TaxTMI 
TaxTMI 
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2025 (11) TMI 1330
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....hishek Kumar Pandey, Adv., Mr. Chitvan Sinhal, Adv., Ms. Ameyavikrama Thanvi, Adv., Mr. Mukesh Kr. Singh, Adv., Mr. Raman Yadav, Adv., Mr. Kartikay Aggarwal, Adv., Mr. Abhishek Kr. Pandey, Adv., Mr. Keshav C Thakur, Adv., Mr. Jagdish Chandra, Adv., Mr. S.N. Terdal (AOR), Sr. Adv., Dr. N. Visakamurthy, AOR, Mr. Aman Mehta, Adv., Mrs. Aishwarya Bhati, A.S.G., Mr. Arkaj Kumar, Adv., Mr. Naman Tandon, Adv., Mr. Rajat Nair, Adv., Mr. Bhuvan Kapoor, Adv., Mr. Aditya Archiya, Adv., Dr. N. Visakamurthy, AOR, Mr. Raj Bahadur Yadav, AOR, Mr. Sidharth Luthra, Sr. Adv., Ms. Sakshi Kakkar, AOR, Mr. Shakti Singh, Adv., Mr. Khushagra, Adv., Ms. Anusha Rathore, Adv., Ms. Tanvi Dubey, Adv., Mr. Balbir Singh, Sr. Adv., Mr. Samarvir Singh, Adv., Mr. Naman Tandon, Adv., Mrs. Anshul, Adv., Ms. Neetu Singh, Adv., Mr. Shubham Yadav, Adv., Ms. Vanya Gupta, AOR, Mr. Archit Upadhayay, AOR, Ms. Aishwarya Bhati, ASG, Ms. Sonali Jain, Adv., Ms. Ritika Singhal, Adv., Ms. Garima Bajaj, AOR, Mr. Kartik Seth, Adv., Ms. Shilpa Saini, Adv., Mr. Raghav Sharma, Adv., Mr. Shubhankar Singh, Adv., Mr. Lakshmikant Srirvastava, Adv., Mr. K. M. Abish, Adv., M/s Chambers Of Kartik Seth, AOR, Mr. Sidharth Luthra, Sr. Adv., Ms....
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..... Radhika Gautam, AOR Mr. Gopal Sankaranarayanan, Sr. Adv. Mr. Naman Tandon, AOR Mr. Shourya Dasgupta, Adv. Mr. Shubham Jaiswal, Adv. Mr. Puneet Mittal, Sr. Adv. Ms. Amita Singh Kalkal, AOR. INDEX I. INTRODUCTION 2 II. THE CHALLENGE 5 III. SUBMISSIONS 11 IV. THE TRIBUNALS JURISPRUDENCE 16 (i) S.P. Sampath Kumar v. Union of India and Others 17 (ii) R.K. Jain v. Union of India 21 (iii) L. Chandra Kumar v. Union of India and Others 22 (iv) Union of India v. R. Gandhi, President, Madras Bar Association 25 (v) Madras Bar Association v. Union of India and Another 35 (vi) Madras Bar Association v. Union of India and Another 39 (vii) Rojer Mathew v. South Indian Bank Limited represented by its Chief Manager and Others 42 (viii) Madras Bar Association v. Union of India and Another 48 (ix) Madras Bar Association v. Union of India and Another 68 V. ATTORNEY GENERAL'S PLEA TO REFER THE ISSUE TO A LARGER BENCH 94 VI. ANALYSIS OF THE SUBMISSIONS 96 VII. THE VALIDITY OF THE IMPUGNED ACT 116 VIII. PROTECTION EXTENDED 129 IX. C....
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....macy of the Constitution. The underlying principles embodied in it guide not only the judiciary, but also the legislature and the executive. While the function of the judiciary is to interpret, protect, and expand these foundational principles, the legislature and the executive are entrusted with the duty to give effect to them through law and governance. In their distinct spheres of action, each organ of the State remains bound by a common constitutional obligation: respect for and adherence to the supremacy of the Constitution. It is this shared responsibility that ensures the unity of purpose within the framework of the separation of powers. 3. The present case must therefore be examined against this broader constitutional backdrop, where the mutual respect and defined boundaries among the three organs of the State are tested in matters that directly concern the balance between legislative policy and judicial independence. The validity of the Tribunals Reforms Act, 2021 ["Impugned Act".] has been challenged. However, this challenge cannot be viewed in isolation, as we shall highlight in subsequent discussion. It forms part of a continuing constitutional dialogue on the struct....
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....ommendation of the prescribed Committee and in the manner laid down by rules. Removal may be ordered if the individual (a) has been declared insolvent, (b) has been convicted of an offence involving moral turpitude, (c) has become physically or mentally incapable of performing the duties of the office, (d) has acquired financial or other interests that are likely to adversely affect the discharge of functions, or (e) has abused the position in a manner prejudicial to the public interest. However, when removal is proposed on the grounds of incapacity, conflict of interest, or abuse of position, covered under clauses (c) to (e), the concerned Chairperson or Member must be informed of the charges and given an opportunity to be heard. 7. Section 5 of the Impugned Act stipulates that, despite anything contained in earlier judgments or existing laws, the Chairperson of a Tribunal shall serve for a tenure of four years or until attaining the age of seventy years, whichever occurs earlier. Similarly, a Member of a Tribunal shall hold office for a period of four years or until reaching the age of sixty-seven years, whichever is earlier. The provision includes a transitional safeguard: if....
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....oards, Tribunals, or appellate mechanisms are omitted, and related procedural provisions are updated. Sections 183 and 184 of the Finance Act, 2017, along with the Eighth Schedule, are deleted. For bodies like the National Consumer Disputes Redressal Commission, the qualifications, appointments, tenure, salaries, and removal of members appointed after the Impugned Act are now governed entirely by the Impugned Act. 12. Section 33 of the Impugned Act provides that, despite anything contained in existing laws, all persons serving as Chairpersons, Presidents, Presiding Officers, Vice-Chairpersons, Vice-Presidents, or Members of the Tribunals, Appellate Tribunals, and other authorities listed in the Second Schedule shall cease to hold office from the notified date. They are entitled to compensation of up to three months' pay and allowances for the premature termination of their tenure or contractual service. Officers and employees serving on deputation in these bodies will automatically revert to their parent cadre, ministry, or department on the notified date. All pending appeals, applications, and proceedings, except those before the Authority for Advance Rulings under the Income-t....
