Member Of Indian Legal Service Cannot Be Appointed As Judicial Member: Madras High Court Strikes Down Section 32(2) Of Benami Transaction Act

The bench of Chief Justice Munishwar Nath Bhandari and Justice D Bharatha Chakravarthy were considering a writ petition filed by Mr V Vasanthakumar, appearing in person challenging the validity of Section 9 and Section 32(2)(a) of the Prohibition of Benami Property Transactions Act, 1988 as amended by the Benami Transaction (Prohibition) Amendment Act, 2016.

As Section 9 was already deleted, the court considered the scope of Section 32(2) only.

"32. Qualifications for appointment of Chairperson and Members of Appellate Tribunal —
(1) A person shall not be qualified for appointment as Chairperson of the Appellate Tribunal unless he is a sitting or retired Judge of a High Court, who has completed not less than five years' of service.
(2) A person shall not be qualified for appointment as a Member unless he—
(a) in the case of a Judicial Member, has been a Member of the Indian Legal Service and has held the post of Additional Secretary or equivalent post in that Service; …………"

The petitioner submitted that the provision is hit by the judgment of the Apex Court in Union of India v. R. Gandhi,President, Madras Bar Association (2010) where the Apex Court has clearly laid down that the post of a Judicial member should be manned only by a person who served as a Judge or a member of the Bar and not by a member of the Indian Legal Service. He further placed reliance on the Apex Court decisions in Shamnad Basheer v. Union of India and others (2015) and Revenue Bar Associationv. Union of India (2019) where appointment of Judicial Members to the Intellectual Property Appellate Board and Goods and Service Tax Appellate Tribunal respectively was considered.

Mr. Sankaranarayanan, Additional Solicitor General submitted that the provision under challenge does not offend any constitutional provision and that the challenge is made without raising the issue of the nature required for such challenge. He further submitted that a mere reference to judgement of Supreme Court and High Court is not sufficient to hold a provision as unconstitutional.

The court considered the concept of Separation of Powers and held that the exercise of power by the Legislature should be within its sphere making the judicial system independent. The court also stated that the concept of independence of judiciary is a vital issue and for that emphasis is made that there should be separation of power.

"…Qua the Technical Member of the Tribunal, appropriate qualification can be provided by the Legislature, but when the qualification for the post of Judicial Member is to be provided, it should be keeping in mind the independence of the judicial system…"

The court further held that in Shamnad Basheer's case also, the Apex Court had highlighted the necessity and importance of a judicial member who served as a Judge or member of the bar. The reason for this is that prior to the constitution of the Tribunal, the adjudication was done by courts. Therefore, with the constitution of tribunal, they would be discharging the work earlier discharged by the courts.

Case Name: V. Vasanthakumar v. The Union of India

Case No: W.P 13429 of 2018

Citation: 2022 LiveLaw (Mad) 137

Click here to read/download judgement