'Unconstitutional Legislative Overriding Of Judgment' : Jairam Ramesh Moves Supreme Court Challenging Tribunal Reforms Act 2021

He has submitted that the impugned legislation abrogates the principle of judicial independence and amounts to "unconstitutional legislative overriding" of the judgement passed by the Supreme Court.

Supreme Court Asks Why Centre Introduced Tribunals Reforms Bill With Provisions Struck Down By Court

He has specifically assailed proviso to Section 3(1) along with Sections 3(7), 5 and 7(1) of the impugned Act as being ultra-vires Articles 14, 21 and 50 of the Constitution.

The plea states that the proviso to Section 3 (1) of the Tribunals Reforms Act, 2021 in so far as it bars appointments to tribunals of persons below 50 years of age undermines the length/security of tenure and violates both judicial independence and the principle of separation of powers.

It is highlighted that in Madras Bar Association case (MBA-IV), the Top Court had explicitly set aside the proviso to Section 184 (1) of the Finance Act, 2017 which proscribed persons below 50 years of age from being appointed to Tribunals.

Similarly, it is alleged that Section 3(7) of the impugned Act which mandates the recommendation of a panel of two names by the search-cum selection committee to the Central Government, violates the principles of separation of powers and judicial independence.

The mandate to recommend two names as per Section 3 (7) of the impugned Act is identical to Section 184 (7) of the Finance Act, 2017 which was unanimously set aside by the Supreme Court in MBA-IV decision, the plea states.

While setting aside this stipulation, the Top Court had said, "executive influence should be avoided in matters of appointments to tribunals"

The provision is further challenged in so far as it grants discretion to the Central Government to take a decision on the recommendations made by that Committee, preferably within three months from the date of such recommendation, is also unconstitutional and violates 36 Article 14 of the Constitution.

"The impugned provision also nullifies the directions of this Hon'ble Court in MBA-III2020 which directed the Union "to make appointments to tribunals within three months from the date on which the Search-cum-Selection Committee completes the selection process and makes its recommendations"" the petition highlights.

Section 5 of the impugned Act is challenged in so far as it fixes the tenure of the Chairperson and Member to a "manifestly short tenure" of four years and adversely impacts judicial independence.

"Section 5 also runs against the directions of this Hon'ble Court to fix the tenure of appointees for at least five years as held in Rojer Mathew," the plea states.

Lastly, the petition challenges Section 7 (1) of the impugned Act, which allows the government its own discretion to fix HRA other than in conformity with the parameters as set by the Supreme Court in MBA-IV-2021.

It said that the provision violates the security of services conditions of appointees, the principles of judicial independence and thereby Article 14 of the Constitution.

Significantly, the Supreme Court also made critical remarks today against the impugned legislation. The CJI asked the Solicitor General of India as to why the legislation was introduced with the provisions invalidated by the Court. The bench also said that Centre was not following the repeated directions issued by the Court to ensure the proper functioning of the Tribunals.

"Inspite of all these (court directions), few days back we have seen, the ordinance which was struck down has been re-enacted. We are not commenting on the Parliament proceedings. Of course, the legislature has prerogative to make laws. At least we must know why the government has introduced the bill despite being struck down by this Court", CJI NV Ramana observed.

The petition is drawn by Advocates Muhammad Ali Khan, Abishek Jebaraj, Nupur Raut and Omar Hoda.