SC to Govt: Show us EC Arun Goel’s appointment file, if no hanky panky, don’t fear

“We heard the case last Thursday. At that stage, Mr Bhushan said there is an interim application. Then the next hearing took place yesterday. Therefore, we would like you to produce the files relating to the appointment of this officer. So that if you are in the right, as you claim, that there is no hanky-panky, then there is nothing to fear,” Justice Joseph said.

The bench said it wanted to know the mechanism that was followed. It asked the government to produce the file on Thursday when it will hear the matter again.

“What is the mechanism by which this officer was picked up? Can it be made when the matter was being considered by this Court?” Justice Joseph asked.

The AG said there was no order by the court against making the appointment.

Agreeing that there was no such order, Justice Joseph said, “But the application was there… We are not sitting in judgement over the appointment. But we would like to know… If everything is hunky-dory, everything is going on smoothly, as you claim, you have nothing to fear.”

Expressing “strong reservations”, the AG said, “We are in the framework of a larger question.”

The bench, however, said the issue of the new appointment is “interlinked”.

Venkataramani said “the interlink is being brought in to throw doubts” to ensure that the court necessarily gets into the larger picture.

Earlier, Justice Rastogi too asked the Centre about the mechanism followed in the appointment of Goel. “Show us what mechanism you adopted in making the appointment two days before,” he said, inquiring if there was any specific mechanism or if it was on the recommendation of the Council of Ministers.

The AG asked if the court was trying to say “there is an underlying malice about the accountability of the Council of Ministers and the Cabinet”.

“No, we just wanted to know, for our satisfaction. Let us know the mechanism you adopted,” Justice Rastogi said.

Venkataramani said he had already explained that it was on the basis of a time-tested convention.

“A list of serving and retired officials in the position of Secretaries… is prepared. On the basis of this, a panel of names is prepared for consideration of the Prime Minister and President. The PM, after considering the panel, recommends one name to the President. A note with the recommendation is submitted to the President of India. That’s how the system works,” he said.

The appointment of Election Commissioners, he said, follows seniority and the senior among the two ECs goes on to become the CEC.

“It’s all on the basis of time-tested convention. Therefore, there is a procedure that is being followed,” he said, adding “so it was not a pick-and-choose at all,” he said.

On Tuesday, the bench had mooted the idea of including the Chief Justice of India in the committee which appoints Election Commissioner to ensure “neutrality”.

Opposing this Wednesday, the government told the court that there had been no complaints, except for some isolated instances, about the independence of the Election Commission and its work had even received international applause.

It said that even in the appointments of judges, there are “stray instances” of things going wrong and wondered if similar instances in the case of the working of the Election Commission should be enough for the court to intervene.

“This court has got a foolproof system as far as appointment of judges are concerned, but there are stray instances when things go wrong,” Additional Solicitor General Balbir Singh said.

He pointed out that even in the case of appointment of judges, what is followed is a convention.

Justice Rastogi said “the test denominator has changed from time to time… There was a time when selections were made… just on a request being made by the Chief Justice to a lawyer, please join… That also worked well… But the very system, at a later point of time, raised a question mark… Then the court thought, let’s introduce a new system which is fair, open and available for the public also… So that system was introduced. Now we find that the system is also not working… Same is the question here also.”

“If you go into service jurisprudence, there was a time when appointments were made purely on interviews. And never questioned. But later, a time came when this court also intervened, and judicial verdicts came and said no, curtail the interview. The decision came because experience shows that wherever discretion is vested with authorities, it is by and large not being used for the purpose,” he said.

In the case of the ECI, he said the “very same mechanism (is) being followed” for over 70 years.

The AG and the ASG contended that there was no “trigger point” as would require the court’s intervention and that the system was working perfectly well.

“We are not saying the system is not correct… We don’t want that there should be a trigger point, only then this court should move. What we think is there should be a transparent mechanism to avoid all kinds of complaints,” Justice Rastogi said.

The ASG asked whether “by providing an alternative arrangement, whatever it may be, are we going to dislodge the President” from exercising powers in respect of the appointment.

“In my respectful submission, the President cannot be dislodged. If the President cannot be dislodged, are we going to dislodge the aid and advice of the Parliament or Council of Ministers? If we are not going to dislodge that, then what do we gain? Are we going to create a recommendatory body which is going to recommend to the President, and the President ultimately has got the aid and advice available, then we are back to square one… So, where are we heading to in trying to find a solution,” Singh said.

Justice Joseph said, “What we are suggesting is only fill in that perceived vacuum in 324(2) to the extent of having not this Council of Ministers picking up somebody and doing it, just have the Chief Justice of India… that is the only area that we can possibly come in, we are conscious of that. We are not suggesting any complete takeover. We can’t do that. It’s a constitutional governance where it’s the Cabinet advising and the President taking decisions in accordance. We know that.”

“We are only saying there is this small gap in view of the number of reports which have spoken in one voice. Political parties spokespersons have spoken in one voice. Because they know the ground reality. The model is there but how is it being used by politicians on the ground, irrespective of whichever party they may belong to, that calls for reform. For reform, if you say we have to wait for Parliament to wake up and see the need which is very unlikely for the very good reason, each political party in power would like to perpetuate itself in power. So they will put it off… Nobody wants to walk the extra mile to bring in the much needed changes. That is the only area where the court may have to step in,” he said.

The ASG said that even in the case of the National Judicial Appointments Commission, which was struck down by the Supreme Court, there were committee reports in favour of the Commission.