Madras 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.
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.
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?
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.
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
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.
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:
The Chief Justice of India or his nominee—Chairperson (with a casting vote).
The outgoing Chairman or Chairperson or President of the Tribunal in case of appointment of the Chairman or Chairperson or President of the Tribunal the sitting Chairman or Chairperson or President of the Tribunal in case of appointment of other members of the Tribunal 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;
Secretary to the Ministry of Law and Justice, Government of India—member;
Secretary to the Government of India from a department other than the parent or sponsoring department, nominated by the Cabinet Secretary—member;
Secretary to the sponsoring or parent Ministry or Department—Member Secretary/Convener (without a vote).
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.
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.
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.
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.
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.
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.
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.
The 2020 Rules shall have prospective effect and will be applicable from 12.02.2020, as per Rule 1(2) of the 2020 Rules.
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.
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.
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.
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.
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.