Centre emasculating tribunals: Apex court

A bench, headed by Chief Justice of India NV Ramana, further observed it is “very upset” by the government and censured the Centre for re-enacting the very same provisions for the administration of tribunals that were struck down by the court in July.
There are more than 200 posts lying vacant across 15 tribunals in the country.(HT Photo)
There are more than 200 posts lying vacant across 15 tribunals in the country.(HT Photo)
Updated on Sep 07, 2021 01:34 AM IST
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By Utkarsh Anand, Hindustan Times, New Delhi

The Union government has no respect for the judgments of the top court and is now testing its patience, said an anguished Supreme Court on Monday, adding the government is “emasculating tribunals” by not filling up vacancies in them.

A bench, headed by Chief Justice of India NV Ramana, further observed it is “very upset” by the government and censured the Centre for re-enacting the very same provisions for the administration of tribunals that were struck down by the court in July.

“The government is bent upon not honouring the orders of this court... Virtually the same Act is re-enacted. We cannot have this situation. Legislature can take away the basis of a judgment but you cannot overrule a judgment by re-enacting the very same provisions,” said the bench, which also included justices Dhananjaya Y Chandrachud and L Nageswara Rao. The bench said that the court will have to consider staying the new law since it is a “replica” of the old law, which was held to be unconstitutional.

There are more than 200 posts lying vacant across 15 tribunals in the country.

Commending the Centre for clearing nine names as judges of the Supreme Court within a week, the bench clarified that it is not looking for “any confrontation with the government” but added that the reluctance in appointing members in tribunals has left most of them virtually defunct.

The court was hearing a clutch of separate petitions on vacancies across the tribunals and a challenge to the Tribunal Reforms Bill, which was passed by both the houses in the Monsoon session of the parliament. The petitioners included advocate Amit Sahni, Congress MP Jairam Ramesh and Delhi Bar Association. Senior advocates Abhishek Manu Singhvi and Vikas Singh appeared for some of the petitioners.

When the hearing commenced on Monday, solicitor general Tushar Mehta, representing the Centre, requested an adjournment seeking accommodation for attorney general KK Venugopal, who was not available.

But the bench turned down the S-G’s request. “There is no respect to the judgment of this court. You are testing our patience,” retorted the bench, asking Mehta about the number of people appointed in tribunals since the last hearing two weeks ago.

At this point, Mehta shared with the bench a communication received from the Union finance ministry on Monday morning that said the government will take decisions within two weeks in cases where the Search-Cum-Selection Committee (SCSS) for various tribunals have made their recommendations. These committees are led by a sitting Supreme Court judge and also include secretaries from the government.

Justice Rao, on his part, asked Mehta why the government did not make appointments for names sent a year-and-a-half ago when those recommendations were made completely in accordance with the rules existing at that point of time.

“Many tribunals are on the verge of closing down. Then, there are tribunals working with only one member... See the burden we have to face now. You are emasculating the tribunals by not appointing members,” said the judge.

Justice Chandrachud flagged vacancies in company law tribunals. “NCLT (National Company Law Tribunal) and NCLAT (National Company Law Appellate Tribunal) are critical to the economy. They are cornerstones of reconstructions and restructuring of companies. But because of vacancies, they have not been able to adhere to the timelines. A very critical situation has arisen.”

Justice Chandrachud called it a “waste of time and energy” when the government was not interested in clearing names, which were sent by the selection committee in consultation with the government’s bureaucrats, after they were okayed by the Intelligence Bureau (IB).

At this, the CJI said the court is now contemplating the option of staying all tribunal related laws and asking the high courts to start dealing with the cases or issue a contempt notice to the government.

“What is your alternative proposal? Tell us if you do not want tribunals. If you don’t have faith in the two judges of this court and your own bureaucrats (who comprise the selection committee for tribunals), we can’t understand. Let us also tell you that we are not bothered about your subsequent legislation,” the bench told the S-G.

It highlighted that there is no difference between the new law on tribunals and the one that was struck down by the court in July. Justice Chandrachud cited at least four such provisions. The first one related to fixing the tenure of members and chairpersons of tribunals at four years while the court in its July judgment said the tenure has to be for five years.

Similarly, the minimum age requirement of 50 years, which was quashed by the court in July, still finds a place in the new law. The court ruling held that the provision relating to the recommendation of two names for each post by the SCSC and further, requiring the decision to be taken by the government preferably within three months is violative of the Constitution. But the new law puts this back in the statute. The provision relating to allowance and perks have also been brought back.

“The situation is very serious. We are very upset with what has transpired. We will give you 3-4 days and we will then pass an order on the new legislation after hearing you...you cannot re-enact the same provision. This is not validating legislation,” said the bench. It added the court cannot go on delivering judgments after judgments on the same issue.

The court issued notices in the petitions for filling up vacancies in the tribunals and against the validity of the new law while fixing the matter for next Monday. “We expect some appointments by Monday next,” the bench told the S-G. Mehta agreed to come back with instructions.

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Saturday, October 16, 2021