Supreme Court Deems Parts of Companies Act Unconstitutional, Suggests Amendments for Tribunal Independence

Union of India Versus R. Gandhi President Madras Bar Association

Union of India Versus R. Gandhi President Madras Bar Association - [2010] 100 SCL 142 (SC), 2010 (261) E.L.T. 3 (SC), 2010 (6) SCR 857, 2010 (11) SCC 1, ... Issues Involved:

1. Legislative competence to vest judicial functions in Tribunals.
2. Doctrine of separation of powers and independence of the judiciary.
3. Legislative competence under Article 323B.
4. Constitutionality of various provisions of Chapters 1B and 1C of the Companies Act, 1956.
5. Validity of the establishment of NCLT and NCLAT.

Issue-wise Detailed Analysis:

1. Legislative Competence to Vest Judicial Functions in Tribunals:

The Madras Bar Association (MBA) contended that Parliament does not have the legislative competence to vest intrinsic judicial functions traditionally performed by the High Courts in any Tribunal outside the Judiciary. The Supreme Court held that the Parliament has the legislative competence to make a law providing for the constitution of Tribunals to deal with disputes and matters arising out of the Companies Act. The legislative competence of Parliament to provide for the creation of courts and Tribunals can be traced to Entries 77, 78, 79, and Entries 43, 44 read with Entry 95 of List I, Item 11A read with Entry 46 of List III of the Seventh Schedule.

2. Doctrine of Separation of Powers and Independence of the Judiciary:

MBA argued that the constitution of the National Company Law Tribunal (NCLT) and transferring the entire company jurisdiction of the High Court to the Tribunal, which is not under the control of the Judiciary, violates the doctrine of separation of powers and independence of the Judiciary. The Supreme Court emphasized that Tribunals should possess the independence, security, and capacity associated with courts. If Tribunals are to be vested with judicial power hitherto exercised by courts, such Tribunals should have as members, persons of a rank, capacity, and status as nearly as possible equal to the rank, status, and capacity of the court which was till then dealing with such matters.

3. Legislative Competence under Article 323B:

MBA contended that Article 323B of the Constitution does not provide for the constitution of Tribunals for insolvency, revival, and restructuring of companies, and hence there is no legislative competence to provide for the constitution of NCLT and NCLAT. The Supreme Court held that Articles 323A and 323B are enabling provisions that allow the setting up of Tribunals and do not prohibit the Legislature from establishing Tribunals not covered by those Articles, as long as there is legislative competence under the appropriate Entry in the Seventh Schedule.

4. Constitutionality of Various Provisions of Chapters 1B and 1C of the Companies Act, 1956:

The Supreme Court identified several defects in the provisions of Chapters 1B and 1C of the Companies Act, 1956, and declared them unconstitutional. The Court emphasized that only Judges and Advocates can be considered for appointment as Judicial Members of the Tribunal. Persons who have held a Group A or equivalent post under the Central or State Government with experience in the Indian Company Law Service (Legal Branch) and Indian Legal Service (Grade-1) cannot be considered for appointment as Judicial Members. The Court also held that only officers holding the ranks of Secretaries or Additional Secretaries can be considered for appointment as Technical Members of the National Company Law Tribunal.

5. Validity of the Establishment of NCLT and NCLAT:

The Supreme Court upheld the decision of the High Court that the creation of NCLT and NCLAT and vesting in them the powers and jurisdiction exercised by the High Court in regard to company law matters are not unconstitutional. However, it declared that Parts 1B and 1C of the Companies Act, 1956, as presently structured, are unconstitutional. The Court suggested several amendments to make Parts 1B and 1C operational, including changes in the qualifications for appointment as Judicial and Technical Members, the term of office, and the composition of the Selection Committee.

Conclusion:

The Supreme Court disposed of the appeals, partly allowing them, and upheld the creation of NCLT and NCLAT while declaring certain provisions of Parts 1B and 1C of the Companies Act, 1956, unconstitutional. The Court suggested amendments to make the provisions operational and ensure the independence and competence of the Tribunals.