'Law Can't Be Struck Down Merely For Being Contrary To Court's Guidelines': Justice Hemant Gupta's Dissent In Tribunals Case

Justice Hemant Gupta, in his dissenting opinion in the Madras Bar Association case relating to the validity of Tribunals Reforms Ordinance 2021, observed that legislature is within its jurisdiction to determine the minimum eligibility age for the purpose of appointment as Tribunal members.

"The directions of the court cannot compel the legislature to frame law in that particular manner only. The legislature while enacting laws can legislate in a manner which is not in accordance with the directions issued by the Court to the legislature, even if the Court has specially chosen to do so. The directions of this Court stop outside the four walls of legislature.", the judge observed.

The majority comprising Justices L Nageswara Rao and S Ravindra Bhat observed that this minimum age stipulation of 50 years introduced by the Ordinance violated the earlier direction given by the Court in the 2020 Madras Bar Association case that advocates with minimum experience of 10 years should be made eligible for appointment as members of tribunals.

According to Justice Gupta, no directions were issued in 2020 Madras Bar Association case in respect of eligibility conditions particularly relating to age. Eligibility to seek appointment is not solely dependent upon qualification of a candidate but experience and suitability, likely term which a candidate may have are necessary considerations, the judge opined.

However, Justice Gupta agreed with the majority's finding that the the stipulations in the Tribunals Reforms Ordinance that the the Search and Selection Committee shall recommend two names for a post and that the tenure of members of Tribunal shall be four years are illegal.

The following are important observations made in the dissenting opinion:

Judiciary cannot and should not usurp the powers vested with legislature

"13. The judiciary in exercise of power of judicial review can strike down any legislation which violates fundamental rights or if it is beyond the legislative competence but the courts cannot direct the legislature to frame or enact a law and in a particular manner. The law declared by the Supreme Court is binding on all Courts in India in terms of Article 141 of the Constitution. The directions issued under Article 142 of the Constitution, are binding on every Court in terms of Article 141 of the Constitution. The legislature cannot be said to be Court within the meaning of Article 141 of the Constitution by any stretch of imagination. Article 144 of the Constitution mandates, civil and judicial authorities in India shall act in aid of the Supreme Court meaning thereby executive and judicial authorities shall act in aid of the Supreme Court. The legislature is neither civil or judicial authority who is mandated by the Constitution to act in the aid of Court. The legislature is supreme so as to enact a law falling within its legislative competence. The directions of the court cannot compel the legislature to frame law in that particular manner only. The legislature while enacting laws can legislate in a manner which is not in accordance with the directions issued by the Court to the legislature, even if the Court has specially chosen to do so. The directions of this Court stop outside the four walls of legislature. The judiciary will step in only after a law is enacted to test the legality of a statue on the known principles of judicial review. The Judiciary cannot and should not usurp the powers vested with legislature. The Judiciary cannot legislate in the scheme of the constitution.

53...The law declared by this Court is binding on all Courts within the territory of India under Article 141 of the Constitution whereas Article 142 of the Constitution empowers this Court to issue directions to do complete justice. The interpretation of law is binding under Article 141 of the Constitution even if there is a direction under Article 142 but such direction is not all pervasive and binding on the legislature

Eligibility to seek appointment is not solely dependent upon qualification of a candidate but experience and suitability, likely term which a candidate may have are necessary considerations.

31. I am unable to agree to the opinion that the first proviso to Section 184 prescribing a minimum age of fifty years is an attempt to circumvent the direction issued in MBA-III. The condition of eligibility for appointment as a Judge of a High Court was kept in view while considering the eligibility of advocates as members of Tribunals. However, the Memorandum of Procedure for appointment as judges of the High Court finalized by this Court and forwarded to the Central Government in March, 2017 was that a person shall not be eligible to be considered for appointment as Judge of a High Court against Bar quota unless he has completed forty-five years of age on the date of recommendation by the High Court Collegium. Though, in terms of Article 217 of the Constitution, a candidate becomes eligible for appointment after 10 years of practice as an Advocate. Thus, an Advocate would be eligible for appointment as judge of the High Court around the age of 35 years. The Memorandum of Procedure adopted by the Collegium of this Court prescribed forty-five years of age as the minimum age. I find that eligibility to seek appointment is not solely dependent upon qualification of a candidate but experience and suitability, likely term which a candidate may have are necessary considerations.

