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Supreme Court slams govt inaction on tribunal vacancies
The bench also questioned how and why the Union government opted to bring back the same provisions under the Tribunals Reforms Bill which were nixed by the top court on July 14.
The Supreme Court on Monday put the Union government in the dock over “making tribunals virtually defunct” by not filling up vacancies, while also questioning the rationale behind re-enacting the very same provisions for the administration of tribunals that were struck down by the court last month.
A bench, headed by Chief Justice of India NV Ramana, added that it has not come across any debate in Parliament or sufficient reason why the same provisions have been brought back by the government in the new Tribunals Reforms Bill when they failed to pass muster in terms of constitutionality earlier.
The bench, which included justices Surya Kant and Aniruddha Bose, was hearing petitions by advocate Amit Sahni and the Bar Council of Madhya Pradesh when it reproached the Union government for delay in filling up more than 200 vacancies across 15 tribunals in the country even after recommendations made by selection committees, which are usually led by a sitting Supreme Court judge.
“We can show you (instances)...Recommendations pending for one year, one year and four months. And we get the same reply every time — ‘It is under process.’ This phrase ‘under process’ means nothing in fact,” the bench told solicitor general Tushar Mehta, who represented the Centre.
Giving the government 10 days to show progress in appointments, it remarked: “There are tribunals which are on the verge of becoming defunct...It is a serious issue. Just tell us, the tribunals have to function or should they wrap up? This is the only issue now.”
The bench also questioned how and why the Union government opted to bring back the same provisions under the Tribunals Reforms Bill which were nixed by the top court on July 14. By its July judgment, the apex court struck down provisions of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, fixing the tenure of members and chairpersons of tribunals at four years. The court said the tenure has to be for five years.
However, the new Bill which has been passed by both the Houses of Parliament, re-enacted the same provision, keeping the tenure at four years.
Similarly, the minimum age requirement of 50 years, which was quashed by the court in July, still finds a place in the new Bill. The court ruling held that the provision relating to the recommendation of two names for each post by the Search-cum-Selection Committee (SCSC) and further, requiring the decision to be taken by the government preferably within three months, is violative of the Constitution. But the new Bill puts this stipulation back in the statute.
Referring to the Bill, the bench pointed out that the Supreme Court has been passing directions regarding the tenure and service conditions of the chairpersons and members of the tribunals since 2017 but the issues were far from being settled.
“I have not come across any debate that took place in the Parliament. In spite of all these (court directions), a few days back we have seen, the ordinance which was struck down has been re-enacted. You have come up again with the same rules. We are not commenting on the Parliament proceedings. Of course, the legislature has the prerogative to make laws. At least we must know why the government has introduced the Bill despite being struck down by this Court,” observed the CJI.
Justice Ramana referred to a news report which quoted the statements made by Union finance Minister Nirmala Sitharaman on the floor of the House.
“Please show us any debate...what reasons were there? The honourable minister has said just one sentence, that the court has not struck down the provisions on grounds of unconstitutionality. There is no reason given. It is a serious issue. What should we make of this Bill? The tribunal has to function or should they be wrapped up?” the bench asked Mehta.
The SG said in response that the Bill has been passed in the wisdom of the Parliament and the new law is not under challenge before the court.
“The government introduced the Bill. The ministry must have prepared a note for reasons. Can you show us that?” the CJI asked the SG, who replied that the Bill was yet to be notified as an Act and it will not be proper for him to respond until the notification.
The bench then adjourned the matter for August 31 but clarified in its order: “Pendency of the writ petitions and special leave petition before this court shall not come in the way of the Union of India and/or taking an excuse by them for not processing or appointing members in various tribunals.”
On August 15, speaking at the Independence Day ceremony, CJI Ramana rued the “sorry state of affairs” in Parliament, where, he said, laws are being passed without constructive debates, leading to legislation with “a lot of ambiguities”. “(Now) we see legislation with a lot of gaps, a lot of ambiguities in making laws. There is no clarity in laws. We don’t know for what purpose the law is made...which is creating lots of litigation, inconvenience, loss to the government and inconvenience to the public.”
On August 6, the bench asked the Union government if it wanted all tribunals to be wrapped up since they are unable to function due to a massive shortage of manpower. It had asked the SG to consult with competent authorities and inform the bench about appointments in the tribunals.
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