Exclusion Of Advocates For Consideration As Judicial Members In Tribunals Contrary To SC Judgments: Supreme Court

Exclusion of Advocates in 10 out of 19 tribunals, for consideration as judicial members is contrary to the judgments in Union of India v. Madras Bar Association (2010) and Madras Bar Association v. Union of India, the Supreme Court has observed.

The bench comprising Justices L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat opined that as the qualification for an advocate of a High Court for appointment as a Judge of a High Court is only 10 years, they are of the opinion that the experience at the bar should be on the same lines for being considered for appointment as a judicial member of a Tribunal.

The court observed thus in the Judgment in a batch of petitions challenging the constitutionality of the 'Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 ('Tribunal Rules 2020)'. One of the grounds on which the rules were challenged was that the advocates are not being made eligible for appointment to most of the Tribunals.

The court was considering the submission of the Amicus Curiae, Senior Advocate Arvind P Datar, that  Advocates are excluded from being considered for appointment as judicial members in a majority of Tribunals by the 2020 Rules. The Amicus submitted that stipulation of 25 years of experience would be a serious handicap in selecting meritorious candidates from among advocate. According to him, Advocates with the standing of 15 years at the bar should be made eligible for being considered for appointment as judicial members to the Tribunals.

In respect of seven tribunals (such as Central Administrative Tribunal, Income Tax Appellate Tribunal, Customs Excise and Sales Tax Appellate Tribunal, etc.), the 2020 Rules impose a new condition whereby Advocates without 25 years of experience are ineligible.

The Attorney General for India, KK Venugopal in this regard, submitted that though the Constitution prescribes that an Advocate having experience of 10 years can be considered for appointment as a Judge of a High Court, normally an Advocate is considered only after he attains the age of 45 years. "An experience of 25 years at the Bar would make Advocates at the age of 47-48 years eligible for appointment as judicial members of the Tribunals. It would be attractive for the Advocates to apply for appointment to the post of judicial members of the Tribunals after having experience of 25 years, especially due to the provision for reappointment.", the AG submitted.

Taking note of these, the bench observed:

"While the Attorney General suggested that an advocate who has 25 years of experience should be considered for appointment as a Judicial member, the learned Amicus Curiae suggested that it should be 15 years. An Advocate of a High Court with experience of ten years is qualified for appointment as a Judge of the High Court as per Article 217 (2) of the Constitution of India. As the qualification for an advocate of a High Court for appointment as a Judge of a High Court is only 10 years, we are of the opinion that the experience at the bar should be on the same lines for being considered for appointment as a judicial member of a Tribunal. Exclusion of Advocates in 10 out of 19 tribunals, for consideration as judicial members, is therefore, contrary to Union of India v. Madras Bar Association (2010)19 and Madras Bar Association v. Union of India (2015) . However, it is left open to the Search-cum-Selection Committee to take into account in the experience of the Advocates at the bar and the specialization of the Advocates in the relevant branch of law while considering them for appointment as judicial members"

The court also said that it sees no harm in members of the Indian Legal Service being considered as judicial members, provided they satisfy the criteria relating to the standing at the bar and specialization required. The court also added that the appointment of competent lawyers and technical members is in furtherance of judicial independence. It said:

"These tribunals are expected to be independent, vibrant and efficient in their functioning. Appointment of competent lawyers and technical members is in furtherance of judicial independence. Younger advocates who are around 45 years old bring in fresh perspectives. Many states induct lawyers just after 7 years of practice directly as District Judges. If the justice delivery system by tribunals is to be independent and vibrant, absorbing technological changes and rapid advances, it is essential that those practitioners with a certain vitality, energy and enthusiasm are inducted. 25 years of practice even with a five-year degree holder, would mean that the minimum age of induction would be 48 years: it may be more, given the time taken to process recommendations. Therefore, a tenure without assured re-engagements would not be feasible. A younger lawyer, who may not be suitable to continue after one tenure (or is reluctant to continue), can still return, to the bar, than an older one, who may not be able to piece her life together again.

The court therefore directed that the 2020 Rules shall be amended to make advocates with an experience of at least 10 years eligible for appointment as judicial members in the Tribunals. While considering advocates for appointment as judicial members in the Tribunals, the Search-cum-Selection Committee shall take into account the experience of the Advocate at the bar and their specialization in the relevant branches of law, it added.

The detailed directions issued by the Supreme Court to amend the Tribunal Rules may be read here.