Plea In Gujarat High Court Challenges Minimum Age Criteria For NCLT Appointments In Companies Act 2013

The PIL filed by Advocate Nipun Praveen Singhvi, who claims to be a public-spirited person and an RTI Activist, submits that his petition is against the tribunalisation and bureaucratization of justice, as well as its impact on judicial independence and separation of powers.

The plea calls into question the propriety of Section 413 (2) of the Act in the context of Madras Bar Association Judgment (2021) LL 2021 SC 296 wherein the Supreme Court has stressed upon the need to appoint younger members in tribunals to strengthen their functioning. In Madras Bar Association Case, the Supreme Court made a succinct observation that when many states induct several lawyers as District Judges after 7 years of practice, younger advocates around 45 years age will be instrumental in bringing a fresh perspective in justice delivery system by tribunals and deserves the same consideration.

Advocate Nipun Praveen Singhvi, in the draft of his petition, refers to Union of India v. R. Gandhi, President of Madras Bar Association [NCLT Judgment] that laid down the norms for ensuring the independence of company law tribunals taking over jurisdiction from High Courts, and the appointment of members with technical and judicial expertise.

NCLT Judgment held that Article 14 has within its ambit the right of a person to have his rights adjudicated by a forum that exercises judicial power and technical expertise in an impartial and independent manner, quotes the petitioner. Relying on this principle, the petitioner proceeds to draw the attention of the court to another facet of the NCLT judgment:

"Wherever the access to courts to enforce such rights is sought to be altered by directing a litigant to approach an alternative forum, then in such case the legislative act in question can be challenged before a court of law on the grounds that it is ultra vires the Constitution."

Citing the NCLT Judgment, the petitioner correlates it with the Madras Bar Association Judgment whereby the Supreme Court has already held the minimum age limit of 50 years for appointment of tribunal members is illegal and arbitrary since the tribunal is entrusted with 'intrinsic judicial functions on the specialized and complex subject of law.'

The petitioner also cites the five-judge bench judgment in Associated Cement Co. Ltd v. P.N Sharma which states that as in the case of courts, the tribunals are also invested with the state's inherent judicial power. The petitioner states that in a catena of judgments, the tribunals are mutually exclusive from administrative and legislative intervention, and are entrusted to discharge judicial functions.

The litigant also draws the attention of the court to the absence of mention about the procedure for selection in the advertisement on vacancies. The PIL alleges that the advertisement contravenes Section 412 of the Companies Act, in so much as it does not mention the Search-Cum-Selection Committee only through which appointments can be made. The petitioner also points out the silence on reservation for SC, ST, OBC and EWS quota in services within the particulars of the advertisement.

Hence, the petitioner submits that the advertisement for filling up the nine vacancies in NCLT is violative of Articles 13, 14, 21, and 50 of the Constitution. The petitioner has sought to pass a writ of mandamus or other appropriate writ or order declaring Section 413(2) as unconstitutional, non-est and contrary to Madras Bar Association. The petitioner also seeks to quash and set aside the impugned advertisement for filling up NCLT vacancies and to grant interim relief by staying the operation and execution of the advertisement in question pending the final decision in the case.