Supreme Court must ensure impartial elections

With the Supreme Court questioning the Centre about resorting to unnecessary “haste” and "tearing hurry" in appointing Arun Goel as the Election Commissioner, saffron think tanks 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.

They have also been feeling aggrieved at the Supreme Court seeking to know from the government why the criteria for appointing the Chief Election Commissioner was strictly not being adhered to. As a rule, the CEC must complete a six-year term in the office; however, in recent times, during the Modi Raj to be precise, no CEC has been in office for their whole term. In fact, the supporters of Modi were enraged that the Supreme Court asked why judges with short periods were being appointed. Justice U U Lalit was in office for 74 days and the present incumbent Justice Chandrachud would be in office for only two years.

Nonetheless, these saffron 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. However, this is not the case with the CEC. He has to be in 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 a level playing field to others. The mission of the ruling party has been to win elections at any cost. With the CEC on the ruling party's side, nobody can dare question the sanctity of the electoral process. If at all there is a complaint or resistance raised, it is rejected or rubbished by the EC. Case in point, the happenings of the UP assembly elections in 2022 -- the loser became the winner. Political parties have made a mockery of the Anti-Defection Law. And the CEC has been a silent spectator to the murder of the Law. The latest example to be added to this long list of offences is Maharashtra.

For this very reason, it was argued that the government must constitute a commission for appointment which would not only look into the tenure of the CEC, but also take stock of his competence. Alas, it is a widely-recognised fact that a competent person, a bureaucrat, is disliked the most by the present dispensation. No doubt, every government prefers to have its favourite as the CEC. However, 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 wrongdoers.

In appointing Goel, the Modi government brazenly violated the rules. 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, 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 within a mere 24 hours of his opting for voluntary retirement.

It obviously implied that he was made to resign by the authorities only to be appointed as the CEC. The panel that was set up to select the CEC was a clear hoax. In this regard, the remark of the Attorney General R Venkataramani ought to be taken seriously. He said that there is a mechanism and criteria for selection and there cannot be a scenario where the government has to look back at every officer's track record and ensure that he completes the six-year tenure. He also said that for the appointment, it is the profile that is important and not voluntary retirement, which is presently being made an issue. Obviously, the government, for its own convenience, fails to follow the 1991 Act that states that the EC’s tenure is of six years and the government has to ensure that the person who holds the post completes the stipulated period.

The Centre's hurry in appointing Goel smells of nefarious design. Goel is being brought into office just a fortnight ahead of the Gujarat assembly elections. For Modi, the Gujarat election has major implications. An insight into the campaign would make it crystal clear that it is not the BJP, but Modi who is in the fray. He has so far addressed no less than 30 meetings and spearheaded a number of roadshows. A defeat will completely obliterate his image.  

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, observes, "What kind of evaluation is this? We are not questioning the merits of Arun Goel'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 was put up before the Prime Minister and Goel's name got the nod from the President within 24 hours.

Out of the fear of being exposed, the Centre objected to the apex court’s order for producing the original file. The Supreme Court wished 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 Goel was the 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 the best manner. The list which featured the name of Goel incidentally had the names of 44 other officers. But they were 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 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 a 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.”

Since Modi came to power, his primary aim has been to win elections. As an unfortunate result, elections and the electoral system have become a farce. It is generally said that the 2019 General Elections have 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 manner in which elections were conducted some former Elections Commissioners and CECs were forced to question the decisions of their successors in office.

(IPA Service)

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