Driving Licences for Deaf: High Court rejects

Disposing a public interest litigation in a recent decision [National Association of the Deaf v. Union of India] a division bench of the Delhi High Court, comprising of the Chief Justice Dipak Mishra and Justice Sanjiv Khanna, taking note of the statutory provisions governing the issue and the international conventions on the issue directed that an absolute claim by a deaf person to get a driving licence was incorrect. The Court however made a leeway for grant of licenses to such persons where they could successfully pass the medical test required for the license.

Noting that making policy-decisions, pertaining to whether deaf should be issued driving licences, was a matter to be decided by the legislature and was not within the domain of the executive, the High Court disposing the petition observed inter alia as under;

1. In this public interest litigation, the National Association of the Deaf and another describing themselves as pro bono publico have invoked the inherent jurisdiction of this Court under Article 226 of the Constitution of India for issue of a writ of mandamus or appropriate direction commanding the respondents to grant driving licences to deaf persons and further to issue a writ of certiorari for quashing of any policy decision restraining or creating any kind of restriction on the part of the deaf persons to get the driving licences.

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4. Be it placed on record, the petitioners have referred to UN Multilateral Road Traffic Convention of 1952, UN Convention on Road Traffic of 1968, Section 2(i) of the 1995 Act and the United Nation‘s Convention on the persons with disabilities (hereinafter referred to as ‗the disability convention‘) which was ratified by India in October, 2007 to pyramid the contention that a person who has an international driving licence can drive in India though he is deaf and a deaf person in India if goes abroad can get an international driving licence and would be eligible to drive in India whereas he is not entitled to get a driving licence under the 1988 Act on the ground that he suffers from hearing impairment. It is urged that an anomalous situation has crept in since there are two categories of persons and the classification between a person who is deaf and gets a licence from the international quarters and a deaf person in India who is not in a position to get the same does not stand the test of Article 14 of the Constitution and, in fact, invites the frown of the said Article.

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23. The aforesaid minutes have been treated to be a policy decision. On a scrutiny of the said decision, it is luminescent that persons who have hearing level upto 60 db with use of hearing aid in better ear may be permitted for issue of driving licence for private vehicle and hearing level upto 40 db with hearing aid in better ear may be permitted for issue of driving licence for commercial vehicle. The submission of Gonsalves, learned senior counsel for the petitioners, is that the persons who are totally deaf are also eligible to get the driving licence under the Act and the denial of the same defeats the very purpose of the 1995 Act. To appreciate the said submission, it is appropriate to refer to the scheme of the 1995 Act. The said statute was enacted to give effect to the proclamation on the full participation and equality of the people with disabilities in the Asian and Pacific regions. As is seen, it was a result of the meeting to launch the Asian and Pacific Decade of Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asia and Pacific held at Beijing on 1st to 5th December, 1992 which adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Regions and further India is a signatory to the said proclamation.

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32. We will be failing in our duty if we do not note the other submission of Mr.Gonsalves that certain persons who are totally deaf have the capacity to drive vehicles. He has referred to prevalent practices in many other countries. The learned senior counsel has laid emphasis on the international standard. On a perusal of the policy decision, we find that the experts have fixed a standard regard being had to the Indian conditions. The grounds ascribed in the policy decision as Mr. Chandhiok, learned Additional Solicitor General, would submit are meant to protect the collective at large from the road accidents. Thus, the claim put forth by the petitioners that they should be granted driving licence and should not be debarred from getting a licence, per se, is not justified. As has been stated earlier, for grant of a learner‘s licence, filing of medical certificate is not required but the applicant is required to go through the test as stipulated under Rule 11 of the 1989 Rules. For grant of a driving licence, one has to satisfy the conditions precedent as postulated under Section 9 and pass the test as stipulated under Rule 15 of the 1989 Rules. The claim of further privilege by totally deaf persons as a special category, in our consideration, is not permissible. However, we are obliged to certify that if an applicant is totally deaf, he has to be called for the test if he applies for a learner‘s licence without the medical certificate and if he passes the test as required under Rule 11, he shall be granted the learner‘s licence as that is the statutory requirement. Similarly, if a person belonging to the said category satisfies the necessary criteria, he shall be allowed to obtain the licence. We are not inclined to direct that the special conditions which are permitted by other countries for grant of licence to the persons who are completely deaf as the same, we are disposed to think, is in the domain of the legislature, for the legislature understands the prevalent conditions in a set up where separation of power is an insegregable facet of the basic structure of the Constitution of India.

