Tribunal Reforms | Day 3 & 4: Petitioners argued that the selection process under the Act lacks transparency
Tribunals Reforms Act, 2021Judges: B.R. Gavai J, K.V. Chandran J
On 16 October and 3 November, a Bench of Chief Justice B.R. Gavai and Justice K.V. Chandran began hearing final arguments on the constitutional validity of the Tribunals Reforms Act, 2021. The Act has been challenged by the Madras Bar Association for reproducing several provisions from the Tribunal Reforms Ordinance that were struck down by a three-judge Bench in July, 2021.
Senior Advocate Arvind Datar appeared for the Madras Bar Association. The Bench also heard arguments from members of the Bombay Income Tax Appellate Tribunal (ITAT) Association, and the Customs, Excise & Service Tax Appellate Tribunal (CESTAT).
The Bench refused to consider the Union’s pitch to refer the matter to a larger bench. CJI Gavai took strong objection stating that the Union proposed a larger bench after majority of arguments had been concluded by the petitioner. He described it as an attempt to avoid the present Bench. Attorney General R. Venkataramni profusely apologised, urged the Bench that there was a misunderstanding and began his submissions.
Datar: “There is not even a change of a semicolon”
On 16 October, Datar flagged that the Union government had reproduced provisions in the Act which were previously struck down in the Ordinance. He argued that Parliament cannot proceed in such a manner and stated: “Amend the Constitution and say that whatever the Parliament says on tribunals is final and beyond judicial review”. He pointed to three provisions governing the appointment and conditions of service of tribunal members;
- The fixed tenure of four years for members and chairpersons,
- the minimum age requirement of 50 years for appointment, and
- the mandate of two recommendations per post from Search-Cum Selection Committee (SCSC)
Datar submitted that short tenures discourage legal professionals from taking up tribunal positions. He referred to Sampath Kumar v Union of India (1996) which suggested a minimum five year tenure. “What is happening is this, a person joins NCLT and retires in four years, he can never again practice consumer law,” he said. Noting the amount of taxpayer money spent on salaries and training, he asked “Why can’t this expertise be reused?”
Datar highlighted that there is no transparency in the selection process for the tribunals. For instance, he pointed out that the SCSC has to recommend 10 names for five vacancies. However, there is a fresh selection process if a candidate is refused. He pointed out that a merit list in the ITAT was omitted and a wait list was favoured. Similarly, there was a fresh selection process for the Central Administrative Tribunal despite a pending merit list.
Venkataramani: “there is no mandamus, there is only opinion”
On the backfoot after his initial confrontation with the Bench, Venkataramani responded to allegations on the selection process by pointing out that several candidates apply for posts in more than one tribunal. Confronted by the Bench with instances cited in Datar’s submissions, he then stated that his arguments are on matters of principle. “Instead of getting into the nitty gritties” he urged that mistakes can be “ironed out over time” and sought for the law to gain experience before being tested on “small issues”.
CJI Gavai retorted that the Act had four years to work. Venkataramani responded that interim orders and hiccups in the selection process had consumed a lot of time. CJI Gavai then asked: “When a High Court judge can be appointed at 40, what is the logic of a 50 years age requirement?”. He added that if it was a question of maturity then his own appointment to the High Court could be termed immature.
Venkataramani countered that neither the Court nor Parliament have settled on a single yardstick for maturity. Laying out the particular requirements of each tribunal, he reiterated that “We are working on a hypothetical understanding, these are experiments, they require some stabilisation because they can actually be considered wrong on every count”.
The AG then argued that mandamus cannot be strictly applied when there are no judicially enforceable rights, remedies or benefits of any individual or group of persons involved. Barring cases where the Court has found something “exceptional”, he questioned the judiciary’s ability to lay down criteria and submitted that Parliament “can take a different view”. Picking up on the language of the MBA 3 judgement, Venkataramani observed that the term “impermissible legislative override” seemed to imply that Parliament had “no wisdom” on the subject at hand. The impugned criteria have “not been picked out of a hat,” he said, pointing to the history and deliberations considered by the legislature.
Tenure, eligibility and selection procedure are not the only manner in which rule of law requirements for independence of institutions can be fulfilled, he concluded.
The Court will resume hearing arguments from the Union on 7 November. On 6 November, Venkataramani sought an adjournment, leading to CJI Gavai stating that the Union should directly seek a listing date of 24 November, considering that he retires a day before.