Tribunals Reforms Ordinance : Supreme Court Strikes Down Provisions Fixing Term Of Members As 4 Years

The Supreme Court on Wednesday by 2 :1 majority set aside the provisions in the Tribunals Reforms Ordinance 2021 which fixed the term of members of various tribunals as four yearsThe majority comprising Justices L Nageswara Rao and S Ravindra Bhat held that this term violated the express direction given in the earlier judgments in Rojer Mathew and Madras Bar Association cases that the term of tribunal members should be 5 years. Accordingly, the bench set aside those provisions. Justice Hemant Gupta dissented saying that a law cannot be struck down merely for the reason of being contrary to judgments..Delivering its judgment in the writ petition filed by the Madras Bar Association challenging the Ordinance, the majority stated that its provisions will not apply to appointments made prior to February 4, 2021( the date when the Ordinance was notified).The Madras Bar Association filed the writ petition in the Supreme Court challenging the Tribunals Reforms (Rationalization and Conditions of Service) Ordinance 2021, to the extent it amends Sections 184 and 186 of the Finance Act 2017.Sections 184 and 186 of the Finance Act 2017 give Central Government rule-making power in relation to the mode of appointment, terms of service, allowances of members etc., of various Tribunals. The majority also held the following conditions laid down by the Tribunals Ordinance 2021 through its amendment to the Finance Act 2017 as unconstitutional :The provisions fixing minimum age limit for appointment as tribunal members as 50 years struck being contrary to the direction in earlier cases that advocates with minimum experience of 10 years should be made eligible.The provision prescribing that the Search cum Selection Committee will recommend two names for each post struck down being contrary to the direction in previous judgments that the committee should only recommend one name for each post.The provision prescribing that the Union Government should make appointments "preferably within three months" of recommendation by the Search-cum-Selection committee struck down as the earlier judgment in Madras Bar Association Case had issued a mandatory direction that the appointments should be made within 3 months of recommendation by the Search-cum-Selection Committee.Justice Rao concluded his judgment by saying :"...the first proviso and the second proviso,read with the third proviso, to Section 184 overriding the judgment of this Court in MBA-III in respect of fixing 50years as minimum age for appointment and payment of HRA,Section 184(7) relating to recommendation of two names for each post by the SCSC and further, requiring the decision to be taken by the Government preferably within three months are declared to be unconstitutional. Section 184(11)prescribing tenure of four years is contrary to the principles of separation of powers, independence of judiciary, rule oflaw and Article 14 of the Constitution of India. Though, we have upheld the proviso to Section 184(11), the appointments made to the CESTAT pursuant to the interim orders passed by this Court shall be governed by the relevant statute and the rules framed thereunder that existed prior to26.05.2017. We have already taken notice of the notification dated 30.06.21 by way of which Rule 15 of the 2020 Rules dealing with HRA has been amended in conformity with our directions in MBA-II".Justice Bhat concluded his judgment as :(i) The first proviso to Section 184(1) of the Finance Act, 2017, introduced by Section 12 of the Tribunals Reforms (Rationalisation and Conditions of Service)Ordinance, 2021 is hereby declared void and inoperative. Similarly, the second proviso to Section 184(1) of the Finance Act, 2017, introduced by Section 12 of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 is held to be void and inoperative.(ii)Section 184(7) of the Finance Act, 2017, introduced by of the Finance Act,2017 introduced by Section 12 of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 is hereby declared void and inoperative.(iii) Section 184(11)(i) and (ii) introduced by Section 12 of the Tribunals(Reforms Rationalisation and Conditions of Service) Ordinance, 2021 are hereby declared as void and unconstitutional.(iv)Consequently, the declaration of this Court in para 53(iv) of MBA-III shall prevail and the term of Chairperson of a Tribunal shall be five years or till she or he attains the age of 70 years, whichever is earlier and the term of Member of aTribunal shall be five years or till she or he attains the age of 67 years, whichever is earlier.(v)The retrospectivity given to the proviso to Section 184(11) – introduced by Section 12 of the Tribunals (Reforms Rationalisation and Conditions of ...

Tribunals Reforms Ordinance : Supreme Court Strikes Down Provisions Fixing Term Of Members As 4 Years

Manu Sebastian

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