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'You Can't Enact A Law Contrary To A Judgment' : Supreme Court Issues Notice On Jairam Ramesh's Plea Challenging Tribunals Reforms Act

LIVELAW NEWS NETWORK
6 Sep 2021 6:34 AM GMT
You Cant Enact A Law Contrary To A Judgment : Supreme Court Issues Notice On Jairam Rameshs Plea Challenging Tribunals Reforms Act
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The Supreme Court on Monday issued notice on a writ petition filed by Congress MP Jairam Ramesh challenging the recently passed Tribunals Reforms Act 2021.While issuing notice, a special bench comprising Chief Justice of India NV Ramana, Justice DY Chandrachud and Justice L Nageswara Rao commented that the said Act is a "virtual replica of the provisions struck down in the Madras...

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The Supreme Court on Monday issued notice on a writ petition filed by Congress MP Jairam Ramesh challenging the recently passed Tribunals Reforms Act 2021.

While issuing  notice, a special bench comprising Chief Justice of India NV Ramana, Justice DY Chandrachud and Justice L Nageswara Rao commented that the said Act is a "virtual replica of the provisions struck down in the Madras Bar Association case".

Senior Advocate Dr Abhishek Manu Singhvi, appearing for Ramesh, told the bench that he has prepared a chart of the provisions in the Act, which are the re-enactments of the provisions struck down in the Madras Bar Association case.

Justice Chandrachud referred to the provisions of the Act which fix the minimum age qualification for appointment as Tribunal Members as 50 years and limiting their tenure as 4 years. In the Madras Bar Association case, the Supreme Court had struck down by the minimum age qualification of 50 years in the Tribunals Reforms Ordinance 2021 and had directed that advocates with experience of 10 years practice must be considered for appointments. Also, the said judgment had directed that the tenure of the members should be fixed as 5 years.

The Tribunals Reforms Act 2021 passed by the Parliament in the recent Monsoon session has reintroduced the minimum age qualification of 50 years and the fixation of tenure as 4 years.

Justice Chandrachud commented that these provisions are directly contrary to the judgment.

"The basis of a judgment can be taken away... but you cannot enact a law which is contrary to a judgment. This is not a validating legislation", Justice Chandrachud commented.

"You cannot have Madras Bar Association 1, 2 and 3...", the judge commented.

"There is no respect for our judgment. You are emasculating these Tribunals by not appointing members. Many Tribunals are on the verge of closing down", Justice Nageswara Rao, who authored the Madras Bar Association judgments of 2020 and 2021, observed.

The Chief Justice of India NV Ramana also made sharp critical remarks against the Union Government over the Tribunals Reforms Act.

"There is no respect to judgments of this court. You are testing our patience! How many persons were appointed? You said some persons were appointed? Where are the appointments?", the CJI observed at the outset.

The bench has posted Ramesh's petition and two connected matters to next Monday, observing "we expect some appointments to be done by then".

"We are not interested in or inviting any confrontation. We are listing it next Monday. By that time see appointments are made", the CJI said while adjourning the matters. The Solicitor General agreed to convey to the Ministry the views of the Court.

In his petition, Jairam Ramesh has submitted that the impugned legislation abrogates the principle of judicial independence and amounts to "unconstitutional legislative overriding" of the judgement passed by the Supreme Court.

He has specifically assailed proviso to Section 3(1) along with Sections 3(7), 5 and 7(1) of the impugned Act as being ultra-vires Articles 14, 21 and 50 of the Constitution.

The plea states that the proviso to Section 3 (1) of the Tribunals Reforms Act, 2021 in so far as it bars appointments to tribunals of persons below 50 years of age undermines the length/security of tenure and violates both judicial independence and the principle of separation of powers.

 It is highlighted that in Madras Bar Association case (MBA-IV), the Top Court had explicitly set aside the proviso to Section 184 (1) of the Finance Act, 2017 which proscribed persons below 50 years of age from being appointed to Tribunals.

Similarly, it is alleged that Section 3(7) of the impugned Act which mandates the recommendation of a panel of two names by the search-cum selection committee to the Central Government, violates the principles of separation of powers and judicial independence.

 The mandate to recommend two names as per Section 3 (7) of the impugned Act is identical to Section 184 (7) of the Finance Act, 2017 which was unanimously set aside by the Supreme Court in MBA-IV decision, the plea states.

While setting aside this stipulation, the Top Court had said, "executive influence should be avoided in matters of appointments to tribunals"

The provision is further challenged in so far as it grants discretion to the Central Government to take a decision on the recommendations made by that Committee, preferably within three months from the date of such recommendation, is also unconstitutional and violates 36 Article 14 of the Constitution.

 "The impugned provision also nullifies the directions of this Hon'ble Court in MBA-III2020 which directed the Union "to make appointments to tribunals within three months from the date on which the Search-cum-Selection Committee completes the selection process and makes its recommendations"" the petition highlights.

Section 5 of the impugned Act is challenged in so far as it fixes the tenure of the Chairperson and Member to a "manifestly short tenure" of four years and adversely impacts judicial independence.

"Section 5 also runs against the directions of this Hon'ble Court to fix the tenure of appointees for at least five years as held in Rojer Mathew," the plea states.

Lastly, the petition challenges Section 7 (1) of the impugned Act, which allows the government its own discretion to fix HRA other than in conformity with the parameters as set by the Supreme Court in MBA-IV-2021.

It said that the provision violates the security of services conditions of appointees, the principles of judicial independence and thereby Article 14 of the Constitution.

 
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