Parliament passes tribunal reforms bill, but here’s why it could cause Supreme Court heartburn

The bill sets minimum age limit for appointments as 50 years & provides 4-year term for members — provisions that were earlier struck down by SC when proposed in an ordinance.

The Supreme Court of India | Atul Yadav/PTI

New Delhi: The Parliament has passed the Tribunals Reforms Bill 2021, which has provisions relating to the tenure, age criteria, and search-cum-selection committee for tribunal appointments.

The new bill was introduced in the Lok Sabha by Finance Minister Nirmala Sitharaman on 2 August. It was passed by the Lok Sabha on 3 August and by the Rajya Sabha on 9 August. Among other things, the bill provides for a four-year term for tribunal members. It sets the upper age for the chairperson at 70 years and for the other members at 67 years. The minimum age limit for appointments is 50 years.

However, the provisions of the bill are similar to certain provisions of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance 2021, which were struck down by the Supreme Court last month.

With regard to the minimum age requirement, the Supreme Court had observed, “Fixing a minimum age for recruitment of members as 50 years would act as a deterrent for competent advocates to seek appointment. Practically, it would be difficult for an advocate appointed after attaining the age of 50 years to resume legal practice after completion of one term, in case he is not reappointed.” In an earlier verdict in November 2020, the Supreme Court had made it clear that advocates with a minimum of 10 years of experience should be entitled to be appointed as members.

The court had made similar remarks about the four-year tenure. Both the provisions were then declared unconstitutional.

Advocate Rahul Unnikrishnan, who was one of the lawyers involved in the challenge to the 2021 Ordinance, told ThePrint, “It is highly unfortunate that the government is not implementing the directions of the SC on the independence of tribunals. The government should also have mentioned in the statement of objects and reasons of the bill that identical provisions were struck down by the Supreme Court recently, one week before the parliament session started.”

Search-cum-selection committees

For appointment to tribunals, the bill provides for the setting up of a search-cum-selection committee headed by the Chief Justice of India (CJI) or a Supreme Court judge nominated by the CJI. Apart from the CJI, this committee will also comprise two government secretaries nominated by the government, the outgoing chairperson of the tribunal (in case of appointment of the chairperson), the sitting chairperson of the tribunal (in case of appointment of a tribunal member), and a retired Supreme Court judge or a retired high court chief justice to be nominated by the CJI (in case of a tribunal chairperson seeking reappointment).

The state administrative tribunals are to have a separate search-cum-selection committee, with a different composition.

The bone of contention here, though, is Section 3(7) of the bill, which says that the search-cum-selection committee shall recommend a panel of two names for appointment to the posts of chairperson and members, and the central government shall take a decision on the committee’s recommendation within three months.

This provision was also struck down by the Supreme Court last month, but has been reintroduced now. The court had noted that the reason for this was that “executive influence should be avoided in matters of appointments to tribunals – therefore, the direction that only one person shall be recommended to each post”.

New challenge in the offing?

The legal tussle over the powers of tribunals is an old one but over the past four years, the litigation over appointments to these bodies has thrust them into a vacancy crisis.

In March 2017, the Finance Act allowed the central government to make rules on conditions of service for tribunal chairpersons and members. This included the power to make rules on their appointments, qualifications, tenure, salaries, and allowances, and removals.

Accordingly, the Ministry of Finance notified the rules in June 2017. However, the rules were viewed as an attempt by the government to gain supremacy in tribunal appointments, as they curtailed the tenure of the members, placed age restrictions on lawyers applying for member posts, did away with House Rent Allowance (HRA) for members, allowed the executive to remove a judicial member and included more government nominees in the search-cum-selection committee.

These rules were challenged and subsequently struck down by the Supreme Court in November 2019 by a five-judge Constitution bench. The court had directed the government to reformulate the rules, laying down principles on ensuring the independence of the tribunals to adhere to.

In February 2020, new rules were notified. These were challenged in the Supreme Court again and the court asked the government to modify them in November 2020. The court had then laid down specific guidelines on appointments. This included a five-year term for tribunal members, 10-year experience eligibility for appointment of lawyers as judicial members, and recommendation of one person instead of two or three by the committee.

The government then promulgated the Tribunals Reforms (Rationalization and Conditions of Service) Ordinance 2021 in April this year. But this had provisions similar to the rules that were struck down by the Supreme Court in November 2020. Last month, the court declared a few provisions of this ordinance unconstitutional again, pointing out that reintroducing these provisions despite similar provisions being struck down earlier was “clearly an attempt to override the declaration of law by this Court”.

However, the new bill has once again tried to reintroduce similar provisions, giving rise to the possibility of a new challenge in the apex court.

Tribunals dissolved

Apart from these provisions, the new bill also proposes to dissolve a few appellate bodies and transfer their responsibilities to other existing judicial bodies. For instance, it seeks to transfer the functions of the Appellate Tribunal under the Cinematograph Act, the Appellate Boards under the Trade Marks Act, Patents Act and Geographical Indications of Goods (Registration and Protection) Act, and the Authority for Advance Rulings under the Customs Act to the high courts.

It also seeks to transfer the functions of the Appellate Board under the Copyright Act to the commercial court or the commercial division of a high court.

(Edited by Poulomi Banerjee)