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....ent allowances. (iv) The Impugned Act imposes arbitrary age and tenure restrictions that discourage meritorious candidates below fifty years from joining tribunals. Section 3(7) of the said Act limits judicial oversight by requiring the SCSC to forward two names per vacancy and directing the government to act "preferably within three months." The executive's control over allowances and house rent entitlement compromises judicial independence, while the continued failure to establish an independent National Tribunals Commission leaves tribunals under executive control, particularly within the Ministry of Finance. 16. The gist of the arguments advanced by the learned Attorney General for India appearing for the Respondents: (i) On behalf of the Union of India, the primary contention is that courts cannot compel the legislature to enact a particular law or structure a statutory framework in a specific manner. Law-making is a domain reserved for the legislature, and judicial review cannot be used to prescribe the contents of legislation or to mandate how qualifications, age limits, or tenures should be framed. (ii) The Union further argues that the power o....
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....Amendment Act, 1976. Under Article 323-A, Parliament is empowered to establish administrative tribunals for service-related matters, while Article 323-B enables the appropriate legislature to constitute tribunals for other enumerated subjects. (i) S.P. Sampath Kumar v. Union of India and Others 19. In pursuance of Article 323-A, Parliament enacted the Administrative Tribunals Act, 1985, providing for the establishment of administrative tribunals to adjudicate service disputes of public servants. The constitutional validity of this enactment came under challenge before a Constitution bench in S.P. Sampath Kumar v. Union of India and Others (1987) 1 SCC 124 where the Court was called upon to consider two principal issues: first, whether the exclusion of the jurisdiction of the High Courts under Articles 226 and 227 in service matters was constitutionally permissible, and second, whether the composition of the tribunals and the method of appointment of the Chairman, Vice-Chairman, and Members conformed to the requirements of the Constitution. 20. Writing for the Court, Justice Ranganath Misra (as his Lordship then was) held that "the Tribunal should be a real substitute of th....
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....s (1987) Supp SCC 734] the Court clarified that appointments to the Central Administrative Tribunal should be made through a High-Powered Selection Committee headed by a sitting Judge of the Supreme Court nominated by the Chief Justice of India. For State Administrative Tribunals, a similar committee should be chaired by a sitting Judge of the concerned High Court nominated by its Chief Justice. Rejecting the Attorney General's contention that advocates lacked administrative experience to serve as Vice-Chairpersons, the Court held that an advocate qualified to be a High Court Judge is inherently competent to discharge both judicial and administrative functions. 25. Insofar as the exclusion of the power of judicial review exercised by the High Court in service matters under Articles 226 and 227 of the Constitution by virtue of Section 28 of the Administrative Tribunals Act, 1985 is concerned, the Constitution Bench held that the exclusion of judicial review was not whole inasmuch as the jurisdiction of this Court under Articles 32 and 136 of the Constitution had been kept intact. Though it was held that the power of judicial review is a basic and essential feature of the Constitu....
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....ns (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned..." 28. The Court also examined the qualifications and competence of the individuals appointed to the tribunals, as well as the question of which authority should exercise administrative supervision over them. It was held: "95. ...It must be remembered that the setting-up of these Tribunals is founded on the premise that specialist bodies comprising both trained administrators and those with judicial experience would, by virtue of their specialised knowledge, be better equipped to dispense speedy and efficient justice. It was expected that a judicious mix of judicial members and those with grass-roots experience would best serve this purpose. To hold that the Tribunal should consist only of judicial members would attack the primary basis of the theory pursuant to which they have been constituted. Since the Selection Committee is now headed by a Judge of the Supreme Court, nominated by the Chief Justice of India, we have reason to believe that the Committee would take care to ensure that administrative members are chosen from amo....
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.... not under the control of the Judiciary, are violative of the doctrine of separation of powers and the independence of the Judiciary, which are part of the basic structure of the Constitution. The High Court found several provisions to be defective and violative of the constitutional principles of separation of powers and judicial independence. It held that, unless these defects were rectified, the constitution of the NCLT and NCLAT would be unconstitutional. The Union Government agreed to amend the law, including fixing a five-year tenure for the Chairperson, President, and Members, restricting the post of President to a serving or retired High Court Judge, and dropping the provision for Member (Administration). 32. In appeal in relation to other provisions, this Court emphasized the lack of independence of tribunals: "64. Only if continued judicial independence is assured, Tribunals can discharge judicial functions. In order to make such independence a reality, it is fundamental that the members of the Tribunal shall be independent persons, not civil servants. They should resemble courts and not bureaucratic Boards. Even the dependence of Tribunals on the sponsoring o....
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....is obviously no need to have any non-judicial Technical Member. In respect of such Tribunals, only members of the Judiciary should be the Presiding Officers/members. Typical examples of such special Tribunals are Rent Tribunals, Motor Accident Claims Tribunals and Special Courts under several Enactments. Therefore, when transferring the jurisdiction exercised by Courts to Tribunals, which does not involve any specialized knowledge or expertise in any field and expediting the disposal and relaxing the procedure is the only object, a provision for technical members in addition to or in substitution of judicial members would clearly be a case of dilution of and encroachment upon the independence of the Judiciary and Rule of Law and would be unconstitutional." 35. Thus, inclusion of technical members is justified only when specialized expertise is essential. 36. The Court held that while the Legislature may establish tribunals and set eligibility criteria for their members, such provisions are subject to judicial review to ensure that members are qualified to discharge judicial functions and uphold public confidence. It emphasized that independent and impartial adjudication of ci....
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....equires fairness, reasoned decision-making, and visible impartiality. 39. The Court held that Technical Members must be of at least Secretary or Additional Secretary rank with proven competence and integrity, otherwise lowering eligibility standards would erode public confidence in tribunals. It was further held that while civil service officers may appropriately serve as Technical Members in Administrative Tribunals due to their knowledge of government functioning, this does not qualify them for tribunals requiring specialized technical expertise, such as Company Law Tribunals. Tribunals should not become posts of convenience for civil servants lacking domain knowledge. The Court emphasized that only experts relevant to the tribunal's field, such as engineers in technical tribunals or military officers in armed forces tribunals, should serve as Technical Members. 40. The Court also noted that allowing tribunal members to retain their lien with their parent ministries undermines judicial independence, as such members would continue to think and act as civil servants. While not questioning the integrity of officers, the Court stressed that public perception of independence, im....
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....embers of Tribunal, are invalid. (iii) A 'Technical Member' presupposes an experience in the field to which the Tribunal relates. A member of Indian Company Law Service who has worked with Accounts Branch or officers in other departments who might have incidentally dealt with some aspect of Company Law cannot be considered as 'experts' qualified to be appointed as Technical Members. Therefore Clauses (a) and (b) of sub-section (3) are not valid. (iv) The first part of clause (f) of sub-section (3) providing that any person having special knowledge or professional experience of 20 years in science, technology, economics, banking, industry could be considered to be persons with expertise in company law, for being appointed as Technical Members in Company Law Tribunal, is invalid. (v) Persons having ability, integrity, standing and special knowledge and professional experience of not less than fifteen years in industrial finance, industrial management, industrial reconstruction, investment and accountancy, may however be considered as persons having expertise in rehabilitation/revival of companies and therefore, eligible for being considered ....