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Sex-workers also entitled to life of dignity: Supreme Court

Dismissing an appeal against the conviction for murder (which the Court described as 'brutal') of a sex-worker, the Supreme Court in a recent decision [Budhadev Karmaskar v. State of West Bengal] has declared the even the sex-workers being the citizens of the country are entitled to right to life and dignity. In this backdrop the Court directed the Government to make provision for rehabilitation of sex-workers. Directing the matter to be listed for a priority disposal, the Supreme Court took note of the situation prevailing in the country and the role of the society in placement of the sex-workers.

The role and position of sex-workers in the society was noted by a bench of Justice MARKANDEY KATJU and Justice GYAN SUDHA MISRA of the Supreme Court in a the following terms;

This is a case of brutal murder of a sex worker. Sex workers are also human beings and no one has a right to assault or murder them. A person becomes a prostitute not because she enjoys it but because of poverty. Society must have sympathy towards the sex workers and must not look down upon them. They are also entitled to a life of dignity in view of Article 21 of the Constitution.

In the novels and stories of the great Bengali Writer Sharat Chand Chattopadhyaya, many prostitutes have been shown to be women of very high character, e.g., Rajyalakshmi in 'Shrikant', Chandramukhi in 'Devdas' etc.

The plight of prostitutes has been depicted by the great Urdu poet Sahil Ludhianvi in his poem 'Chakle' which has been sung in the Hindi film Pyasa “Jineh Naaz Hai Hind Per wo kahan hain” (simplified version of the verse 'Sana Khwane-taqdees-e-Mashrik Kahan Hain').

We may also refer to the character Sonya Marmelodov in Dostoyevsky's famous novel 'Crime and Punishment'. Sonya is depicted as a girl who sacrifices her body to earn some bread for her impoverished family. 

Reference may also be made to Amrapali, who was a contemporary of Lord Buddha.

The Court further, while requiring the Central and State Governments to inform the Court of the steps taken by them towards rehabilitation of the sex-workers, made the following observations;

Although we have dismissed this Appeal, we strongly feel that the Central and the State Governments through Social Welfare Boards should prepare schemes for rehabilitation all over the country for physically and sexually abused women commonly known as prostitutes as we are of the view that the prostitutes also have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed.

As already observed by us, a woman is compelled to indulge in prostitution not for pleasure but because of abject poverty. If such a woman is granted opportunity to avail some technical or vocational training, she would be able to earn her livelihood by such vocational training and skill instead of by selling her body.

Hence, we direct the Central and the State Governments to prepare schemes for giving technical/vocational training to sex workers and sexually abused women in all cities in India. The schemes should mention in detail who will give the technical/vocational training and in what manner they can be rehabilitated and settled by offering them employment. For instance, if a technical training is for some craft like sewing garments, etc. then some arrangements should also be made for providing a market for such garments, otherwise they will remain unsold and unused, and consequently the women will not be able to feed herself.

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Improperly initiated investigation not fatal for prosecution: Supreme Court

Holding that unless prejudice was caused to the cause of the accused, the Supreme Court in a recent decision [Ashok Tshering Bhutia v. State of Sikkim] declared that mere lack of sanction or improperly initiated investigation was not fatal for the prosecution to obtain a conviction. The Court was dealing with the correctness of the decision of the High Court of Sikkim which had upheld conviction of a person under the Prevention of Corruption Act, 1988. One of the contentions raised before the Court was that the sanction of the proper officer had not been obtained and thus the investigation had been vitiated.

