Tribunal Reforms : "Government Hasn't Honoured Our Judgement", Says CJI Ramana

"Last time Justice Rao's bench had passed the judgement, they haven't honoured the judgement and they've immediately amended the Act" CJI Ramana remarked

The Court had earlier also criticised the Government for passing the Tribunals Act calling virtually a replica of the provisions struck down by this Court in the Madras Bar Association. 

With regard to the issue appointments in the Tribunals, the Bench observed that the Attorney General has informed that almost all vacancies in Tribunals across India have been filed.

A Bench comprising CJI NV Ramana, Justice AS Bopanna and Justice Hima Kohli observed that according to an email sent by the Attorney General KK Venugopal, almost all vacancies have been filled, except some Tribunals, including the National Green Tribunal, Armed Forces Tribunal and CAT.

The CJI stated that the appointment to the Armed Forces Tribunal and Central Administrative Tribunal are still pending with selection Committee which are headed by Supreme Court Judges.

The observation was made after Senior Advocate Arvind Datar mentioned a matter pertaining to the vacancies in the Tribunals and the Tribunal Reforms Act.

Mr Datar submitted that as per Supreme Court's judgement in the Madras Bar Association case the minimum age qualification of 50 years in the Tribunals Reforms Ordinance 2021 had been struck down. However, after the Tribunal Reforms Act, advocates below the age of 50 years are not eligible even after court clearly said that such a distinction cannot be made.

Further court had directed that the tenure of the members should be fixed as 5 years, but the Government has again made it 4 years.

He further submitted that as far as the selection committee is concerned, once a Supreme Court Judge committee decides there's no question of Government having a say in those appointments.

The Bench observed that it may have to constitute a 5-judge Bench to hear the case. However Mr Datar submitted that a three judge bench could also hear the matter.

"What is shocking is that the Supreme Court strikes down the ordinance and identical provisions were made", Mr Datar said

He further submitted that all appointment orders including those of retired judges are coming saying '4 years, 67-70 years or until further orders whichever is earliest'. According to him once appointments are made 'until further orders' should be deleted from their appointment letters.

After being informed that the Union Government has already filed a counter in the matter, Mr Datar said "They are saying legislation is supreme"

The Bench agreed to consider the matter on 24th March 2022.

Petition Details:

Two writ petitions filed by Madras Bar Association and Congress MP Jairam Ramesh are pending before the Supreme Court challenging the Tribunals Reforms Act 2021.

When the Court had issued notice in a plea by Mr Jairam Ramesh, it had commented that the said Act is a "virtual replica of the provisions struck down in the Madras Bar Association case".

In the Madras Bar Association case, the Supreme Court had struck down the minimum age qualification of 50 years in the Tribunals Reforms Ordinance 2021 and had directed that advocates with experience of 10 years of practice must be considered for appointments. Also, the said judgment had directed that the tenure of the members should be fixed as 5 years.

The Tribunals Reforms Act 2021 passed by the Parliament in the Monsoon session last year has reintroduced the minimum age qualification of 50 years and the fixation of tenure as 4 years.

Supreme Court's Earlier Remarks: While hearing Mr Ramesh's plea on 6th September, the Bench had commented that the provisions of the new Act are directly contrary to the judgment.

"The basis of a judgment can be taken away... but you cannot enact a law which is contrary to a judgment. This is not a validating legislation", Justice Chandrachud commented.

"There is no respect for our judgment. You are emasculating these Tribunals by not appointing members. Many Tribunals are on the verge of closing down", Justice Nageswara Rao, who authored the Madras Bar Association judgments of 2020 and 2021, observed.

The Chief Justice of India NV Ramana had also made sharp critical remarks against the Union Government over the Tribunals Reforms Act.

"There is no respect to judgments of this court. You are testing our patience! How many persons were appointed? You said some persons were appointed? Where are the appointments?", the CJI had observed.

Details of Madras Bar Association's Petition:

The Madras Bar Association has also challenged Sections 3(1), 3(7), 5 and 7(1) of the Tribunals Reforms Act, 2021 as they are in contravention of the principles of separation of powers, independence of the judiciary (both being part of the basic structure of our Constitution), and are against efficient and effective administration of justice.

The Petition has also challenged Section 29 of the Tribunals Reforms Act, 2021 as it amends Finance Act, 2017 (passed as a money bill), which cannot be done through ordinary legislation.

The petition has submitted that proviso to Section 3(1) and Sections 3(7), 5 and 7(1) are nearly identical to the provisions of the 2021 Ordinance which were struck down by the Supreme Court in Madras Bar Assn. (2021).

Further, it has argued that Sections 3(1) and Section 7(1) seek to legislatively overrule the decisions of the Top Court in various judgments, and further seek to allow the Executive to overrule the judgments of the Courts through Rules.

According to the petition, the provisions have been passed without any meaningful deliberation in Parliament, in violation of the right of all legislators to meaningfully participate in the law-making process.