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.... exceed a period of one year. (xi) To maintain independence and security in service, sub-section (3) of section 10-FJ and Section 10-FV should provide that suspension of the President/Chairman or member of a Tribunal can be only with the concurrence of the Chief Justice of India. (xii) The administrative support for all Tribunals should be from the Ministry of Law & Justice. Neither the Tribunals nor its members shall seek or be provided with facilities from the respective sponsoring or parent Ministries or concerned Department. (xiii) Two-Member Benches of the Tribunal should always have a judicial member. Whenever any larger or special benches are constituted, the number of Technical Members shall not exceed the Judicial Members." (v) Madras Bar Association v. Union of India and Another 42. Subsequently, the constitutional validity of the National Tax Tribunal ["NTT".] Act, 2005, was challenged in Madras Bar Association v. Union of India and Another (2014) 10 SCC 1 (hereinafter referred to as MBA (II)). The NTT Act was declared unconstitutional for diluting the independence of the judiciary and tribunals. Writing the lead opinion, Chief Justice Kh....
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....ising independent judgment. Since the NTT replaced the jurisdiction of High Courts, all aspects of appointment and tenure had to remain free from executive interference. For these reasons, the Court declared Section 8 of the NTT Act unconstitutional. (vi) Madras Bar Association v. Union of India and Another 46. Another judgment to be referred here is Madras Bar Association v. Union of India and Another (2015) 8 SCC 583 (hereinafter MBA (III)). The validity of Companies Act 2013, which replaced the earlier Act of 1956, was challenged. It was contended that the provisions governing the structure, composition, and selection process of the NCLT and NCLAT under the Companies Act, 2013, mirror those earlier provisions whose vires were declared unconstitutional by the MBA (I) judgment in 2010. The creation of NCLT and NCLAT was upheld, but several provisions were declared to be invalid for deviating from the MBA (I) judgment. 47. The Court rejected the government's justification that the shortage of officers at the Additional Secretary level warranted allowing Joint Secretaries to serve as Technical Members, holding that such reasoning was legally untenable and contrary to the bi....
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....pellate Tribunal) and sixty-seven years for Vice-Chairpersons, Vice-Presidents, and other Members (such as those of the Industrial Tribunal or Debts Recovery Tribunal). Sub-section (2) further guarantees that the salary, allowances, or other service conditions of a member cannot be altered to their disadvantage after appointment. 51. The Eighth Schedule lists nineteen tribunals, identifying the statutes under which each was originally constituted. Section 183 overrides those parent enactments, mandating that, from the notified "appointed date," appointments to the listed tribunals must comply with Section 184 of the Finance Act. However, the provision safeguards incumbents already in office before the appointed date, ensuring that they continue under their existing terms and conditions until completion of tenure. Pursuant to Section 184, the Central Government framed the "Tribunal, Appellate Tribunal and Other Authorities (Qualifications, Experience and Other Conditions of Service of Members) Rules, 2017" ["2017 Rules"]. (vii) Rojer Mathew v. South Indian Bank Limited represented by its Chief Manager and Others 52. The constitutional validity of Part XIV and the 2017 Rules....
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....esident and President are predominantly made by nominees of the Central Government. A perusal of the Schedule to the Rules shows that save for token representation of the Chief Justice of India or his nominee in some Committees, the role of the judiciary is virtually absent. 149. ...The exclusion of the Judiciary from the control and influence of the Executive is not limited to traditional Courts alone, but also includes Tribunals since they are formed as an alternative to Courts and perform judicial functions." 55. The Court further held that since the Executive is often a party to litigation before tribunals, it cannot be permitted to play a dominant role in appointing their members. Drawing from the Fourth Judges Case, [Supreme Court Advocates-on-Record Association and Another v. Union of India (Recusal Matter) (2015) 5 SCC 808] the Court emphasized that executive control must be excluded from the appointment process of bodies performing judicial or quasi-judicial functions. It concluded that the composition of the Search-cum-Selection Committees under the 2017 Rules violated the constitutional scheme, as it diluted judicial involvement and amounted to executive encr....
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....eature of the Constitution." 58. Justice Chandrachud endorsed the suggestion of the amicus curiae to have an independent statutory body called the "National Tribunals Commission" to oversee the selection process of members, criteria for appointment, salaries and allowances, introduction of standard eligibility criteria, for removal of Chairpersons and Members, and meeting the requirement of infrastructural and financial resources. 59. Justice Deepak Gupta, in his opinion, held that the qualifications for appointment to tribunals must be specified in the parent legislation and cannot be delegated to the executive. While matters such as pay, allowances, and other service conditions may be delegated, the determination of qualifications is an essential legislative function. He further observed that even if one assumes qualifications could be delegated, the legislation should have contained clear guidelines governing them. It was paradoxical, he noted, that while the Act laid down some guidance on service conditions, it provided none regarding the essential qualifications for appointment. He held that Section 184 of the Finance Act, 2017 suffered from excessive delegation, as it p....
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....mes about the constancy of other branches of governance, in their insistence regarding these issues. At the heart of this, however, are stakes far greater: the guarantee of the rule of law to each citizen of the country, with the concomitant guarantee of equal protection of the law. This judgment is to be read as a sequel, and together with the decision of the Constitution Bench in Rojer Mathew v. South Indian Bank Limited (2020) 6 SCC 1." 63. The Court noted that the impugned 2020 Rules replicate the 2017 Rules in respect of the constitution of the Search-cum-Selection Committees, insofar as they do not ensure judicial dominance. The Court accepted the learned Attorney General's assurance that the Chief Justice of India or his nominee, as Chairperson of the Search-cum-Selection Committee, would be given a casting vote to ensure judicial dominance in tribunal appointments. It also approved the submission that, ordinarily, the Chairperson of a tribunal would be a retired Supreme Court Judge or Chief Justice of a High Court. The Court also accepted the learned Attorney General's submission that the 2020 Rules would be amended to provide that whenever the reappointment of a Tribuna....
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....-Selection Committee without a vote." 65. The Court directed the Government of India to constitute Search-cum-Selection Committees in line with earlier judgments. To summarize, the Chief Justice of India or his nominee shall act as Chairperson, joined by the Tribunal Chairperson (if a retired Supreme Court or High Court Chief Justice) and two Government Secretaries. Where the Tribunal is not headed by a judicial member, the Committee shall include a retired Supreme Court or High Court Chief Justice nominated by the CJI, along with Secretaries from the Law Ministry and another non-parent department. The Secretary of the parent department shall serve only as Member-Secretary or Convener, without voting rights. 66. The Court held that the recommendations of the Search-cum-Selection Committee must be final, and the executive should have no discretion in tribunal appointments. However, taking note of practicalities, it also held that the Search-cum-Selection Committee may recommend one additional candidate to be placed on a waiting list. It was held: "35. Rule 4 (2) of the Rules postulates that a panel of two or three persons shall be recommended by the Search-cum-Selecti....
