A Constitution bench in the Supreme Court on Thursday questioned the “tearing hurry” and “haste” shown by the central government in appointing Arun Goel as an election commissioner (EC) on November 18, wondering if the Union law minister Kiren Rijiju followed any yardstick to zero in on Goel from the pool of four officers picked for the selection.
The bench’s poser closely follows the law minister’s strong and consistent criticism of the apex court’s model of selecting judges through the collegium system. At various instances during the last one month, Rijiju commented that the Supreme Court collegium appoints people who are known to the judges; called the collegium system “opaque”; and described the Indian selection system as the only one where judges appoint judges.
“What we can find from the file is that according to database of serving and retired officers, the name of Mr Goel was suggested on November 18. This is done by the minister of law and justice (Rijiju). So, he picks up the name from the panel of four names. The file moves on the same day, from the ministry to another officer, and finally to the Prime Minister who endorses the name. It is done in such a haste, tearing urgency that all of this done in one day,” the five-judge bench headed by justice KM Joseph asked attorney general (AG) R Venkataramani.
The bench added: “Can you show us from May 15, when the post first fell vacant, to November 18, what did you do? What prevailed upon the government that you did this appointment superfast on one day? Same day process, same day clearance, same day application, same day appointment. File has not even travelled for 24 hours. Lightning fast! What kind of evaluation would have been there in less than 24 hours.”
To be sure, the top court already clarified on Wednesday that it will not scrutinise the correctness of Goel’s appointment but wished to see how the government appoints Chief Election Commissioner (CEC)and ECs.
Even as it reserved the judgment on a batch of petitions demanding an independent selection mechanism to appoint the CEC and ECs, the bench, which included justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and CT Ravikumar, posed a specific query as to how the law minister created a pool of four bureaucrats and finally found Goel the most suited for the appointment.
“Tell us how did the law minister prepare a panel of four names? How did the minister, using whatever mechanism you may have, zero in on just four names when there could several other officers similarly situated? Were there any criteria for the law minister to pick four names? Kindly, enlighten us how the law minister picked these four names,” it asked the AG.
Venkataramani, on his part, attempted to justify the process, arguing that the pool of officers was created on the basis of several factors, including their seniority, age, and suitability and tenure. “I am satisfied that due process has been followed. These questions will crop up. How many appointments in public offices happen in 12 or 24 hours? Can we get into all such instances? The government consulted me before it made the appointment and I gave an opinion that they can go ahead,” said the AG.
But the bench remained unimpressed with the answer: “We asked you for producing the file and you have done (so). Good! But we are struggling to understand the reasons. There will be several people who will fit in the criteria. What’s the filter used by law minister to zero in on these four persons? We are a little mystified as to how they were picked… We are testing the process how you are making the appointments. If we find that not four but forty people suited the criteria, we would want to know how these four persons were picked,” it observed.
The court said that this is the reason it has been seeking to know from the government if any guidelines were laid down for selecting CEC and ECs. “That’s why we thought why rules were not framed to prescribe these guidelines even after the Constitution said it,” it said.
The AG, however, replied that certain processes are best left to a degree of informalities. “If in a given case, doubts arise, the court can certainly look into it,” he added.
The bench also took umbrage at the fact that all the officers shortlisted by the law minister were on the verge of retirement, and none of them could have a full term of six years as an EC upon selection. Under the 1991 Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, CEC and ECs shall hold office for a term of six years or till they are 65, whichever is earlier.
“If we look at the names shortlisted, not one of them could have a term of six years, as provided under Article 324 of the Constitution. Are you suggesting that only those who are on the verge of retirement can be shortlisted? Therefore, those who are on the verge of retirement who will definitely not get six years are carefully chosen in the panel. Is that a rational criterion? You are violating Article 324. We are saying it openly,” the bench told the AG.
Venkataramani, on his part, replied: “It happens like that but there is no design.”
To this, the court retorted: “It (the facts) stares at our faces in so many ways. The law says EC will be appointed for six years, provided he attains the age of 65. You have been doing something else. This government or any other government is making it sure he doesn’t get six years. Why will you have a panel that forces you to appoint people who will never have a full term? If you are hell-bent that you won’t appoint someone who will have a six-year term then you are against the statute.”
It added: “The point is what binds us is the will of the people speaking through the parliamentary law and we have to see that the law is followed. Law has to be observed in its spirit and not in breach. Here, the proviso has become the rule? Everyone who is appointed knows he will never get six years.”
The petitions in the case, argued by senior counsel Gopal Sankaranarayanan and advocate Prashant Bhushan, complained that Parliament has not framed a legislation despite a mandate under Article 324(2). At present, ECI is a three-member body, with a CEC and two ECs. Under Article 324(2) of the Constitution, the President is empowered to appoint the CEC and ECs. This provision further stipulates that the President, who acts on the aid and advice of the Prime Minister and the council of ministers, will make the appointments “subject to the provisions of any law made in that behalf by Parliament”.
However, with no such law having been framed till date, CEC and ECs are appointed by the Prime Minister and the council of ministers under the seal of the President. The rules for such appointments are also silent on the qualification of a candidate.
On Thursday, Sankaranarayanan argued that the empanelment process for ECs has to be such where only people who can get six years’ tenure are picked. “CEC and EC must be first appointed through a clear and visible process and they must have a tenure of six years…System of appointment should be seen to be reasonably independent. And it’s not for any one wing of the democracy but for the people of this country,” he added.
Bhushan, on his part, pointed out that there were more than 100 senior officers who could have been picked as an EC but the government chose Goel, who was on the verge of his retirement and will have a truncated tenure of three years at ECI because of his age.
Since the Constitution bench started hearing the case on Thursday last week, it has constantly grilled the government over the lack of regulations to guide appointment of CEC and ECs. On Thursday last week, it questioned the government if it was not defeating the wishes of the framers of the Constitution by not framing a law, adding the apex court could examine the necessity of having a better system.
On Tuesday, the court lamented that successive governments have “completely destroyed” the independence of ECI by ensuring no CEC has got the full six-year term since 1996, adding the absence of a law for appointment of ECs has resulted in an “alarming trend”.
The first retort from the government came on Wednesday when it told the Supreme Court that the participation of the Chief Justice of India (CJI) in picking ECs cannot be the only guarantee of fairness in the selection process, even as the court asked the Centre to produce in 24 hours the file related to Goel’s appointment as an EC so as to demonstrate how ECs are chosen.
While the Constitution bench has repeatedly stressed since last week on how CJI’s presence can usher in impartiality to a selection process at a time when all governments want “Yes men” in ECI, the government, through solicitor general Tushar Mehta, called it a “fallacious” and “constitutionally impermissible” suggestion that the executive cannot make an honest selection without the help of the judiciary.