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SC slams government on quashed provisions in tribunal law
The Supreme Court questioned the Tribunal Reforms Act, 2021, citing legislative overreach and emphasized the need to respect past court orders during reforms.
The Supreme Court on Monday told the Centre that any reforms for effective functioning of tribunals cannot ignore past court orders as it questioned the Tribunal Reforms Act, 2021 to be a “legislative overreach” for reintroducing provisions on tenure and eligibility of members and chairpersons that were struck down earlier by the court.
Hearing petitions challenging the constitutional validity of the 2021 Act for introducing a four-year tenure, a minimum eligibility age of 50 years among other measures, the court sought the rationale behind introducing these provisions when the tribunals have been performing efficiently over the past decades with no instance of deviation.
“You can do everything except what has been set aside by this court,” said a bench of Chief Justice of India (CJI) Bhushan R Gavai and justice K Vinod Chandran while hearing arguments by Attorney General R Venkataramani who defended the Act. “What is set aside by the court, can it be brought back by changing a few words… Would it not be a case of legislative overreach,” the bench added.
The 2021 Act was brought within four months of the court striking down similar provisions in the Tribunal Reforms (Rationalization and Conditions of Services) Ordinance, 2021. The law was challenged by the Madras Bar Association and other bar associations of various tribunals claiming that a four-year tenure and 50-year entry age will deter bright, young lawyers from joining tribunals. After four years, the Act provides for re-appointment of the members. All appointments and reappointments are to be made by a Search-cum-Selection Committee (SCSC) which has a nominee of Chief Justice of India (CJI) as a member who will have a casting vote.
The bench asked AG, “What is the rationale behind introducing 50 years as the minimum joining age when the Act allows a lawyer with 10 years practice to apply. If a lawyer with 10 years experience can be considered to be appointed as a high court judge, then why not here.”
The court agreed that permanency of tenure goes to the root of effective functioning of the tribunal as there cannot be a “sword hanging on the person” whether there will be re-appointment or not.
The CJI remarked, “Had I known at the age of 42 (when CJI became a high court judge), that every four years I will have to be re-appraised by the Collegium, then I may not have...There could be a system of appraisal. But you must say what prompted you to bring this reform. If ITAT and CESTAT were functioning effectively over a couple of decades, you have not pointed out a single instance of deviation.”
Venkataramani told the court that this should not be seen as courts versus Parliament issue but for the betterment of functioning of tribunals. “The 2021 Act is a running thread between the court and Parliament to decide what could be a uniform criteria governing all tribunals.”
He said that the 2021 Act has been enacted with the purpose of streamlining the process of appointment across all tribunals and has taken its present shape based not only on legislative wisdom but also judicial examination and assessment of all its previous versions. It neither creates an arbitrary class nor vests arbitrary powers in hands of any one wing of the government, the AG said.
Stating that the court may not exclusively assign to itself the task of determining all conditions and terms of service for the tribunals, he further pointed out that the responsibility for ensuring effective functioning of tribunals must be granted to Parliament. This is important as the power of appointment and removal rests with the judiciary
The Centre explained that the 2021 Act, provides for a four-year term open to re-appointment and the retirement age has been substantially increased to 70 years for presiding officers and 67 for tribunal members. “The terms and conditions of the services laid down in the 2021 Act and Rules ensure accountability and, therefore, independence of tribunal from any fear or favour,” the Centre submitted in its written notes submitted to the court.
The submissions of the Centre were countered by senior advocate Arvind Datar and advocate Ninad Laud for the petitioners. Datar said, “Age limit, tenure and method of selection are not mere matters of policy. These are aspects on which the judiciary will have the final say because they vitally affect the functioning of quasi-judicial bodies like tribunals and consequently, the justice delivery system.”
Datar pointed out regrettably, the Centre has repeatedly adopted an attitude of confrontation on the issues of age, tenure etc concerning tribunals without realising that these quasi-judicial bodies have jurisdiction over all the important commercial activities of the nation relating to taxation, electricity, telecommunications, real estate, environment, company law, insolvency law, consumer law, etc. Tribunals also have the final say on factual issues for armed forces, money laundering (PMLA) and also service conditions by virtue of administrative tribunals, he added.
“When tribunals have been given jurisdiction on vital economic sectors, the recommendations of the judiciary must be accepted as they only promote the proper tribunal system which is vital to ease of doing business and the economic well being of the nation. An ill-equipped tribunal system is a serious handicap to economic progress,” Datar said.
As the submissions of AG Venkataramani remained inconclusive, the court posted the matter for further hearing on Tuesday.
