The bench presided by Justice K M Joseph subsequently adjourned the hearing after Justice Joseph recused from hearing it.

The Supreme Court on Monday disagreed with the contention of NGO Association for Democratic Reforms that Election Commissioner Arun Goel will be a “yes man” for the government merely because the latter chose him.

The bench presided by Justice K M Joseph subsequently adjourned the hearing after Justice Joseph recused from hearing it.

“The point is after the appointment, it is a constitutional office. The person must act independently, fairly, justly. That’s a different aspect. Now you cannot say because this person has been appointed, he will not act fairly, justly, he is going to be a yes man, therefore set aside his appointment,” Justice B V Nagarathna, who was part of the two-judge bench that heard the NGO’s plea challenging Goel’s appointment, said.

The judge made the remarks as Advocate Prashant Bhushan appearing for ADR sought to draw a comparison between Goel’s case and the appointment of P J Thomas as Chief Vigilance Commissioner by the erstwhile UPA government.

To a query from Justice Nagarathna as to what rule was violated in the appointment of Goel, Bhushan contended that what had been given a goby were the rules of institutional integrity which the SC laid down in the case of Thomas. “The rule of institutional integrity has been violated. In this very case, the court had laid down what is the principle of institutional integrity here,” he told the bench.

Bhushan said the SC had set aside the appointment of Thomas as CVC “because he is a chargesheeted officer, and because that issue of being a chargesheeted officer was not considered by the appointing authority, was not brought to the notice of the appointing authority. Therefore his selection is void…and violates the principles of institutional integrity”.

Justice Nagarathna sought to differ and said “that is because it is of leaving the relevant considerations in the appointing process. That doesn’t apply here. Leaving out the relevant consideration is an abuse of discretion”.

Bhushan said Goel’s “selection is hastily and arbitrarily and malafidely done…secondly the kind of benefits that have been given to him will also violate the very salutary principle which your Lordships laid down that the person being appointed should not owe anything to the government”.

Justice Joseph told the counsel that what he is apprehending “is something to take place in the future” and added “what we are concerned more with is the manner in which it was done under the law as it stood then”.

Agreeing that there was arbitrariness in the selection, Justice Joseph said the question however is “how to apply arbitrariness in the appointment of a high constitutional officer at the level of the Prime Minister, the law minister sends a database…” He added that the point which is perhaps relevant is the timing and how the database is prepared.

“Yes, how do you pluck out these four names? If you had to pluck out a secretary of the government and a secretary who has a long tenure, there were many other secretaries who had a longer tenure,” said Bhushan.

Justice Joseph said the NGO had not pleaded this in detail but Bhushan said the petitioner had enclosed the detailed list.

Earlier, Bhushan referred to the comments by a five-judge constitution bench in its March 2 judgment which said that the Chief Election Commissioner and election commissioners should be appointed by a panel comprising the Prime Minister, Leader of Opposition and Chief Justice of India. He said that the bench had perused the files regarding Goel’s appointment and found “glaring arbitrariness”.

Justice Nagarathna, however, said even if the argument is that it was done arbitrarily, the petitioners have to show that it violates some rule. The judge reminded that the Constitution bench had not stayed the appointment even though an application seeking this was filed.

Justice Joseph pointed out that the March 2 judgment was passed without hearing Goel and said there was a system existing then for appointment of election commissioners and added that the petitioners cannot just rely on the court’s judgment.

The NGO contended in its petition that “owing his appointment as election commissioner to the arbitrariness exercised by the executive, the appointment of… Goel is overshadowed by the perception of a ‘yes man’,” and urged the court to quash the November 19, 2022, appointing him as Election Commissioner and to direct that the consequential vacancy be filled as per the Constitution bench’s March 2 ruling.