The Rajya Sabha on Monday passed the Tribunals Reforms Bill 2021, which seeks to lay down terms and conditions for the service and tenure of members of various tribunals.
Notably, the Bill contains the same provisions in the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, which were struck down by the Supreme Court in the recent verdict in the Madras Bar Association case.
As per the proviso to Section 3, the minimum age requirement of 50 years still finds a place in the Bill. Similarly, the tenure for the Chairperson and the members of the tribunal remains four years.
Furthermore, Section 3(7) also sought to undo the judgment of the Apex Court which held the provisions related to the recommendation of two names for each post by the Search-cum-Selection Committee and requiring the decision to be taken by the government preferably within three months
On July 14 this year, the Supreme Court struck down the provisions in the Ordinance which had fixed the term of members as 4 years and which had held fixed the minimum age of appointment of members as 50 years. However, the very same provisions are included in the Tribunals Reforms Bill.
During the discussion in Rajya Sabha on Monday, certain members highlighted that the provisions of the Bill were contrary to the Supreme Court verdict.
Responding to the criticism, Union Finance Minister Nirmala Sitharaman said that the powers of the house cannot be curtailed, while adding that the Government has respect for the judiciary.
She said that the Supreme Court had not struck down the provisions on the ground of unconstitutionality.
Although the opposition moved a motion to refer the bill to select committee, it was defeated with 44 ‘Ayes’ and 79 ‘Noes’. The Lok Sabha had passed the bill on August 3.
In the Madras Bar Association case(2021), the Supreme Court struck down by 2:1 majority the provision in the Ordinance which fixed the tenure as 4 years, on the ground that it was contrary to the directions in the earlier judgments that the term should be at least 5 years. The Court observed that a longer term will ensure more efficiency.
In the earlier judgments in Rojer Mathew and Madras Bar Association(2020) cases, the Court had observed that shorter term will be “anti-merit as it would have the effect of discouraging meritorious candidates to accept the posts of judicial members in the Tribunals”. In addition, the Court had also said that “the short tenure of members increases interference by the executive jeopardizing the independence of judiciary”,
Also, the Apex Court (by 2:1 majority) struck down the minimum age requirement of 50 years for appointment as members of Tribunals being contrary to the earlier judgment. The Court held that advocates with a minimum experience of 10 years must be made eligible for appointment as Tribunals members.
In the Madras Bar Association case judgment of 2021, Justices L Nageswara Rao and Ravindra Bhat were in the majority and Justice Hemant Gupta dissented.
While striking down the minimum age requirement of 50 years as arbitrary, Justice Bhat had observed :
“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 Hemant Gupta, in his dissent, said that a law cannot be struck down on the sole ground that it was contrary to a judgment.