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....s unjustified and contrary to earlier judgments emphasizing longer terms for tribunal independence. It directed the Government to amend the Rules, fixing the tenure of the Chairperson, President, or Chairman at five years or until the age of 70, and for Vice-Chairpersons and Members at five years or until the age of 67, whichever is earlier. It stated: "40. ...Rule 9(1) of the 2020 Rules provide for a term of four years or till a Chairman or Chairperson or President attains the age of 70 years whichever is earlier. No rationale except that four years is more than three years prescribed in the 2017 Rules (described as too short, in Roger Mathew (2020) 6 SCC 1) was put forward on behalf of the Union of India. In so far as the posts of Vice Chairman or Vice-Chairperson or Vice-President and members are concerned, Rule 9(2) fixes the tenure as four years or till they attain the age of 65 years whichever is earlier. In view of the law laid down in the earlier judgments, we direct the modification of the tenure in Rules 9(1) and 9(2) of the 2020 Rules as five years in respect of Chairman or Chairperson, Vice Chairman or Vice-Chairperson and the members. Rule 9(1) permits a Chair....
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....s of Tribunals and Rs.1,50,000/- for the Chairman or Chairperson or President and Vice Chairman or Vice Chairperson or Vice-President of Tribunals. In other words, an option should be given to the Chairperson and the members of the Tribunals to either apply for housing accommodation to be provided by the Government of India as per the existing rules or to accept the enhanced house rent allowance. This direction shall be effective from 01.01.2021." 71. It was further contended that the 2020 Rules deliberately excluded advocates from appointment as judicial members in most tribunals by imposing an arbitrary 25-year practice requirement, which was absent in earlier laws and rules. It was argued that such exclusion contradicts the Finance Act, 2017 and previous court rulings recognizing advocates (qualified to be High Court judges) as eligible judicial members. The amicus added that the 25-year threshold would discourage capable advocates from applying and lead to less competent selections, suggesting instead a 15-year practice requirement and inclusion of advocates even in single-member tribunals like Debt Recovery Tribunals. The learned Attorney General defended the rule as a poli....
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....d. Therefore, wherever legal expertise in the particular domain is implicated, it would be natural that advocates with experience in the same, or ancillary field would provide the "catchment" for consideration for membership. This is also the case with selection of technical members, who would have expertise in the scientific or technical, or wherever required, policy background. These tribunals are expected to be independent, vibrant and efficient in their functioning. Appointment of competent lawyers and technical members is in furtherance of judicial independence. Younger advocates who area round 45 years old bring in fresh perspectives. Many states induct lawyers just after 7 years of practice directly as District Judges. If the justice delivery system by tribunals is to be independent and vibrant, absorbing technological changes and rapid advances, it is essential that those practitioners with a certain vitality, energy and enthusiasm are inducted. 25 years of practice even with a five-year degree holder, would mean that the minimum age of induction would be 48 years: it may be more, given the time taken to process recommendations. Therefore, a tenure without assured re-engage....
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...., it directed the Government of India to complete appointments within three months of receiving the Search- cum-Selection Committee's recommendations. 76. The Court rejected the learned Attorney General's contention that the 2020 Rules should be deemed effective retrospectively from 26th May 2017, the date on which the 2017 Rules came into force. It held that, since the 2017 Rules had already been struck down in Rojer Mathew (supra), the 2020 Rules, notified on 12th February 2020, could operate only prospectively. The Court further clarified that subordinate legislation cannot have retrospective effect unless expressly authorized by the parent statute. 77. The Court held that appointments made before the enforcement of the 2020 Rules, including those during the pendency of Rojer Mathew (supra) and pursuant to its interim orders, shall be governed by the respective parent Acts and earlier Rules. However, appointments made after 12th February 2020, the date the 2020 Rules came into force, shall be governed by those Rules, subject to the modifications directed by the Court. 78. The Court also directed the Union of India to establish a National Tribunals Commission at the earl....
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....man or Chairperson or President of the Tribunal is seeking re-appointment- member; (c) Secretary to the Ministry of Law and Justice, Government of India- member; (d) Secretary to the Government of India from a department other than the parent or sponsoring department, nominated by the Cabinet Secretary- member; (e) Secretary to the sponsoring or parent Ministry or Department- Member Secretary/Convener (without a vote). Till amendments are carried out, the 2020 Rules shall be read in the manner indicated. 60.3 Rule 4(2) of the 2020 Rules shall be amended to provide that the Search-cum-Selection Committee shall recommend the name of one person for appointment to each post instead of a panel of two or three persons for appointment to each post. Another name may be recommended to be included in the waiting list. 60.4 The Chairpersons, Vice-Chairpersons and the members of the Tribunal shall hold office for a term of five years and shall be eligible for reappointment. Rule 9(2) of the 2020 Rules shall be amended to provide that the Vice-Chairman, Vice-Chairperson and Vice President and other members shall hold office till they attain ....
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....parent Acts and Rules. Any appointments that were made after the 2020 Rules came into force i.e. on or after 12.02.2020 shall be governed by the 2020 Rules subject to the modifications directed in the preceding paragraphs of this judgment. 60.12 Appointments made under the 2020 Rules till the date of this judgment, shall not be considered invalid, insofar as they conformed to the recommendations of the Search-cum-Selection Committees in terms of the 2020 Rules. Such appointments are upheld, and shall not be called into question on the ground that the Search-cum-Selection Committees which recommended the appointment of Chairman, Chairperson, President or other members were in terms of the 2020 Rules, as they stood before the modifications directed in this judgment. They are, in other words, saved. 60.13 In case the Search-cum-Selection Committees have made recommendations after conducting selections in accordance with the 2020 Rules, appointments shall be made within three months from today and shall not be subject matter of challenge on the ground that they are not in accord with this judgment. 60.14 The terms and conditions relating to salary, benefits, ....
