Listen to this articleMadras Bar Association v. Union of India
WRIT
PETITION (C) No. 804 of 2020 decided on 27 Novemeber,2020
Bench: L. Nageshwar Rao, Hemant Gupta, Ravindra
Bhatt, JJ.
Facts:
The present writ petition was filed by the Madras
Bar Association in the Supreme Court to challenge the constitutionality of the ‘Tribunal, Appellate
Tribunal and other Authorities (Qualifications, Experience and other Conditions
of Service of Members) Rules, 2020 (‘Tribunal Rules 2020’). The aforesaid rules were notified by the Central
Government in February 2020 by exercising their powers under Section 184 of the
Finance Act 2017. The Supreme Court in November 2017 set aside similar rules as
ultra vires to the Constitution of India in the case of Rojer Mathew v. South
Indian Bank Ltd. The petitioner filed this petition before the Supreme Court
pleading that the present rules suffer from same vices which plagued the rules
of 2017.
Issue:
The
Supreme Court considered the following issue:
1.
Whether the ‘Tribunal, Appellate Tribunal and other Authorities
(Qualifications, Experience and other Conditions of Service of Members) Rules,
2020 is ultra vires to the Constitution of India?
Arguments:
|
Amicus
Curiae |
Attorney
General |
|
Shri Arvind Datar appearing
as amicus curiae submitted 1. That
there is an imperative need for the Tribunals to function independently and
free from executive control. Tribunals which are exercising power once vested
with the High Courts and adjudicating disputes should be completely
independent to infuse confidence in the mind of the litigant public. |
Shri K.K.
Venugopal, Attorney General submitted 1. That constitution of a National Tribunals
Commission would provide a solution to the existing problems and ensure the
smooth functioning of the Tribunals. |
Held:
The
Supreme Court after due consideration of the facts of the case and submissions expressed displeasure at the Central
Government for not paying heed to the repeated directions issued by it to
ensure the independence and efficiency of tribunals. The 3-judge bench issued
directions to the central government and ordered to amend the provisions of
Tribunal Rules, 2020. The Supreme Court also observed that 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. The
Supreme Court accepted the contention of the petitioners but did not strike
down the rules after the Attorney General agreed to bring suitable amendments
as per the suggestions put forth by the amicus curiae. The Supreme Court
accordingly dismissed the writ petition, transfer petitions, civil appeals and
all the applications.
Guidelines and Direction
Issued
(i) The Union of India shall constitute a National Tribunals
Commission which shall act as an independent body to supervise the appointments
and functioning of Tribunals, as well as to conduct disciplinary proceedings
against members of Tribunals and to take care of administrative and
infrastructural needs of the Tribunals, in an appropriate manner.
Till the National Tribunals
Commission is constituted, a separate wing in the Ministry of Finance,
Government of India shall be established to cater to the requirements of the
Tribunals.
(ii) Instead of the four-member Search-cum-Selection
Committees comprising of the Chief Justice of India or his nominee, outgoing or
sitting Chairman or Chairperson or President of the Tribunal and two
Secretaries to the Government of India, the Search-cum-Selection Committees should
comprise of the following members:
(a) The Chief Justice
of India or his nominee—Chairperson (with a casting vote).
(b) The outgoing
Chairman or Chairperson or President of the Tribunal in case of appointment of
the Chairman or Chairperson or President of the Tribunal (or) the sitting Chairman or Chairperson or
President of the Tribunal in case of appointment of other members of the
Tribunal (or) a retired Judge of the Supreme Court of
India or a retired Chief Justice of a High Court in case the Chairman or
Chairperson or President of the Tribunal is not a Judicial member or if the
Chairman or Chairperson or President of the Tribunal is seeking
re-appointment—member;
(c) Secretary to the
Ministry of Law and Justice, Government of India—member;
(d) Secretary to the
Government of India from a department other than the parent or sponsoring
department, nominated by the Cabinet Secretary—member;
(e) Secretary to the
sponsoring or parent Ministry or Department—Member Secretary/Convener (without
a vote).
Till amendments are carried
out, the 2020 Rules shall be read in the manner indicated.
(iii) Rule 4(2) of the
2020 Rules shall be amended to provide that the Search-cum-Selection Committee
shall recommend the name of one person for appointment to each post instead of
a panel of two or three persons for appointment to each post. Another name may
be recommended to be included in the waiting list.
(iv) The Chairpersons,
Vice-Chairpersons and the members of the Tribunal shall hold office for a term
of five years and shall be eligible for reappointment. Rule 9(2) of the 2020
Rules shall be amended to provide that the Vice-Chairman, Vice-Chairperson and
Vice President and other members shall hold office till they attain the age of
sixty-seven years.
(v) The Union of India shall make serious efforts to provide
suitable housing to the Chairman or Chairperson or President and other members
of the Tribunals. If providing housing is not possible, the Chairman or
Chairperson or President and Vice-Chairman, Vice-Chairperson, Vice President of
the Tribunals shall be paid Rs. 1,50,000/- per month as house rent allowance
and Rs. 1,25,000/- per month for other members of the Tribunals from
01.01.2021.
(vi) Advocates with an experience of at least 10
years should be eligible for appointment as judicial members in the Tribunals.
The experience of the Advocate at the bar and their specialization in the
relevant branches of law is to be considered. They shall be entitled for
reappointment for at least one term by giving preference to the service
rendered by them for the Tribunals.
(vii) The members of the Indian Legal Service shall
be eligible for appointment as judicial members in the Tribunals, provided that
they fulfil the criteria applicable to advocates subject to suitability to be
assessed by the Search-cum-Selection Committee on the basis of their experience
and knowledge in the specialized branch of law.
(viii) Rule 8 of the 2020 Rules shall be amended to
reflect that the recommendations of the Search-cum-Selection Committee in
matters of disciplinary actions shall be final and shall be implemented by the
Central Government.
(ix) The Union of India shall 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.
(x) The 2020 Rules shall have prospective effect and will be
applicable from 12.02.2020, as per Rule 1(2) of the 2020 Rules.
(xi) Appointments made prior to the 2017 Rules are
governed by the parent Acts and Rules which established the concerned
Tribunals. Any appointments that were made after the 2020 Rules came into force
i.e. on or after 12.02.2020 shall be governed by the 2020 Rules subject to the
modifications as directed in this judgment.
(xii) Appointments made under the 2020 Rules till the
date of this judgment, shall not be considered invalid, insofar as they
conformed to the recommendations of the Search-cum-Selection Committees in
terms of the 2020 Rules, as they stood before the modifications directed in
this judgment. They are, in other words, saved and shall not be questioned.
(xiii) In case the Search-cum-Selection Committees
have made recommendations after conducting selections in accordance with the
2020 Rules, appointments shall be made within three months from today and shall
not be subject matter of challenge on the ground that they are not in accord
with this judgment.
(xiv) The terms and conditions relating to salary,
benefits, allowances, house rent allowance etc. shall be in accordance with the
terms indicated in and directed by this judgment.
(xv) The Chairpersons, Vice Chairpersons and members
of the Tribunals appointed prior to 12.02.2020 shall be governed by the parent
statutes and Rules as per which they were appointed. The 2020 Rules shall be
applicable with the modifications as directed to those who were appointed after
12.02.2020.