Appointment of an Election Commissioner with tenure less than six years is a clear breach of law: Supreme Court

The SC’s observation came while discussing the designation of Arun Goel as an Election Commissioner, who has a term of a little over five years.

Arun Goel retired voluntarily from his old job and was appointed the Election Commissioner on the very same day. File | Photo Credit: PTI

The Supreme Court on Thursday held that the appointment of an Election Commissioner for a tenure less than six years is in “clear breach” of law. The court’s observation came while discussing the designation of Arun Goel as an Election Commissioner.

Mr. Goel, whose appointment took place in a matter of just 24 hours on November 18 last year, has a term of a little over five years.

Section 4(1) of the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 requires that Chief Election Commissioners and Election Commissioners should separately have a period of six years in office.

“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 instill in the appointee an 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…,” Justice K.M. Joseph, heading a Constitution Bench, observed in a judgment which struck down the government’s exclusive control over appointments to the Election Commission of India.

The court clarified that its observations were not meant as an “individualised assessment” of Mr. Goel. It noted his excellent academic qualifications, but added that “academic excellence which members of the civil service may possess cannot be a substitute for values such as independence and freedom from bias from political affiliation”.

The court admitted to being a “little mystified” at Mr. Goel’s voluntary retirement from his old job and his appointment as Election Commissioner on the very same day. How was Mr. Goel so confident as to seek voluntary retirement when he was only one among four persons shortlisted for appointment as Election Commissioner, the court wondered.

“We are a little mystified as to how the officer had applied for voluntary retirement on November 18 if he was not in the know about the proposal to appoint him…,” the court observed.

The court further said it remains a “mystery” how the other three persons in the shortlisted panel were already retired, that too in 2020, and Mr. Goel himself was scheduled to retire in December 2022.

“If the drawing up of the panel itself results in a fait accompli, then, the whole exercise would be reduced to a foregone conclusion as to who would be finally appointed,” the court said.

The court also highlighted how Mr. Goel’s appointment was made just a day after the Constitution Bench commenced its hearing on the petitions challenging the government’s monopoly in Election Commission appointments.

“All the procedures commencing with the proposal, processing of the same at the hands of the Minister for Law, the further recommendations of the concerned officers, the recommendation of the Prime Minister, the acceptance of the application of the appointee seeking voluntary retirement, waiving the three months period and the appointment by the President under Article 324(2), which came to be notified, took place in a single day,” the court highlighted.