The Madras High Court has issued notice on a petition challenging the constitutional validity of provisions of the Benami Transactions (Prohibition) Act pertaining to qualifications for appointment of chairpersons and members of the Adjudicating Authority and it's Appellate authority on the ground that these restrict the qualification of appointment of judicial members to Indian Revenue Service and Indian Legal Service and is violative of Article 14 (Right To Equality) and the doctrine of separation of powers.
The Division Bench of Chief Justice Indira Banerjee and Justice PT Asha has issued a notice to the Attorney General of India seeking a response to the petition moved by advocate V Vasanthakumar praying for quashing of Sections 9 and 32 (2)(a) of the Act.
Vasanthakumar said: “In view of the authoritative pronouncements of the Supreme Court interpreting the provisions pertaining to appointment of Judicial members to the Tribunals, Section 9 of The Prohibition of Benami Property Transactions Act, 1988 (45 of 1988 as amended by The Benami Transactions (Prohibition) Amendment Act, 2016 pertaining to qualification of appointment of Judicial Member and Section 32 (2) (a) is liable to be struck down as unconstitutional as it runs counter to Doctrine of Separation of Powers, which is the basic structure, and is in violation of Article 14 of the Constitution of India”.
He said the impugned provisions are against the doctrine of separation of powers in as much as the authority to appoint the judicial members is vested with the Central Government while restricting the qualification for appointment of Judicial members to Indian Revenue Service and Indian Legal Service thereby depriving the equality of opportunity to practicing Advocates as held by the Supreme Court in Madras Bar Association Vs Union of India and violating the fundamental right of equality guaranteed under Article 14 of Constitution of India to the legal fraternity.
“Section 32 (2) (a) of the Act suffers from severe Constitutional infirmity as it draws members to the Appellate Tribunal from the Indian Revenue Service and Indian Legal Service whereas the Supreme Court categorically held in Union of India Vs Madras Bar Association that if a 3-member Tribunal is constituted, the number of technical members shall not exceed the judicial members,” he said.
The petitioner said: “The impugned provisions are enabling the tribunal to be packed with members drawn from the civil services and continue to be the employees of different ministries or government departments by maintaining lien over their respective posts, which would virtually amount to transferring the judicial functions to the executive, and it runs counter to the doctrine of separation of powers and independence of Judiciary.”
Advocate Vasanthakumar was the petitioner in 'National Court Of Appeal' Case which is now pending before the Constitution Bench of the Supreme Court.