New Delhi: The Supreme Court Wednesday reiterated its decades-old view on the independent functioning of tribunals in the country as it struck down the Tribunals Reforms Act of 2021 after ruling that it did not conform to the top court’s binding decisions delivered over the last 20 years.
A two-judge bench led by Chief Justice B.R. Gavai expressed strong displeasure at the Centre not giving effect to its earlier directions that specifically frowned upon executive interference in the appointments, tenure and service conditions of members of various tribunals.
It also upbraided the government for seeking a reference of the current dispute to a larger bench, even though the top court has in the past taken a consistent view to insulate tribunals from government interference. These judgments have called for drawing a robust legal framework for tribunals so that their operation is independent, without the executive’s involvement in their functioning.
Asserting the same principle, CJI Gavai’s bench Wednesday underscored that autonomy of tribunals was crucial as they were quasi-judicial bodies and the government was one of the main litigators before it.
The 2021 Act, the bench declared, not only contradicted the binding judicial pronouncements, but revived the provisions that were earlier struck down by the top court for giving the government an upper hand in the functioning of the tribunals.
“The provisions of the Impugned Act cannot be sustained. They violate the constitutional principles of separation of powers and judicial independence, which are firmly embedded in the text, structure, and spirit of the Constitution,” said the bench.
“The Impugned Act (2021 Act) directly contradicts binding judicial pronouncements that have repeatedly clarified the standards governing the appointment, tenure, and functioning of tribunal members,” the bench added.
Appointment to tribunals, selection of members, their service conditions as well as their tenure have been a major flashpoint between the Centre and the Supreme Court. It began soon after the government introduced the law for the first time in 1986.
However, the confrontation has intensified since 2017 when the Centre overhauled the appointment rules to curtail the tenure of members from five to four years, putting an age limit and doing away with the re-appointment clause existing in the law.
Wednesday’s judgement on the conditions of service and functioning of tribunals is the fourth one delivered in the last eight years.
The ones delivered earlier in 2019, 2020 and 2021 struck down the government’s repeated attempts to allow excessive executive control over tribunals.
The 2019 judgement was delivered by a constitution bench of five judges that invalidated the 2017 rules framed after the Finance Act, 2017 was enforced. The act subsumed provisions relating to the appointment, tenure, service conditions, and functioning of members across various tribunals under a single legislative umbrella.
It was held that the 2017 Rules weakened the independence of tribunals as the Search-cum-Selection Committees tasked to choose members was dominated by executive nominees with minimal judicial representation. This undermined the independence of the judiciary and tribunals, the judgement said.
Pursuant to this, the government notified the Tribunal, Appellate Tribunal and other Authorities [Qualification, Experience and Other Conditions of Service of Members] Rules, 2020’, to govern the qualifications and appointment of members, the procedure for inquiries into misconduct, as well as their house rent allowance and other service conditions.
Upon a challenge, the SC in the same year ordered modification of the rules, directing the constitution of a National Tribunals Commission, which would be an independent body to supervise the appointments and functioning of tribunals, as well as conduct disciplinary proceedings against members and take care of administrative and infrastructural needs of the Tribunals.
One of the key directions said the chairpersons, cice-chairpersons and the members of the tribunal shall hold office for a term of five years and shall be eligible for reappointment. The order fixed a monthly rent allowance for the members, which was done away in the 2020 rules.
Despite such explicit directives, the Centre introduced the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021. It equated the allowances and benefits of tribunal members with those of Central government officers drawing equivalent pay. It further mandated that the Selection Committee recommend a panel of two names for each post, giving the Centre a final say in the appointments.
It once again limited the tenure of chairpersons and members to four years, with retirement ages of 70 years and 67 years and introduced an age requirement of 50 years.
Striking down the Ordinance for violating its express directions, the SC showed concern over the large volume of pending cases before tribunals and urged the government to staff these bodies with competent and qualified judicial and technical members.
Notwithstanding, the Centre re-introduced the same provisions through The Tribunals Act, 2021, leading to yet another round of litigation in the top court.
The challenge to the act
Challenging the law, the petitioners, including bar bodies of various tribunals, argued the 2021 Act violated the constitutional principle related to separation of powers and judicial independence. Instead of curing the defects, the Act nullified judicially framed rules by reintroducing provisions previously struck down.
The key points for argument were that the Act imposed a 50-year minimum age for appointments, permitted the search-cum-selection committee to recommend two names for chairperson, enabling executive preference; fixed a four-year tenure as opposed to the five-year mandated by the SC.
It was also argued that candidates on waitlists were preferred over higher-ranked candidates. Final selection was based on Intelligence Bureau reports that were never shared with the search-cum-selection committee and the same resulted in “arbitrary cherry-picking” of candidates.
In response, the government asserted the Act is a legislative policy choice and courts cannot compel it to enact a particular law or structure it.
Non-compliance with judicial directions that intrude into the policy-making space of the legislature cannot attract contempt, it submitted.
A statute, it argued, can only be invalidated for lack of legislative competence or violation of constitutional provisions.
‘Supremacy of the Constitution’
CJI Gavai’s bench examined the present case against the broader constitutional backdrop that requires mutual respect and defined boundaries among the three organs of the State.
Defining the respective roles, the court emphasised each organ was bound by a common constitutional obligation, which is “respect for and adherence to the supremacy of the Constitution.”
A detailed examination of the earlier judgements, discussion over the constitutional design and questions concerning the scope and limits of judicial review formed the major part of the court’s discussion.
It declared the Act was a “legislative override in the strictest sense” as it did not address the underlying constitutional infirmities pointed out in the earlier verdicts of the SC on the functioning of Tribunals.
“Such an approach is impermissible under our constitutional scheme. Because the Impugned Act fails to remove the defects identified in prior judgments and instead reenacts them under a new label, it falls afoul of the doctrine of constitutional supremacy. Accordingly, the impugned provisions are struck down as unconstitutional,” the bench said.
The terms of appointment introduced in the Act were tested and struck down. They were expressly held as arbitrary, destructive of judicial independence and amount to an impermissible legislative override of binding directions, the court said.
The court also directed the Union to form a National Tribunal Commission within a period of four months.
The court protected the appointments of members and chairpersons that were completed before the commencement of the Tribunal Reforms Act, 2021, but formal appointment notifications were issued after the Act was enforced.
Such appointments will continue to be governed by the parent statutes and by the conditions of service as laid down in the 2020 and 2021 judgements.
(Edited by Ajeet Tiwari)
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