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.... court judgment or order. Additionally, Section 184(11), deemed to have effect from 26th May 2017, limited the tenure of Chairpersons and Members to four years, with retirement ages of 70 years and 67 years, respectively. For those appointed between 26th May 2017 and 4th April 2021, if their appointment orders specify a higher tenure or retirement age, it shall prevail but be capped at five years. (ix) Madras Bar Association v. Union of India and Another 82. The validity of these provisions of the 2021 Ordinance and Sections 184 and 186 (2) of the Finance Act, 2017 as amended by the 2021 Ordinance was challenged in Madras Bar Association v. Union of India and Another (2022) 12 SCC 455 (hereinafter MBA (V)) on the ground of violating the principles of separation of powers and independence of judiciary, and being contrary to directions issued in a series of judgments issued by the Court from MBA (I) to MBA (IV). 83. In response, the learned Attorney General argued that Parliament is empowered to cure defects identified by the Court through fresh legislation and that its collective wisdom should not be overridden by judicial intervention. He maintained that determining the se....
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....f Finance on 30th June 2021, amending the 2020 Rules through the Tribunal (Amendment) Rules, 2021. This notification substituted the previous rule to enhance the house rent allowance ["HRA"] for tribunal members and chairpersons. The amendment, effective retrospectively from 1st January 2021, allowed Chairpersons, Presidents, and Vice- Chairpersons to receive an HRA of Rs. 1,50,000 per month, and Members and Presiding Officers Rs. 1,25,000 per month, or to opt for government accommodation. The Court held that this amendment was consistent with its earlier directions in MBA (IV) regarding the provision of suitable housing to ensure judicial independence, and therefore, no further directions were necessary on the issue of HRA. 87. Section 184(7) mandated that the Selection Committee recommend a panel of two names for each post, with the Central Government required to decide preferably within three months, notwithstanding any court judgment or order was on similar line to Rule 4(2) of the 2020 Rules. As mentioned before, the Court in MBA (IV) had directed to amend the 2020 Rules to provide that the Search-cum-Selection Committee shall recommend one person for appointment in each po....
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..... There is no such attempt made except to repeat the provision of Rule 4(2) of the 2020 Rules in the Ordinance amending the Finance Act, 2017. Ergo, Section 184(7) is unsustainable in law as it is an attempt to override the law laid down by this Court " 88. The Court held that mere repetition of the same contents of Rule 4(2) of the 2020 Rules by placing them in Section 184(7) is "an indirect method of intruding into judicial sphere which is proscribed". 89. The Court also struck down the second part of Section 184(7), which provided that the Government shall take a decision regarding the recommendations made by the Search- cum-Selection Committee, preferably within a period of three months. It was held: "61. ...The tribunals which are constituted as an alternative mechanism for speedy resolution of disputes have become non-functional due to the large number of posts which are kept unfilled for a long period of time. Tribunals have become ineffective vehicles of administration of justice, resulting in complete denial of access to justice to the litigant public. The conditions of service for appointment to the posts of Chairpersons and Members have been mired in contr....
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....of five years. In other words, the term of office of Chairperson and Members of tribunals who were appointed between 26.05.2017 and 04.04.2021 shall be five years even though the order of appointment issued by the Government has a higher term of office or age of retirement which may involve the term of office being more than 5 years in practice... ... 64.2 ...It is understood that while inserting sub- section (11) in Section 184 in the Finance Act, 2017 and giving it retrospective effect from 26.05.2017, the Ordinance has attempted to cure the defect as was pointed out by this Court in terms of retrospective application while considering the 2020 Rules. However, the implications are not relevant for clauses (i) and (ii) of Section 184(11) which are declared as void and unconstitutional for the reasons mentioned above." 92. In the process, interim directions given by this Court in Kudrat Sandhu v. Union of India and Another Writ Petition (C) No.279 of 2017 With Connected Matters are also nullified. It would be relevant to refer to the directions issued by this Court in Kudrat Sandhu (supra) on 9th February 2018. After taking the consent of the learned Attorney G....
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....vernment decision within three months), and Section 184(11) (fixing a four-year tenure) were unconstitutional as they violated the separation of powers, judicial independence, rule of law, and Article 14. He further emphasized that it is imperative for all authorities to take urgent steps to fill vacancies in tribunals without delay, stressing that access to justice and public confidence in the impartial functioning of tribunals must be restored and strengthened. 94. In his concurring opinion, Justice Ravindra Bhat dealt with the argument of the Union of India that when a legislation or legislative instrument (such as an ordinance in this case) is questioned, its validity can be scrutinized only by considering its impact on some express provision of the constitution, and not on any concept or notion such as separation of powers and judicial independence. He held: "79. The challenges to executive or legislative measures based on violation of the twin concepts of separation of powers and independence of the judiciary have to be seen in terms of their impacts, not at one point in time, but cumulatively, over a time continuum... ... 81. In all these decisi....
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....e subject matter of scrutiny under judicial review by courts. ... 89. This court, therefore, as the ultimate guardian of the Constitution, and the rule of law, which it is sworn to uphold, has been asserting its role in regard to matters of appointment, and other conditions of service of judges of district and other courts. Since tribunals function within the larger ecosystem of administration of justice, and essentially discharge judicial functions, this court is equally concerned with the qualifications, eligibility for appointment, procedure for selection and appointment, conditions of service, etc of their members. This court's concern, therefore, is unlike any other subject matter of judicial review. It cannot be gainsaid that if tenures of tribunals' members are short: say two years, or if their salaries are pegged at unrealistically low levels, or if their presiding members are given no administrative control or powers, the objective of efficient, fair, and impartial justice delivery would be defeated. It cannot then be argued that each of these are "policy" matters beyond the court's domain." 95. Justice Bhat distinguished judicial review concerning tri....
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....4 of the Constitution." 96. Justice Bhat observed that no parent enactment governing the establishment of various tribunals prescribed any age qualification (whether as a minimum age requirement or an upper age bar) as part of the eligibility criteria for appointments. He further noted that such an age condition was neither incorporated in the provisions of the Finance Act, 2017, nor introduced in the 2017 Rules, which were subsequently struck down in Rojer Mathew (supra). An indirect age restriction was, for the first time, introduced through the 2020 Rules framed under the Finance Act, 2017, by mandating that otherwise qualified advocates and chartered accountants must have a minimum of 25 years of practice. The Court in MBA (IV) found this requirement to be unsustainable and directed that it be appropriately amended. Subsequently, and seemingly in response, the impugned Ordinance amended the Finance Act, 2017 to introduce, for the first time, a direct minimum age requirement of 50 years. Justice Bhat struck down the minimum age requirement, holding: "92. The challenge to the first proviso to Section 184, which prescribes the age qualification, has to be seen from sev....
