Court declares provision of Benami Property Act unconstitutional, mandates judicial experience for Judicial Members

The court found Section 32(2)(a) of the Prohibition of Benami Property Transactions Act, 1988 unconstitutional, following precedents emphasizing the need for judicial independence in the appointment of Judicial Members. The court directed the respondent to amend the provision to ensure only individuals with judicial experience are eligible for such appointments, in line with previous Supreme Court rulings. The writ petition was disposed of with a directive to amend the provision promptly, without any cost orders.

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Issues Involved:
1. Challenge to the constitutional validity of Section 9 of the Prohibition of Benami Property Transactions Act, 1988.
2. Challenge to the constitutional validity of Section 32(2)(a) of the Prohibition of Benami Property Transactions Act, 1988.

Issue-wise Detailed Analysis:

1. Challenge to the Constitutional Validity of Section 9 of the Act of 1988:
The petitioner initially challenged Section 9 of the Act of 1988. However, both the petitioner and the respondent acknowledged that this issue had become infructuous because Section 9 had been deleted from the Act. Therefore, the court did not need to address this issue further.

2. Challenge to the Constitutional Validity of Section 32(2)(a) of the Act of 1988:
The primary issue for consideration was the constitutional validity of Section 32(2)(a) of the Act of 1988. This section outlines the qualifications for appointment as a Judicial Member of the Appellate Tribunal, specifically stating that a Member of the Indian Legal Service who has held the post of Additional Secretary or an equivalent post is eligible for appointment.

The petitioner argued that this provision was unconstitutional based on the precedent set by the Supreme Court in the case of Union of India v. R. Gandhi, President, Madras Bar Association. The Supreme Court had held that the post of Judicial Member should be manned only by individuals who have served as judges or members of the Bar, not by members of the Indian Legal Service.

The petitioner also referred to similar cases where provisions allowing members of the Indian Legal Service to be appointed as Judicial Members were declared unconstitutional. These included:
- Shamnad Basheer v. Union of India and others: The Division Bench declared similar provisions in the Trademarks Act, 1999, and the Patents Act, 1970, unconstitutional.
- Revenue Bar Association v. Union of India: The Division Bench held provisions in the Central Goods and Services Tax Act, 2017, unconstitutional for allowing Indian Legal Service members to be appointed as Judicial Members.

The respondent contended that Section 32(2)(a) did not offend any constitutional provision and that the government was empowered to legislate on the subject matter. They argued that the mere reference to judgments of the High Court and the Supreme Court was insufficient to declare a provision unconstitutional.

Upon considering the rival submissions and perusing the records, the court examined the principle of the separation of powers, as discussed in the case of Indira Nehru Gandhi v. Raj Narain. The court emphasized the importance of maintaining judicial independence and ensuring that the judicial system remains free from executive influence.

The court referred to the Supreme Court's judgment in Union of India v. R. Gandhi, President, Madras Bar Association, which held that only judges and advocates could be considered for appointment as Judicial Members of tribunals. The Supreme Court had invalidated provisions allowing members of the Indian Legal Service to be appointed as Judicial Members, emphasizing the need for judicial independence.

The court also cited the Division Bench's judgment in Shamnad Basheer v. Union of India and others, which highlighted the necessity of appointing individuals with judicial experience to tribunals, as they discharge functions previously handled by courts.

Based on these precedents and the principle of judicial independence, the court held Section 32(2)(a) of the Act of 1988 to be unconstitutional. The court directed the respondent to amend the provision in line with the Supreme Court's directions in Union of India v. R. Gandhi, President, Madras Bar Association, ensuring that only individuals with judicial experience are eligible for appointment as Judicial Members.

The writ petition was disposed of with the direction to amend the provision immediately, and there was no order as to costs.

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