SC Says 'Right to Vote Constitutional', Asks Union Govt for Files on Appointment of Arun Goel as EC

'We want to see what is the mechanism. We will not treat it as an adversarial and keep it for our record, but we want to know as you claim that everything is hunky dory,' the bench said.

New Delhi: The Supreme Court asked the Union government on Wednesday, November 23, to produce before it the file related to the appointment of Election Commissioner Arun Goel. It also differed with the Election Commission in observing that the right to vote is a constitutional right and not a statutory one.

Goel was appointed to the post on November 19.

A five-judge Constitution bench headed by Justice K.M. Joseph said it wants to know whether there was any “hanky panky” in Goel’s appointment as Election Commissioner as he was only recently given voluntary retirement from service.

The bench rejected the objections of Attorney General (AG) R. Venkataramani to the court’s decision to see the file related to Goel’s appointment while the hearing is on.

Venkataramani told the bench, also comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar, that it is dealing with the larger issue of appointment of ECs and the chief election commissioner (CEC) and it cannot look at an individual case flagged by advocate Prashant Bhushan.

“I take serious objection to this and have my reservation to the court seeing the file amidst the hearing of a Constitution bench,” he said.

The bench said it started hearing a batch of pleas seeking a collegium-like system for the appointment of ECs and the CEC last Thursday and Goel was appointed as an EC subsequently, on November 19. Therefore, it wants to see what prompted the step.

“We want to see what is the mechanism. We will not treat it as an adversarial and keep it for our record, but we want to know as you claim that everything is hunky dory. Since we were hearing the matter and appointment was made amidst, this may be interlinked. You have time till tomorrow. Produce the documents,” it told the AG.

The Supreme Court bench, a day ago, had observed that a committee which includes the Chief Justice of India might ensure the most transparent way of selecting election commissioners.

At the outset, Bhushan, who appeared on behalf of petitioner Anoop Baranwal and made his rejoinder submission, said after the court started hearing the mater, the government hurriedly appointed an Election Commissioner.

“This Election Commissioner was, till Thursday, working as a secretary-level officer in the government. Suddenly, he was given VRS on Friday and appointed as an election commissioner,” Bhushan said.

Justice Joseph said as far he recalls, it takes three months for a person to get voluntary retirement.

On November 19, Goel, a 1985-batch Indian Administrative Service (IAS) officer of the Punjab cadre, was appointed as an election commissioner.

He was to retire on December 31 on attaining the age of 60 years. Once he assumes his new role, Goel would be in line to be the next CEC after incumbent Rajiv Kumar demits office in February 2025. He will join Kumar and Election Commissioner Anup Chandra Pandey on the poll panel.

There was a vacancy in the Election Commission (EC) following the retirement of previous CEC Sushil Chandra in May.

Goel was the secretary in the Ministry of Heavy Industries till recently and his voluntary retirement came into effect on November 18. He has also served in the Union culture ministry.

Right to vote

Justice Joseph also noted that the right to vote is a constitutional right, when the counsel for the Election Commission noted that the right to vote was a statutory one, according to LiveLaw.

“[Article] 326 does not give the right to the voter,” the EC’s counsel said.

“Why? Kindly read 326,” Justice Joseph said.

After the counsel read the article, Justice Joseph highlighted the words “shall be entitled to be registered as a voter at any such election” and asked: “Are you saying the Parliament’s legislative power will override the Constitution?”.

He then said, according to LiveLaw:

“The Constitution has contemplated giving the right. That is the fundamental thing. It was 21 years initially, and was lowered to 18 years. The ancillary law making is contemplated for giving it teeth and flesh. The disqualification cannot be enlarged by the legislature. What are the disqualifications are mentioned in Article 326 itself…it may not be correct to say that it (the right to vote) is only a statutory right.”

‘Wrong presupposition’

The Union government also told the Supreme Court that it was a wrong presupposition that the mere presence of someone from the judiciary in the panel for appointment of Election Commissioners and the Chief Election Commissioner would ensure transparency and independence.

Solicitor General Tushar Mehta, appearing for the Union government, “A presupposition that only with the presence of the judiciary, independence and fairness will be achieved, that is an incorrect reading of the Constitution. Mere presence of someone from judiciary will ensure transparency is fallacious statement.”

“This court cannot say that in the absence of law, this should be the law because the court is dealing with the Constitution and not a statute,” he said.

Justice Rastogi asked Mehta if he thinks that in the absence of law, whatever appointments are being made in a process are appropriate.

Mehta replied, “Yes, as a constitutional proposition the executive’s independence and the judiciary’s independence are equally sacrosanct. The doctrine of separation of power stems from Article 14, which means all the organs of the State are equal in the eyes of the Constitution.”

Justice Joseph pointed out to the Solicitor General that the Chief Justice of India is involved in the process of appointment of CBI director, then what does that mean to a democracy.

“This court has passed the judgement and it has been accepted by the executive,” he said, while referring to the 1997 Vineet Narain case, where the selection of CBI director was contemplated to be made by a committee.

(With PTI inputs)

Note: This article was updated with additional details on the hearing.