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....ssociation (IV) and Roger Mathew (2020) 6 SCC 1). Such being the case, it is astonishing that in the span of a year (i.e. after the decision in Roger Mathew (2020) 6 SCC 1) "new thinking" seems to have prevailed to frame rules excluding advocates who can otherwise, based on their expertise, be considered for appointment to even High Courts. 94. This Court would also observe that the consideration of such younger advocates in the age group of 40-45 years would have long term benefits since the domain knowledge and expertise in such areas (Telecom Regulation, Taxation -both Direct and Indirect, GATT Rules, International Taxation etc.) would be useful in adjudication in these tribunals and lead to a body of jurisprudence. Depending on how such counsel/advocates fare as members of the Tribunal, having regard to their special knowledge of these laws, at a later and appropriate stage, they may even be considered for appointment to High Courts. 95. The age criteria, impugned in this case also leads to wholly anomalous and absurd results. For instance, an advocate with 18 or 20 years' practise, aged 44 years, with expertise in the field of indirect taxation, telecom, or o....
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....ting the most meritorious candidates; nor is it shown to be based on any empirical study or data that such older candidates fare better, or that younger candidates with more relevant experience would not be as good, as members of tribunals. It is plain and simple, discrimination based on age. The criterion (of minimum 50 years of age) is virtually "picked out from a hat" (An expression used in an analogous context, while declaring a cut-off date to be arbitrary, in D.R. Nim v. Union of India AIR 1967 SC 1301) and wholly arbitrary." 97. Justice Bhat also held that the experience of civil servants, though broad and diverse, does not necessarily involve adjudicatory functions. In contrast, advocates, chartered accountants, and tax officers regularly engage in legal interpretation and adjudication. Hence, the "status" of tribunal members cannot be compared rigidly with that of civil servants, and the argument that service officers reach a certain rank only around the age of 50 cannot justify a minimum age requirement or determine equivalence. 98. Justice Bhat rejected the Union's contention that a minimum age of 50 years was necessary to maintain parity between members of the civ....
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....ordinary courts of civil judicature. Their procedures may differ, but the functions are not essentially different." In Union of India v. K.B. Khare, 1994 Supp (3) SCC 502 : 1995 SCC (L&S) 105, this Court repelled the contention that members of the Central Administrative Tribunals were government officials, subject to its rules : (SCC p. 508, para 17) "17. ... On the contrary, an independent judicial service, the appointment in CAT is on tenure basis. The pension relating to such post is clearly governed by Rule 8 of the Rules quoted above and at the risk of repetition, we may state it exhaustive in nature."]. They are not governed by Article 311 of the Constitution, nor are their conditions of service laid out in rules framed under the proviso to Article 309 of the Constitution. Such being the position, the argument of parity, in the opinion of the Court, is entirely devoid of merit. 108. Nor is the argument of the Attorney General that a uniform age is necessary, merited. There is no material to show that members recruited on the technical side, such as experts in engineering, scientific or other technical fields would be suitable only after they cross the age of....
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....ed since the year 1999 [ (last accessed on 21-6-2021).]. Of these, 10 members were below the age of 40 at the time of their appointment; 20 members were between the ages of 40-45, and 15 members were between the ages of 46-50 at the time of their respective appointments. Cumulatively, 44 members out of 66 were appointed below the age of 50. Only 17 members were 50 or above at the time of their appointment. Data is not provided in respect of 5 members. This data as indeed similar data from other tribunals, shows that past appointment to these positions was amongst younger, and competent persons. The Union has not shown why this past history requires departure, and why that longstanding basis for appointing younger professionals, now needs to be departed from, in public interest. Significantly, commissioners of appeals (of income tax) - in the respective service rules, typically are appointed after 18 or so years of service; if one adds 3 years, an incumbent Commissioner could be well below 50 years. She or he would be completely familiar with the adjudicatory process in tax laws. Exclusion of such otherwise qualified and suited personnel, too, is irrational......." 99. J....
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....rvenes only to uphold citizens' rights and ensure that adjudicatory bodies remain independent, competent, and fair. 103. Justice Hemant Gupta dissented from the majority. He emphasized that judicial directions under Articles 141 and 142 of the Constitution bind courts and authorities, but not the legislature, which has exclusive competence to enact laws. He stated that "the judiciary in exercise of power of judicial review can strike down any legislation which violates fundamental rights or if it is beyond the legislative competence, but the courts cannot direct the legislature to frame or enact a law and in a particular manner." He added that even "if it is contravening to any such direction, the legislature is within its jurisdiction to determine the minimum eligibility age for the purpose of appointment". 104. The jurisprudence on tribunals that has evolved through this long line of decisions forms the binding framework within which this Bench must operate. As a Bench of two Judges, we are constitutionally and judicially bound by the law declared in the decisions of larger Benches. The principles laid down by Constitution Benches and three-Judge Benches must be given full ....
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....re their submissions accordingly. Entertaining such a plea belatedly would risk undermining fairness in the conduct of the hearing. 108. Finally, we cannot lose sight of the fact that the controversy before us directly affects the tenure, service conditions and legitimate expectations of a large number of individuals presently serving, or aspiring to serve, in tribunals across the country. More importantly, the persistent vacancies and uncertainty in the tribunal system have a direct bearing on access to justice for citizens whose disputes lie within their jurisdiction. Deferring adjudication, by now embarking on a reference to a larger Bench, would only prolong this state of uncertainty, to the detriment of litigants and the administration of justice. 109. For all these reasons, we are of the considered view that no case has been made out for a reference under Article 145(3). The application seeking reference to a larger Bench is, accordingly, rejected. VI. ANALYSIS OF THE SUBMISSIONS 110. The first issue that arises for consideration is whether Parliament possesses the authority to disregard a judicial pronouncement and to enact a statute in any manner it deems approp....
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.... no department or branch of government above or beyond it. Every organ of government, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of its authority. No one howsoever highly placed and no authority howsoever lofty can claim that it shall be the sole judge of the extent of its power under the Constitution or whether its action is within the confines of such power laid down the Constitution......." 113. This was reiterated in Kalpana Mehta and Others v. Union of India and Others (2018) 7 SCC 1 It was held by Chief Justice Deepak Mishra that: "20. ...The Constitution is the fundamental document that provides for constitutionalism, constitutional governance and also sets out morality, norms and values which are inhered in various articles and sometimes are decipherable from the constitutional silence. Its inherent dynamism makes it organic and, therefore, the concept of 'constitutional sovereignty' is sacrosanct. It is extremely sacred and, as stated earlier, the authorities get their powers from the Constitution. It is the source. Sometimes, the constitutional sovereignty is describe....
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....g the very same measure in a different form. What Parliament may legitimately do is to cure the defect identified by the Court, whether by altering the underlying conditions, removing the constitutional infirmity, or restructuring the statutory framework in a manner consistent with the Court's reasoning. A valid legislative response must therefore engage with and remedy the constitutional violation pointed out by the judiciary. It cannot merely restate or repackage the invalidated provision. 117. Parliament, like every other institution under our constitutional scheme, must operate within the bounds of the Constitution. Its discretion is broad but not absolute. It must respect the principles of separation of powers, the guarantees of fundamental rights, and the structural values (such as judicial independence) that are part of the basic framework of our constitutional order. 118. Where a legislative measure attempts to nullify or circumvent a binding constitutional judgment without curing the underlying defect, it not only exceeds Parliament's authority but also violates the doctrine of constitutional supremacy itself. This has been aptly discussed in the decision in NHPC LTD....
