'Can Parliament Reintroduce Provisions Struck Down By Court?' Supreme Court Questions Centre On Tribunal Reforms Act, 2021

The Supreme Court, yesterday asked the Union what was the thought process behind giving shape to the Tribunals Reforms Act, 2021 which was presently challenged before it. 

The Court also asked if the Parliament could reintroduce the very same provisions in the Tribunal Reforms Act which were earlier set aside in previous judgments.

The Bench comprising Chief Justice of India B.R. Gavai and Justice K. Vinod Chandran was hearing the Madras Bar Association case concerning the validity of the Tribunals Reforms Act, 2021. The Association has challenged the Act as contrary to the previous judgments of the Supreme Court which held that Tribunal members should have at least 5 years tenure, lawyers with minimum 10 years of experience must be considered eligible etc.

Justice Chandran asked the Attorney General for India, "What prompted you for this reform? That's the question which you have not answered. You said you have thought over it, but what is the thought over?" 

Justice Chandran further added, "One instance of deviation cannot lead to reforms; there should be serious ...which you should have pondered over." 

AG R Venkataramani replied, that the impugned Act was a result of the Court's past observations for the need to have a uniform structure for appointments to Tribunals. He submitted : 

" The running thread is the 2021 Act - it is a culmination of the judgments and the Parliament talking to each other, saying- what should be one uniform? On the uniformity, there is a consensus? Uniformity was not an imagination of the Parliament or the government; uniformity came as a product of this court engaging on this matter. Therefore 2021 Act- all that it does is to bring about a rationalisation and uniformity. We are not falling foul of what the Court said." 

He added, "This is not a prompting after the judgment, this is a prompting as a reason of the judgments." 

Notably, in the past decisions of Madras Bar Association III (MBA III) as well as Rojer Mathew v. South Indian Bank Ltd. & Ors., the Supreme Court had set aside the provisions limiting the tenure to 4 years, fixing minimum age limit as 10 years, and allowing the search-cum-selection committee to recommend two names for each post, among other provisions. However, these provisions have been re-introduced in the 2021 Act.

In this context, the CJI inquired, "What has been set aside by this court, can it be rei-ntroduced again by the Parliament with slight change of words here and there?" 

The AG explained that there now existed contrary experiences and a contrary reason from what the Supreme Court held in MBA III

The CJI then asked, "What is the contrary experience?" 

The AG replied that there was a culmination of contrary experiences over the period of time. 

The Attorney General argued that the minimum age of 50 years was prescribed to ensure that candidates possess not only sound legal knowledge but also a well-rounded understanding of the social, economic, and political dimensions of society.

He also stressed that in practical sense, not many advocates are willing to give up their practice and join as members of tribunals for a fixed term. He emphasised that the bench should not rely upon anecdotal instances. 

" I would appeal to the court that please do not assess these things, these matters by anecdotal experience." 

On the last hearing, Sr Advocate Arvind Datar stressed that the provision of having two names for recommendation for the post of Chairperson should not be there. He added that the selection should take place as per the merit list, instead of appointing persons from the waiting list, overlooking candidates within the merit list.

The bench will continue hearing the matter today at 3 PM. 

In 2021 as well, the Supreme Court, while hearing the present matter, had expressed displeasure at the Parliament re-enacting the provisions struck down by the Court. "The Government has not honoured our judgment," the then Chief Justice of India, NV Ramana, had remarked during the hearing.

Case Details : Case Title: MADRAS BAR ASSOCIATION Versus UNION OF INDIA AND ANR., W.P.(C) No. 1018/2021