Exclusion Of Advocates For Consideration As Judicial Members In Tribunals Contrary To SC Judgments

MATTER IN ISSUE

• A batch of petitions were filed in the Supreme Court challenging the constitutionality of the Tribunal, Appellate Tribunal and other Authorities (qualifications, experience and other conditions of service of members) Rules, 2020 for contravening the principle of separation of powers.

• Attorney General KK Venugopal appeared on behalf of the State.

• The three judges Bench of Justices L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat were hearing the plea.

• It waschallenged, among other things, that the advocates are not being made eligible for appointments in most of the Tribunals.

• In respect of seven tribunals (such as Central Administrative Tribunal, Income Tax Appellate Tribunal, Customs Excise and Sales Tax Appellate Tribunal, etc.), the 2020 Rules impose a new condition whereby Advocates without 25 years of experience are ineligible.

OBSERVATIONS OF THE SUPREME COURT

• Exclusion of Advocates in 10 out of 19 tribunals, for consideration as judicial members is contrary to the judgments in Union of India v. Madras Bar Association (2010) and Madras Bar Association v. Union of India.

• As the qualification for an advocate of a High Court for appointment as a Judge of a High Court is only 10 years, the experience at the bar should be on the same lines for being considered for appointment as a judicial member of a Tribunal.

• There is no harm in members of the Indian Legal Service being considered as judicial members, provided they satisfy the criteria relating to the standing at the bar and specialization required.

• The appointment of competent lawyers and technical members is in furtherance of judicial independence.

DECISION OF THE COURT

• The court directed that the 2020 Rules shall be amended to make advocates with an experience of at least 10 years eligible for appointment as judicial members in the Tribunals.

• While considering advocates for appointment as judicial members in the Tribunals, the Search-cum-Selection Committee shall take into account the experience of the Advocate at the bar and their specialization in the relevant branches of law.

• They shall be entitled for reappointment for at least one term by giving preference to the service rendered by them for the Tribunals.

• The Union of India shall make appointments to Tribunals within three months from the date on which the Search-cum-Selection Committee completes the selection process and makes its recommendations.

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