Whether Directions To Amend Tribunal Rules Are Akin To Directing Parliament To Legislate? Supreme Court Asks In Madras Bar Association Case

The Supreme Court on Thursday considered whether directions issued by it to the Centre to amend the Rules framed by it are akin to directing the Parliament to legislate in a particular manner, thereby denuding the Parliament of its power to make law.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 its judgment of November 27, 2020, on the challenge to the government's 2020 Tribunal Rules, the Court had issued certain directions to the Union of India to suitably amend the Rules. This was followed by the impugned Ordinance of 2021 introducing a minimum age limit of 50 years for appointment as Tribunal Members; fixing their term as 4 years as against the 5 required by the SC; re-introducing the idea of a panel of two names being recommended by the Search Cum Selection Committee (SCSC); diluting the SC direction by saying that the Central Government should make appointments "preferably within 3 months"; etc. It was the contention of the Madras Bar Association that the Ordinance was in violation of the direction of the Court. Further, the issue was of the introduction of sub-section (11) of section 184 of the Finance Act, which provided that notwithstanding any judgments, the members of the tribunal shall have a tenure of 4 years or uptil the age of 67 (70 in the case of the chairman), whichever is earlier. Even for all appointments made between May 26, 2017 and the notified date of the Ordinance of April 4, regardless of the tenure under the parents Acts and Rules, the maximum term of 5 years has been stipulated. It has been contended that it was an attempt to legislatively overrule the successive judgments of the Supreme Court right from Sampath Kumar (1986) as to how tribunals should be constituted.On Thursday, AG K. K. Venugopal had argued that it is open to the Parliament, being a co-equal organ of the State, to override any conditions provided by the Court- The AG had indicated the scope of courts in interfering with matters of policy- "Your Lordships may not issue directions to the Legislature directly or indirectly", he had contended.When senior advocate Arvind Datar was making his rejoinder submissions for the petitioner-organisation, Justice Gupta asked him, "In the writ petition filed to challenge the 2020 Rules, what was the relief claimed?""To quash the notification (of the Rules)", replied Mr. Datar."So If the notification is quashed, then all other directions which are given by this court in the case of 2020 are in the realm of directions to legislate in a particular manner. The question is Whether such directions can be issued and whether, in the process, the Parliament is denuded of its power to make law", observed Justice Gupta."Did we give any direction to legislate? Rules are not the legislation...", remarked Justice Rao."By our judgment, we had given the direction to amend the Rules in accordance with our judgement. Rules are also a part of, a form of legislation", said Justice Gupta."Certain parts of Sampath Kumar also issue directions...", remarked Justice Bhat.In Sampath Kumar, the vires of the 1985 Administrative Tribunals Act was challenged. It was contended that the exclusion of the jurisdiction of the High Court under Arts. 226 and 227 in service matters specified under the Act was unconstitutional and void, and that the composition of the Tribunal and the qualifications and the mode of appointment of Chairman, Vice-Chairman and Members was outside the scope of the power conferred on Parliament under Art. 323-A. Besides, the Constitution bench had observed that in so far as the Act prescribes the tenure of 5 years for the Chairperson and Members of the Tribunal, requiring them to retire at the end of it, is too short and that it is neither convenient to the appointees nor expedient to the scheme. "When amendments to the Act are undertaken, this aspect of the matter deserves to be considered", the Court had said."In Sampath Kumar, they only said that certain provisions (of the 1985 Act) are violative of the Constitution and they should be struck down. But, there was no direction to make law. The court only said if you make a law in accordance with the directions, it will be a good law. Here, we have struck down the condition of age, we have struck down the condition of panel. Only to this extent, the judgement would be binding on the Union and not to the other matters which were not the not the subject of striking down", said Justice Gupta."Sampath Kumar dealt with the Administrative Tribunals Act. The Act itself provided a term of 5 years subject to reappointment", it was noted.In response, Mr. Datar advanced, "Chief Justice P. N. Bhagwati had said that it would take the person being appointed 2 years to only understand the service law and the functioning of the Tribunal. So they said that 5 years should be the minimum. ...

Whether Directions To Amend Tribunal Rules Are Akin To Directing Parliament To Legislate? Supreme Court Asks In Madras Bar Association Case

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