Supreme Court strikes down provisions of the Tribunals Reforms Act 2021
Tribunals Reforms Act, 2021Judges: B.R. Gavai J, K.V. Chandran J
Today, a Division Bench of Chief Justice B.R. Gavai and Justice K.V. Chandran struck down provisions of the Tribunals Reforms Act, 2021 on the grounds that they were reproduced from the Tribunals Reforms Ordinance that was declared unconstitutional by the Court in July 2021. During the pronouncement, CJI Gavai observed that the impugned act directly contradicts binding judicial decisions in Madras Bar Association-4 (2020) and Madras Bar Association-5 (2021).
On 11 November, the Bench had reserved judgement after seven days of arguments. The matter centred on provisions regarding conditions of service of tribunal members, including eligibility criteria, process of selection and appointment, length of tenure and reappointment.
Appointments made prior to enactment
There were two significant interlocutory applications on the appointment of members to the Income Tax Appellate Tribunal (ITAT) and Customs, Excise & Service Tax Appellate Tribunal (CESTAT) respectively. These appointments were finalised prior to the 2020 Rules. However, their appointment letter stated that the 2020 Rules would apply, which restricted their tenure to four years. The Bench referred to interim directions issued in Kudhrat Sandhu v Union of India (2018) in which the then Attorney General K.K. Venugopal had assented to a tenure of five years as per the old Acts and Rules.
CJI Gavai held that these appointment letters were “totally inconsistent with the statement of the Attorney General” and reiterated that the protection extended to these appointments in Madras Bar-4 and Madras Bar-5 would remain the same. He noted the confusion around age of superannuation of ITAT members and clarified that all members appointed in 2018 shall continue till the age of 62 while all Presidents shall continue till 65. The same was extended to members of CESTAT.
The Bench further held that all tribunal members selected by the Search-cum-Selection Committee (SCSC) prior to the Tribunals Reforms Act, 2021 but officially appointed after, shall also be protected.
Pendency and ‘old wine in a new bottle’
Quoting Ambedkar, CJI Gavai then observed that the Constitution could be perverted “merely [by] changing the form of the administration… to make it inconsistent and opposed to the spirit of the Constitution.” He noted that these issues arising from the contested provisions are not new to constitutional adjudication and have “engaged the attention of the court for over three decades.” The Union, he remarked, has repeatedly chosen not to accept the directions of the Court.
Addressing the staggering pendency before the Court, CJI Gavai then pointed out that the responsibility of reducing the burden does not rest only on the judiciary but is shared. “Other branches must exercise their executive and legislative powers with due regard to constitutional principles and judicial precedent” he said, emphasising that time should be spent “in advance of justice rather than revisiting questions long resolved.”
National commission for tribunals
The Bench concluded their pronouncement by taking note of the repeated judicial insistence on the creation of a national commission for tribunals. It held that reforms cannot remedy the systematic deficiencies that have plagued tribunals across the country. A national commission would be an “essential structural safeguard designed to ensure independence, transparency and uniformity in the functioning of tribunals,” said CJI Gavai.