Justice Joseph recuses himself from hearing petition challenging the appointment of Arun Goel as election commissioner

Justice Joseph headed a Constitution Bench which had made scathing observations regarding the hurried appointment of Goel within 24 hours of his voluntary retirement, and had stipulated that election commissioners would only be appointed on the recommendation of a panel consisting of the Chief Justice of India, the Prime Minister, and the Leader of Opposition in the Lok Sabha.

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ON Monday, Supreme Court judge Justice K.M. Joseph recused himself from hearing a petition challenging the appointment of former secretary in the Union Ministry of Heavy Industry, Arun Goel, as election commissioner (EC).

A division Bench, comprising him and Justice B.V. Nagarathna heard advocate Prashant Bhushan, for the petitioner, non-governmental organisation Association for Democratic Reforms, for some time. Justice Joseph then decided to recuse himself, observing, "Let somebody else apply a fresh mind to it."

Justice Joseph headed a Constitution Bench which had made scathing observations regarding the appointment of Goel within 24 hours of his voluntary retirement.

During the course of the hearing, Justice Nagarathna asked Bhushan how he could ask for a writ of quo warranto as there was no statutory violation in the appointment of Goel. Bhushan responded by saying that the Supreme Court had in 2011 quashed the appointment of Chief Vigilance Commissioner P.J. Thomas on the ground of institutional integrity as he had been chargesheeted.

The Union of India, while substantiating the appointment of Goel, submitted that he was the youngest of the four persons on the prepared panel and thereby would have the longest tenure in the Election Commission of India (ECI).

Bhushan termed the appointment of Goel arbitrary and against the rule of institutional integrity. He added that a panel list published by the Department of Personnel and Training (DoPT) on its website shows that a total of 160 officers belong to the 1985 Indian Administrative Services batch, to which Goel belongs, and some of them are younger than Goel.

Bhushan argued that there was no basis for the government to pick up only four officers and then name Goel as EC. He submitted: "The government, in its short note on the appointment of Goel, had submitted that the Minister of Law and Justice, after considering the database of DoPT, prepared a panel consisting of names of the candidates for consideration of appointment. However, the note failed to furnish the criteria on the basis of which the panel was prepared."

Justice Joseph observed that most of the grounds taken in the petition were findings of the Supreme Court in its judgment delivered last month in Anoop Baranwal versus Union of India, adding that Goel's appointment was made under the law as it stood at that time. Justice Joseph also observed that the petition sought to give retrospective effect to Anoop Baranwal. He, however, said that the hurry with which Goel was appointed may have been an arbitrary exercise of power.

Justice Joseph eventually decided to recuse himself from hearing the petition.

The petition argues that the entire selection procedure was a foregone conclusion from the get-go as on November 18, 2022, Goel, "with extraordinarily remarkable foresight," requested voluntary retirement on personal grounds.

"The request was forwarded by DoPT to the chief secretary of government of Punjab, the cadre controlling authority on the same date, i.e., November 18, 2022. The government accepted the request for voluntary retirement on the same date and waived off the condition of three-month notice for voluntary retirement. On November 19, 2022, Arun Goel was appointed as election commissioner," the petition states.

The Constitution Bench, which had summoned the records of the appointment of Goel, had, after going through them, observed that it was a little mystifying as to how the officer had applied for voluntary retirement on November 18, 2022 if he was not in the know about the proposal to appoint him.

On March 2, a Constitution Bench comprising Justices K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar, held that the appointment of the Chief Election Commissioner and ECs would be on the recommendation of a committee consisting of the Chief Justice of India, the Prime Minister and the Leader of Opposition in the Lok Sabha.

In its judgment, the Bench also made scathing comments on the hurried appointment of Goel as EC. It observed that though Goel was younger than the others who had been empanelled, he still would not have a complete tenure of six years as is mandated by Section 4 (term of office) of the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.

The court held that a tenure shorter than six years would impinge on the independence of the ECI.