Tribunal tribulations

Earlier this week, a Bench of Chief Justice B.R. Gavai and Justice K.V. Chandran finished hearing a long-pending matter that, once again, pits the executive against the judiciary. In legal terms, this tug-of-war is about the constitutionality of the Tribunal Reforms Act, 2021. In practical terms, it’s about executive influence in appointments to India’s various tribunals. 

The Madras Bar Association (MBA), no stranger to tribunal-related litigation, has attacked some of the salient features of the Act, including the four-year tenure for members, the option to reappoint, and the eligibility age of 50. On the four-year tenure, the MBA contended that it simply doesn’t afford enough time for a member to sink their teeth into the work. On reappointment, the argument was that the possibility of tenure extension is likely to pressure members into delivering government-friendly orders. 

On the age requirement, the petitioner saw no reason why younger lawyers, who would be eligible for High Court appointment, could not be tribunal members. And, finally, there is a factor one would imagine is most prickly for the Bench—Parliament had enacted the 2021 legislation just a month after the Supreme Court struck down an Ordinance that matched the Act, nearly word-for-word.

To support these arguments, the MBA relied on two precedents in which they were litigants: they claimed that Madras Bar Association v Union of India (2014 and 2020) had done away with short tenures while also clarifying that the executive cannot control appointments.

Soon after the MBA filed the present case in September 2021, a Bench led by former CJIs N.V. Ramana and D.Y. Chandrachud, and Justice L.N. Rao heard the matter. The Delhi Bar Association, the Madhya Pradesh Bar Council and other advocate collectives brought up how seats in various tribunals (NCLT, ITAT, TDSAT, NCRDC, DRT) were going vacant and causing delays in resolution. They also pointed out other logistical issues—a thinning of administrative staff; wasteful travel due to case transfers; unpredictability of hearing schedules. All this militated against the very reason tribunals were set up—to ease the burden on courts.

In between these early hearings in late 2021 and the ones that took place before the CJI Gavai-led Bench over the last couple of weeks, there were several adjournments sought by the Union. The Bench has reserved judgement in the case but not before asking the Union some pointed questions in the course of the hearings. 

The Chief rhetorically asked that if a 40-year-old is too green for a tribunal, would they also be considered immature if they joined the High Court at that age? The Bench also orally observed that the reappointment process hands the executive the discretion to confirm or reject tribunal members who have already demonstrated their suitability.

R. Venkataramani, the Attorney General, defended this power by noting that a “record of performance” would be the only factor taken into account while assessing a reappointment. When he suggested that the new law needed more time to prove itself, the Bench appeared unconvinced. “Your best argument is to let it work for 10 years,” CJI Gavai said, with a laugh. 

To further the argument of the executive having the upperhand over the judiciary in appointments, the MBA’s counsel brought up the composition of the Search Cum Selection Committee (SCSC). Indeed, the casting vote lies with the judicial member (the Chief Justice of India or a colleague nominated by him) but there could be few opportunities for its exercise on a committee that includes two secretaries of the Union government.

For more, do read my colleague Shalom Gauri’s daily reports, which break down hours of hearings into readable summaries. Rest assured, we will cover the verdict too, which is expected to be out any time now, given that CJI Gavai retires on 23 November. The judgement could settle more than just the fate of the 2021 Act. It will show whether the Supreme Court has the appetite to defend its turf, or whether the executive’s persistence and Parliament’s workarounds have blunted its resolve.