Kapadia said. Though the court was not talking of any specific case, Vahanvati stated that the palmolein case will not come before him. “Are you talking of the 2G scam?” he asked. The suo motu reference to the 2G scam came as Thomas was till recently the telecom secretary and the petitioners alleged he had a role in covering up the scam.
“The question is how he will function”, the court asked. “Very simple, it is only a charge sheet,” Vahanvati answered.   (News Report dated 23rd November). Vahanvati also said that Prashanth Bhushan was treating the charge-sheet as “gospel truth”. “We will not go into the merits of the charge sheet, but can you say that he is outstanding,” asked Justice Kapadia. “How can the CVC function effectively when there is a charge-sheet pending against him in a criminal case? At every stage someone will raise objection that he is an accused in a criminal case” the court asked.
When Attorney General G.E. Vahanvati placed the file in a sealed cover, the bench, headed by Chief Justice of India, said, “Without looking into the file, we are concerned that if a person is an accused in a criminal case, how he will function as CVC?” (India Today News Report dated 22nd  November)
Without denying the charge-sheet, Vahanvati said that it was a Kerala cabinet decision to import palm oil and Thomas as secretary had merely implemented the decision. Prashant Bhushan pointed out that the charge-sheet showed that Thomas had played an active role in the scam by making false statements to the government to get sanction for import and had suppressed illegalities in the deal.
Constitutional Crime by Political Government
It is a constitutional crime committed by a political coalition government, for which no punishments could be prescribed. The question is more a political or moral one than ‘legal’.  Morality and propriety issues are of no relevance when Government is bent upon continuing the charge-sheeted person as CVC. Demanding Mr. Thomas to resign on moral grounds also does not work, as he did not even felt embarrassed when apex court’s serious questioning on his appointment was being reflected in headlines. So far it is proved that the media exposition or opposition’s prolonged blockade of Parliament are not capable of imposing ‘responsibility’ in a deaf government. New discovery is that even the admonition by Supreme Court will not change the adamant stand of the Government.  Only one change was that Mr. Thomas declared that he would not supervise CVC investigation into 2G spectrum license allocation scam, while Commission continue the probe. Real question is why Manmohan Government chose tainted person to be CVC, when big scams like Common Wealth Games and 2G spectrum are rocking the prestige of the ruling coalition?
Sham Consultation and Shame Continuation
Consultation with opposition leader in appointing for the top posts like CVC and CIC became a farce. Quantity of ‘majority’ will decide rather than quality of profiles being discussed in the consultation. Media’s critical reports and Leader of Opposition Sushma Swaraj’s objections were just not cared by the Government, which went ahead with appointment of Thomas as CVC.
The chargesheet is a substantial phase in criminal investigation. In our country none reports about any corruption or dares to file a complaint. Even if complaint is filed it will be a major achievement when that transforms into First Information Report. FIR will form basis for preliminary investigation, which if reveals prima facie truth the investigating officer would further collect the evidences. Accused might be arrested or interrogated or clues obtained would be converted into leads and then evidences. Only after completion of investigation and finalization of evidence the charge-sheet is filed as per Criminal Procedure Code. Then the judicial scrutiny of the charge-sheet happens wherein, if convinced the court would frame charges to initiate the trial. When allegation against Thomas could become a charge-sheet, he will be an accused.  When a citizen sought information under RTI, the CVC agreed that he was an accused. But the Government denied that he was an accused because the prosecution was not sanctioned against Thomas. Is it not a bigger crime not to sanction prosecution of a person who is an accused? Instead, he was rewarded with a plum post of CVC. Can Government answer the embarrassing questions like ‘how can he function as CVC being an accused himself?’
Pointing out that the 2G scam was being probed by the CBI, advocate Prashant Bhushan said there was a clear conflict of interest because as CVC he had control over anti-corruption work being carried out by the CBI.
Thomas admits he is accused, GoI says no
Though the government claimed there was no case against Thomas, a reply to an RTI query had revealed that he was an accused in the palm oil scam, Prashant Bhushan said to Supreme Court. He also told that besides, Thomas had attempted to place corrupt officials at crucial government positions and his conduct as telecom secretary concerning the 2G scam was also questionable.
Quo Warranto, Thomas?
It is true that charge-sheet is only a strong allegation and not proof of it. If it is proved accused will be behind bars but will not sit on CVC chair, whether PIL is filed or not seeking Quo Warranto (it is a Medieval Latin expression for “by what warrant?”, it is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right or power (or “franchise”) they claim to hold) writ against CVC. The charge-sheet is proof of lack of integrity or at least will say that he is not an outstanding civil servant. How can he hold the position of CVC, which is against the norms of appointment prescribed under CVC Act 2003 besides violating the criteriafixed by Supreme Court?
If charge-sheet is not gospel truth, as claimed by AGI Vahanvati, is it gospel lie? If charge-sheet has no value in the eye of law, why the Criminal Justice system require it? Going by the certification that charge-sheet is not gospel truth as per the AGI’s proceedings before apex court all those charge-sheeted would strive for top posts of this country’s constitutional machinery. It will embolden the charge-sheeted public servants and corrupt politicians. It is a shame that Manmohan Government is allowing Thomas and later chose to hang on.  (14.12.2010)
COURTESY : INDIACURRENTAFFAIRS