New Delhi: The government has no respect for Supreme Court judgments and is testing the patience of the court, the apex court observed Monday, as it questioned the Centre over delayed appointments to various tribunals that are reeling under a severe vacancy crisis.
“You are emasculating the tribunals by not appointing any members,” said a special bench comprising Chief Justice of India N.V. Ramana and justices D.Y. Chandrachud and L.N. Rao. The bench warned Solicitor General Tushar Mehta that it would initiate contempt proceedings if appointments were not done within a week.
The apex court also criticised the government for enacting a new law on appointments in tribunals — the Tribunals Reforms Bill, 2021 — that is contrary to its two earlier judgments. The law got notified on 13 August, after both houses of Parliament cleared it. While the apex court’s first judgment regarding the Bill was co-authored by Justice Chandrachud in November 2019, Justice Rao led the bench that delivered the second verdict on it in November 2020.
“It (the law) is replica of the provisions struck down by this court. The Parliament can take away the basis of a judgment through a new law, but cannot enact a law that is directly contrary to the SC judgment. This (the tribunal appointment bill) is not a validating legislation,” the court said.
However, the bench also made it clear that the present proceedings before it were not intended to be a “confrontation” with the Centre, with CJI Ramana appreciating the swiftness with which the government recently notified appointments of nine new judges to the Supreme Court.
“The entire legal fraternity was very happy. Then what is the problem with tribunals? Do you want to close them?” the bench asked.
On Mehta’s appeal, the court adjourned the hearing of the matter to 13 September, and on the law officer’s request, did not include the oral observations in its formal order.
It also issued notices to the government on a petition filed by Congress leader Jairam Ramesh, challenging the Tribunals Reforms Bill, 2021, and sought a response on multiple petitions to constitute the GST Tribunal, the appointment of members in the Real Estate Regulatory Authority (RERA) and the SEBI Appellate Tribunal (SAT).
Three options given by the court
The government notifies appointments to tribunals on the basis of recommendations made by the search-cum-selection committee headed by a sitting Supreme Court judge, which has the law secretary and the secretary of the parent ministry of the tribunal as members.
Mehta placed a letter he received from the Union Ministry of Finance that assured appointments under the new law would be notified in two weeks. However, the rules are yet to be framed, the letter stated.
Mehta said according to the communique, the government will first process those names that were cleared by the search-cum-selection committee.
However, the CJI was unimpressed. “After seeing your letter. I think the government is bent upon not respecting judgments or orders passed by this court,” he said.
CJI Ramana reminded the SG that in the last hearing on 16 August, the latter had claimed the government had cleared some appointments. But when he was told to give a list, the law officer could not do so.
The CJI said the delay in appointments has left the court with only three options. “We can either stay the act and direct to go with the appointments, or close down the tribunals and hand over the powers to HC or ourselves appoint the members. And the third is that we initiate contempt proceedings,” CJI Ramana said.
He said the tribunals that had been set up were doing a good job. But now, due to non-appointments, they have virtually collapsed.
‘Process of recommending names was waste of energy’
The judges spoke from their experiences as the heads of some search-cum-selection panels.
Justice Rao told SG Mehta the panels had made recommendations more than one and a half years ago, following the existing law, for which “the government could not have any objection at all, with respect to the panel prepared and service condition”.
“Still, why were no appointments made?” the judge wondered, adding that there are some tribunals functioning with just one member. The judge said while heading a bench on the judicial side, he had to extend the tenure of a member of Telecom Disputes Settlement and Appellate Tribunal (TDSAT), otherwise the tribunal would have shut down.
As the head of the panel that chose members for the National Consumer Disputes Redressal Commission (NCDRC), Justice Chandrachud said according to the memorandum of procedure (MoP), the selection committee decides on the names only after it receives inputs from the Intelligence Bureau (IB).
“Notwithstanding that the names cleared were those on which the IB had no objections, the government has either deleted them or is sitting on them. There is no clarity on why it is done. Also, the panel has two senior bureaucrats as its members. Is it that the government does not have faith in judges of this court?” Justice Chandrachud asked.
He added: “The entire exercise of selection was such a waste of energy.”
‘Imagine the burden we face’
The non-functioning of tribunals has burdened the courts with extra work, with litigants petitioning the courts to hasten hearings in these quasi-judicial bodies.
“NCDRC is giving dates after a year. We get petitions filed by consumers requesting us to pre-pone their hearings. But we are helpless and cannot pass any directions,” Justice Chandrachud said.
The judge emphasised how the high number of vacancies in tribunals was affecting the economy of the country as well. “NCLT and NCLAT (National Company Law Tribunal and National Company Law Appellate Tribunal, both dealing with insolvency cases) are cornerstones of the economy. They are important for rehabilitation of corporate entities. Important cases are not being heard because of vacancies.”
As Mehta tried to assuage the court’s concern, the CJI retorted that the court will not give much credence to the new law on appointments in tribunals.
“We are not bothered about subsequent legislations and would not give much credence. I was told by Justice Rao how the government has not honoured our judgment, despite the fact that it was delivered after hearing the Attorney General,” CJI Ramana said.
(Edited by Poulomi Banerjee)