Tribunals Reforms | Day 7: “Give the new law time to operate,” says AG Venkataramani
Tribunals Reforms Act, 2021Judges: B.R. Gavai J, K.V. Chandran J
On 11 November, a Bench of Chief Justice B.R. Gavai and Justice K.V. Chandran reserved judgement on the constitutional validity of the Tribunals Reforms Act, 2021.
On 10 November, the Bench had asked Attorney General R. Venkataramani to explain why the reforms were necessary when several tribunals had been functioning “worked so well for so many years.” On the final day of hearing, the AG challenged that assumption on the ground that previous enactments allowed a greater degree of executive influence.
While winding up his arguments, he urged the Court to treat the decision in Madras Bar Association-3 (2020) and Madras Bar Association-4 (2021) as opinions rather than binding directives.
Senior Advocates Arvind Datar and Porus Kaka appeared for the petitioners and intervenors respectively.
AG: “MBA-3 is only a chapter in the story”
Pulling up examples of earlier enactments and rules governing specific tribunals, Venkataramani suggested that they didn’t mandate any judicial presence. From the Income Tax Appellate Tribunal (ITAT) Rules, 1963 to the National Green Tribunal Rules, 2012 and the Customs, Excise and Gold (Control) Appellate Tribunal Rules, 1987, the composition of selection committees were predominantly executive in character, in his view. “We have moved away from this scheme to minimal executive presence,” he said, adding that the system has “undergone a change for the good.”
Venkataramani suggested that the Court must not limit itself to past verdicts when testing the Act. He argued that if the Parliament has identified a reasonable view, it must be allowed to proceed.
AG: “Striking down Tribunals Act will violate separation of powers”
Venkataramani then laid down propositions for the consideration of the Court. First, he said that the notion that the basic structure doctrine is a ground for striking down a law is “fundamentally misconceived.” He stated that the basic structure doctrine is merely a test, whereas the need for judicial review arises only when a fundamental right has been violated. He argued that if the legislature is competent to enact a law and Article 14 is not violated, the Court cannot strike the Act down since it will violate the doctrine of separation of powers.
Next , Venkataramani submitted that a legislation cannot be struck down on the grounds of being unreasonable unless there was a direct violation of Article 14. “An indirect effect is not a ground for striking down,” he said, citing Ashwini Kumar v Union of India (2020).
On the issue of accountability and judicial independence, the AG reiterated that experience is gained when the law is given time to operate. He noted that the Court had previously struck down three-, four- and five-year terms, and questioned whether the Court’s suggestion for a tenure until retirement was “the only way of looking at it.”
On 10 November, Justice Chandran had asked the AG to clarify whether the reappointment process would entail fresh selection. In response, Venkataramani suggested that members whose term is running out be specifically “invited” to apply for vacancies. This would allow for the Search-cum-Selection Committee (SCSC) to give preference to those who have served “remarkably well.” Highlighting that the 2021 Reforms were introduced to “remedy the situation”, he then argued that “expectations of performance” are a reasonable restriction on tribunal members.
Datar: “Treating unequals equally offends Article 14”
Questioning the AG on whether all tribunals can be treated the same, Datar reiterated that uniformity attained at the cost of meritorious candidates is a violation of their fundamental rights. “They (referring to the Union) make the law, they have the data,” he said and submitted that the burden of identifying empirical evidence to necessitate the reforms falls upon those making the “paradigm shift.”
Intervenors then argued that while members of the CESTAT appointed in 2018-19 had been assured of a tenure until the age of 62 at the previous hearing, ITAT members facing the same difficulty were “left out.” The Bench assured them that their case would be considered and proceeded to reserve judgement.