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....onal court in exercise of its powers by way of judicial review. This defect can be removed both prospectively and retrospectively by a legislative process and previous actions can also be validated. However, where a legislature merely seeks to validate the acts carried out under a previous legislation which has been struck down or rendered inoperative by a Court, by a subsequent legislation without curing the defects in such legislation, the subsequent legislation would also be ultra-vires. Such instances would amount to an attempt to 'legislatively overrule' a Court's judgment by a legislative fiat, and would therefore be illegal and a colourable legislation. 13. .....The role of the judiciary in galvanising our constitutional machinery characterised by institutional checks and balances, lies in recognising that while due deference must be shown to the powers and actions of the other two branches of the government, the power of judicial review may be exercised to restrain unconstitutional and arbitrary exercise of power by the legislature and executive organs. The power of judicial review is a part of the basic feature of our Constitution which is premised on the rule of ....
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....ere is no legal impediment to enacting a law to validate a legislation which has been held by a court to be invalid, provided, such a law removes the basis of the judgment of the court, by curing the defects of the legislation as it stood before the amendment. (ii) The validating legislation may be retrospective. It must have the effect that the judgment pointing out the defect would not have been passed, if the altered position as sought to be brought in by the validating statute existed before the court at the time of rendering its judgment. (iii) Retrospective amendment should be reasonable and not arbitrary and must not be violative of any Constitutional limitations. (iv) Setting at naught a decision of a court without removing the defect pointed out in the said decision is opposed to the rule of law and the scheme of separation of powers under the Constitution of India. (v) Abrogation is not a device to circumvent an unfavourable judicial decision. If enacted solely with the intention to defy a judicial pronouncement, an Amendment and Validation Act of 1997 may be declared as ultra-vires." [Emphasis supplied] 119. In a judgment o....
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.... the Court cannot require Parliament to enact a law in a particular form, it unquestionably retains the authority, and indeed the constitutional obligation, to examine the validity of any law that Parliament enacts. Judicial review is a basic feature of the Constitution. If a legislative measure infringes fundamental rights, violates structural principles such as separation of powers or judicial independence, exceeds legislative competence, or frustrates binding constitutional directions, the Court may strike it down. The inability to compel Parliament to legislate in a specific manner does not translate into an obligation to blindly accept any law that Parliament enacts. 123. Thus, a clear distinction must be maintained between directing legislation and reviewing legislation. The former is forbidden, because the Court cannot function as a law-maker. The latter is indispensable to preserving the supremacy of the Constitution. Where the Court identifies constitutional infirmities and issues mandatory directions to ensure compliance with constitutional principles, such as those concerning the independence, composition, or tenure of adjudicatory bodies, those directions are binding....
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....aw that undermines these foundational values, such as by enabling executive control over appointments, curtailing tenure arbitrarily, or weakening institutional autonomy, does not merely offend an "abstract principle". It strikes at the core of the constitutional arrangement. 127. Furthermore, through the long line of decisions from Sampath Kumar (supra) to MBA (V), this Court has consistently interpreted Articles 323-A and 323-B in a manner that firmly anchors the principles of separation of powers and judicial independence within the constitutional framework governing tribunals. These structural principles are not external additions but flow directly from the constitutional scheme embodied in these articles, which permit the creation of adjudicatory bodies exercising judicial power. Because tribunals perform functions that were traditionally within the domain of courts, the standards applicable to judicial institutions necessarily inform the conditions of their appointments, qualifications, tenure, and service conditions. Over time, therefore, this Court's jurisprudence has evolved a set of constitutional benchmarks, guiding norms that define what an independent and effective ....
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.... 25, and to the broader constitutional commitment to dignity, autonomy, and liberty. Once articulated, the privacy framework became a guiding doctrine for assessing the validity of a wide range of laws and State actions, including those relating to personal autonomy. 132. In the same way, the norms laid down in the tribunal cases, regarding tenure, age limits, selection processes, qualifications, and independence from executive control, are not abstract judicial preferences. They are constitutional requirements distilled from Articles 323-A and 323-B read with the doctrines of separation of powers, independence of the judiciary, and the guarantee of equality under Article 14. These principles therefore furnish the constitutional tests that any legislation on tribunals must satisfy. Where Parliament re-enacts provisions previously struck down without curing the underlying defect, the resulting legislation remains vulnerable to invalidation, not because the Court is imposing its own policy, but because the Constitution itself demands adherence to these structural safeguards. 133. When the Court examines the validity of a statutory provision governing tribunals, it does not issu....
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....Committee; (b) two Secretaries nominated by the Government of India -- Members; (c) one Member, who- - (i) in case of appointment of a Chairperson of a Tribunal, shall be the outgoing Chairperson of the Tribunal; or (ii) in case of appointment of a Member of a Tribunal, shall be the sitting Chairperson of the Tribunal; or (iii) in case of the Chairperson of the Tribunal seeking re- appointment, shall be a retired Judge of the Supreme Court or a retired Chief Justice of a High Court nominated by the Chief Justice of India: Provided that, in the following cases, such Member shall always be a retired Judge of the Supreme Court or a retired Chief Justice of a High Court nominated by the Chief Justice of India, namely:-- (i) Industrial Tribunal constituted by the Central Government under the Industrial Disputes Act, 1947; (ii) Tribunals and Appellate Tribunals constituted under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993; (iii) Tribunals where the Chairperson or the outgoing Chairperson, as the case may be, of the Tribunal is not a retired Judge of the Supreme Court or a retired Chief Jus....
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....airman; (b) the Chief Secretary of the concerned State Government- Member; (c) the Chairman of the Public Service Commission of the concerned State- Member; (d) one Member, who- (i) in case of appointment of a Chairman of the Tribunal, shall be the outgoing Chairman of the Tribunal; or (ii) in case of appointment of a Member of the Tribunal, shall be the sitting Chairman of the Tribunal; or (iii) in case of the Chairman of the Tribunal seeking re- appointment, shall be a retired Judge of a High Court nominated by the Chief Justice of the High Court of the concerned State: Provided that such Member shall always be a retired Judge of a High Court nominated by the Chief Justice of the High Court of the concerned State, if the Chairperson or the outgoing Chairperson of the State Administrative Tribunal, as the case may be, is not a retired Chief Justice or Judge of a High Court; (e) the Secretary or the Principal Secretary of the General Administrative Department of the concerned State-Member-Secretary. 184 (4) The Chairperson of the Committee shall have the casting vote. 3 (4) The Chairperson of the Search-c....
