SC holds certain provision on terms of services in Tribunals Reforms ordinance as unconstitutional

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New Delhi, Jul 14 (PTI) The Supreme Court on Wednesday in its 2:1 verdict upheld the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 but held as “unconstitutional” certain provisions related to terms of services of chairperson, vice-chairperson and other members of tribunals.

The apex court struck down the provisions requiring minimum age for appointment as Chairperson or Members as 50 years and prescribing the tenure of four years saying such conditions are contrary to the principles of separation of powers, independence of judiciary, rule of law and Article 14 of the Constitution.

The majority verdict further said that security of tenure and conditions of service are recognised as core components of independence of the judiciary, which can be sustained only when the incumbents are assured of fair and reasonable conditions of service, which include adequate remuneration and security of tenure.

The top court said “impartiality, independence, fairness and reasonableness in decision-making are the hallmarks of the judiciary and if “impartiality” is the soul of the judiciary, “independence” is the lifeblood of the judiciary.

It said that without independence, impartiality cannot thrive and independence is not the freedom for Judges to do what they like but it is the independence of judicial thought.

The top court also expressed concern over “lethargy” shown by the Centre in making appointments and filling up the posts of Chairpersons and Members of tribunals which have been long vacant.

It said that the tribunals which are constituted as an alternative mechanism for speedy resolution of disputes have become non-functional due to the large number of posts which are kept unfilled for a long period of time.

“The conditions of service for appointment to the posts of Chairpersons and Members have been mired in controversy for the past several years, thereby, adversely affecting the basic functioning of tribunals,” the top court said.

It held several provisos of section 184 of the Finance Act, 2017, introduced by Section 12 of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 as void, inoperative and unconstitutional.

The Centre is empowered by Section 184 of the Act to make rules to provide for qualifications, appointment, term of office, salaries and allowances, resignation, removal and other terms and conditions of service of the Chairperson and Vice-Chairperson (and commensurate positions bearing different nomenclature) and other Members of tribunals.

A bench of Justices L Nageswara Rao, Justice S Ravindra Bhat and Hemant Gupta in a 157-page majority verdict held that the term of Chairperson of a tribunal shall be five years or till she or he attains the age of 70 years, whichever is earlier and the term of member of a tribunal shall be five years or till she or he attains the age of 67 years, whichever is earlier.

Justice Rao gave the lead verdict, which was concurred by Justice Bhat and allowed the pleas of Madras Bar Association and other parties challenging various provisions of the Act while Justice Gupta dissented and dismissed the writ petitions in a separate judgement.

Justice Rao in his 76-page verdict held, “to conclude, the first proviso and the second proviso, read with the third proviso, to Section 184 overriding the judgment of this Court in MBA-III (Madras Bar Association third verdict) in respect of fixing 50 years as minimum age for appointment and payment of HRA, Section 184(7) relating to 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 are declared to be unconstitutional”.

He said that the Section 184(11) of section 184 prescribing tenure of four years is contrary to the principles of separation of powers, independence of judiciary, rule of law and Article 14 of the Constitution of India.

The majority verdict said, “This Court is aghast to note that some tribunals are on the verge of closure due to the absence of Members. The direction given by this Court for expediting the process of appointment was in the larger interest of administration of justice and to uphold the rule of law”.

Dealing with the first proviso of Section 184(1) which provides minimum age for appointment as Chairperson or Member as 50 years, Justice Rao said one of the issues considered in MBA-III was the correctness of the condition imposed in the 2020 Rules that an advocate is eligible for appointment as a Member only if he has 25 years of experience.

“The first proviso to Section 184 which prescribes a minimum age of 50 years is an attempt to circumvent the direction issued in MBA-III striking down the experience requirement of 25 years at the bar for advocates to be eligible”, he said.

It said, “Therefore, the first proviso to Section 184(1) is in violation of the doctrine of separation of powers as the judgment of this Court in MBA-III has been frustrated by an impermissible legislative override. Resultantly, the first proviso to Section 184 (1) is declared as unconstitutional as it is violative of Article 14 of the Constitution”.

It held that all appointments made after April 4, 2021 shall be governed by the Ordinance, as modified by the directions given by the court.

Justice Hemant Gupta, who dissented in his opinion with the majority view taken by Justice Rao and Bhat said that he finds that proviso are legal and valid as provisions fall within the exclusive domain of the legislature. PTI MNL PKS SJK MNL RKS RKS

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