Submit file on recent appointment of Arun Goel as Election Commissioner: Supreme Court to Central government

A Constitution Bench of the Supreme Court on Tuesday on directed the Central government to produce the file relating to the recent appointment of retired civil servant Arun Goel as an Election Commissioner [Anoop Baranwal vs Union of India and ors]..The bench led by Justice KM Joseph and also comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar asked how the appointment could have been made given the pendency of an interim application seeking a stay on appointments to the Election Commission of India (ECI). Justice Joseph told Attorney General R Venkataramani,"We started hearing this on Thursday. And the next hearing takes place yesterday. We would like you to produce the files related the appointment of the recent CEC, so that we know you are not in the wrong. Was he appointed based on VRS, the mechanism? Since the matter of appointments is being considered by a Constitution Bench, and an pplication is filed by parties for interim stay on appointments, how did this one get through? If everything is hunky dory... It is not adversarial, we are only asking you." Justice Roy then said in a lighter vein,"It may not be a case of overreach, but over reading the mind of the court." The Bench then asked the AG to bring the file tomorrow, observing there is 'no danger' in doing so. Goel took voluntary retirement on November 18, Friday, was appointed on November 19 and took charge on November 21. .The Court is hearing a challenge to the current system of appointing members of the ECI on the ground that the executive enjoys the power to make appointments in violation of Article 324(2) of the Constitution of India.Counsel today argued on whether, in the absence of a law as contemplated by Article 324, judicial intervention was called for. .The bench had yesterday observed that political parties in power at the centre force 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 further said that enormous responsibility lies on the shoulders of the CEC and the person should, therefore, be someone who cannot be bulldozed. The judges in this regard also referred to former CEC TN Sheshan who had introduced electoral reforms and made the Election Commission and robust institution.The Court had, therefore, suggested yesterday to include the Chief Justice of India (CJI) in the committee appointing the CEC..During the hearing today, the AG submitted that the present matter was not one calling for judicial intervention as earlier instances of the same were in the cases of exigencies, like mounting vacancies in tribunals. Additional Solicitor General Balbir Singh said that the matter is one to be dealt with by parliament given the absence of a law. He also disputed the fact about short tenures of CECs, saying the petitioners had not taken their periods serving as Election Commissioner into account. "By virtue of providing an alternate arrangement, are we going to dislodge the [powers of the] President and aid of Council of Ministers? We cannot."Justice Joseph stressed the complete independence of Election Commissioners. "They are supposed to be completely insulated, and need independence. To ensure this, a larger selection body may be needed."To Justice Joseph's suggestion yesterday to include the CJI in the selection committee, Solicitor General Tushar Mehta cited the doctrine of separation of powers."The submission that there has to be presence of someone (in the selection committee for ECI members) who is not with the executive, that would necessarily involve the process of rewriting the Constitution. Democracy is in the preamble and lordships would be wrong in saying that but for the presence of a non executive member, the executive here will not be able to discharge its functions. I am on [this] constitutional proposition." The SG added that independence of both the judiciary and the executive was sacrosanct. "Our bureaucrats are doing amazing work. Mere presence of someone else being in the committee may be a fallacious argument. Lordships may kindly not travel through that part. If there is need for a law, then your lordships can suggest so to parliament. Court cannot issue mandamus for something that parliament is supposed to. In the absence of law, the Court cannot say this is law, follow it until there is law. These are officials appointed by the President," the SG said..Advocate Prashant Bhushan appearing for the petitioners said that they were not seeking a mandamus but were only asking the Court to lay down guidelines in the absence of a law as contemplated under Article 324. "Since the Constitution is silent on the terms [of the selection body], this Court can intervene."Senior Advocate Gopal Sankaranarayanan argued that the fact that a law was contemplated but not yet enacted is itself a lacunae needing the Court's intervention. " ... [saying] just because the President appoints it is enough, is not done. Minute we do not have independence from the executive, it is a gaping and huge vacuum.".The hearing will continue tomorrow (Thursday), when the verdict is likely to be reserved. [Read our coverage of today's hearing]