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....turpitude; or (c) has become physically or mentally incapable of acting as such a Member; or (d) has acquired such financial or other interest as is likely to affect prejudicially his functions as a Member; or (e) has so abused his position as to render his continuance in office prejudicial to the public interest: Provided that where a Member is proposed to be removed on any ground specified in clauses (b) to (e), he shall be informed of the charges against him and given an opportunity of being heard in respect of those charges. 4. Removal of Chairperson or Member of Tribunal.-The Central Government shall, on the recommendation of the Committee, remove from office, in such manner as may be provided by rules, any Chairperson or a Member, who- (a) has been adjudged as an insolvent; or (b) has been convicted of an offence which involves moral turpitude; or (c) has become physically or mentally incapable of acting as such Chairperson or Member; or (d) has acquired such financial or other interest as is likely to affect prejudicially his functions as such Chairperson or Member; or (e) has so abused his p....
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....person, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authority may be varied to his disadvantage after his appointment.". 7 (2) Neither the salary and allowances nor the other terms and conditions of service of the Chairperson or Member of the Tribunal may be varied to his disadvantage after his appointment. 184. (1) The Central Government may, by notification, make rules to provide for the qualifications, appointment, salaries and allowances, resignation, removal and the other conditions of service of the Chairperson and Members of the Tribunal as specified in the Eighth Schedule: Provided further that the allowances and benefits so payable shall be to the extent as are admissible to a Central Government officer holding the post carrying the same pay: Provided also that where the Chairperson or Member takes a house on rent, he may be reimbursed a house rent subject to such limits and conditions as may be provided by rules. 7. (1) Salary and allowances.- (1) Notwithstanding anything contained in any judgment, order or decree of any court, or in any law ....
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....ct, 1993, and the Telecom Regulatory Authority of India Act, 1997 are all modified in the same manner. In each of these statutes, the Act replaces references to the earlier framework under Part XIV of Chapter VI of the Finance Act, 2017 with references to the Impugned Act, specifying that the appointment, tenure, and service conditions of tribunal members will now be governed by Chapter II of the new Act. 139. Thus, it can be seen that what the 2021 Ordinance did through amendments to Section 184 of the Finance Act, 2017, the Impugned Act now does through Sections 3, 5, and 7. The minimum age bar of fifty years for all appointments, the truncated four-year tenure with upper age caps of 70/67, the requirement that the Search-cum-Selection Committee forward a panel of two names for each vacancy, and the fixing of allowances and benefits to those of equivalent civil servants are all provisions, which have already been judicially tested and struck down. The Court has expressly held that these measures are arbitrary, destructive of judicial independence, and amount to an impermissible legislative override of binding directions. 140. Merely shifting the same content from the amende....
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....d spirit of the Constitution. The Impugned Act directly contradicts binding judicial pronouncements that have repeatedly clarified the standards governing the appointment, tenure, and functioning of tribunal members. Instead of curing the defects identified by this Court, the Impugned Act merely reproduces, in slightly altered form, the very provisions earlier struck down. This amounts to a legislative override in the strictest sense: an attempt to nullify binding judicial directions without addressing the underlying constitutional infirmities. Such an approach is impermissible under our constitutional scheme. Because the Impugned Act fails to remove the defects identified in prior judgments and instead reenacts them under a new label, it falls afoul of the doctrine of constitutional supremacy. Accordingly, the impugned provisions are struck down as unconstitutional. VIII. PROTECTION EXTENDED 143. We also clarify that in MBA (IV) and MBA (V), the learned Attorney General for India had expressly submitted before this Court that the appointments of Members and Chairpersons made prior to the enactment of the impugned framework would stand protected. Although no such assurance ha....
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.... 2018, while dealing with the age of superannuation of the CESTAT Members, this Court observed thus: "2. ...We, accordingly, are of the view that the clarification issued for the ITAT in the order dated 20 March 2018 needs to be reiterated in the case of the members of the CESTAT, which we do. We clarify that a person selected as Member of the CESTAT will continue until the age of 62 years while a person holding the post of President shall continue until the age of 65 years." 147. It is not in dispute that in respect of some of the Members of the ITAT, the recommendations were made by the SCSC on 21st September 2019. The same was put up before the Appointment Committee of the Cabinet ["ACC".] on 16th October 2019. In the meantime, the judgment in the case of Rojer Mathew (supra) was delivered by this Court on 13th November 2019. As such, appointments of all persons whose recommendations were made on 21st September 2019 and whose names were approved by the ACC ought to have been made immediately after the judgment in the case of Rojer Mathew (supra) was delivered. This would have been consistent with the statement made by the then learned Attorney General on 9th February....
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....al time that could otherwise be devoted to adjudicating matters of pressing public and constitutional importance. The responsibility of reducing pendency in courts does not rest only on the judiciary. It is a shared institutional duty. While the judiciary must strive to enhance efficiency in case management and decision-making, the other branches of government must exercise their legislative and executive powers with due regard to constitutional principles and judicial precedent. Respect for settled law is as essential to good governance as it is to judicial discipline. It ensures that institutional time is spent in advancing justice rather than revisiting questions long resolved. 151. We direct that unless the constitutional concerns repeatedly highlighted by this Court in the series of tribunal- related judgments are fully addressed and cured, and unless Parliament enacts an appropriate legislation that faithfully gives effect to those principles, the principles and directions laid down in MBA (IV) and MBA (V) shall continue to govern all matters relating to the appointment, qualifications, tenure, service conditions, and allied aspects concerning tribunal members and chairper....
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....aka, Shri Gopal Sankaranarayanan, Shri Balbir Singh, Shri Gagan Gupta, Shri Puneet Mittal, Shri Sachit Jolly, Shri B.M. Chatterji, Shri Ninad Laud, learned Senior Counsel/counsel. We also place on record our appreciation for Shri R. Venkataramani, learned Attorney General for India, and Ms. Aishwarya Bhati, learned Additional Solicitor General. CJI (B.R. GAVAI) I respectfully concur with the reasoning and directions. The Tribunal Reforms Act, 2021 is a replica of the struck down Ordinance; old wine in a new bottle, the wine whets not the judicial palette, but the bottle merely dazzle. (K. VINOD CHANDRAN) J -------------------------- Notes: 1. It was held: "130. ...The manner of appointment of Chairperson/Members to the NTT will have to be, by the same procedure (or by a similar procedure), to that which is prevalent for appointment of judges of High Courts. Insofar as the instant aspect of the matter is concerned, the above proposition was declared by this Court in Union of India v. Madras Bar Association (2010) 11 SCC 1, wherein it was held, that the stature of the Members who would constitute the t....