'Excludes Young Successful Advocates; Arbitrary & Discriminatory' : Supreme Court Strikes Down Minimum Age Limit Of 50 Years For Appointment As Tribunal Members

The Supreme Court has held by 2:1 majority that the minimum age limit of 50 years prescribed by the Tribunals Reforms(Rationalization and Conditions of Service) Ordinance 2021 for appointment as members in various tribunals to be "arbitrary and discriminatory".The majority comprising Justices L Nageswara Rao and S Ravindra Bhat observed that this minimum age stipulation of 50 years introduced by the Ordinance violated the earlier direction given by the Court in the 2020 Madras Bar Association case that advocates with minimum experience of 10 years should be made eligible for appointment as members of tribunals.The 3-judge was delivering judgment in the fresh writ petition filed by Madras Bar Association this year challenging the Tribunals Reforms Ordinance. Justice Hemant Gupta dissented from the majority and dismissed the writ petition.This minimum age stipulation was brought in through first proviso to Section 184(1) of the Finance Act 2017 which was added through the amendment effected by the Tribunals Reforms Ordinance passed in 2021.Holding this provision to be unconstitutional, the judgment authored by Justice Nageswara Rao said :"Fixing a minimum age for recruitment of Members as 50years would act as a deterrent for competent advocates to seek appointment. Practically, it would be difficult for an advocate appointed after attaining the age of 50 years to resume legal practice after completion of one term, in case he is not reappointed. Security of tenure and conditions of service are recognised as core components of independence of the judiciary. Independence of the judiciary can be sustained only when the incumbents are assured of fair and reasonable conditions of service, which include adequate renumeration and security of tenure. Therefore, the first proviso to Section 184(1) is in violation of the doctrine of separation of powers as the judgment of this Court in MBA-III has been frustrated by an impermissible legislative override. Resultantly, the first proviso to Section 184 (1) is declared as unconstitutional as it is violative of Article 14 of the Constitution". Also Read - Tribunals Reforms Ordinance : Certain Points Of Concern Age limit of 50 years excludes young successful advocates from the zone of considerationJustice Ravindra Bhat wrote a separate but concurring judgment, which elaborated why the minimum age limit for 50 years for appointment as members in tribunals is arbitrary and irrational. Justice Bhat pointed out that as per the Constitution, an advocate with experience of 10 years is eligible to be appointed as a High Court. An advocate with 7 years' practice with the Bar can be considered for appointment to the position of a District Judge. Hence, this prescription of 50 years as minimum age for appointment in tribunals was lacking in rationale."Prescribing 50 years as a minimum age limit for consideration of advocates has the devastating effect of entirely excluding successful young advocates, especially those who might be trained and competent in the particular subject(such as Indirect Taxation, Anti-Dumping, Income-Tax, International Taxation and Telecom Regulation). The exclusion of such eligible candidates in preference to those who are more than 50 years of age is inexplicable and therefore entirely arbitrary", Justice Bhat said."Prescribing 50 years' minimum age as a condition for appointment to these tribunals is arbitrary also because absolutely no reason is forthcoming about what impelled Parliament to divert from the long-established criteria of giving weigh-age to actual practice, reputation, integrity and subject expertise, without a mini-mum age criterion, in the pleadings in this case, nor in any other cases", he added.Justice Bhat said that the consideration of such younger advocates in the age group of 40-45 years would have long term benefits since the do-main knowledge and expertise in such areas (Telecom Regulation, Taxation –both Direct and Indirect, GATT Rules, International Taxation etc.) would be useful in adjudication in these tribunals and lead to a body of jurisprudence. Depending on how such counsel/advocates fare as members of the Tribunal, having regard to their special knowledge of these laws, at a later and appropriate stage, they may even be considered for appointment to High Courts.Anomalous results of the age limit of 50 years"The age criteria, impugned in this case also leads to wholly anomalous and absurd results. For instance, an advocate with 18- or 20-years' practice, aged 44years, with expertise in the field of indirect taxation, telecom, or other regulatory laws, would be conversant with the subject matter. Despite being eligible, (as she or he would fulfil the parameters of at least 10 years' practice, in the light of the decision in MBA-III) such a candidate would be excluded. On the other hand, an...

'Excludes Young Successful Advocates; Arbitrary & Discriminatory' : Supreme Court Strikes Down Minimum Age Limit Of 50 Years For Appointment As Tribunal Members

Manu Sebastian

"Prescribing 50 years as a minimum age limit for consideration of advocates has the devastating effect of entirely excluding successful young advocates"

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