Arun Goel appointment: If we start doubting every appointment, there are implications for ECI's reputation: AG to Supreme Court

The Supreme Court on Thursday grilled Attorney General (AG) for India R Venkataramani on the rushed recent appointment of retired civil servant Arun Goel as an Election Commissioner. [Anoop Baranwal v. Union of India and ors].A Constitution Bench of Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar wondered what deliberation could have been done to finalise a name within 24 hours, without the apparent mandatory aid and advice of the Council of Ministers. Justice Rastogi asked why the judges should not deal with the said question, saying,"Where is the aid and advice of the council of ministers gone [in Arun Goel's appointment]?"The AG replied saying, "Let us not get into that question today." When Justice Rastogi asked why not, the Attorney General responded saying,"If we start doubting every appointment, look at the implications for the institution's reputation.".Article 324 of the Constitution provides for the President to make the appointments to the Election Commission of India (ECI). Article 74 provides that the President, in the exercise of their functions, has to act in accordance with the aid and advice of the Council of Ministers. .The five-judge Bench is hearing a challenge to the current system of appointing members of the Election Commission of India (ECI) on the ground that the executive enjoys the power to make appointments in violation of Article 324(2) of the Constitution of India.Today, the Bench began by questioning the Central government as to what the tearing hurry was to appoint Arun Goel as an Election Commissioner, and how the names were even shortlisted before his selection.The AG produced the file relating to Goel's selection before the Court, after which the judges asked why only retired bureaucrats on the verge of retirement were being considered. .The Attorney General submitted that he had examined the concerned file himself and found no irregularities in the appointment. Senior Advocate Gopal Sankaranarayanan, appearing for the petitioner, then pointed out that Goel was due to retire on Saturday. The AG then responded saying, "We are not in a mini-trial here." After the AG assured the Bench that the needful was done by the Central government even though the appointment was on very short notice, Justice Joseph remarked,"...we are telling you this is not adversarial. We are trying to find out, being mindful that there is a system in place...How were the four names [including that of Goel, in the shortlist] zeroed in on?" The AG responded that the average tenures the existing pool of eligible civil servants would have as Election Commissioners was used to narrow down the names. On at least three more occasions during the course of the hearing, the judges asked the AG as to the mechanism behind short-listing the four and how Goel was chosen from among them. "Attorney General, kindly enlighten us as to how the Law Minister picks up these four names? How were the four chosen?" Justice Joseph asked. Justice Rastogi said,"We are asking you to place before us the mechanism of filtering down these four names...Mr Attorney, you are keeping away the answer. You are trying to justify the selections." .Sankaranarayanan then pointed out that there was nothing known about such a mechanism, since there was nothing written or in law. He submitted,"They have not had anyone for a six-year term. In service jurisprudence, we have cadres. Now we are hearing that the Election Commission of India is a cadre. Parliament has told the executive that you must have tenures so that there is security of tenures. Otherwise there is a leash. We are not saying mala fides. It does not seem to us that the institution can be away from executive control with such tenures." He argued that the Court had earlier also intervened in such cases to ensure a method is laid out that is devoid of arbitrariness. He also took objection to the practice of appointing only civil servants on the verge of retirement. "Do we need to have only older CECs? Can we not have people in their 40s and 50s? Functioning of the Election Commission of India must be iron-clad to ensure there is not even any perception of wrongdoing. We are arguing on behalf of the people of this country." On the selection of Goel, he said, "What was the material before them? They decided it in one day. We get upset with Parliament passing bills in a day, now even the executive is doing the same...What is this 24-hour business?!" Advocate Prashant Bhushan argued that since his interim application seeking a stay on appointments to the ECI was filed well before the short-listing of names, Goel's appointment should only have been subject to the top court's directives in the present case. The Constitution Bench then proceeded to reserve its verdict in the matter..The Court had on Tuesday observed that political parties in power at the Centre force the Chief Election Commissioners (CEC) to do their bidding so as to remain in power, thereby, compromising the independence of the Election Commission.The Court had suggested that the Chief Justice of India (CJI) be included in the committee appointing the CEC.Justice Joseph on Wednesday had remarked that Article 326 of the Constitution gives citizens the right to vote, and it cannot be overruled by the ancillary law-making powers of Parliament..[Follow our coverage of today's hearing]