If Election Commissioner Arun Goel’s abrupt resignation just before the Lok Sabha elections has come as a shock, his appointment to the post in November 2022 too had raised eyebrows since it had happened even as the Supreme Court was hearing a petition on the process adopted to appoint the Chief Election Commissioner and the Election Commissioners.
The Supreme Court, while delivering its landmark March 2 judgment on the process to be adopted to appoint the Chief Election Commissioner and Election Commissioners, dwelt at great length on the appointment of Goel as the Election Commissioner.
The court judgment had an entire section devoted to the appointment of Goel as an Election Commissioner, and it was titled 'The Appointment of Shri Arun Goel: A Trigger Or A Mere Aside?'
It took note of the swiftness with which Goel's name was cleared by the government and remarked that the process "throws up certain pertinent questions."
In the course of hearing petitions about the process adopted by the government to appoint the CEC and ECs, the court started hearing cases related to the vacancy of a third member of the Commission, which had arisen on May 15, 2022. The bench commenced hearing these cases on November 11, 2022, and the matter was posted for further hearing on November 22, 2022. However, on November 18, 2022, Goel was appointed as the second Election Commissioner.
The court asked the government to produce before it the files relating to Goel's appointment after senior advocate Prashant Bhushan, who was representing one of the petitioners, objected to the development.
"We found, undoubtedly, from the perusal of the files that the respondent was aware of the pendency of Writ Petition (Civil) No. 104 of 2015 apart from the other Writ Petitions. The appointment has been made apparently on the basis that there was no hindrance to the making of the appointment. Approval was sought on 18.11.2022 for the appointment of one Election Commissioner. On the very same day, drawing upon the database of IAS Officers, serving and retired, in the position of Secretary to the Government of India, it was accessed," the order read.
The court said in its order that it found four names in the list provided by the government, which included at the top of the list, Goel's name.
It said three other names were also considered by the minister of law and justice. "One of the officers was from Andhra Pradesh and belonged to the 1983 Batch. The third officer empanelled belonged to the Telangana state and he belonged to the 1983 Batch and the fourth officer belonged to the Tamil Nadu cadre and belonged to the 1985 Batch," it said. Goel belonged to the Punjab Cadre and was of the 1985 Batch.
"On the same day, i.e., on 18.11.2022, a note was seen put up, wherein the law minister had suggested the panel of four names for the consideration of the prime minister and the President. Therein also, the absence of a law and the convention, which we have already referred to, has been noted," the court said.
It noted that three of the officers mentioned had superannuated during the last two years or so. The appointee, it was noted was to superannuate in December 2022 and had taken voluntary retirement. He was the youngest of the four members of the panel. "It was recommended to the Prime Minister that considering his experience, age, profile and suitability, the current appointee may be considered," it said.
The court order further said on the very same day again, the prime minister recommended the name of the present appointee.
"We notice further that, on the same day again, an application is seen made by the appointee in regard to voluntary retirement and accepting the same, again, w.e.f., 18.11.2022, and waiving the three-month period required for acting on the request of voluntary retirement, the officer’s request for voluntary retirement came to be accepted by the competent authority."
The court said it did not come as a surprise that on the very same day, Goel's appointment as Election Commissioner was also notified.
But it did remark that it was 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.”
The apex court had in its judgment prescribed a collegium system for the appointment of the CEC and ECs. The collegium was to comprise the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India.
The government, however, brought in legislation as per which the selection committee would consist of the Prime Minister, the Leader of Opposition in the Lok Sabha and a member of the union cabinet nominated by the Prime Minister.
Interestingly, after Goel’s resignation, there are now two vacancies in the three-member poll body. And these vacancies will be filled up in accordance with the new law.