Turning down the challenge, the Supreme Court noted the position of law on this aspect in the following terms;

7. Much has been argued on the issue that investigation has been conducted without a proper order in writing, by an officer not authorised otherwise and sanction has been granted under Section 19 of the PC Act 1988 vide order dated 5.4.1997, without taking into account the assets and income shown in Ext. D-4, though the said assets represented known sources of income within the meaning of Section 13(1)(e) and the Explanation attached thereto. It has further been submitted that an invalid sanction cannot be the foundation for the prosecution and thus, the entire investigation and trial stood vitiated as the investigation without proper authorisation and invalid sanction goes to the root of the jurisdiction of the court and so the conviction cannot stand.

8. The issues raised hereinabove are no more res integra. The matter of investigation by an officer not authorised by law has been considered by this Court time and again and it has consistently been held that a defect or irregularity in investigation however serious, has no direct bearing on the competence or procedure relating to cognizance or trial and, therefore, where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless a miscarriage of justice has been caused thereby. The defect or irregularity in investigation has no bearing on the competence of the Court or procedure relating to cognizance or trial. (Vide H.N. Rishbud & Anr. v. State of Delhi, AIR 1955 SC 196; Munnalal v. State of U.P., AIR 1964 SC 28, Khandu Sonu Dhobi & Anr. v. The State of Maharashtra, AIR 1972 SC 958; State of M.P. v. Bhooraji & Ors., AIR 2001 SC 3372; State of M.P. v. Ramesh Chand Sharma, (2005) 12 SCC 628; and State of M.P. v. Virender Kumar Tripathi, (2009) 15 SCC 533).

9. In Kalpnath Rai v. State (Through CBI), AIR 1998 SC 201, a case under the provisions of Section 20 of Terrorist and Disruptive Activities (Prevention) Act, 1987, this Court considered the issue as to whether an oral direction to an officer to conduct investigation could meet the requirement of law. After considering the statutory provisions, the Court came to the conclusion that as oral approval was obtained from the competent officer concerned, it was sufficient to legalise the further action.

10. In State Inspector of Police, Vishakhapatnam v. Surya Sankaram Karri, (2006) 7 SCC 172, a two-Judge Bench of this Court had taken a contrary view without taking note of the earlier two-Judge Bench judgment in Kalpnath Rai (supra) and held as under:

“When a statutory functionary passes an order, that too authorizing a person to carry out a public function like investigation into an offence, an order in writing was required to be passed. A statutory functionary must act in a manner laid down in the statute. Issuance of an oral direction is not contemplated under the Act. Such a concept is unknown in administrative law. The statutory functionaries are enjoyed with a duty to pass written orders.

However, the Court taking note of subsequent proceedings recorded its conclusions as under:

‘It is true that only on the basis of illegal investigation a proceeding may not be quashed unless miscarriage of justice is shown, but in this case as we have noticed hereinbefore, the respondent had suffered miscarriage of justice as the investigation made by PW 41 was not fair’.”

11. In the instant case, the officer has mentioned in the FIR itself that he had orally been directed by the Superintendent of Police to investigate the case. It is evident from the above that the judgments in Kalpnath Rai (supra) and Surya Sankaram Karri (supra) have been decided by two Judge Benches of this Court and in the latter judgment, the earlier judgment of this Court in Kalpnath Rai (supra) has not been taken note of. Technically speaking it can be held to be per incuriam. There is nothing on record to show that the officer’s statement is not factually correct. We have no occasion to decide as which of the earlier judgments is binding. It is evident that there was a direction by the Superintendent of Police to the officer concerned to investigate the case. Thus, in the facts and circumstances of the case, the issue as to whether the oral order could meet the requirement of law remains merely a technical issue. Further, as there is nothing on  record to show that the investigation had been conducted unfairly, we are not inclined to examine the issue further. 

