"Show Us One Appointment You Made": Supreme Court To Centre In Tribunal Matter- Read Full Courtroom Exchange

The Supreme Court on Monday demanded from the Centre the rationale behind the recently-passed Tribunal Reforms Act, 2021 after the Court struck down the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021.

The bench of Chief Justice N. V. Ramana and Justices Surya Kant and Aniruddha Bose was hearing a petition seeking directions for the constitution of the Goods and Services Tax (GST) appellate tribunal which had not been set up even after 4 years of the GST Act being in existence. On the last occasion, Supreme Court had asked the Union Government to make a "clear stand" as regards the timely filling up of vacancies in Tribunals across the country.

"All tribunals have the same problem. Let us hear SG Tushar Mehta", remarked the CJ at the outset on Monday.

The SG told the bench, "After the last hearing, the process has commenced, some of the appointments are made. The remaining are in the process of being made."

The CJ asked, "Show me one appointment you have made"

"In CAT, appointments are made. I had a word with the government today in the morning to get latest information. My request is if you can post it after two weeks, we can come with substantial progress", replied the SG.

"It was in 2017 when the first Madras Bar Association case was there. Six times this court has said how the tribunals have to function. I will read out for your benefit the observations we had made in the last order of Justice L. Nageswara Rao's bench", observed the CJ.

The CJ then read the epilogue from the November 2020 judgment of the Supreme Court where the 2020 Tribunal Rules were under challenge-

"Dispensation of justice by the Tribunals can be effective only when they function independently of any executive control: this renders them credible and generates public confidence. We have noticed a disturbing trend of the Government not implementing the directions issued by this Court. To ensure that the Tribunals should not function as another department under the control of the executive, repeated directions have been issued which have gone unheeded forcing the Petitioner to approach this Court time and again. It is high time that we put an end to this practice."

"Rules are framed which are completely contrary to the directions issued by this Court. Upon the tribunals has devolved the task of marking boundaries of what is legally permissible and feasible (as opposed to what is not lawful and is indefensible) conduct, in a normative sense guiding future behaviour of those subject to the jurisdictions of such tribunals. This task is rendered even more crucial, given that appeals against their decisions lie directly to the Supreme Court and public law intervention on the merits of such decisions is all but excluded. Also, these tribunals are expected to be consistent, and therefore, adhere to their precedents, in as much as they oversee regulatory behaviour in several key areas of the economy. Therefore, it is crucial that these tribunals are run by a robust mix of experts, i.e. those with experience in policy in the relevant field, and those with judicial or legal experience and competence in such fields. 

The Court also noted in its 2020 judgement as follows:

"The functioning or non-functioning of any of these tribunals due to lack of competence or understanding has a direct adverse impact on those who expect effective and swift justice from them. The resultant fallout is invariably an increased docket load, especially by recourse to Article 226 of the Constitution of India. These aspects are highlighted once again to stress that these tribunals do not function in isolation, but are a part of the larger scheme of justice dispensation envisioned by the Constitution and have to function independently, and effectively, to live up to their mandate"

Continuing, the CJ commented, "We have seen two days back how what was struck down by this court has again come back. I don't think any debate has taken place in the Parliament. No reason has been given. We have absolutely no problem with the Parliament making laws. The Parliament has the right to make any law. But at least we must know what are the reasons for the government to introduce this bill again after the striking down of the Ordinance! Nothing is there! I read the newspapers and from the Hon'ble Ministers, there is only one word- That court has not struck down the Ordinance on constitutionality. It is reported in some newspaper..."

The CJ read out the reply of the Finance Minister in the Parliament on the issue of the introduction of the Tribunal Reforms Bill- "The Judiciary has not struck it (the Ordinance) down on constitutionality. It has only raised certain questions on some points. The primacy of the legislature to make laws is as important as the independence of the judiciary. We are here to make laws. Of course we have to keep in line with the requirements of the Constitution...We fully respect the independence of the judiciary but we also remember the power of the law-making body where we are seated here to make the law for the sake of the common people"

"This was the debate and the reasons accorded in the Parliament? This is a serious issue! What are we to understand from this Bill and Act? Tribunals have to be continued or have to be closed? These are the only two issues that have to be dealt with ultimately!", the CJ expressed his concerns.

The SG began, "With profound respect, we have seen the judgement of the Supreme Court..."

"You have seen the reply in the Parliament. We are not saying you cannot make laws, you are entitled to make laws", commented the CJ.

"So far as the first reaction that Your Lordships have very rightly and pertinently made on the last hearing of the matter (as regards the vacancies), efforts are on at the highest level and it is being taken very seriously. Secondly, on the issue of the Bill, it is a matter of the wisdom of the Parliament..."

"The Ministry might have prepared the note for introducing the bill if the government has introduced the bill? Can you show us all that? It is not about functions and powers of the Parliament...", asked the CJ.

"My answer can never be in the negative when something falls from Your Lordships. But now that the bill has become an Act, it may not be possible for me to respond right now, as the Parliament has considered something proper to implement it in its wisdom", responded the SG.

The SG continued to submit that at present, the validity of the Act is not in question. He also advanced that since it was AG K. K. Venugopal who has been assisting the Court on this matter right from Roger Mathews to Kudrat Sandhu to the Madras Bar Association cases, as regards the nuances of several contentions, he may be better equipped to answer.

"We have no information that since the last hearing, any appointments have been made", repeated theCJ.

"The appointment process is on. These are my instructions. If we can get 2 weeks' time...", began the SG.

"Are you going to make appointments in 2 weeks? You are best person to assure the court. Will you make appointments in the different tribunals that are on verge of becoming defunct?", asked Justice Surya Kant.

"The meaning of 'appointment process', I will tell you. For 1 year 4 months, whenever we ask, we are told by the Ministry that it is under process, under process, under process! It has no meaning! We will give you 10 days finally and we will hear the matter and let's hope you will clear appointments as much as possible by then", added the CJ.

"Your Lordships can take my assurance as an officer of the court. I concur with your view fully and wholeheartedly, though it doesn't matter. And I will convey the same'', said the SG

"Why do you want to take our view? We can put in our order and it will speak. Last hearing, we gave you the chart and number of vacancies, we spoke seriously, but nothing happened! If you wanted to appoint, nothing prevented you", noted the CJ.

"It is better if we do it ourselves...", said the SG on the issue of the bench directing the same in its order.

"We want to know only one thing- will you argue the matter or will the AG appear. We are told he is not well?", asked the CJ.

"I will speak with the AG, or I will seek instructions and assist the Court. I am not taking the unavailability of the AG as a ground for adjournment, but only as a justification", replied the SG.

The bench then proceeded to issue notice in the matters. "The Court is assured by the SG that appointments are underway. We are granting another 10 days to the government. We clarify that the pendency of these matters should not come in the way of appointment of members to Tribunals", recorded the bench.

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