The Supreme Court, after inspecting official files on November 24, said the appointment of Arun Goel as Election Commissioner was done with “lightning speed”, the procedure taking less than 24 hours from start to finish on November 18.
A Constitution Bench led by Justice K.M. Joseph had asked Attorney General R. Venkataramani on November 23 to produce the files concerning Mr. Goel’s appointment after petitioners alleged that it was “hurriedly” done, in fact, the very next day after the court started examining the need to insulate the Election Commission of India (ECI) from political influence by setting up a “neutral and independent mechanism” for appointment of Election Commissioners.
Advocate Prashant Bhushan, for the petitioner, said that Mr. Goel was a Secretary in the government on Friday. He took voluntary retirement that day and was appointed as Election Commissioner on Saturday and took charge on Monday.
“It was done with such haste… with a tearing urgency… You did not require time to contemplate?” Justice Joseph asked the government side.
Justice Ajay Rastogi, on the five-judge Bench, said the Election Commissioner’s post was vacant from May.
“The vacancy was there from May to November 18… Now, what prevailed on the government that everything needed to be done within the shortest possible time… This superfast mechanism… We know that where there is a will there’s a way, but here the notification was brought out on the same day, the application was given the same day, it was accepted the same day and the appointment was made the same day… The file has not travelled even 24 hours! Lightning speed… What kind of evaluation was there?” Justice Rastogi asked.
Mr. Venkataramani said that he could show a whole number of appointments made after 2015 which had taken a maximum of two to three days. “Are we finding fault with quick appointments?” Mr. Venkataramani asked.
Justice Aniruddha Bose pointed out that Mr. Goel had taken voluntary retirement and was appointed Election Commissioner the very next day. “Does it happen like that?” Justice Bose asked.
Mr. Venkataramani replied that it could have been a “coincidence”.
Justice Joseph said Mr. Goel’s records show an excellent academic record, but asked whether brilliance and competency was enough of a guard against docility.
The Attorney General said ‘docility’ was subjective and depended on the lens through which the court wanted to view a person. “It is not that we find some docile person lurking there and decide to appoint him,” Mr. Venkataramani shot back.
Justice Joseph said Mr. Goel’s name was picked from a panel of four names prepared by the Law Minister. The court questioned the process by which the Law Minister had zeroed in on these four names from the entire database of the Department of Personnel and Training.
The court pointed out that the law required both the Chief Election Commissioner (CEC) and the two Election Commissioners (ECs)to have separate six-year tenures. The court said the government has reduced the scope of candidates to just bureaucrats and moreover ensured that neither the CEC nor the ECs serve their full term. The government said Election Commissioners were “elevated” as CECs.
“A CEC is a person to be appointed in his own right. You have made it into a promotion source. You are supposed to appoint a person directly as CEC. You have made ECs a feeder category. The Founding Fathers contemplated a CEC who will hold office for six years independently… not as a promotion,” Justice Joseph addressed the government.
Mr. Venkataramani countered that by that logic a person who is appointed as EC would get six years in office and another six years as CEC.
“Are you saying that you have to necessarily appoint an EC as CEC?” Justice Joseph asked.
The top law officer said that was how the law stood today.
“Where is that law? Show us… The law says CEC and ECs should separately have six years terms... And in case, he or she turns 65, will vacate office. But what are you doing, and doing for a long time… You are promoting ECs to CECs and ensuring that both don’t have a full term of six years, which is contrary to the law,” Justice Joseph said.
The court said three of the four candidates on the panel from which Mr. Goel was picked were 62 years old and could not have completed a full term of six years.
Mr. Venkataramani said the names were selected on the basis of the IAS batches and seniority.
“Are you saying that only persons who are on the verge of retirement, who will definitely not get the term of six years are carefully picked and chosen? If so, you are violating the law,” Justice Joseph retorted.
The Attorney General said “weighing the relative suitability of a large number of people” for the post of Election Commissioner was a “difficult experience”.
“It will be if you have to do it in a day… You took just one day, November 18,” Justice Joseph responded, reserving the case for judgment.