Source: 
The Leaflet
https://theleaflet.in/show-us-the-file-on-last-election-commissioners-appointment-supreme-court-directs-union-government/
Author: 
Tushar Kohli
Date: 
23.11.2022
City: 
New Delhi

Supreme Court’s directed the Union Government to place the files relating to the recent appointment of the Election Commissioner  as the latter tried to defend its seemingly arbitrary process of appointing Election Commissioners.

THE Supreme Court on Wednesday asked the Union Government to produce the files relating to the appointment of bureaucrat Arun Goel as an Election Commissioner on Saturday to see if everything was “hunky dory” as the Union Government claims.

The five-judge Constitution bench led by Justice K.M. Joseph issued the direction  during the hearing of a batch of petitions seeking for the constitution of a neutral selection body for the appointment of Election Commissioners. The said petitions were filed by advocate, Anoop Baranwal, Association for Democratic Reforms (‘ADR’) and others in 2021.

The petitioners contend that the current manner of appointment, under which the government recommends names to the President, who makes the official appointment, has led to the degradation of the Election Commission’s independence.

Senior Advocate Prashant Bhushan, appearing for two petitioners, stated that Goel was “hurriedly” appointed after the court started hearing the present petitioners, “On Thursday, he was a sitting secretary, by Friday he had taken VRS (Voluntary Retirement Scheme) and by Monday, he was an Election Commissioner.

Goel is a 1985 Punjab cadre IAS who was a Secretary in the Union Ministry of Heavy Industries, till he took voluntary retirement on November 18, a day before being appointed as EC. One of three EC posts had been lying vacant since May this year.

Justice Joseph noted that a three month notice is required under the VRS scheme for government officers who wish to voluntarily retire. Bhushan replied “I doubt it was given.”

The bench then asked the Union Government to produce files relating to the appointment of Goel, stating that the court wants to ensure that there was no “hanky panky” (irregularity) in the appointment, and “since you are claiming everything is going smoothly and efficiently.”

The Attorney General for India (‘AGI’), R. Venkataramani stated in response that it would not be appropriate to scrutinise individual instances during the course of current hearings.

Justice Joseph also asked the AGI why it acted in a supposedly hurried manner when a batch of petitioners on the appointments themselves had been pending before the Supreme Court and were actively being heard.

The AGI defended the appointment, stating that there was no injunction by the court to make appointments and hence, the government was at liberty to make Goel’s appointment.

Previously in the hearing, the bench took notice of the short and irregular duration of tenures that Central Election Commissioners (‘CEC’) have experienced in recent years. From 2004 to 2022, 14 CECs have been appointed, the bench noted.

Justice Joseph said “There has been a disturbing trend since 2004 of picking people who (the Union Government) knows will not be able to have six-year terms.” Further, he stated that “the so-called independence that you pay lip service to is completely destroyed by having this kind of  term.”

The Supreme Court also asked the Union Government to explain why a specific legislation had not been enacted for the purpose of appointment of EC members, despite the mandate of Article 324 to enact a law and recommendations by various bodies such as the Law Commission. Article 324 states that the appointment of CECs and ECs shall be made by the President “subject to the provisions of any law made in that behalf by Parliament”.

The silence of the Constitution is being exploited”, the court said, referring to the absence of specific statutory provisions on appointments.

The hearing will continue on Thursday.

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