New Delhi: The Supreme Court on Monday said it was not barred from examining the validity of a statutory appointment, including that of the Central Vigilance Commissioner (CVC), by the highest constitutional authority if the selection and appointment procedure was vitiated.
"Some constitutional authority is entrusted with the powers to make statutory appointments. We must have faith in the decision of the highest constitutional authority. If that highest constitutional authority does not take into account all the facts that are not in dispute and goes ahead with the appointment, can we say judicial review does not lie in that case," the court asked.
An apex court bench of Chief Justice S.H. Kapadia, Justice K.S. Radhakrishnan and Justice Swatanter Kumar asked: "If judicial review can set aside the constitutional appointment then can't it do (that) with a statutory appointment?"
"We intend to lay (down) some law for the future (appointment of the CVC)," the court said.
The court was hearing a petition by the Centre for Public Interest Litigation (CPIL) challenging the appointment of CVC P.J. Thomas.
Senior counsel K.K. Venugopal, appearing for Thomas, contended that the court could not go into his suitability.
The court was told that the suitability of the appointee could not be subjected to judicial scrutiny.
"Once the high power selection committee headed by the prime minister finds that he (Thomas) was eligible and suitable for appointment to the post of the CVC, the court can't go into the question of suitability," Venugopal argued.
He told the court that 'parliament in its wisdom had enacted the law prescribing the qualification for appointment to the post of the CVC. When there is no disqualification prescribed, the court can't add a new disqualification and say I (Thomas) am not suitable'.
"We are not adding to the qualification or subtracting the qualification. We are (discussing) the question of judicial review and not the review of the merit (of the case)," the judges observed.
"We are not looking into the removal of the CVC but whether the (appointment) decision does not become vitiated because of the non-consideration of the relevant paper (pending charge sheet against Thomas in Kerala's palm oil import case of 1990s)," the court said.
Venugopal said: "The president appoints the attorney general and the Comptroller General of India (CAG). No one goes to the court to challenge it on the grounds of qualification. There is no qualification."
"Moral turpitude is an objective factor," he said.
The court said: "Because the clause (of disqualification) is not there (in the CVC Act), (you think) judicial review is off. You are going to that extent."
"There are 153 MPs facing criminal charges...," said Venugopal, indicating that if law makers, even after facing the criminal cases, could be eligible and suitable to be parliamentarians, then there could be no different yardstick for the appointment of Thomas as the CVC.
"The pendency of the charge-sheet alone will not affect the suitability (of Thomas) or make him disqualified for the post", the Venugopal said.
Referring to another additional affidavit filed by Thomas earlier in the day, Venugopal said that a secretary with all the records of the empanelled officers (for appointment as the CVC) was sitting in the ante-room when the members of the selection committee were discussing the appointment issue. The members could have called for the information, he said.
Justice Swatanter Kumar said: "You say the members of the selection committee could have called for the information but if (a candidate's) bio-data is silent on that then how could they have asked for it."
"We are not asking what was discussed. We want to know if all the relevant papers were placed before the selection committee," the court said.
Attorney General G. Vahanvati, while defending the selection and appointment procedure adopted in the case of Thomas, said that the "relevant papers" being referred by the court relating to the pending charge sheet, grant of sanction for (Thomas') prosecution, adverse observation of the Kerala High Court and the observation in the CAG and the committee for public undertakings' (of Kerala assembly) report were not placed before the committee.
The selection committee included Prime Minister Manmohan Singh, Home Minister P. Chidambaram and Leader of Opposition Sushma Swaraj.