The Supreme Court has refused to interfere with the appointment of Arun Goel as the Election Commissioner and dismissed a challenging appointment on the ground that it was not only arbitrary but also violated the principles of institutional integrity of the Election Commission. Noting the observations of the Constitution Bench in the judgment dated March 2, 2023 in the matter and the absence of any effective adverse order disturbing the appointment, the bench junked the petition.

The petition was filed by Association for Democratic Reforms, an NGO which was represented by Advocate Prashant Bhushan.

“We have heard Mr. Prashant Bhushan in this public writ petition under Article 32 of the Constitution of India. Our attention is drawn to the judgment of the Constitution bench in Anoop Baranwal v. Union of India Ministry of Law and Justice Secretary, 2023 SCC online SC 216 and in particular to paragraphs beginning from 200. The appointment of Election Commissioner which is subject matter of the present writ petition has been examined in the aforesaid paragraphs. We find that the Constitutional Bench did not pass any effective order disturbing the present appointment. The relevant file, all other factors have been taken into consideration. In these circumstances, we are not inclined to issue notice in the present writ petition. The same is accordingly dismissed”, observed a bench of Justice Sanjiv Khanna and Justice S.V.N. Bhatti in the order.

In the pertinent case, the NGO challenged the appointment on the ground that the selection is arbitrary and it violates the principles of the institutional integrity of the Election Commission.

Arun Goel, is an IAS officer of 1985 Batch. He was appointed as the Election Commissioner on November 18, 2022.

As per the averments made, the Law Minister made a panel of four names with Goel's name at the top, where three IAS officers were retired, while he was still serving. However, on the same day he applied for a voluntary retirement.

It is the case of the petitioners that as per the rules of voluntary retirement an officer has to serve a three months notice. However, he was given an exemption by the government, the notice period was waived off, and he was allowed to retire the same day.

Moreover, it was submitted that on the same day the file was moved to the Prime Minister, and the same day the Prime Minster selected him.

It is pertinent to note that as per the judgment of the Constitution Bench, the appointment should be by a committee, comprising the Prime Minister, leader of opposition and the Chief Justice of India to ensure that the appointment is made without any prejudice.

“I am assailing the appointment on a different ground that on what basis the Law Minister pick out these four names and the Constitution Bench has commented on that”, argued Bhushan.

“Mr Prashant Bhushan as far as now, the law has now been put in place, and now we have a law which would be applicable. But as far as past is concerned it may not be correct…And secondly, as far as appointment now already been made is concerned, they could have made it earlier also. Yes, it does appear from the judgment that the Court has taken notice of the fact that when the hearing was about to start the appointment was made. But that will not be a good ground for us now to really go into that question once again”, Justice Khanna said.

Solicitor General Tushar Mehta appearing for the Union of India contended, “He wants to have a second bite at the cherry…in every constitutional appointment my lords are aware that files move in a day. It is not necessary that it goes from one table to another table because those who are involved in the decision making process are not sitting on tables where it goes from one table to another table. This has been consistent practice”.

“Would it be proper for him to pray before your lordships what he could not get in the Constitution Bench”, he further asked the bench. To which, the Court strongly agreed, saying that the bench did peruse the files and made appropriate observations in that regard.

On March 2, 2023, a 5 judge Constitution Bench led by Justice K.M. Joseph had held that the appointment of Chief Election Commissioner and other Election Commissioners shall be made by the President on the advice of a committee comprising the Prime Minister, leader of Opposition in Lok Sabha (or leader of largest opposition party in Lok Sabha) and the Chief Justice of India

Cause Title: Association For Democratic Reforms v Union of India

Click here to read/download the Order



Justice Sanjiv KhannaJustice S.V.N. BhattiElection Commissioner

Agatha Shukla