On November 24th, 2022, a Constitution Bench led by Justice KM Joseph reserved Judgment in a PIL challenging the constitutional validity of the current system for appointing members of the Election Commission of India (ECI). The Bench came down heavily on the Union for appointing Mr. Arun Goel as the Election Commissioner on November 21st, 2022, while it was hearing the case. 

Background

In January 2015, Anoop Baranwal filed a PIL on the ground that the current system for appointing members of the Election Commission of India (ECI) is unconstitutional. Currently, the Executive enjoys the power to make appointments, which the PIL contends has degraded the ECI’s independence over time. The PIL pleads for the Court to issue directions to set up an independent, Collegium-like system for ECI appointments. It claims that the current system of appointments violates Article 324(2) of the Constitution.

Article 324 specifies that while the Chief Election Commissioner and Election Commissioners will be appointed by the President, this is subject to any law enacted by Parliament(if such law exists). While this provision places an expectation on Parliament to draft a relevant law, it has not done so up until now. In the absence of such a law, the President has been making appointments as per the recommendations of the Prime Minister.

The Union has defended the current system of ECI appointments, citing the ‘honest record’ of all past Chief Election Commissioners (CEC’s). It has urged the Court to not intervene, arguing that the matter falls within the Executive domain.

 

Issue In Focus Today

  • Did the Union government consider relevant factors in the appointment of Mr. Arun Goel as Election Commissioner?

Supreme Court: Why the ‘Tearing’ Urgency to Appoint Arun Goel as Election Commissioner?

In the previous hearing, the Court asked the Attorney General to produce documents pertaining to the appointment of Mr. Arun Goel as the Election Commissioner. Today, after considering the files, the Bench asked the Union why their was such a ‘tearing’ urgency in appointing Mr. Goel’s appointment, especially as the Court was hearing a case on appointments to the Election Commission. The Court noted that the position had been vacant since May, 2022 and asked the Attorney General to explain what factors the Union considered while hastily appointing Mr. Goel.

Attorney General R. Venkataramani clarified that due processes was followed in appointing Mr. Goel as the Election Commissioner. He argued that the government has cleared appointments in 12 to 24 hours on many occasions. However the question the Court must consider at the moment is a constitutional issue. 

Unconvinced, the Bench asked how the law minister shortlisted the four potential candidates for the post and finally chose to recommend Mr. Goel’s name for appointment. The AG responded stating that various factors were considered, including the length of tenure that an officer would serve in the EC if appointed. 

The Bench also pointed out that as per Section 4 of the  Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 (EC Act), the EC and CEC must hold the post for a period of six years, however the candidates in the list, would not have completed six years of service if appointed as they would have completed 65 years of age. The Bench asked the AG why the council of ministers were not consulted in Mr. Goel’s appointment. However, Mr. Venkataramani did not answer the question, stating that it was not relevant to the current case. 

 The AG argued that if the Court starts doubting every appointment, institutions such as the Election Commission may lose their sanctity. Though the Bench repeatedly asked Mr. Venkataramani about the procedure for appointment, he insisted that the current reference to the Constitution Bench is on the question of law and not a ‘mini trial’ regarding Mr. Goel’s appointment. 

Sr. Adv Gopal Sankaranaraynan: ECI Functioning Must be Ironclad, Without a Perception of Wrongdoing

Appearing for Ashwini Kumar Upadhyay, Sr. Adv. Gopal Sankaranarayanan commenced his arguments by pointing out that many CECs did not complete six years in the post as proposed in the EC Act. He argued that young civil servants in their 40s and 50s must be appointed to the ECI in order to ensure that they complete a long term. 

Mr. Sankaranarayanan, while highlighting the importance of the EC’s role in a democracy, stated that the functioning of ECI must be ironclad to ensure there is not even any perception of wrongdoing. He argued that on many occasions, the Court has interfered to fill up lacunas in legislation, and ensured that the purpose of the Act is served. Mr. Sankaranarayanan, cited the S.P.Gupta case (1981), where the Court interfered without a ‘trigger’ point—borrowing a phrase used by AG Venkataramani in yesterday’s hearing.

The Court, on hearing the submissions, reserved the case for judgment.