By Arun Srivastava
With the Supreme Court questioning the Centre about resorting to unnecessary “haste” and “tearing hurry” in appointing Arun Goel as Election Commissioner, the saffron Think Tank and academician supporters of the Narendra Modi Government have turned belligerent and have indiscreetly alleged that it was trying to grab the power of the executive.
These people have also been feeling aggrieved at the Supreme Court seeking to know from the government why the criteria for appointment of the Chief Election Commissioner was strictly not being adhered to. The CEC must complete a six year term in the office. But in recent times, precisely during Modi Raj no CEC was in the office for the whole period. In fact the supporters of Modi were so enraged that they questioned why judges with short period were being appointed. Justice U U Lalit was in the office for 74 days and the present incumbent Justice Chandrachud would be for only two years.
Nonetheless the intellectuals conveniently tend to forget that a judge even if he becomes the Chief Justice of India has to retire once he completes his tenure. But it is not the case with the CEC. He has to be in the office for six years. Under the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, an EC can have a tenure of six years or up to the age of 65, whichever is earlier. During the eight years of the NDA government, there have been eight CECs.
This mechanism of appointing the CEC is virtually a design to deny the level playing field to others. The mission of the ruling party has been to win the elections at any cost. With CEC on side of the ruling party none can dare to question the sanctity of the electoral process. If at all there is any complaint or resistance it is rejected or rubbished by the EC. The people saw what happened in UP in 2022 assembly election. The loser became the winner. The political parties have made the mockery of the Anti Defection Law. But the CEC has been a silent spectator to the murder of the Law. The latest example is of Maharashtra.
This was the reason that it was argued that the government must constitute a commission for appointment which would not only look into the tenure of the CEC but would also take stock of his competence. But it is a fact that a competent person, a bureaucrat, is disliked most by the present dispensation. He is pariah. No doubt every government prefers to have his favourite as the CEC. But it cannot be denied that the earlier Congress government did not strictly follow this dictum. T N Sheshan created history for his strong administrative actions. He reformed the election procedure and was in fact a terror for wrong doers.
In appointing Goel, the Modi government brazenly violated the rules and norms. It finalised the name of Goel just within twenty four hours of preparing the panel of names. The procedure lacked transparency. It was the reason that the bench, which also comprised Justices Aniruddha Bose, Hrishikesh Roy and CT Ravikumar, had observed that none of the four names in the panel were “carefully hand-picked” by the Law Minister so that they could complete a six-year tenure. Goel was selected just within 24 hours of his opting for voluntary retirement.
It obviously implied that he was made to resign by the authorities only for being appointed as the CEC. Selection through creating panel was merely a hoax. In this perspective remark of the Attorney General R Venkataramani ought to be taken seriously that there is a mechanism and criteria for selection and there cannot be a scenario where the government has to look back at every officers’ track record and ensure that he completes the six-year tenure. He also said for appointment it is the profile that is important and not the voluntary retirement which is being made an issue. Obviously for the convenience of the government there is no need to follow the 1991 Act that says EC’s tenure is of six years and the government has to ensure that the person who holds the post completes the stipulated period.
This hurry of Modi government in appointing Goel smells of some design. Goel is being brought into office just a fortnight ahead of Gujarat assembly election. For Modi the Gujarat election has major implication. An insight into campaign would make it crystal clear that it is not the BJP but Modi who is in the fray. He has so far addressed not less than 30 meetings and taken out a number of roadshows. A defeat will completely erase his image and charisma.
The manner in which the law ministry chose Goel, made the five-judge Constitution bench headed by Justice K M Joseph which had perused the Centre’s original file pertaining to Goel’s appointment as EC, to observe; “What kind of evaluation is this? Although, we are not questioning the merits of ArunGoel’s credentials but the process.” The 1985-batch IAS officer got voluntary retirement from service in a single day, his file was cleared by the Law Ministry in a single day, a panel of four names were put up before the prime minister and Goel’s name got the nod from the President within 24 hours.
It was the fear of being exposed that the Centre had objected to apex court’s order for producing the original file as it desired to know whether everything was “hunky dory” in the appointment process as claimed by the government. Justice Joseph sough to know from the Attorney General R. Venkataramani; “This (file) was moved on 18 November, then the names were examined. Then the Prime Minister comes in..is it (usually) done in such haste? With such tearing urgency?”
On his part, Venkataramani resisted judicial scrutiny of the appointment and said there was no “trigger point”, inviting the top court’s intervention in the current system to select an election commissioner. The AG was simply performing his duty to defend the actions of the government. It is not that Goeal was that only suitable candidate. There were many from later civil service batches who could have been appointed. This would have also meant compliance with the law that warrants an election commissioner to have a tenure of six years in office, he argued. But more than that they would not have served the interest of the government in best manner. The list which featured the name of Goel incidentally had the names of other 44 officers. But they believed to be unfit for the task in the eyes of the law ministry.
Though Venkatramani told the bench: “These questions (on appointments) will crop up. How many appointments in public offices happen in 12 or 24 hours? Can we get into all such instances?” The court remained firm. “Tell us how he was chosen ahead of three others,” Justice Joseph asked. The Constitution has vested enormous powers on the “fragile shoulder” of the Chief Election Commissioner (CEC) and it is important that “someone of strong character” is appointed to the post, the Supreme Court has said.
Justice Roy wondered whether it was normal for civil servants to take voluntary retirement. “Does it happen like this normally?” he asked. Justice Joseph also said that while the law contemplated a direct appointment to the position of Chief Election Commissioner (CEC), the government had made it a “promotion-based” one. He added that direct appointments were being made until 1989. The frustration of the bench at the happenings clearly manifest in the observation; there is need to appoint a Chief Election Commissioner with ‘character’ like the late T.N. Seshan,
On November 17, 2022, while hearing a petition for the setting up of an Independent Body to choose Election Commissioners, Justice K.M. Joseph of the Supreme Court made a significant observation: “The Election Commission of India (ECI) is perhaps the envy of the world. Perhaps one institution which has come in for a lot of compliments, largely due to the reforms of T.N. Seshan. He had succeeded in putting in place a lot of rules to reduce human discretion to the minimum. By doing this, he eliminated fear. That is, the Election Commissioners just had to follow the rules and did not have to bother about coming under pressure from any political party.”
Just after Modi came to power his primary aim has been to win the elections. With this elections and the electoral system have become farce. It is generally said that the 2019 General Elections has been one of the least free and fair elections that the country has had in the past three decades or so. In the past, despite the efforts of criminal elements, musclemen, and unscrupulous politicians, the persons who graced the ECI did their best to ensure that elections were conducted as freely and fairly as possible. Forced by the manneri which elections were conducted some former Elections Commissioners and CECs were forced to question the decisions of their successors in office.” (IPA Service)