12. Same remained the position regarding sanction. In the absence of anything to show that any defect or irregularity therein caused a failure of justice, the plea is without substance. A failure of justice is relatable to error, omission or irregularity in the sanction. Therefore, a mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. Section 19 (1) of the PC Act 1988 is a matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the Court under Cr.P.C., it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance. (Vide Kalpnath Rai (supra); State of Orissa v. Mrutunjaya Panda, AIR 1998 SC 715; State by Police Inspector v. Sri T. Venkatesh Murthy, (2004) 7 SCC 763; Shankerbhai Laljibhai Rot v. State of Gujarat, (2004) 13 SCC 487; Parkash Singh Badal & Anr. v. State of Punjab & Ors., AIR 2007 SC 1274; and M.C. Mehta v. Union of India & Ors. (Taj Corridor Scam), AIR 2007 SC 1087).

13. In State of Haryana & Ors. v. Ch. Bhajan Lal & Ors., AIR 1992 SC 604, this Court dealing with the same provisions held that a conjoint reading of the main provision, Section 5-A(1) (new Section 17) and the two provisos thereto, shows that the investigation by the designated police officer was the rule and the investigation by an officer of a lower rank was an exception. It has been ruled by the Court in several decisions that Section 6-A (new Section 23) of the Act was mandatory and not directory and the investigation conducted in violation thereof bears the stamp of illegality, but that illegality committed in the course of an investigation, does not affect the competence and the jurisdiction of the Court for trial and where the cognizance of the case has in fact been taken and the case has proceeded to termination, the validity of the proceedings is not vitiated unless a miscarriage of justice has been caused as a result of the illegality in the investigation. In the facts and circumstances of the case, we are also not willing to examine the correctness of submissions made by Mr. Bobde in respect of segregation of period covered by two Acts and as to whether ratio of the judgment of this Court in State of Maharashtra v. Krishnarao Dudhappa Shinde, (2009) 4 SCC 219, runs counter to the ratio in State of Maharashtra v. Kaliar Koil Subramaniam Ramaswamy, AIR 1977 SC 2091, wherein the earlier judgment in Sajjan Singh v. State of Punjab, AIR 1964 SC 464, had been explained.

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Principles of approving scheme of amalgamation: The law revisited

Corporate law envisages sanction of a court before a scheme of amalgamation proposed by the shareholders can take effect. In this scenario "Section 391 of the Act, clothes the Court with the power to sanction a compromise or arrangements made by a company with its creditors and members". In a recent decision [Sesa Industries Ltd. v. Krishna H. Bajaj] the Supreme Court, revisiting the earlier decisions on the issue, has explained the role of the Court required to approve the scheme presented before it.

Holding that the law cast "an obligation on the Court to be satisfied that the scheme of amalgamation or merger is not prejudicial to the interest of its members or to public interest" the Court restated these principles in the following terms;

33. It is plain from the afore-extracted provisions that when a scheme of amalgamation/merger of a company is placed before the Court for its sanction, in the first instance the Court has to direct holding of meetings in the manner stipulated in Section 391 of the Act. Thereafter before sanctioning such a scheme, even though approved by a majority of the concerned members or creditors, the Court has to be satisfied that the company or any other person moving such an application for sanction under sub-section (2) of Section 391 has disclosed all the relevant matters mentioned in the proviso to the said sub-section. First proviso to Section 394 of the Act stipulates that no scheme of amalgamation of a company, which is being wound up, with any other company, shall be sanctioned by the Court unless the Court has received a report from the Company Law Board or the Registrar to the effect that the affairs of the company have not been conducted in a manner prejudicial to the interests of its members or to public interest. Similarly, second proviso to the said Section provides that no order for the dissolution of any transferor company under clause (iv) of sub-section (1) of Section 394 of the Act shall be made unless the official liquidator has, on scrutiny of the books and papers of the company, made a report to the Court that the affairs of the company have not been conducted in a manner prejudicial to the interests of its members or to public interest. Thus, Section 394 of the Act casts an obligation on the Court to be satisfied that the scheme of amalgamation or merger is not prejudicial to the interest of its members or to public interest.

