On November 23rd, 2022, a Constitution Bench led by Justice KM Joseph asked the Attorney General to produce documents pertaining to the appointment of Mr. Arun Goel as the Election Commissioner. This appointment was made on November 21st, during the present challenge to the process of appointing Election Commission of India (ECI) members.

Background 

In January 2015, Anoop Baranwal filed a PIL on the ground that the current system for appointing members of the Election Commission of India (ECI) is unconstitutional. Currently, the Executive enjoys the power to make appointments, which the PIL contends has degraded the ECI’s independence over time. The PIL pleads for the Court to issue directions to set up an independent, Collegium-like system for ECI appointments. It claims that the current system of appointments violates Article 324(2) of the Constitution. Article 324 specifies that while the Chief Election Commissioner and Election Commissioners will be appointed by the President, this is subject to Parliamentary law (if such law exists). While this provision places an expectation on Parliament to draft a relevant a law, it has not done so up until now. In the absence of such a law, the President has been making appointments as per the recommendations of the Prime Minister. The Union has defended the current mechanism of appointments, citing the ‘honest record’ of all past Chief Commissioners. It has urged the Court to not intervene, submitting that the matter falls within the executive domain.

Attorney General:There Is No Trigger Point For Court To Analyse The Existing Law: 

Continuing his arguments from yesterday, Attorney General R. Venkatramani argued that, following the release of the Dinesh Goswami report on Electoral Reforms, the Parliament applied its mind and enacted the  Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 (EC Act). Mr. Venkatramani submitted that the Court can reconsider the procedure for appointment if  there are discrepancies in the law However, since no such discrepancies have been pointed out there is no scope for the Court to interfere. 

Mr. Venkatramani argued that there is no ‘trigger point’ for the Court to evaluate or analyse the existing law.  Further, he argued that there is a need to show circumstances justifying the Court’s anxiety about the existing procedure for appointment for the case to be heard. While noting that there are some reports that call for reforms in the Election Commission, he said that, at best, the Court can ask Parliament to look into these reports.

The Bench asked the AG to explain the current process for appointing ECI members and the Chief Election Commissioner (CEC). The AG said that appointments and elevations are done on the basis of ‘convention’ and there is no separate established procedure. The general convention is to consider senior bureaucrats and officers at the State and the Union government. The CEC is selected on the basis of seniority.. He added that this procedure is scrupulously followed. 

ASG Balbir Singh: Existing System Is Functioning Well Stray Instances Cannot Be Basis For Court To Interfere:

ASG Balbir Singh, appearing for the Union, argued that petitioner has not cited any instance of someone unfit for the position being appointed as an Election Commission member. He submitted that the Election Commission has been functioning well and there are no specific allegations against it. Mr. Singh noted that if the Court introduces a separate body to make recommendations, as proposed by the petitioners, it will turn the clock back to the time when no legislation existed for such appointments. Mr. Singh elaborated that a new set of challenges may arise, by introducing a new system in the place of a system that functions effectively.

Mr. Singh referred to the SC’s Judgment in the National Judicial Appointments Commission Case (2015), to show that the Court has noted that the existing system in the EC has in-built checks and balances to avoid arbitrariness in appointments. He compared Election Commission appointments with judicial appointments and submitted that the Court cannot get into an analysis of the system merely because it is opaque. Mr. Singh said that if the functioning of an institution is not under challenge, the Court cannot review appointments. He stated that stray instances cannot be made a basis for the Court to interfere.

The Bench responded stating that the problem lies in the lack of transparency in the appointment process. Mr. Singh replied, stating that when the PM is sitting with the President, he is conducting an official business and it is assumed that there is application of mind. He argued that, in absence of any evidence of abuse of the process, the Court cannot go against these conventions that have worked for a considerable amount of time. 

SG Tushar Mehta Argued That Independence Of Executive Is As Sacrosanct As The Independence Of Judiciary:

Appearing for the Union, Solicitor General Tushar Mehta argued that if there are lacunas in the EC Act, or circumstances justifying the re-examination of the ECI appointment system, it is for the Parliament to look into it and not the Court. Referring to Article 324, he argued that ECI appointments are a Presidential function, unless Parliament gives it to a different authority. There is a system of separation of powers and the Judiciary cannot interfere with the Executive’s powers. 

Referring to the Bench’s suggestion that the CJI must be present when the CEC is selected, the SG argued that this would mean giving Executive power to a member of the Judiciary, which contradicts the separation of powers. He stated that the Executive’s independence is just as sacrosanct as the Judiciary’s, and that it is incorrect to assume that judicial involvement will ensure independence and fairness in appointments. 

Advocate Prashant Bhushan: Many Reports Have Recommended For Reforms In Appointments to Election Commission:

Appearing for Association for Democratic Reforms, Advocate Prashant Bhushan argued that the ‘trigger’ in this case are the reports of many bodies that were constituted to oversee the functioning of the Election Commission. Mr. Bhushan cited Prakash Badal’s case (1987)  to argue that the Court has previously relied on reports and stated that reforms in ECI appointments are needed. Further, he spoke about Mr. Arun Goel’s recent appointment as the Election Commissioner, and stated that the appointment order was issued over the weekend, while this case is still being heard. 

Attorney General Objects To Bench Summoning Files Pertaining To Mr. Arun Goel’s Appointment:

The Bench asked the Attorney General to submit the files regarding Mr. Goel’s appointment since it was made recently, while the present case was being heard.The AG strongly objected to this by stating that the Court is considering a larger issue and it need not consider the isolated case of Mr. Goel’s appointment. The Bench, however, insisted that the files be produced.

Senior Advocate Gopal Sankaranarayanan, appearing for Ashwini Kumar Upadhyay, argued that if a law can be made under Article 324 on appointments to the ECI but no law has been enacted, it must be perceived that there is a lacuna in the existing system. 

Mr. Sankaranaryanan will build on this line of arguments in tomorrow’s hearing.