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'Tribunal Rules 2020 Against Principles Of Separation Of Powers & Judicial Independence': Madras Bar Association Moves SC

Nilashish Chaudhary
9 Aug 2020 1:25 PM GMT
Tribunal Rules 2020 Against Principles Of Separation Of Powers & Judicial Independence: Madras Bar Association Moves SC
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The Madras Bar Association has filed a writ petition in the Supreme Court challenging the constitutionality of the 'Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 ('Tribunal Rules 2020)'.

It is contended that the Rules are in "contravention of the principles of separation of powers, independence of the judiciary (both being part of the basic structure of our Constitution), and are against efficient and effective administration of justice".

The Rules were notified by the Central Government in February 2020, exercising powers under Section 184 of the Finance Act 2017, after the Supreme Court set aside the similar rules made in 2017 in the decision Rojer Mathew v. South Indian Bank Ltd delivered on November 13, 2019.

The Constitution Bench also referred to larger bench the issue whether the Finance Act 2017 could have been passed as a money bill, after expressing doubts over the correctness of treating Aadhar Act as money bill.

The Constitution Bench held in Rojer Mathew that the 2017 Rules were ultra vires ""for contravening the principles of separation of powers, diluting the independence of the Judiciary and for being against previous decisions of this Hon'ble Court." 

The petition states that the very same problem is present in the new 2020 Rules as well.

To ensure judicial independence, the SC has laid down several principles regarding the constitution of Tribunals, such as :

  • Judicial dominance in appointment process - the majority of the selection committee should be members of the judiciary and Chief Justice of India should have a casting vote.
  • Chairpersons and Presiding Officers should be judicial officers.
  • Persons who are not judges or practising advocates should not be appointed as judicial members.
  • Only Senior bureaucrats with adjudicatory experience can be appointed as technical members.
  • There should be a term of at least 5 to 7 years for the members.
  • The administrative control of the Tribunal should not be with the parent department. All Tribunals should be under a single nodal agency, preferably the Ministry of Law and

The MBA argues that the 2020 Rules do not fulfil these principles laid down in decisions such as Rojer Mathew, and Union of India v R. Gandhi, (2010) 11 SCC 1, Madras Bar Association v Union of India, (2014) 10 SCC 1.

It is pointed out that judicial dominance has not been provided for in the Search-cum-Selection Committees. Further, no casting vote has been provided to the Chief Justice of India. Persons without judicial or legal experience can become Presiding Officers of some Tribunals.

"The Executive has administrative and financial control (eg, as the leave sanctioning authority and salaries) and in the appointments process (as part of the Search-cumSelection Committee). Even the Parent Department is included in the appointment process, despite the clear conflict in interest", the petition states.

It is also pointed out that practising advocates are excluded from the zone of consideration for appointment of Chairpersons of Debts Recovery Tribunals, Administrative Tribunals etc (Petitions are pending in Kerala and Madras High Courts raising this issue).

Tribunal Rules 2020 : Old Wine In New Bottle?

Citing such grounds, the petition prays :

"the Petitioner herein submits that the 2020 Rules ought to be struck down for being violative of Articles 14 and 21 for being arbitrary and unreasonable, against the principles of Separation of Powers and Independence of the Judiciary, and in contravention of previous decisions of this Hon'ble Court".

The petition is filed through Advocate TVS Raghavendra Sreyas and is drawn by Advocates Rahul Unnikrishnan and Naveen Hegde. The plea is settled by Senior Advocate Arvind Datar.


 


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