34. Therefore, while it is trite to say that the court called upon to sanction a  scheme of amalgamation would not act as a court of appeal and sit in judgment over the informed view of the concerned parties to the scheme, as the same is best left to the corporate and commercial wisdom of the parties concerned, yet it is clearly discernible from a conjoint reading of the aforesaid provisions that the Court before whom the scheme is placed, is not expected to put its seal of approval on the scheme merely because the majority of the shareholders have voted in favour of the scheme. Since the scheme which gets sanctioned by the court would be binding on the dissenting minority shareholders or creditors, the court is obliged to examine the scheme in its proper perspective together with its various manifestations and ramifications with a view to finding out whether the scheme is fair, just and reasonable to the concerned members and is not contrary to any law or public policy. (See: Hindustan Lever Employees Union Vs. Hindustan Lever Ltd. & Ors.). The expression “public policy” is not defined in the Act. The expression is incapable of precise definition. It connotes some matter which concerns the public good and the public interest. (See: Central Inland Water Transport Corporation Limited & Anr. Vs. Brojo Nath Ganguly & Anr.) 

35. In Miheer H. Mafatlal (supra), this Court had, while examining the scope and ambit of jurisdiction of the Company Court, culled out the following broad contours of such jurisdiction:

“1. The sanctioning court has to see to it that all the requisite statutory procedure for supporting such a scheme has been complied with and that the requisite meetings as contemplated by Section 391(1)(a) have been held.

2. That the scheme put up for sanction of the Court is backed up by the requisite majority vote as required by Section 391 sub-section (2).

3. That the meetings concerned of the creditors or members or any class of them had the relevant material to enable the voters to arrive at an informed decision for approving the scheme in question. That the majority decision of the concerned class of voters is just and fair to the class as a whole so as to legitimately bind even the dissenting members of that class.

4. That all necessary material indicated by Section 393(1)(a) is placed before the voters at the meetings concerned as contemplated by Section 391 sub-section (1). 

5. That all the requisite material contemplated by the proviso of sub-section (2) of Section 391 of the Act is placed before the Court by the applicant concerned seeking sanction for such a scheme and the Court gets satisfied about the same.

6. That the proposed scheme of compromise and arrangement is not found to be violative of any provision of law and is not contrary to public policy. For ascertaining the real purpose underlying the scheme with a view to be satisfied on this aspect, the Court, if necessary, can pierce the veil of apparent corporate purpose underlying the scheme and can judiciously X-ray the same.

7. That the Company Court has also to satisfy itself that members or class of members or creditors or class of creditors, as the case may be, were acting bona fide and in good faith and were not coercing the minority in order to promote any interest adverse to that of the latter comprising the same class whom they purported to represent.

8. That the scheme as a whole is also found to be just, fair and reasonable from the point of view of prudent men of business taking a commercial decision beneficial to the class represented by them for whom the scheme is meant. 

9. Once the aforesaid broad parameters about the requirements of a scheme for getting sanction of the Court are found to have been met, the Court will have no further jurisdiction to sit in appeal over the commercial wisdom of the majority of the class of persons who with their open eyes have given their approval to the scheme even if in the view of the Court there would be a better scheme for the company and its members or creditors for whom the scheme is framed. The Court cannot refuse to sanction such a scheme on that ground as it would otherwise amount to the Court exercising appellate jurisdiction over the scheme rather than its supervisory jurisdiction.” 

36. It is manifest that before according its sanction to a scheme of amalgamation, the Court has to see that the provisions of the Act have been duly complied with; the statutory majority has been acting bona fide and in good faith and are not coercing the minority in order to promote any interest adverse to that of the latter comprising the same class whom they purport to represent and the scheme as a whole is just, fair and reasonable from the point of view of a prudent and reasonable businessman taking a commercial decision.