If a member is discharging his functions legally, there is no need to bear any apprehension about his not being re-appointed

32. In terms of the Constitution read with the Memorandum of Procedure adopted by this Court, an advocate would have maximum tenure of 17 years as a Judge of the High Court, may be another three years as Judge of this Court. On the other hand, an advocate appointed as member of a Tribunal can have a tenure of 17 years, even if 50 is the minimum age for appointment. The tenure of such member is up to the age of 67 years with the possibility of being appointed as the Chairperson. This is not to compare the status of a High Court Judge with that of a member of a Tribunal. The members would be appointed on the basis of recommendation of the high-powered Search and Selection Committee having judicial dominance. If a member is discharging his functions legally, there is no need to bear any apprehension about his not being re-appointed. The process of re-appointment is again with the High-Powered Search and Selection Committee with judicial dominance. A provision in the statute cannot be found to be untenable merely for the reason that there is a possibility of not being reappointed.

40.Thus, the fixation of fifty years of age as the eligibility condition cannot be said to be manifestly arbitrary or violative of any of the Fundamental Rights of any of the candidates which may render such condition of age as illegal. The argument is based on apprehension that it would be difficult for an advocate appointed after attaining the age of fifty years to resume legal practice after completion of one term, in case he is not reappointed. A person who is competent and good in his work will not find any difficulty to resume his practice but what would happen to his professional career if his term is not extended is a calculated risk which a candidate shall take at the time of seeking appointment. Such apprehensions as to what will happen in future cannot be a ground to strike down a condition of age in the statute. This Court is not possessed of the expertise to say that it will be difficult for an advocate to resume practice if he is not reappointed. I am unable to agree that the statutory provisions can be struck down on such grounds based on presumed apprehensions.

43. Therefore, I am of the opinion that in case of failing to secure reappointment, the candidate will not be able to resume practice is based upon apprehensions. Whether they are good or valid grounds to refuse reappointment can be subject matter of judicial review although I am of the opinion that the decision of the high-power Search and Selection Committee not to re-appoint a candidate may not warrant interference in exercise of judicial review

No directions were issued in respect of eligibility conditions particularly relating to age

33. The advocates were not eligible for appointment under 2020 Rules. Therefore, there was no condition of age of eligibility of such candidates. It may be noted that though this Court discussed the age of the candidates eligible for appointment to be "around 45 years" in para 44, but there was no particular direction qua age.

34. The discussions in the judgment are not to be considered as directions. There is background in which the ultimate directions are issued. Since no directions were issued in respect of eligibility conditions particularly relating to age, thus, fixing of eligible age as fifty years cannot be treated to be in contradiction to the directions issued in MBA-III. Even if it is contravening to any such direction, the legislature is within its jurisdiction to determine the minimum eligibility age for the purpose of appointment.

Law even if contrary to the directions or guidelines issued by the Court, cannot be struck down for the said reason

20. Thus, the Court will not direct to the State or Union to enact any particular law, or amend/ issue any notification for amendment of any statutory Rule or even to direct an Act to be enforced, when the legislature has conferred such power on the executive. The directions of this Court in MBA-III were issued in the peculiar facts to make the Tribunal functional at the earliest rather than mandating legislature to amend the law in a particular manner. The legislature has a right to enact law, which may not be necessarily in terms of the directions of this Court. Such law when enacted by Parliament or the State Legislature, even if contrary to the directions or guidelines issued by the Court, cannot be struck down for the said reason. The legislation can be struck down if the basis of the provision interpreted by the Court is not altered or if it violates the fundamental rights or the right to equality under Article 14 of the Constitution.

While dismissing the writ petition, the judge also observed that Section 184(11)(i) (ii) and Section 184(7) - which relate to recommendations of two names for a post and fixing of tenure of members as 4 years - are to be declared as they are reiteration of the provisions in Tribunals Rules 2020 which were disapproved by the Court earlier.

64..It is open to the legislature to fix tenure of the Chairperson and the members other than four years as the tenure of four years was found to be not tenable in MBA-III. Section 184(7) which contemplates that Select Committee should recommend a panel of two names is contrary to the directions of this Court in MBA-III. Thus, Section 184(11)(i) (ii) and Section 184(7) is declared to be void as the Ordinance has reiterated the provisions which were in 2020 Rules. 

Also from the judgment:

Tribunals Reforms Ordinance : Supreme Court Strikes Down Provisions Fixing Term Of Members As 4 Years

'Excludes Young Successful Advocates; Arbitrary & Discriminatory' : Supreme Court Strikes Down Minimum Age Limit Of 50 Years For Appointment As Tribu

Fill Up Vacancies In Tribunals Without Delay: Supreme Court Directs Centre

Judicial Independence Can Be Sustained Only When Incumbents Are Assured Fair Service Conditions, Security Of Tenure : Supreme Court

Shifting Principal Benches Of Certain Tribunals Outside Delhi May Help Bar To Grow At Different Places: Justice Hemant Gupta

Case: Madras Bar Association vs. Union of India [WPC 502 of 2021]
Coram: Justices L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat
Citation: LL 2021 SC 296

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