"Court May Pass Many Judgments, But Parliament Can Say We Would Not Accept Because It Is Not In The Interest Of People"; AG KK Venugopal To SC In Tribunal Case

"If the Union of India losing a case can become the subject matter of legislation, that will become the order of the day!", the Supreme Court remarked on Thursday, asking how the government could have "knocked down" the basis of its order by bringing in an ordinance.The bench of Justices L. Nageswara Rao, Hemant Gupta and Ravindra Bhat was hearing the Madras Bar Association's challenge to the Tribunals Reforms (Rationalization and Conditions of Service) Ordinance 2021, by which the Centre is contended to have legislatively overruled the consistent stand of the Supreme Court on how tribunals shall be constituted right from 2010. The main points raised in the petition by the Madras Bar Association are: The Ordinance fixes a minimum age limit of 50 years for appointment as Tribunal Members; it fixes their term as 4 years as against the 5 required by the SC; it has re-introduced the idea of a panel of two names being recommended by the Search Cum Selection Committee (SCSC); it dilutes the SC direction by saying that the Central Government should make appointments "preferably within 3 months"; etc.The bench was hearing ASG Balbir Singh when Justice Rao made the aforesaid remark. The ASG was addressing the court on the aspect of the retrospective application of sub-section (11) of section 184 of the Finance Act, 2017, which has come to be introduced by virtue of the impugned Ordinance, and which has been called the "most contentious" and the "most curious" of all the grounds of challenge. [The said provision stipulates that notwithstanding anything contained in any judgment, order, or decree of any court or any law for the time being in force, (i) the Chairperson of a Tribunal shall hold office for a term of four years or till he attains the age of seventy years, whichever is earlier; and (ii) 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 proviso to the sub-section lay down that where a Chairperson or Member is appointed between May 26, 2017 and the notified date of the Ordinance, being April 4, 2021, and the term of his office or the age of retirement specified is greater, then, the term of office or age of retirement or both, shall be as specified in his order of appointment subject to a maximum term of office of five years.]The concern raised by the petitioner-organisation, and reiterated by the bench, were the interim orders passed by the Court in Kudrat Sandhu's case (passed pending the challenge to the 2017 Tribunal Rules), by which it had come to be directed, by mandamus, that the appointment to the tribunals made in the interregnum shall be as per the Parent Act and Rules and hence the tenure is to be determined as per the old statutes. The concern was that sub-section (11) had been accorded retrospective applicability from May, 2017 and it was not clear as to what would be the fate of the appointments to the ITAT and the CESTAT, which were made under the mandamus, and where the old Rules and Acts envisaged holding of office till the age of 62 years.Mr. Singh indicated the first order dated February 9, 2018, which had been passed in Kudrat Sandhu, where it was noted that the Court was considering "suggestions for an interim order" and that Mr. K. K. Venugopal, Attorney General for India "submitted that he has no objection if the suggestions (including that all appointments to be made in pursuance to the selection made by the interim Search-cum-Selection Committee shall abide by the conditions of service as per the old Acts and the Rules) are presently followed as an interim measure""It was understood that it was an interim measure during the pendency of the challenge to the 2017 Rules. What should happen during the pendency of the petition is what is coming out from all these orders. That was the understanding of the court in the 2019 Roger Mathew case (where the 2017 Rules were struck down). That is how it was communicated during Roger Mathew also", submitted the AG.Agreeing that they are interim orders, Justice Rao pointed out that on the basis of these orders, certain accrued rights have been created. "Can you, by retrospective legislation, take away those rights? Initially, people were to be appointed until the age of 62 years. There is sufficient law on this that legislation can be retrospective. But when you are taking away an accrued, vested right, then you have to specifically state that you intended to take away those rights", observed the judge.The ASG advanced that when a statute declares certain terms of conditions like right to hold office for 5 years, it does not become a private contract between two parties so as to create a vested right. "Those interim orders were commuted into the final order of this court where the court recognised that they were only the interim arrangement to fill up a lacuna or vacuum. Not only was 184 upheld but the provisions in the corresponding Act were not...

"Court May Pass Many Judgments, But Parliament Can Say We Would Not Accept Because It Is Not In The Interest Of People"; AG KK Venugopal To SC In Tribunal Case

Mehal Jain

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