Arun Goel’s resignation just ahead of the Lok Sabha polls has come as much of a surprise as had his appointment hours after his resignation as an Indian Administrative Service officer in 2022. What has been the legal history?
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AHEAD of the Lok Sabha polls, the President of India has accepted the resignation tendered by election commissioner (EC) Arun Goel. Goel’s resignation has reduced the Election Commission of India (ECI) to a one-man commission consisting of Chief Election Commissioner (CEC) Rajiv Kumar.
Goel’s resignation has come as much of a surprise as his hurried appointment as an EC in 2022, which was also questioned by a Constitution Bench of the Supreme Court.
As per NDTV, there had been differences on a file between Goel and Chief Election Commissioner Rajiv Kumar.
Goel, a former secretary to the government of India, was hurriedly appointed within 24 hours of his voluntary retirement as EC on November 19, 2022, while a Constitution Bench of the Supreme Court was hearing a petition to lay down the procedure for the appointment of EC by a neutral independent committee.
Goel’s resignation has come as much of a surprise as his hurried appointment as an EC in 2022, which was also questioned by a Constitution Bench of the Supreme Court.
Interestingly, the vacancy which came to be filled by Goel was created on May 15, 2022. Goel was due to retire from the Indian Administrative Service on December 31, 2022, but he requested voluntary retirement on personal grounds on November 18, 2022, and it was approved on the very same day.
Later, a two-judge Bench of the Supreme Court dismissed a public interest litigation filed by the Association for Democratic Reforms (ADR) seeking to quash Goel’s appointment.
As a matter of practice, the commission comprises the Chief Election Commissioner and two election commissioners. Even before Goel’s resignation, there was one vacancy in the commission with the retirement of Anup Chandra Pandey last month.
How CEC and ECs are appointed
As per Article 324(2) of the Constitution, the Election Commission of India shall consist of a CEC and such number of other ECs, if any, as the President of India may from time to time fix and the appointment of a CEC and other ECs shall, subject to the provisions of any law made in that behalf by the Parliament, be made by the President of India.
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Until very recently, there was no law laying down the procedure for the appointment of CECs and ECs, and thus it was the sole prerogative of the Union Executive to appoint CECs and ECs.
Originally, the commission had only a CEC. It was on October 16, 1989, that the President of India, in exercise of his powers under Clause 2 of Article 324 of the Constitution, fixed the number of ECs as two.
Later on, on October 16, 1989, V. S. Seigell and S.S. Dhanoa were appointed as ECs. It was for the first time after Independence that ECs were appointed, thereby making the ECI a multi-member commission.
On January 1, 1990, the President of India issued two notifications— one rescinding, with immediate effect, the notification of October 7, 1989 creating the two posts of ECs and another rescinding, with immediate effect, the notification of October 16, 1989, by which the appointment of S.S. Dhanoa and V.S. Seigell was made.
Article 324(2) leaves it to the President of India to fix and appoint such a number of ECs as he may from time to time determine. The power to create the posts is unfettered. So also is the power to reduce or abolish them.
Dhanao unsuccessfully challenged these two notifications in the Supreme Court in S.S. Dhanoa versus Union of India. The Supreme Court rejected the petition by Dhanao holding that the creation and abolition of posts was the prerogative of the Executive and (in the present case) of the President of India.
The court further held that Article 324(2) leaves it to the President of India to fix and appoint such a number of ECs as he may from time to time determine. The power to create the posts is unfettered. So also is the power to reduce or abolish them.
The Parliament passed an Act titled the Chief Election Commissioner and other Commissioners. (Conditions of Service) Act, 1991 to regulate conditions of service of CECs and ECs. The 1991 Act came to be amended by an Ordinance published on October 1, 1993.
On October 1, 1993, the President again issued a notification fixing the number of ECs other than the CEC at two until further orders. Two ECs, M.S. Gill and G.V.G. Krishnamurthy, were appointed with effect from October 1, 1993.
The amendment and the appointments came to be challenged by T.N. Seshan, the then CEC and others. A Constitution Bench of the Supreme Court in T.N. Seshan, Chief Election Commr. of India versus Union of India, rejected the challenge.
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The Bench observed that the concept of plurality was writ large on the face of Article 324, Clause (2) whereof clearly envisages a multi-member election commission comprising a CEC and one or more ECs. If a multi-member election commission was not contemplated, where was the need to provide in clause (3) for the CEC to act as its chairman, the Bench asked.
There is, therefore, no room for doubt that the ECI could be a multi-member body, the Bench held.
India has had multi-member election commissions in operation since 1993, with decision-making power by majority vote.
Supreme Court’s intervention
On March 2 last year, a Constitution Bench comprising Justices K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar had held that the appointment of CECs and ECs would be on the recommendation of a committee consisting of the Chief Justice of India (CJI), the Prime Minister and the Leader of the Opposition in Lok Sabha.
Originally, the commission had only a CEC. It was on October 16, 1989, that the President of India, in exercise of his powers under Clause 2 of Article 324 of the Constitution, fixed the number of ECs as two.
The Bench believed that the ECI had to perform the arduous and unenviable task of remaining aloof from all forms of subjugation by and interference from the Executive.
Parliament undid the court’s ruling
Months after the Supreme Court’s ruling, the Parliament enacted the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
This Act has dropped the CJI from the selection committee to appoint a CEC and ECs. The selection committee under the new law to appoint a CEC and ECs provides the Executive a two-third voting majority.
The law also provides that a CEC and other ECs be appointed from amongst persons who are holding or have held a post equivalent to the rank of secretary to the government of India and who are persons of integrity with knowledge of and experience in the management and conduct of elections.
Under the new law, the search committee headed by the minister of law and justice and comprising two other members not below the rank of secretary to the government of India shall prepare a panel of five persons for consideration of the selection committee, for appointment as a CEC and other ECs.
Thereafter, a panel comprising the Prime Minister; the Leader of Opposition in Lok Sabha and a Union cabinet minister to be nominated by the Prime Minister, shall recommend the name for the appointment to be made by the President.
The Act also provides that a CEC and ECs shall hold office for a term of six years from the date on which they assume office or till they attain the age of sixty-five years, whichever is earlier.
It also clarifies that when an EC is appointed as the CEC, his term of office shall not be more than six years in aggregate. CECs and ECs shall not be eligible for re-appointment.
Different yardstick for removal of CEC and EC
Under Article 324(5) of the Constitution, a CEC shall not be removed from his office except in like manner and on the like grounds as a judge of the Supreme Court and the conditions of service of a CEC shall not be varied to his disadvantage after his appointment.
A Supreme Court Bench believed that the ECI had to perform the arduous and unenviable task of remaining aloof from all forms of subjugation by and interference from the Executive.
However, when it comes to the removal of ECs, the Constitution provides that they shall not be removed from office except on the recommendation of the CEC.
The Parliament in the 2023 Act also codified the same notwithstanding the Supreme Court’s observation in its March 2023 ruling that it was desirable that the grounds of removal of the ECs shall be the same as that of the CEC, that is, on like grounds as a judge of the Supreme Court subject to the “recommendation of the Chief Election Commissioner” as provided under the second proviso to Article 324(5) of the Constitution of India.
