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The Supreme Court has observed in its March 2 judgement that the exception cannot become the rule while asserting that Election Commissioners ought to complete their 6 year term as provided for in the law. The bench of Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar has held that the appointments of Election Commissioners have been reduced to becoming exceptions and this undermines the independence of the Commission. “The policy of the law is being defeated,” said the court.
The bench was referring to section 4 of the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 which states as follows:
4. Term of office.—The Chief Election Commissioner or an Election Commissioner shall hold office for a term of six years from the date on which he assumes his office:
[Provided that where the Chief Election Commissioner or an Election Commissioner attains the age of sixty-five years before the expiry of the said term of six years, he shall vacate his office on the date on which he attains the said age:] (only relevant portion mentioned)
The main part of the section states that the CEC or EC must hold office for 6 years and it is only the proviso that states that if the Commissioner attains age of 65 before that, then his office shall be vacated. This is a proviso or an exception, that has now become a rule.
During the hearing on November 22, Justice Joseph questioned the dubious manner in which Election Commissioners have been appointed since 2007, so that they do not get a full term of 6 years as stipulated under the Act. The court observed that appointments since 2007 were made in a manner that Commissioners get a term of 2 years or less.
When the hasty appointment of the Election Commissioner, Arun Goel, was done, Senior counsel Prashant Bhushan raised an objection that when the petitioner had moved an application, seeking interim relief relating to appointment, it was not open to the respondent-Union to make the appointment. The court thus sought files relating to the appointment.
In the note presented by the Union government, it stated that the vacancy arose on May 15, 2022. Approval for appointment was sought on November 18, 2022 and on the same day four names were accessed which were on the top of the list of databases of serving/retired IAS officers serving/served as Secretary to government of India. Two of them had already retired and Goel was to retire in December 2022 and had taken voluntary retirement already and was the youngest amongst the four. Considering his experience, age, profile and suitability, his name was suggested to the Prime Minister.
The court noted that the application for voluntary retirement was made by Goel on November 18, 2022 (the court hearing was on November 17, 2022) itself which was approved on the same day and the wait period of 3 months was also waived off! The court also noted that November 18, 2022 was a Friday and the court was to hear the matter on November 22.
Questioning this entire process, the court said,
“Not coming as a surprise, on the same day, his appointment as Election Commissioner was also notified. We are 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.” (Para 187)
Summing up the entire process that was carried out in one day, the court observed,
“all the procedures commencing with the proposal, processing of the same at the hands of the Minister for Law, the further recommendations of the concerned Officers, the recommendation of the Prime Minister, the acceptance of the application of the appointee seeking voluntary retirement, waiving the three months period and the appointment by the President under Article 324(2), which came to be notified, took place in a single day.” (Para 188)
The court observed that the government was aware of the pending petition. “The appointment has been made apparently on the basis that there was no hindrance to the making of the appointment,” the court noted (Para 187)
While the court noted that it had not passed any order restraining such appointment but the government was aware that such a petition seeking direction to make appointment was pending before the court.
The court pointed out section 4 of the Act which provides that the term of Commissioners should be 6 years. The Attorney General responded that since the time, when the Election Commission became a multi-Member team, a convention has grown up of making appointments of persons, initially as Election Commissioners and the senior-most Election Commissioner, unless considered unfit, is appointed as the Chief Election Commissioner. He further said that the term of 6 years is aggregated.
When the court questioned why the government did not try to ascertain if there were officers who could be appointed who would be able to complete the term of 6 years, the AG submitted that there was a dearth of such officers. Bhushan, appearing for the petitioner, argued that there are 160 Officers, who belonged to the 1985 Batch and some of them are younger than Arun Goel.
Looking at how the database was drawn up and top contenders looked at, the court said,
“If the drawing up of the panel itself results in a fete accompli, then, the whole exercise would be reduced to a foregone conclusion as to who would be finally appointed. What we find about the method involved is, even proceeding on the basis that the Government has the right to confine the appointee to Civil Servants, that it is in clear breach of the contemplated mandate that be it as an Election Commissioner or Chief Election Commissioner, the appointee should have a period of six years.” (Para 195)
The court held that the law envisaged a 6 years term for the Commissioners so that “it would enable the Officer to have enough time to gear himself to the needs of the Office and to be able to assert his independence.” (Para 195)
The court said that an assured term would allow the officer to bring about reforms and the inspiration to bring out his best.
“Any tendency towards placating the powers that be, would wax as also the power and the will to assert his independence may wane, bearing in mind, the short tenure. This apparently is the underlying philosophy of the law made by Parliament, assuring, a term of six years” (Para 195)
Responding to the contention of the Union government that the term is aggregated since the Election Commissioner is appointed as Chief Election Commissioner basis seniority, the court held that
“The term of six years is separately assured to both the Election Commissioner and the Chief Election Commissioner. In other words, the object of the law and its command would stand defeated and the practice lends strength to the complaint of the petitioners.” (Para 195)
The court clarified that these observations did not reflect individualised assessment of the appointee (Arun Goel) as he has excellent academic qualifications.
The court, however, noted that
“academic excellence which members of the civil service may possess cannot be a substitute for values such as independence and freedom from bias from political affiliation” (Para 195)
The court, for this part, concluded:
“Parliament enshrined a term of six years separately for the Chief Election Commissioner and the Election Commissioner. This is the Rule, it is found in Section 4(1). A proviso cannot arrogate itself to the status of the main provision. The exception cannot become the Rule. Yet, this is what the appointments have been reduced to. It undermines the independence of the Election Commission. The policy of the law is defeated.” (Para 195)
The complete judgement may be read here:
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