Opinion Why I had no doubt the court would strike it down

The hawala judgment was significant in its spelling out the ways in which probity in public life should be enforced. The office of the CVC was taken note of,as was that of the director of the CBI. The requirements for these posts were clearly indicated,chief among them being that they should be insulated from external influence. This means that they should have no past to hide,and no future temptation to look forward to,that might cast a shadow of impropriety on their work. It was hoped that these principles would be kept in mind as a lodestar and guide by the appointing authorities.

I do not want to get into the specifics of the P.J. Thomas appointment,but only wish to point out the principles at stake. Anyone who has been named as an accused in a criminal case,where the offence is that of corruption,is not fit to take up the CVC’s office. Surely,he was not the only person who could be chosen,there are many candidates with spotless records who fulfil all the eligibility criteria. Personally,I would like to assume that Thomas is innocent,but that is not enough. The presumption of innocence until proven guilty is applicable to a criminal trial,but that logic cannot be employed in selecting someone to fill an office where impeccable integrity is one of the prime requirements,and where there should not even be an iota of suspicion. Thomas has been charged in a case of corruption,and the trial has not ended in an acquittal. The public interest always outweighs private interest,no one is entitled to a job or a promotion. This kind of scrutiny and standards should be applied for selection to offices far smaller than that of the CVC.

It is entirely the judiciary’s function to have struck down the appointment,as it is meant to examine any appointment that is challenged,whether it is valid or not. I had no doubt that the court would strike it down. The court’s function is to assess whether the candidate satisfies eligibility criteria,and in this case,the relevant factor was “impeccable integrity”. I would consider it a necessary qualification for the post. The writ of quo warranto is clear. An appointment to public office has been challenged on the grounds that an essential qualification has not been satisfied. As the hawala judgment clarified,impeccable integrity is a must — and who can confidently assert that a person facing these charges is then qualified for the

office? Unless he is cleared and honourably acquitted,he does not qualify. And it is entirely the court’s function to ensure that — if it hadn’t done so,it would have been abdicating its responsibility. This is an executive act that has been judicially reviewed.

I was,in fact,surprised at the untenable defence put forth that simply facing a chargesheet does not erode the criterion of impeccable integrity. There are enough people in this nation who are entirely fit to be appointed,why choose someone whose reputation is under a cloud? When the court finds these allegations to be untrue,and the charges are disposed of,then it is a possibility. But as long as the case is pending,the appointment would have left a taint on this extremely significant office. The CVC’s office is only one more high office that has been devalued in recent times,and this makes me very sad. The appointment of Thomas as CVC was,therefore,void ab initio; and the Supreme Court has merely made this declaration. The “rule of law” has been upheld and implemented by the Supreme Court,which is its function.

As told to Amulya Gopalakrishnan

The writer is a former Chief Justice of India and was instrumental in the enactment of the CVC Act