'Government, not Thomas, should seek review of SC order'

In this candid interview with Sahim Salim, Thomas's counsel, Wills Mathews explains why his client has struck a tough stance.  

After the Supreme Court declared his appointment as illegal, the President of India also has cancelled Thomas's appointment. Can you tell us what you think about the Constitutional validity of both these actions?

I am highly disappointed by the President's actions. Firstly, Article 53 of the Constitution of India which talks about the powers of the Indian President clearly states, 'In accordance with the Constitution.' Article 60 says 'Protect and defend the Constitution.' According to Article 145 (3), the minimum number of judges (to remove Thomas) should be a bench of five, while in this case there were only three.

According to the Central Vigilance Act, section 6 states specifically that it is only on the order of the President 'on grounds of proved misbehaviour or incapacity' that the court can exercise jurisdiction. In this case, the court does not have the jurisdiction to set aside the appointment as the President did not give any reference to the court to look into the appointment. In any case, the President did not have any grounds to give the reference because there is no 'proven misbehaviour or incapacity.'

The President is well aware of the fact that the order was passed by a three-judge bench. The established procedure set aside by the Constitution had been violated.

So, as declared earlier, are you advising Thomas to file a review?

Frankly speaking, I am shocked by the President's order. I am no longer sure what to do. I am finding it difficult to advise my client. I was a student of political science, both in BA and MA, and from what I have learnt, the Constitution is supreme. In this case, things are going against the Constitution and it can have disastrous consequences in coming days.

The affected party in the case, when you look at it, is the Union of India; ideally, they should file for the review. My client was appointed by the Government of India. So when his appointment has been declared illegal, the government should be filing a review as they are the aggrieved party.

We have not decided about the review. The Supreme Court judgment is going to engross the power of the executive and the legislative because this judgment is going to be binding on future cases as well, and is not merely a case of Thomas, who would have retired in any case by January 31.  

So what you are trying to say is that currently you are thinking whether to file a review as according to you, it is the Government of India which should be filing for a review?

Absolutely. The attorney general, who is also a constitutional functionary, has a duty to advise the Union of India. They are more liable and responsible. They should file the review because the judgment is affecting the structure of the Constitution. I feel that if the government does not file for review, a writ should be filed against the government, asking them why they are not asking for the correction of a mistake. They cannot feign ignorance, they are answerable.

When the Supreme Court judgment came, the prime minister assumed full responsibility and said that it was an 'error in judgement.' What are your comments on this?

As far as the prime minister is concerned, once the SC says the appointment is wrong, he has no other option other than to accept it. He has certain limitations. Like Thomas follows our advice, the PM has to follow the SC's advice.   

What happens in a review, technically?

A review is filed before the same bench that passed the order. This case is fit for a review because of certain patent illegalities. Anybody can file a review. We believe that the Union of India should file the review. We are waiting to see what they will do.

So, will you be advising Thomas to submit his resignation?

There is no question of a resignation. The very purpose of Thomas's non-resignation is that the judgment itself is void, so why should he resign?

What is the status of the case pending against Thomas? (The two-decade old case in which the import of palmolein is estimated to have led to a loss of Rs 2.32 crore to the exchequer).