"We Are In A Democratic Country Following Rule Of Law, You Can't Say It": Supreme Court To AG In Tribunal Matter- Full Courtroom Exchange

The Supreme Court on Wednesday took objection to how the Central government has affected appointments to tribunals.At the outset, CJ N . V . Ramana raised the issue of the premature retirement of Justice A. I. S. Cheema as NCLAT chairman- "The department has hurriedly on 11th of September made arrangements and he has been replaced by another gentleman, Justice M. Venugopal. I don't know how this is happening, what is this happening? I am not sure whether you have notice of this or not..."Senior Advocate Arvind P Datar appearing for Madras Bar Association which has challenged the 2021 Tribunal Reforms Act, also advanced, "It is a very disturbing trend. I request you to put an end to it at the earliest. All the appointment letters are being issued now including Income Tax Appellate Tribunal, they are sending WhatsApp messages. Now whether the tenure is to be four years or five years, that Your Lordships will decide next week. Assuming it is four years for now, the letters read that the appointment shall be "until the age of 67 years or four years or until further orders, whichever is earlier". Like Justice Cheema, they are using "until further orders". There is no provision in the Act for this and without any kind of provision, they are simply terminating the people""I have not seen it", replied AG K . K. Venugopal. He responded that the government will file a counter affidavit within a week on the challenge to the 2021 Tribunals Reforms Act elaborately dealing with the challenge to the four provisions impugned pertaining to the panel of names recommended, the tenure etc.The CJ noted, "I have seen that for the NCLT, the selection committee recommended nine judicial members and 10 technical members. They kept another 10 in the waiting list for additional vacancies, whenever they arise. By the appointment letters which were issued, they have selected 4-5 names in the waitlist and 3 names in the select list. As per elementary principles, we cannot ignore the selected candidates and go to the waitlist. There cannot be any cherry-picking. I don't know what type of selection is this, what type of appointment is this?"The AG began, "The government proceeds on the basis that these recommendations...if you will see Section 3(7) of the Reforms Act which was in existence in the previous law also...". The said provision reads: "Notwithstanding anything contained in any judgment, order or decree of any court, or in any law for the time being in force, the Search-cum-Selection Committee shall recommend a panel of two names for appointment to the post of Chairperson or Member, as the case may be, and the Central Government shall take a decision on the recommendations made by that Committee, preferably within three months from the date of such recommendation" "Every time, this happens. This is nothing new. Even after the order is passed, they are notifying like this. Same way, the ITAT members are also affected. Every time, the same story", said the CJ. Mr. Datar added that while 45 were selected, only 13 have been appointed- Six judicial members and seven technical members. "I don't know on what basis they have appointed", said Mr. Datar. Justice D. Y. Chandrachud reflected, "3(7) is identical to the earlier provision which has been held to be unconstitutional. The provision being that of the 20 names, which have been recommended, the government proceeds on the basis that we need not select any more than 10, that of those we pick 10 out of 20!""This provision has three parts- it provides for a panel of two names, that the court has struck down; then it says the government will decide on the recommendations 'preferably within three months', which has been struck down; but that the central government shall take a decision on the recommendation made by the committee has not been struck down. Therefore, that continues as a valid provision", said the AG.Justice L. Nageswara Rao noted, "For one post, there cannot be two names, but only one name must be recommended! And 'preferably within three weeks' has also been struck down! So you have to make the appointment within three months! But even after the selections were conducted and recommendations were made, you don't appoint them when you pick up people from the waitlist, which was prepared for the purpose of being used in the future? That has nothing to do with 3(7)The AG advanced, "The government has the power not to accept the recommendations made. Your Lordships would know even as regards the High Courts and High Court judges..." "We are in a democratic country following the rule of law! It is under the Constitution that we are working. You cannot say that!", asserted the CJ."This has been held so even in the case of UPSC where the government is entitled to not to accept certain recommendations. Your Lordships' judgement says so. We have acted on that judgement", persisted the AG.Continuing, he added, "We have exhausted the main list and thereafter gone to the waiting list, ...

"We Are In A Democratic Country Following Rule Of Law, You Can't Say It": Supreme Court To AG In Tribunal Matter- Full Courtroom Exchange

Mehal Jain

Tags