Tribunals Reforms | Day 5: “Can’t subject judicial functions to executive control,” argues Datar

Datar: 50-year age requirement only for NCLT; not other tribunals 

Datar opened his argument with the suggestion that the point about Parliament overriding a view of the Court has not been adequately answered by the Attorney General.  He submitted that except for the addition of two words, the rest of the Tribunals Act is identical to the ordinance that was struck down by the Supreme Court in 2021. “Any departure from history,” he argued, “must be justified with reasons.” 

Datar then addressed the Act’s minimum age requirement—50 years—to be appointed to a tribunal. He pointed out that while the AG’s defence was centred on experience and maturity, the government had earlier rested its justification on the principle of equivalence. He recalled Justice R.V. Raveendran’s finding that members of the National Company Law Tribunal (NCLT) have to be of equal stature as High Court judges since the NCLT “takes over the functions of High Court.” 

Accordingly, Datar said, the Court had said that only applicants equivalent to the rank of Additional Secretaries be considered for appointment as technical members, thus leading to the 50-year requirement. Datar argued that this criteria was only for the NCLT and not for all tribunals, pointing out that civil servants and tribunal members are “not governed by the same rules.” 

He reiterated that there is no empirical evidence to necessitate a 50-year age qualification. In the July 2021 verdict striking down  the Ordinance, Justice S.R. Bhat had found the age requirement to be entirely missing from parent enactments—he said the stipulation was likely to have a “devastating effect of entirely excluding successful young advocates.” 

Datar: Executive has last word in Selection Committee

Responding to the AG’s earlier interrogation of the Court’s power of mandamus over Parliament, Datar emphasised that tribunals perform judicial and quasi-judicial functions. He submitted that it is not permissible to “take over judicial functions and then subject it to executive control.”

Datar submitted that the composition of the Search Cum Selection Committee (SCSC) is such that it may not matter that the casting vote lies with the judicial member (the Chief Justice of India or an SC judge nominated by him). “A Supreme Court judge can be in the minority on the committee,” he said, referring to the fact that the SCSC has two secretaries of the Central Government as members. (The SCSC also consists of the secretary of the ministry under which the Tribunal is constituted, though this member does not have voting rights.) 

Drawing from Justice Bhagwati’s position in S.P. Sampath Kumar (1986), Datar reiterated that even a five-year term is not long enough for tribunal members. Automatic extension of an additional five years must be granted, he said. He highlighted that tribunals primarily deal with questions of facts, requiring members to learn on the job—if the four-year rule is followed, members will be exiting just as they’ve gained expertise. 

Bench hears urgent IAs 

During his brief appearance, the AG submitted that “all IAs are necessary consequences of a transition from one regime to another” and urged that the law not be considered on an anecdotal basis. However, he assured the Court that he would address the more urgent IAs and the Bench heard their submissions in the second half. 

Senior Advocates Sidharth Luthra and Gopal Sankaranarayan and Advocate Sachit Jolly appeared for the intervenors contesting the 2018 selection processes for the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) and Income Tax Appellate Tribunal (ITAT). They submitted that members of CESTAT appointed prior to 2020 should be governed by the old rules, which provided for a term of five years or until the age of 62. Their appointment letters, however, specified tenure as per the new rules, which provide for a four-year tenure. 

Jolly contended that the Union sought to benefit from the old rules but “we are not allowed to.” On the matter of reappointment upon expiry of tenure, he pointed out that it is a lengthy process and that the 2018 process was completed only in 2023 and the 2022 process only in 2024.

Sankaranarayan referred to the ITAT selections wherein merit list candidates were overlooked in favour of “cherry picked” candidates from the wait list. While some candidates were dropped after being flagged in  Intelligence Bureau reports, some names had been turned down “without any reason.” The government is exercising discretion on recommendations made by the SCSC, he said. 

Senior Advocate Porus Kaka appeared on behalf of the Mumbai Bar Association. He urged the Court to follow the route taken in Madras Bar Association-3 (2020), Madras Bar Association-4 (2021) and Rojer Mathews, and ensure that all tribunal members appointed during pendency of the present suit be governed by the parent acts rather than the impugned legislation. CJI Gavai seemed to accept the proposition, and declared that “all appointments made prior to 2020 shall be protected.” Kaka then clarified that Rojer Mathews did not uphold the five-year tenure but merely held that three years was too short. 

CJI Gavai told the Union representatives to find out reasons for discrepancies in appointments by the next hearing, which is scheduled to take place on Monday 10 November.