"How Can Struck Down Provisons Be Revived Through Legislation?": Supreme Court To Decide Constitutional Validity Of Tribunal Reforms Act 2021 On July 26

The Supreme Court on Wednesday observed that it will hear the question of the constitutional validity of the Tribunal Reforms Act 2021 on July 26, 2022. The matter will be heard finally on that day, the benchA Bench comprising Justices D.Y Chandrachud, Surya Kant and Bela M Trivedi was adjudicating upon an application filed in the Madras Bar assailing the tenure of appointment of six persons to the post of member judicial in Central Excise and Service Tax Appellate Tribunal (CESTAT). The application was filed in a writ petition filed by the Madras Bar Association challenging the Tribunal Reforms Act."When the Ordinance (Tribunals Reforms Rationalisation & Conditions of Service Ordinance, 2021) with the exact provisions were struck down, how can they be revived through a separate legislation?," the Court wondered. The applicants argued that the CETSTAT appointment was made in violation of the judgment in the Madras Bar Association case(2021) where the Court had set aside certain provisions in the Tribunals Reforms Ordinance which fixed the term of members of various tribunals as four years.Attorney General for India K.K Venugopal submitted that tenure is a matter of policy and that it is beyond the purview of the court. Later on, he placed reliance on Section 5 of the Tribunal Reforms Act which lays down that notwithstanding anything contained in any judgment, order or decree of any court, the Member of a Tribunal shall hold office for a term of four years or till he attains the age of sixty-seven years, whichever is earlier:The AG also added that since the term of the applicants continue till April 10, 2023, it was better to take up the main challenge to the Tribunal Reforms Act rather than dealing with the IAs. However, the Court clarified that by any reason the challenge to the main act cannot be taken up and that the IAs will be dealt with on their own merits. Since the terms of the applicants concerned were coming to an end, the Court decided to hear the challenge to the main Act in July, 2022.On July 14 last year, the Supreme Court had struck down the provisions in the Tribunal Reforms Ordinance which had fixed the term of members as 4 years and which had held fixed the minimum age of appointment of members as 50 years. (Madras Bar Association case IV)However, the very same provisions are included in the Tribunals Reforms Act passed by the Parliament in 2021, few weeks after the pronouncement in the Madras Bar Association case..The validity of this provision and constitutional validity of Tribunals Reforms Act, 2021 is in challenge before the Supreme Court in pleas filed by Madras Bar Association and former Union Minister Jairam Ramesh.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 has stated.Click Here To Read/Download Order

"How Can Struck Down Provisons Be Revived Through Legislation?": Supreme Court To Decide Constitutional Validity Of Tribunal Reforms Act 2021 On July 26

Hannah M Varghese

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