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Appointment of Central Vigilance Commissioner illegal: Supreme Court

Issuing a writ of Quo Warranto and thus quashing the notification appointing Mr. P.J. Thomas as the Central Vigilance Commissioner of India, the Supreme Court in Centre for PIL v. Union of India allowed the Public Interest Litigation with consequential relief. Holding that "institution is more important than individual", a three-judge bench of the Supreme Court, comprising of the Chief Justice of India himself, made interesting observations in regard to the policy and the constitutional structure in the country. In the opinion of the Court, the non-consideration of the pending criminal case (for corruption) against the CVC was an instance of acute non-consideration of vital material required to be taken into account before recommending the name of the person for the CVC to the President, requiring the recommendation to be declared illegal.

It observed inter alia as under;

2. Government is not accountable to the courts in respect of policy decisions. However, they are accountable for the legality of such decisions. While deciding this case, we must keep in mind the difference between legality and merit as also between judicial review and merit review. On 3rd September, 2010, the High Powered Committee (“HPC” for short), duly constituted under the proviso to Section 4(1) of the 2003 Act, had recommended the name of Shri P.J. Thomas for appointment to the post of Central Vigilance Commissioner. The validity of this recommendation falls for judicial scrutiny in this case. 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.

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20. Vigilance is an integral part of all government institutions. Anti-corruption measures are the responsibility of the Central Government. Towards this end the Government set up the following departments :

(i) CBI

(ii) Administrative Vigilance Division in DoPT

(iii) Domestic Vigilance Units in the Ministries / Departments, Government companies, Government Corporations, nationalized banks and PSUs

(iv) CVC

21. Thus, CVC as an integrity institution was set up by the Government of India in 1964 vide Government Resolution pursuant to the recommendations of Santhanam Committee. However, it was not a statutory body at that time. According to the recommendations of the Santhanam Committee, CVC, in its functions, was supposed to be independent of the executive. The sole purpose behind setting up of the CVC was to improve the vigilance administration of the country.

22. In September, 1997, the Government of India established the Independent Review Committee to monitor the functioning of CVC and to examine the working of CBI and the Enforcement Directorate. Independent Review Committee vide its report of December, 1997 suggested that CVC be given a statutory status. It also recommended that the selection of Central Vigilance Commissioner shall be made by a High Powered Committee comprising of the Prime Minister, the Home Minister and the Leader of Opposition in Lok Sabha. It also recommended that the appointment shall be made by the President of India on the specific recommendations made by the HPC. That, the CVC shall be responsible for the efficient functioning of CBI; CBI shall report to CVC about cases taken up for investigations; the appointment of CBI Director shall be by a Committee headed by the Central Vigilance Commissioner; the Central Vigilance Commissioner shall have a minimum fixed tenure and that a Committee headed by the Central Vigilance Commissioner shall prepare a panel for appointment of Director of Enforcement.

23. On 18th December, 1997 the judgment in the case of Vineet Narain v. Union of India [(1998) 1 SCC 226] came to be delivered. Exercising authority under Article 32 read with Article 142, this Court in order to implement an important constitutional principle of the rule of law ordered that CVC shall be given a statutory status as recommended by Independent Review Committee. All the above recommendations of Independent Review Committee were ordered to be given a statutory status.

24. The judgment in Vineet Narain’s case (supra) was followed by the 1999 Ordinance under which CVC became a multi-member Commission headed by Central Vigilance Commissioner. The 1999 Ordinance conferred statutory status on CVC. The said Ordinance incorporated the directions given by this Court in Vineet Narain’s case. Suffice it to state, that, the 1999 Ordinance stood promulgated to improve the vigilance administration and to create a culture of integrity as far as government administration is concerned. 

25. The said 1999 Ordinance was ultimately replaced by the enactment of the 2003 Act which came into force with effect from 11th September, 2003.

