SC declares provisions of Tribunal Reforms Ordinance on tenures as void

The SC deemed fixed minimum age of 50 years, and four-year tenure of chairmen and members of various tribunals unconstitutional

The Supreme Court on Wednesday declared provisions in the Tribunals Reforms Ordinance 2021, that fixed minimum age of 50 years, and four-year tenure of chairmen and members of various tribunals, as unconstitutional.

The court held that the provisions were "contrary to the principles of separation of powers, independence of judiciary, rule of law and the Constitution".

Three separate judgements were delivered by a bench of Justices L Nageswarao Rao, Hemant Gupta and Ravindra Bhat on a plea by Madras Bar Association. The plea, among others, challenged the Sections 12 and 13 of the ordinance by which Sections 184 and 186(2) of the Finance Act, 2017 was amended.

The top court said the ordinance’s provisions will not apply to appointments made prior to its notification. The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, issued by the Ministry of Law and Justice, was notified on April 4.

The majority judgment by Justices Rao and Bhat held that this term violated the express direction given in an earlier judgment that the term of tribunal members should be five years. Accordingly, the bench set aside those provisions. However, Justice Gupta delivered a dissenting judgment and dismissed the petition.

Justice Bhat stressed that it is necessary that the Union government expedited the process of appointments to tribunals, towards ensuring swifter, and efficacious justice delivery.

"Existence of large number of vacancies of Members and Chairpersons and the inordinate delay caused in filling them up has resulted in the emasculation of the tribunals. The main reason for tribunalisation, which is to provide speedy justice, is not achieved as tribunals are wilting under the unbearable weight of the exploding docket," Justice Rao wrote.

Sections 184 and 186 of the Finance Act 2017 gave the Centre power to make ruled in connection with the mode of appointment, terms of service, allowances of members etc of various tribunals.

In his judgement, Justice Rao wrote this court had already declared that the Chairperson, Vice-Chairperson and the members of the tribunals shall hold office for a term of five years and shall be eligible for reappointment.

"The insertion of Section 184(11) prescribing a term of four years for the chairpersons and members of tribunals by giving retrospective effect to the provision from 26.05.2017 is clearly an attempt to override the declaration of law by this Court under Article 141 (in earlier judgement)," he said.

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