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Judicial independence diluted — Madras Bar Assn challenges Modi govt rules for tribunal posts

Madras Bar Association’s petition claims the Modi govt’s new rules issued in February 2020 go against norms laid down by Supreme Court last year.

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New Delhi: The Madras Bar Association has filed a petition in the Supreme Court alleging the Narendra Modi government’s new rules for appointing members to 19 statutory tribunals do not follow the norms laid down by the top court in November last year. The top court is expected to hear the petition on 7 September.

The apex court had asked the central government to maintain judicial dominance over the appointment process.

Challenging the Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020, the petitioner has claimed that the appointment rules are in contravention to the principle of power separation and threaten to dilute the judiciary’s independence both being part of the basic structure of the Constitution.

The new rules, issued on 12 February this year, will have a prejudicial effect on “effective and efficient administration of justice”, the petitioner stated. The rules do not subscribe to judicial views on appointments to tribunals, underlined in various judgments delivered since 2010, the latest being in 2019.

The petitioner also claimed that the rules, in their present form, will allow executive interference in the functioning of the tribunals.

Also read: Since 2014 not a single CIC appointed without citizens going to court

‘New rules suffer from same defects as old ones’

The Constitution allows establishment of tribunals with an intention to reduce pressure and burden on high courts and lower courts. Administrative tribunals have both judicial and administrative features.

According to existing rules, either a former Supreme Court judge or the chief justice of a high court heads a tribunal, which also comprises judicial and technical members. While judicial members are chosen from the legal profession, technical members are retired civil servants.

The top court had, on 13 November 2019, struck down the rules framed in 2017 that laid down the eligibility criteria, process of selection, resignation and removal, salary, tenure and other service conditions for tribunal members.

These rules were notified following The Finance Act, 2017, that made significant changes to the structure of various specialised tribunals and their jurisdiction, besides modifying laws relating to taxation and other fiscal aspects.

Petitions were filed before the top court against these rules and provisions of the Finance Act, which according to the petitioners, was passed improperly as a Money Bill.

A five-judge bench had then (2019) declared the rules unconstitutional, while referring the question regarding the validity of the Finance Act to a larger bench.

The court had quashed the rules mainly for not conforming with the principle of judicial dominance in appointments. One of its directions required the government to frame new rules in accordance with the top court’s guidelines in the 2019 judgment.

It had said that appointment of members to tribunals should be in a similar manner to the appointment of high court judges.

However, according to the Madras Bar Association, the new rules have the same defects as the old ones, and fail to prevent executive interference in the administration of tribunals.

Also read: SC to hear plea seeking panel for inquiry into alleged mismanagement of Covid pandemic

‘Executive continues to dominate appointments’

According to the 2019 verdict, a majority of the Selection Committee must consist of the judiciary, and the Chief Justice of India should have a casting vote. The judgment further said that the chairperson and presiding officer of the tribunal should be a judicial member.

The new rules, the Madras Bar Association states in its petition, does not provide for the Chief Justice of India to have a casting vote. In many tribunals, it said, the chairperson/presiding officer can be a person without judicial or legal experience.

The top court had barred appointment of officers of the Indian Legal Service and other persons who are not judges or practising lawyers as judicial members of a tribunal. But the new rules allow officers of the Indian Legal Services, among others, to be appointed as judicial members.

The 2020 rules also exclude advocates from qualifying for the posts of judicial members in various tribunals, and, in some others, have unreasonable requirements for advocates to qualify, the petitioner has contended.

“Both these aspects are anti-merit, lead to fewer applicants and adversely affect the effective and efficient functioning of the tribunals, especially in light of the perennial problem of vacancies in the tribunals,” the petitioner reasoned.

With regard to technical members, the court had earlier said they may be appointed only if necessary. For such a post, the court had specified, bureaucrats with specialised knowledge – needed for the particular tribunal – and preferably working at the post of a secretary or additional secretary should be considered.

According to the petitioner, the specialisation required to be technical members has been diluted by including experience in public affairs, administration, etc in some tribunals. Further, bureaucrats without any further specialised knowledge can be appointed as technical members in some tribunals, it claimed.

While the 2019 verdict mandated at least 5 or 7 years’ term for tribunal members, since short tenures tend to affect impartiality and increase the influence of executive, the new rules make provision for a 4-year term or till the age of retirement (either 70 or 65), whichever is earlier.

To ensure there is no conflict of interest, the top court had ordered all tribunals to be under a single modal agency, preferably under the Ministry of Law and Justice. However, no such provision is there under the new rules, which allows the parent ministry of a tribunal to participate in the appointment process.

Also read: Supreme Court collegium meets after 4 months, to fast-track appointment of high court judges


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  1. What is the guarantee that the executive decisions are unfair and the judicial decision s will be necessarily fair?

  2. Madras Bar Council probably consists more of members who passed (caution: not mentioning ‘studied’) out of Ambedkar Law college!?

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