‘So much secrecy’: SC asks Centre to make public decision on NCLT members’ term

‘There can’t be so much secrecy over this document. Of what we have seen that you filed, there is no breach of confidentiality,’ the Supreme Court told the Centre

The Supreme Court on Thursday directed the Centre to make public the decision taken by the committee headed by chief justice of India (CJI) NV Ramana on the issue of extending the three-year tenure of the 23 members of the National Company Law Tribunal (NCLT) to 5 years.

The Supreme Court directed the Centre to file an affidavit by Friday bringing on record the decisions of the CJI-led committee and supply a copy to the petitioners. (HT File Photo)

The Centre claimed confidentiality over the decisions taken by the three-member Committee comprising CJI, justice Surya Kant of the Supreme Court and secretary, Ministry of Corporate Affairs and refused to disclose it to the petitioner, NCLT Bar Association, which approached the top court in March this year demanding the tenure of the 23 members to be revised to five years.

“There can’t be so much secrecy over this document. Of what we have seen that you filed, there is no breach of confidentiality,” said a bench of justices JK Maheshwari and Hima Kohli. The bench directed the Centre to file an affidavit by Friday bringing on record the decisions of the Committee held on March 20 and June 6 and supply a copy to the petitioners. The court will hear the matter on Monday.

“The early expiration of tenure will create a lacuna that will adversely affect the disposal of matters pending before the tribunals. The numerous cases pending before NCLT accompanied with the delay in the appointment of members are a major roadblock in efficient delivery of justice,” said the plea filed by the NCLT Bar Association seeking urgent orders to stay the September 2019 notification appointing the 23 members. As many as 21,259 cases were pending before NCLTs as on December 31, 2020.

Solicitor general Tushar Mehta, who appeared for the Centre, brought separate sets of the two resolutions passed by the committee. At first glance, the bench observed, “It would have been appropriate if you filed these documents on the affidavit. It is a serious matter. If you go by statutory provisions, it goes against it. The Tribunal Reforms Act 2021 prescribes for tenure of four years.”

Senior advocate Maninder Singh appearing for the NCLT Bar association questioned the selective approach of the Centre. He informed the Court that in a separate matter concerning appointment to the Central Administrative Tribunals (CAT), the recommendations of the committee headed by a sitting Supreme Court judge were placed on affidavit by the Centre.

“That is why we are asking them to file an affidavit so that it can be served to you.” The Court told Mehta, “Whatever additional documents you have filed, serve it to the other side as well,” the bench said.

Mehta expressed reservation on such an order being passed and requested the bench to first have a look at the affidavit to be filed and thereafter decide whether to share the recommendations with the other side. “It is a question of propriety and confidentiality. If the court feels it has to be shared, it is the court’s call. But as for propriety, we would not share. These are resolutions passed by CJI-headed committee and so we shared it only with the court,” the solicitor general submitted.

Mehta further said that CAT appointments stood on a different footing while in these resolutions, there were other issues that will arise which the court has to consider. He was possibly indicating to the verification reports of character and antecedents pertaining to the 23 members, which is key to determine grant of extension. On June 14, the Centre issued an order revising the tenure of 8 out of 23 members to 5 years from the date of joining or 65 years, whichever is earlier. The eight included 2 judicial members and 6 technical members.

Singh told the court that since 2016, when the NCLT came into existence, the term of members (judicial and technical) has been five years. The 23 members in question were appointed in 2019 having tenure of three years under a government notification. This executive order passed by the Ministry of Corporate Affairs was challenged by the NCLT Bar Association. According to the petitioner, the last of the member, appointed in 2019, will retire on July 3 this year.

On May 25, when the matter was last heard by the top court, the Centre said that the CJI-headed committee was still deliberating on the issue of extension to the 23 members. Recording this submission, the court had granted the Centre time till June 15 to apprise them of the final decision.