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Arun Goel's Appointment As Election Commissioner Raises Pertinent Questions At Procedure; EC Should Have 6 Years Tenure : Supreme Court
Sohini Chowdhury
3 March 2023 9:15 AM IST
Longer stint as Election Commissioner is necessary to ensure independence, said Court.
In the judgment giving directions to reform the process of appointment of Election Commissioners, the Supreme Court has observed that the process of appointment of Arun Goel as an Election Commissioner "throws up certain pertinent questions".The Constitution Bench had started hearing the petitions which sought an independent mechanism to appoint Election Commissioners on November 17, 2022....
In the judgment giving directions to reform the process of appointment of Election Commissioners, the Supreme Court has observed that the process of appointment of Arun Goel as an Election Commissioner "throws up certain pertinent questions".
The Constitution Bench had started hearing the petitions which sought an independent mechanism to appoint Election Commissioners on November 17, 2022. When the matter stood posted to November 22, 2022, the Centre notified the appointment of Goel as an EC on November 18, 2022 with respect to a vacancy which had been in existence since May 5, 2022. The judgment noted that an application filed by the petitioners to stop appointments to the vacancy during the pendency of the case was on record, though no order was passed on it.
Expressing surprise at the "lighting speed" with which the appointment of Goel had made, the Court had in November 2022 directed the Attorney General for India to produce the relevant files before reserving judgment. From the files, the Court noted that the Union of India was aware of the pendency of the matter.
Appointment process completed in one day
The Court also noted that the whole process regarding Goel's appointment was completed in one day. On November 18, 2022, approval was sought for filling up of the vacancy of EC. On the same day, a database of the IAS officers, serving and retired, was drawn up. Four names were considered. Goel was due to retired in December 2022 and had sought voluntary retirement. On the very same day, the Prime Minister recommended his name for appointment. On the same day again, Goel made an application seeking waiver of the 3-month period to avail voluntary retirement. "Not coming as a surprise, on the same day, his appointment as Election Commissioner was also notified", the judgment noted.
The judgment further stated, "We are a little mystified as to how the officer had applied for voluntary retirement on 18.11.2022, if he was not in the know about the proposal to appoint him".
"Since the Constitution Bench has been constituted to consider the need for a different method of appointment of the Chief Election Commissioner and the Election Commissioners, the procedure involved in the appointment as has been followed throws up certain pertinent questions", the judgment authored by Justice KM Joseph stated.
Officers who could serve full 6 years must be preferred
In this backdrop, the Court highlighted that persons who could serve a term of full six years as Election Commissioners should be preferred. As per the relevant provision of law [Section 4(1) of the Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Act, 1991], the EC has to vacate the office on reaching 65 years of age.
“The philosophy behind giving a reasonably long stint to the appointee to the post of Election Commissioner or the Chief Election Commissioner, is that it would enable the Officer to have enough time to gear himself to the needs of the Office and to be able to assert his independence.”
A Constitution Bench comprising Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar noted that though there is a proviso to Section 4(1) of the Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Act, 1991 which grants relaxation to the six year term, it is only an exception and the proviso cannot arrogate itself to the status of the main provision. It observed -
“The exception cannot become the Rule. Yet, this what the appointments have been reduced to. It undermines the independence of the Election Commission. The policy of the law is defeated.”
Justice Joseph pointed out that even among the 4 names that were shortlisted, the Government selected names of those who were to retire before the 6 year tenure. He indicated that the executive is required to pick names of those who could serve the full tenure, otherwise it would be a violation of Section 4 of the Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Act, 1991.
In the judgment authored by Justice Joseph, the Court noted that no law has been laid down as contemplated under Article 324 of the Constitution. However, there seems to exist a convention to appoint senior Members of the Civil Services, other serving or retired Officers of the rank of Secretary to the Government of India/Chief Secretary of State Government as the Election Commissioners. As per the same convention, the senior-most Election Commissioner is appointed as the Chief Election Commissioner.
As per Section 4 of the Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Act, 1991, the Chief Election Commissioner and the Election Commissioner is entitled to a term of 6 years, but they have to vacate the office upon attaining the age of 65 years. The Bench had enquired during the proceedings that in order to fulfil the mandate of the provision the Government could have considered an officer who could have completed the full term of six years. The Attorney General, R Venkatramani had submitted that there was dearth of such officers. Countering his submission, Advocate Prashant Bhushan and Senior Advocate Gopal Shankaranarayanan representing the petitioners had pointed out that there are 160 officers who belonged to the same Batch as Arun Goel, but were younger to him. Considering the same, the Bench observed -
“If the drawing up of the panel itself results in a fate accompli, then, the whole exercise would be reduced to a foregone conclusion as to who would be finally appointed. What we find about the method involved is, even proceeding on the basis that the Government has the right to confine the appointee to Civil Servants, that it is in clear breach of the contemplated mandate that be it as an Election Commissioner or Chief Election Commissioner, the appointee should have a period of six years. The philosophy behind giving a reasonably long stint to the appointee to the post of Election Commissioner or the Chief Election Commissioner, is that it would enable the Officer to have enough time to gear himself to the needs of the Office and to be able to assert his independence. An assured term would instil in the appointee, the inspiration and the will to put in place any reforms, changes, as also the inspiration to bring out his best. A short-lived stint may drain the much- needed desire besides the time to fulfil the sublime objects of the high Office of the Election Commissioner or the Chief Election Commissioner. Any tendency towards placating the powers that be, would wax as also the power and the will to assert his independence may wane, bearing in mind, the short tenure.”
The Bench further clarified that its observations are not meant to be an assessment of the suitability of Arun Goel. The bench noted that he had excellent academic qualifications. However, the academic excellence of the individuals being considered for appointment cannot replace the value of independence and freedom from bias of political affiliation, it added.
[Case Title: Anoop Baranwal v. Union of India WP(C) No. 104/2015]