26. The 2003 Act has been enacted to provide for the constitution of a Central Vigilance Commission as an institution to inquire or cause inquiries to be conducted into offences alleged to have been committed under the Prevention of Corruption Act, 1988 by certain categories of public servants of the Central Government, corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Central Government and for matters connected therewith or incidental thereto (see Preamble). By way of an aside, we may point out that in Australia, US, UK and Canada there exists a concept of integrity institutions. In Hongkong we have an Independent Commission against corruption. In Western Australia there exists a statutory Corruption Commission. In Queensland, we have Misconduct Commission. In New South Wales there is Police Integrity Commission. All these come within the category of integrity institutions. In our opinion, CVC is an integrity institution. This is clear from the scope and ambit (including the functions of the Central Vigilance Commissioner) of the 2003 Act. It is an Institution which is statutorily created under the Act. It is to supervise vigilance administration. The 2003 Act provides for a mechanism by which the CVC retains control over CBI. That is the reason why it is given autonomy and insulation from external influences under the 2003 Act.

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30. For the sake of brevity, we may refer to the Selection Committee as High Powered Committee. The key word in the proviso is the word “recommendation”. While making the recommendation, the HPC performs a statutory duty. The impugned recommendation dated 3rd September, 2010 is in exercise of the statutory power vested in the HPC under the proviso to Section 4(1). The post of Central Vigilance Commissioner is a statutory post. The Commissioner performs statutory functions as enumerated in Section 8. The word ‘recommendation’ in the proviso stands for an informed decision to be taken by the HPC on the basis of a consideration of relevant material keeping in mind the purpose, object and policy of the 2003 Act. As stated, the object and purpose of the 2003 Act is to have an integrity Institution like CVC which is in charge of vigilance administration and which constitutes an anti-corruption mechanism. In its functions, the CVC is similar to Election Commission, Comptroller and Auditor General, Parliamentary Committees etc. Thus, while making the recommendations, the service conditions of the candidate being a public servant or civil servant in the past is not the sole criteria. 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. Under Section 5(1) the Central Vigilance Commissioner shall hold the office for a term of 4 years. Under Section 5(3) the Central Vigilance Commissioner shall, before he enters upon his office, makes and subscribes before the President an oath or affirmation according to the form set out in the Schedule to the Act. Under Section 6(1) the Central Vigilance Commissioner shall be removed from his office only by order of the President and that too on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the President, has on inquiry reported that the Central Vigilance Commissioner be removed. 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. The HPC has, therefore, to take into consideration the values independence and impartiality of the Institution. The said Committee has to consider the institutional competence. It has to take an informed decision keeping in mind the above mentioned vital aspects indicated by the purpose and policy of the 2003 Act.

