While lamenting the non-constitution of National Tribunals Commission by the Central Government, Supreme Court on Wednesday emphasised the need to have an independent body for making appointments to the Tribunals across the country.
A special bench comprising Chief Justice of India NV Ramana, Justice DY Chandrachud and Justice L Nageswara Rao observed that the Court has not heard anything from the Central Government regarding the National Tribunals Commission which was directed to be constituted by the Court through its previous judgements.
The bench pointed out to the Attorney General for India KK Venugopal that he had agreed to the suggestion for constitution of a National Tribunals Commission in the Madras Bar Association case.
"Right from L. Chandra Kumar's case, this court has been speaking of an independent body for making appointments. You were also in agreement with us when we spoke about the National Tribunals Commission. Till the national commission is constituted, we had said there should be one separate wing in the finance ministry to take care of all these appointments etc. We do not know whether anything has happened. Regarding National Tribunal Commission, we have not heard anything at all. The government has to come up with an independent body, only then we would see some results!", Justice Nageswara Rao observed.
The Attorney General for India KK Venugopal appearing for the Union of India submitted that he would make a note of the issue and get response from the Government.
"The problem is that everyone is aware of the problem. Nobody is on the question of solution. We have already indicated in Roger Matthews and subsequent cases about the National Tribunals Commission. We have given the solution also. It is for you to implement or not. Now we don't want to trouble you more than this. We will adjourn for a week. Please ask the government to get some proper instructions". CJI Ramana said.
The Supreme Court had in November last year directed the Central Government to constitute a National Tribunal Commission for the appointment of members in various Tribunals.
The Commission was to be constituted to 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 Tribunals
Till the constitution of the National Tribunal Commission, a separate wing in the Ministry of Finance was directed to be formed to cater to the needs of the Tribunals.
L Chandra Kumar Vs Union of India, 1997: In this judgement passed by Supreme Court in 1997, the Court had emphasised the creation of a single umbrella organisation to supervise the Tribunals and ensure that the independence of the members of all such Tribunals is maintained.
The Court was of the view that, until a wholly independent agency for the administration of all Tribunals can be set-up, it is desirable that all such Tribunals should be, as far as possible, under a single nodal Ministry which will be in a position to oversee the working of these Tribunals.
Rojer Mathew's Case, 2019: The 2017 Tribunal Rules were quashed by the Supreme Court in this case on the ground that they affected judicial independence.
Justice Chandrachud had written his separate but concurring judgment, and recommended the constitution of an independent statutory body called the National Tribunals Commission.
The Commission was to be constituted to oversee the selection process of members, criteria for appointment, salaries and allowances, introduction of common eligibility criteria, for removal of Chairpersons and Members as also for meeting the requirement of infrastructural and financial resources.
The Court had observed that the legislature had taken no action and an umbrella organisation to oversee the working of Tribunals was not constituted despite directions issued by the top Court in Chandra Kumar nearly two decades ago.
The Court had noted that while the setting up of the NTC is within the competence of the legislature, it must be ensured that the guidelines that have been laid down by Supreme Court to ensure the independence and efficient functioning of the tribunal system in India are observed.
"The independence of judicial tribunals is an inviolable feature of the basic structure of the Constitution. The procedure of selection, appointment, removal of members and prescription of the service conditions of tribunal members determine the independence of the tribunals. As we have held, in preserving the independence of the tribunals as a facet of judicial independence, the adjudicatory body must be robust: subservient to none and accountable to the need to render justice in the context of specialized adjudication. This is reflected in the need for vigilance in guarding the independence of courts and tribunals." the judgement read
Madras Bar Association Case, 2020 ( MBA-III):In November 2020, the Supreme Court directed the Central Government to constitute a National Tribunal Commission for the appointment of members in various Tribunals.
The Bench had pronounced the Judgment in a batch of petitions challenging 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 Bench made the observations while hearing the following pleas:
- Petitions filed by Madras Bar Association and Jairam Ramesh challenging the Tribunals Reforms Act 2021.
- Plea by State Bar Council of MP against Delhi High Court's order deferring by 6 weeks the challenge to validity and legality of the notification issued by the Union Ministry of Finance transferring & attaching the jurisdiction of Debt Recovery Tribunal, Jabalpur to Debt Recovery Tribunal, Lucknow in the absence of availability of the presiding officer at DRT Jabalpur.
- Plea filed by Advocate Amit Sahni seeking directions for constitution of the GST Appellate Tribunal, New Delhi, on utmost priority basis and as early as possible, in the interest of justice.
- Plea by Amarjit Singh Bedi challenging functioning of Securities Appellate Tribunal Mumbai without a Technical member as mandated by SEBI Act and seeking directions for the immediate appointment of a technical member. The plea has sought direction to declare that presence of a technical member in SAT is an essential feature for the functioning of SAT as mandated by Section 151 (2) (b) of the SEBI Act 1992.
- Petition filed by Delhi Bar Association challenging provisions of the Real Estate ( Regulation and Development) Act 2016 and Delhi Real Estate Rules 2016. The provisions challenged are Sections 22(a) and 46 (a) (b) of the Real Estate Act and Rule 17(3), 18, 25(3), 26(b) of Delhi Real Estate Rules. The plea has also challenged notification dated 24th May 2021 inviting applications for appointment on the post of Chairman and one member of Real Estate Regulatory Authority at Delhi and Chandigarh issued by Delhi Government in terms of section 22 of the 2016 Act.
Case Titles: State Bar Council of Madhya Pradesh vs UOI, Amit Sahni vs UOI, Amarjit Singh Bedi vs UOI, Delhi Bar Association vs UOI, Advocates Association Bengaluru vs Rajeev Gauba & Ors.