Tribunal Ordinance Challenge: Parliament’s Defiance Towards Supreme Court

Key Takeaways

• Madras Bar Association filed a plea in Supreme Court regarding the changes made by the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 (Ordinance).
• The plea sought to discard the ordinance calling it unconstitutional and not at par with precedents of the Supreme Court.
• However, the Centre stated that the Parliament can very well overturn the apex court’s guidelines as many as they may be.
• The sitting bench brought the reference of Marbury v. Madison.

Introduction

In light of the recent Tribunal Reforms Ordinance, it was sought that several acts shall be amended and certain tribunals scraped. Major changes were seen in the Finance Act and Cinematograph Act where the High Court instead of a tribunal was made the authority to address aggrieved parties. However, this ordinance did not sit right with the Madras Bar Association as deeming to be unconstitutional.

Current Case in Depth

Sections 12 and 13 of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 (Ordinance) as well as Sections 184 and 186(2) of the Finance Act, 2017 as amended by the Ordinance are being challenged by the Madras Bar Association.

One of the issues raised at the hearing was whether the retrospective effect of Section 184(11) of the Finance Act would trump Supreme Court decisions.

The Central government, through Attorney General KK Venugopal, urged the Supreme Court that the Parliament has the jurisdiction to adopt legislation reversing Supreme Court decisions.

"If you are enacting laws, are you not nullifying the verdict of this court?" Justice Hemant Gupta, who was on the Bench, challenged the Central government. According to a report published by Bar & Bench, Venugopal responded, "I am sorry to tell but Your Lordships can grant any number of orders, but the Parliament can declare it is not in the best interests of the country and legislate a law."

However, Justice RavindraBhat stated that the Parliament cannot select which of the Court's orders should be followed and which should not. "If you believe that Parliament makes decisions through standing committees and that judges cannot overturn laws, you are back in the pre-Marbury era. We may read down a law, sustain it, or strike it down on occasion. The Constitution is being interpreted differently by each wing. If the court rules that a statute is unconstitutional, then it is. But, when you state that Parliament will determine which orders are implementable, are you implying that they would determine which laws are valid? To be honest, I don't believe so", he stated.

Similar concerns were expressed by Justice L Nageswara Rao, who stated that the Central government losing a case could not be the subject of law. "How did you manage to demolish the foundation of our order? If the Union of India loses a case, it will be subject to law. Then, and only then, will this become the norm", Justice Rao remarked.

The Madras Bar Association argued before the Supreme Court that the challenged provisions are in "contravention of the principles of separation of powers and independence of the judiciary (both of which are part of our Constitution's basic structure), and are against efficient and effective administration of justice. "Senior Advocate Datar noted that his relationship with the petitioner, the Madras Bar Association, began the campaign (to protect tribunal independence) in 1986 and that he is "still battling for the association" after 36 years. "A widow of a military officer is unconcerned about the US Supreme Court's Marbury principle; all she wants is justice from the tribunal in 12 to 18 months. Why are we having this argument?" Datar stated.

Datar, who represents the petitioner, argued that Section 184 of the Finance Act, 2017 is in conflict with the Supreme Court's previous decisions in Union of India v R. Gandhi [(2010) 11 SCC 1], Madras Bar Association v Union of India, [(2014) 10 SCC 1], Rojer Mathew v South Indian Bank Ltd, [(2020) 6 SCC 1], and Madras Bar Association v Union of India (2020).Following the Supreme Court's verdict in the Madras Bar Association case in 2020, the ordinance was promulgated in April 2021, amending nine key statutes and dissolving four tribunals. In the Finance Act of 2017, Section 12 of the ordinance replaced Section 184, Section 13 of the ordinance added Section 186(2), and the Eighth Schedule was revised to remove the aforementioned four tribunals and replace them with the National Consumer Disputes Redressal Commission.

Landmark case of Marbury v. Madison

On February 24, 1803, the United States Supreme Court for the first time deemed an act of Congress invalid, creating the theory of judicial review. The court's decision, issued by Chief Justice John Marshall, is regarded as one of the most important pieces of constitutional law in the United States.

The case of Delhi Demolition Act, 2013

A weakly drafted legislation of the Parliament it was contained that any judgement or decree of a court that alters the status quo of a property as on January 1, 2006, would be inoperative for a period of one year. However, it is a settled principle of law that in view of the separation of powers envisaged in the Constitution, a judgement of a court cannot be made inoperative by a legislature or even overruled simply by a one-sentence declaration.

Conclusion

The Madras Bar Association has petitioned the Supreme Court to have the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 amended (Ordinance). The petition argued that the ordinance was unconstitutional and did not follow Supreme Court rulings. The Centre, on the other hand, claimed that the Parliament has the power to reverse as many of the apex court's directions as it sees fit. The reference to Marbury v. Madison came from the seated bench.