'Law Can't Be Struck Down Merely For Being Contrary To Court's Guidelines': Justice Hemant Gupta's Dissent In Tribunals Case

Justice Hemant Gupta, in his dissenting opinion in the Madras Bar Association case relating to the validity of Tribunals Reforms Ordinance 2021, observed 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.", the judge observed.The majority comprising Justices L Nageswara Rao and S Ravindra Bhat observed that this minimum age stipulation of 50 years introduced by the Ordinance violated the earlier direction given by the Court in the 2020 Madras Bar Association case that advocates with minimum experience of 10 years should be made eligible for appointment as members of tribunals.According to Justice Gupta, no directions were issued in 2020 Madras Bar Association case in respect of eligibility conditions particularly relating to age. Eligibility to seek appointment is not solely dependent upon qualification of a candidate but experience and suitability, likely term which a candidate may have are necessary considerations, the judge opined.However, Justice Gupta agreed with the majority's finding that the the stipulations in the Tribunals Reforms Ordinance that the the Search and Selection Committee shall recommend two names for a post and that the tenure of members of Tribunal shall be four years are illegal.The following are important observations made in the dissenting opinion:Judiciary cannot and should not usurp the powers vested with legislature"13. The judiciary in exercise of power of judicial review can strike down any legislation which violates fundamental rights or if it is beyond the legislative competence but the courts cannot direct the legislature to frame or enact a law and in a particular manner. The law declared by the Supreme Court is binding on all Courts in India in terms of Article 141 of the Constitution. The directions issued under Article 142 of the Constitution, are binding on every Court in terms of Article 141 of the Constitution. The legislature cannot be said to be Court within the meaning of Article 141 of the Constitution by any stretch of imagination. Article 144 of the Constitution mandates, civil and judicial authorities in India shall act in aid of the Supreme Court meaning thereby executive and judicial authorities shall act in aid of the Supreme Court. The legislature is neither civil or judicial authority who is mandated by the Constitution to act in the aid of Court. The legislature is supreme so as to enact a law falling within its legislative competence. 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. The judiciary will step in only after a law is enacted to test the legality of a statue on the known principles of judicial review. The Judiciary cannot and should not usurp the powers vested with legislature. The Judiciary cannot legislate in the scheme of the constitution.53...The law declared by this Court is binding on all Courts within the territory of India under Article 141 of the Constitution whereas Article 142 of the Constitution empowers this Court to issue directions to do complete justice. The interpretation of law is binding under Article 141 of the Constitution even if there is a direction under Article 142 but such direction is not all pervasive and binding on the legislatureEligibility to seek appointment is not solely dependent upon qualification of a candidate but experience and suitability, likely term which a candidate may have are necessary considerations.31. I am unable to agree to the opinion that the first proviso to Section 184 prescribing a minimum age of fifty years is an attempt to circumvent the direction issued in MBA-III. The condition of eligibility for appointment as a Judge of a High Court was kept in view while considering the eligibility of advocates as members of Tribunals. However, the Memorandum of Procedure for appointment as judges of the High Court finalized by this Court and forwarded to the Central Government in March, 2017 was that a person shall not be eligible to be considered for appointment as Judge of a High Court against Bar quota unless he has completed forty-five years of age on the date of recommendation by the High Court Collegium. Though, in terms of Article 217 of the Constitution, a candidate becomes eligible for appointment after 10 years of...

'Law Can't Be Struck Down Merely For Being Contrary To Court's Guidelines': Justice Hemant Gupta's Dissent In Tribunals Case

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