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33. xxx The system governance established by the Constitution is based on distribution of powers and functions amongst the three organs of the State, one of them being the Executive whose duty is to enforce the laws made by the Parliament and administer the country through various statutory bodies like CVC which is empowered to perform the function of vigilance administration. Thus, we are concerned with the institution and its integrity including institutional competence and functioning and not the desirability of the candidate alone who is going to be the Central Vigilance Commissioner, though personal integrity is an important quality. It is the independence and impartiality of the institution like CVC which has to be maintained and preserved in larger interest of the rule of law [see Vineet Narain (supra)]. While making recommendations, the HPC performs a statutory duty. Its duty is to recommend. While making recommendations, the criteria of the candidate being a public servant or a civil servant in the past is not the sole consideration. The HPC has to look at the record and take into consideration whether the candidate would or would not be able to function as a Central Vigilance Commissioner. Whether the institutional competency would be adversely affected by pending proceedings and if by that touchstone the candidate stands disqualified then it shall be the duty of the HPC not to recommend such a candidate. In the present case apart from the pending criminal proceedings, as stated above, between the period 2000 and 2004 various notings of DoPT recommended disciplinary proceedings against Shri P.J. Thomas in respect of Palmolein case. Those notings have not been considered by the HPC. As stated above, the 2003 Act confers autonomy and independence to the institution of CVC. Autonomy has been conferred so that the Central Vigilance Commissioner could act without fear or favour. We may reiterate that institution is more important than an individual. This is the test laid down in para 93 of N. Kannadasan’s case (supra). In the present case, the HPC has failed to take this test into consideration. The recommendation dated 3rd September, 2010 of HPC is entirely premised on the blanket clearance given by CVC on 6th October, 2008 and on the fact of respondent No. 2 being appointed as Chief Secretary of Kerala on 18th September, 2007; his appointment as Secretary of Parliamentary Affairs and his subsequent appointment as Secretary, Telecom. In the process, the HPC, for whatever reasons, has failed to take into consideration the pendency of Palmolein case before the Special Judge, Thiruvananthapuram being case CC 6 of 2003; the sanction accorded by the Government of Kerala on 30th November, 1999 under Section 197 Cr.P.C. for prosecuting inter alia Shri P.J. Thomas for having committed alleged offence under Section 120-B IPC read with Section 13(1)(d) of the Prevention of Corruption Act; the judgment of the Supreme Court dated 29th March, 2000 in the case of K. Karunakaran v. State of Kerala and Another in which this Court observed that, “the registration of the FIR against Shri Karunakaran and others cannot be held to be the result of malafides or actuated by extraneous considerations. The menace of corruption cannot be permitted to be hidden under the carpet of legal technicalities and in such cases probes conducted are required to be determined on facts and in accordance with law”. Further, even the judgment of the Kerala High Court in Criminal Revision Petition No. 430 of 2001 has not been considered. It may be noted that the clearance of CVC dated 6th October, 2008 was not binding on the HPC. However, the aforestated judgment of the Supreme Court dated 29th March, 2000 in the case of K. Karunakaran vs. State of Kerala and Another in Criminal Appeal No. 86 of 1998 was certainly binding on the HPC and, in any event, required due weightage to be given while making recommendation, particularly when the said judgment had emphasized the importance of probity in high offices. 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.

Setting aside the objections of the CVC, that the Court cannot issue a writ of quo warranto so as to remove him from the post, the Supreme Court also held that the appointment of CVC was not a personal choice of the President but was a decision of the Prime Minister which given the Constitutional set-up of the country, was binding on the President.

The Supreme Court also issued directions required to be considered in future for appointment of Central Vigilance Commissioner by the High Powered Committee constituted under the Central Vigilance Commission Act, 2003 comprising of the Prime Minister as its Chairman and Home Minister and Leader of Opposition as the other two members. The Court issued the following directions;

55. No reason has been given as to why in the present case the zone of consideration stood restricted only to the civil service. We therefore direct that : 

(i) In our judgment we have held that there is no prescription of unanimity or consensus under Section 4(2) of the 2003 Act. However, the question still remains as to what should be done in cases of difference of opinion amongst the Members of the High Powered Committee. As in the present case, if one Member of the Committee dissents that Member should give reasons for the dissent and if the majority disagrees with the dissent, the majority shall give reasons for overruling the dissent. This will bring about fairness-in-action. Since we have held that legality of the choice or selection is open to judicial review we are of the view that if the above methodology is followed transparency would emerge which would also maintain the integrity of the decision making process. 

(ii) In future the zone of consideration should be in terms of Section 3(3) of the 2003 Act. It shall not be restricted to civil servants. 

(iii) All the civil servants and other persons empanelled shall be outstanding civil servants or persons of impeccable integrity. 

(iv) The empanelment shall be carried out on the basis of rational criteria, which is to be reflected by recording of reasons and/or noting akin to reasons by the empanelling authority. 

(v) The empanelment shall be carried out by a person not below the rank of Secretary to the Government of India in the concerned Ministry. 

(vi) The empanelling authority, while forwarding the names of the empanelled officers/persons, shall enclose complete information, material and data of the concerned officer/person, 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 is specifically brought to the notice of the Selection Committee. 

(vii) The Selection Committee may adopt a fair and transparent process of consideration of the empanelled officers. 

Have a look at the decision.