Can Executive Tinker Court's Directions Through Ordinance? Supreme Court Asks In Plea Challenging Tribunals Reforms Ordinance

Hearing the challenge to the Tribunals Reforms (Rationalization and Conditions of Service) Ordinance 2021, the Supreme Court on Wednesday asked whether, by passing an Act or Rules or an Ordinance, the Legislature and the Executive can tinker with directions of the court under Article 142; whether, when considering an issue of policy, the Parliament is competent to make a law and deter the court's directions. The main points raised in the petition by the Madras Bar Association are: The Ordinance fixes a minimum age limit of 50 years for appointment as Tribunal Members; it fixes their term as 4 years as against the 5 required by the SC; it has re-introduced the idea of a panel of two names being recommended by the Search Cum Selection Committee (SCSC); it dilutes the SC direction in the 2020 judgment by saying that the Central Government should make appointments "preferably within 3 months"; etc.Attorney General for India K. K. Venugopal on Wednesday told the Supreme Court that issues of the appointment of members of tribunals including the tenure, the age of retirement and the conditions of service including housing allowance have to be left to the wisdom of the Executive and the Legislature.Appearing before the bench of Justices L. Nageswara Rao, Hemant Gupta and Ravindra Bhat, the AG raised a preliminary objection regarding the scope of judicial review in the present issue, which he said, are policy decisions. He urged that what should be the tenure of the chairperson or member of the tribunal or the age of retirement or the terms and conditions of service are exclusively within the competence of the Legislature and the Executive. "If that is accepted, then none of these objections raised would stand", he said."The policy decision of the Executive and Parliament should bind the court. It is beyond the jurisdiction of the superior courts to sit in review of these decisions. The Constitution of India provides for separation of powers in the three organs of State, namely, the Legislature and the Executive government on the one side and the Judiciary on the other side. Just as the Legislature and the Executive cannot trench upon the jurisdiction of the Judiciary, it is not within the competence of the Judiciary to trench upon the powers of the Legislature or the Executive", submitted the AGIt was his case that by reason of the doctrine of the separation of powers, the decision of the Legislature and the Executive is not open to judicial review until there is a violation of fundamental rights or any specific provision of the Constitution or if the law is beyond the legislative competence of that legislature. "Each of the branches of State shall be whole and independent of each other. There will be coextensive rights and power. It is not that the Judiciary is above the other branches", he said.'Executive Is as much an interpreter of Constitution as Judiciary; Policy decisions are collective process of 500 members unlike judgments of 2/3/5 judge-benches'- AG"Without pointing out how and why independence of the judiciary is violated (by the impugned Ordinance), vague and general criteria cannot be relied upon. Legislation is broadly the Parliament's jurisdiction, and so is the Ordinance of the Executive, which is also the power of the lawmaking. It is not competent for the court to violate the doctrine of separation of powers to compel the Legislature or Executive to make a particular Ordinance or law", he pressed.Addressing the contentions raised by the Madras Bar Association, the AG insisted that there is no question of removing the foundation or basis of the judgements of the Supreme Court in framing the Ordinance, as the series of judgments are not based on any existing law- "A question of erasing the basis or foundation of a judgement would not arise unless the court has actually held that the tenure has to be five years. No question of validating the law would arise as it is the exclusive domain of the Legislature and the Executive as to what should be the tenure""Your Lordships are not dealing here with rules or primary law. Here, it is the issue of policy. It is a collective process and not a one-person process. When a legislation is passed, it is the collective will and collective decision of 500 or 300 members, unlike in the court where the judges are sitting in 13 benches of 2 or 3 judges. In court, the thinking is of three judges or at the most five judges as to what the Constitution is. There is a lot of difference. The former has the advantage of standing committees which examine witnesses. It is not a question of one hour of arguments and then the judgement is given by three judges or five judges. A Proposal goes to the undersecretary, to the directors in between, to the additional secretary, the joint secretary, to the secretary and the Ministry. The Madras Bar Association...

Can Executive Tinker Court's Directions Through Ordinance? Supreme Court Asks In Plea Challenging Tribunals Reforms Ordinance

Mehal Jain

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