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Recruit at Younger Age

The Court has struck down some provisions of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance. This could see those below 50 years being appointed to these Tribunals.

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The Supreme Court recently struck down an amendment to the Financial Act, 2017, which says that a person below 50 years cannot be appointed chairperson or member of the Tribunals, by invoking independence of the judiciary.

A three-judge bench by a majority of 2:1 declared that certain portions of Section 184 of the Finance Act, 2017, as amended by the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, are unconstitutional and inoperative. Section 184 consists of provisions relating to the qualifications, appointment, etc., of the chairperson and members of tribunals. The majority was formed by Justice L Nageswara Rao who delivered the leading opinion, while Justice S Ravindra Bhat carved a separate concurring opinion. Justice Hemant Gupta wrote a dissenting opinion.

The judgment was given after a PIL was filed by the Madras Bar Association, which challenged the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020, for being in contravention of the principle of separation of powers.

The main disputes raised in the PIL were:

(i) First proviso to Section 184(1) according to which a person below the age of 50 shall not be eligible for appointment as chairperson or member. The second proviso, read with the third proviso, which stipulates that the allowances and benefits payable to chairpersons and members shall be the same as a central government officer holding a post carrying the same pay as that of the chairperson and members.

 (ii) Section 184(7) which stipulates that the selection committee shall recommend a panel of two names for appointment to the post of chairperson or member and the central government shall take a decision preferably within three months, notwithstanding any judgment, order or decree of any Court.

 (iii) Section 184(11) which shall be deemed to have been inserted with effect from 26-5-2017, provides that the term of office of the chairperson and member shall be four years. The age of their retirement is specified as 70 years and 67 years, respectively. As per the proviso, if the term of office or the age of retirement specified in the order of appointment issued for those who have been appointed between 26-5-2017 and 4-4-2021 is greater than that specified in Section 184(11), the term shall be as set out in the order of appointment, subject to a maximum term of office of five years.

The bench observed that security of tenure and service are core components of independence of the judiciary. It added that any incursion into the judicial domain by the other two wings of the government would be unconstitutional. Justice Gupta dissented from the majority opinion on the point of validity of the amendments brought by the Tribunals Reforms Ordinance.

The Madras Bar Association then filed a petition seeking a declaration that Sections 12 and 13 of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 and Sections 184 and 186 (2) of the Finance Act, 2017 as amended by the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 as beyond the legal authority of Articles 14, 21 and 50 of the Constitution as they were violative of the principles of separation of powers and independence of judiciary.

The main contentions raised were:

(i) The Ordinance is violative of the rule of separation of powers which forms part of the basic structure of the Constitution. The Ordinance is liable to be struck down as being violative of another basic feature of the Constitution, i.e., independence of the judiciary.

(ii) Reversal of judgments which are not in accord with the government’s views undermines the judiciary, violating the supremacy of the Constitution.

(iii) Stipulation of a minimum age limit of 50 years for appointment is contrary to the directions given in the judgments of Supreme Court in Madras Bar Association vs Union of India & Anr. -I, Rojer Mathew vs South Indian Bank Limited & Ors. and Madras Bar Asso­ciation vs Union of India & Anr -III.

(iv) The provisos to Section 184(1) fixing the allowances and benefits payable to the members to the extent as admissible to central government officers holding a post carrying the same pay is unsustainable and requires to be set aside.

(v) Section 184(7) is liable to be declared invalid as the direction issued by this Court in Madras Bar Association vs Union of India & Anr -III to make appointments within three months from the date of recommendation of the selection committee is sought to be annulled.

(vi) Section 184(11) is unconstitutional in so far as it fixes the tenure of the chairperson and members as four years.

(vii) Retrospectivity given to Section 184(11) is only to nullify the effect of interim orders of this Court which are in the nature of mandamus and is, therefore, prohibited legislative activity.

(viii) The appointments made pursuant to the directions of this Court on 09.02.2018, 16.07.2018 and 21.08.2018 with the consent of the learned Attorney General cannot be disturbed. The directions issued by this Court with the consent of the Union of India cannot be legislatively overruled.

In the 156-page judgement, the bench made the following observations:

  • Separation of Power

The bench said though the doctrine of separation of powers is not expressly engrafted in the Constitution, its sweep, operation and visibility are apparent from the scheme of the Constitution. It forms part of its basic structure. The Constitution has made demarcation, without drawing formal lines between the three organs—legislature, executive and judiciary—which is nothing but a consequence of principles of equality enshrined in Article 14. Accordingly, breach of separation of judicial power may amount to negation of equality under Article 14.

Stating thus, the Court reaffirmed: “Violation of separation of powers would result in infringement of Article 14 of the Constitution. A legislation can be declared as unconstitutional if it is in violation of the principle of separation of powers.”

  • Independence of the judiciary

On this point, the Court recorded that independence of the judiciary is a cardinal principle of the Constitution and the judiciary, which is to act as a bastion of the rights and freedom of people, is given certain constitutional guarantees to safeguard its independence.

After discussing Article 50 (which provides that the State shall take steps to separate the judiciary from the executive in the public services of the State) and Article 37 (which declares that the principles laid down in Part IV of the Constitution are fundamental in the governance of the country and it should be the duty of the State to apply the principles in making laws), the Court observed: “[Independence] is the life­blood of the judiciary. … It is the freedom from interference and pressures which provides the judicial atmosphere where [a Judge] can work with absolute commitment to the cause of justice and constitutional values. It is also the discipline in life, habits and outlook that enables a Judge to be impartial. Its existence depends however not only on philosophical, ethical or moral aspects but also upon several mundane things ─ security in tenure, freedom from ordinary monetary worries, freedom from influences and pressures within (from others in the judiciary) and without (from the executive).”

  • Judicial Decisions and Legislative Overruling

The controversy that arose for consideration of the Court in the PIL relates to the legislative response to the judgment of the Court in Madras Bar Assn. vs Union of India. In that case, the validity of the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 (“2020 Rules”) was challenged by the Madras Bar Association. The relevant portions of the decision in the Madras Bar Association case, along with the affect of the Ordinance, are discussed below.

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Thereafter, the Bench, underlining the importance of recruitment of members from the bar at a young age to ensure a longer tenure, was of the view that fixing a minimum age for recruitment as 50 would act as a deterrent for competent advocates to seek appointment. Practically, it would be difficult for an advocate appointed after attaining the age of 50 to resume legal practice after completion of one term in case he is not reappointed. Security of tenure and conditions of service are recognised as core components of the independence of the judiciary. This can be sustained only when the incumbents are assured of fair and reasonable conditions of service, which include adequate remuneration and security of tenure.

Justice Hemant Gupta in his dissenting judgment said 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,” he observed.

—By Abhinav Verma and India Legal News Service

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