November 17, 2022: A Supreme Court constitution bench headed by Justice K.M. Joseph commences the hearing on a batch of public interest litigation petitions seeking the Election Commission’s independence.

November 18, 2022: The vacant election commissioner’s post was filled with the appointment of Arun Goel, a former civil servant.

The sequence of events, a part of which “mystified” the Supreme Court, made it to Thursday’s judgment that empowered a broad-based panel to recommend the names of the Chief Election Commissioner and the election commissioners.

The appointment was attacked by advocate Prashant Bhushan, appearing for one of the petitioners, on the ground that it ought not to have been done when the matter relating to the independence of the EC was being examined by the five-judge constitution bench.

The apex court noted that the approval was sought on November 18 last year for the appointment of one election commissioner. On the very same day, drawing upon the database of IAS officers (serving and retired), four names were shortlisted.

Apart from Goel, three names were considered by the law minister. On the same day, a note was put up, in which the law minister had suggested the panel of four names for the consideration of the Prime Minister and the President.

“We further find that three of the officers mentioned had superannuated during the last two years or so. The appointee (Goel), it was noted, was to superannuate in the month of December 2022 and had taken voluntary retirement, was the youngest….”

On the very same day again, the Prime Minister recommended the name of the present appointee. “On the same day again, an application is seen made by the appointee in regard to voluntary retirement and accepting the same, again, w.e.f., 18.11.2022, and waiving the three months period required for acting on the request of voluntary retirement, the officer’s request for voluntary retirement came to be accepted by the competent authority,” the court said.

“Not coming as a surprise, the appointment as the election commissioner was also notified. We are a little mystified as to how the officer had applied for voluntary retirement on 18.11.2022, if he was not in the know about the proposal to appoint him,” Justice K.M. Joseph, who authored the judgment, observed. The court said it was not questioning the suitability of the appointee.

“As on 18.11.2022, if any of the three were considered and appointed, they would have had a tenure of fewer than three years (six years maximum or age 65, whichever is earlier).... Even the appointed officer (Goel) was due to retire on 31.12.2022, at the age of sixty years. He would have a term of a little over five years....”

The court said a six-year tenure would enable the commissioners to familiarise themselves with the office and assert their independence.