Date of judgment
July 14, 2021
Judges
L. Nageswara Rao, J.
Hemant Gupta, J.
S. Ravindra Bhat, J.
Parties
Petitioner- MADRAS BAR ASSOCIATION
Respondent- UNION OF INDIA & ANOTHER
Subject
Validity of Sections 12 and 13 of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 and Sections 184 and 186 (2) of the Finance Act, 2017 as amended by the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021.
Overview
- The Madras Bar Association filed a writ petition before the Supreme Court challenging Sections 12 and 13 of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 and Sections 184 and 186 (2) of the Finance Act, 2017 as amended by the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021.
- It stated that the said legislations are against the principles of separation of powers and independence of judiciary and principles laid down in Madras Bar Association, Madras Bar Association v. Union of India & Anr. , Rojer Mathew v. South Indian Bank Limited & Ors. and Madras Bar Association v. Union of India & Anr.
- Looking at the history and establishment of tribunals in the country, the Apex Court has upheld the validity of tribunals in N L. Chandra Kumar v. Union of India & Ors.
- The Finance Act, 2017 was bought into force in March 2017, and its Sections 183 to 189 dealt with conditions of service of Chairperson and Members of Tribunals, Appellate Tribunals, and other authorities.
- The Central Government in 2017 also implemented Tribunal, Appellate Tribunal, and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017, and both were challenged in Rojer Mathew case and later struck down.
- In 2020, the Central Government through a notification implemented Tribunal, Appellate Tribunal, and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 which were challenged in Madras Bar Association v. Union of India & Anr. through a writ petition which was disposed of by the Court after giving directions.
- The Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 was implemented to amend the Finance Act, 2017.
- The present writ petition filed by the Madras Bar Association challenges proviso to Section 184(1), Section 184(7), and 184(11) that deal with age limit, the selection committee of Tribunals, and terms and retirement age of the members respectively.
- Mr. Arvind P. Datar, Amicus Curiae for the Court contradicted the ordinance on the grounds that it is against the principles of separation of powers, independence of the judiciary, directions of the Apex Court in several cases, and overrules the judiciary.
Legal Provisions
- Sections 12 and 13 of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021
- Sections 184 and 186 (2) of the Finance Act, 2017
- Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021
- Article 141 of the Constitution
Judgment Analysis
- The Court looked into the principle of separation of powers as mentioned by its founder Montesquieu and its concept in the American Constitution and observed that it forms the Indian constitutional structure and is an essential constituent of rule of law and is the feature of Article 14.
- The concept of independence of the judiciary as observed by the Court is vested in Articles 50 and 37 of the Constitution.
- The Amicus Curiae and other senior counsels submitted before the Court that the legislature’s ordinance rules overruled the Court’s judicial decisions and the same was looked into by the Court.
- The Court compared the overruling of judicial decisions by the legislature in the US and the Court’s decisions in several cases such as Marbury v. Madison, United States v. Peters, Miranda v. Arizona and concluded that the Legislature can override the judicial decisions when they are inconsistent with the law of the land.
- The Court shifted the focus of legislative override in the country and focused on the concept of judicial review in the country.
- The controversy of legislative overruling was under consideration for the directions laid down in Madras Bar Association v. Union of India & Anr. of 2020 and the Court observed that the law made by Parliament or a State legislature is not declared bad and legislative enactment can be struck down only on two grounds: that the Legislature is incompetent to make laws or the law infringes the Fundamental Rights.
- To understand the scope of permissible legislative overruling, the Court held that it should be done in accordance with the judgments of the Apex Court and other judgments.
- The Court heard the arguments of the Amicus Curiae and the Attorney General regarding the proviso 1 to the Section 184(1) of the ordinance that makes the age of appointment to be 50 for the advocates to be appointed in the tribunal and looked into the directions of the Court in previous cases of Madras Bar Association v. Union of India and came to the conclusion that the proviso is violative of the doctrine of separation of powers and Article 14 of the Constitution.
- In regards to the contention about the House Rent allowance that is payable to the members of the Tribunal, the Court came to conclusion that it is in conformity with the directions of this Court on the subject of HRA in Madras Bar Association v. Union of India & Anr. Of 2020 and needed no further directions.
- Rule 4(2) of the 2020 Rules pertains to the procedure to be followed by the SCSC and it is contended that it is against the directions of the Supreme Court in Madras Bar Association v. Union of India & Anr. of 2020 and the AG asserted that this Court cannot direct the Legislature to make law.
- The Court decided that the directions of the Court laid down under Article 141 and Section 184(7) is unsustainable in law as it attempts to override the law laid down by this Court.
- Sub-Section (11) of Section 184 that makes the tenure 4 years and has retrospective effect was held to be against Article 141 and Madras Bar Association v. Union of India & Anr. Of 2020 and therefore clauses (i) and (ii) of Section 184(11) are declared as void and unconstitutional.
Conclusion
In conclusion to the judgment given by the Court, the Court allowed the writ petition and the first proviso and the second proviso, read with the third proviso, to Section 184 that fixed 50 years as the minimum age for appointment override the Madras Bar Association v. Union of India & Anr. Of 2020 and Section 184(7) relating to recommendation of two names for each post by the SCSC were declared unconstitutional.
Section 184(11) prescribing tenure of four years was held to be contrary to the principles of separation of powers, independence of the judiciary, rule of law, and Article 14 of the Constitution of India.
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