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Monday, October 18, 2021

“Executive influence should be avoided”: SC snarls at centre on tribunals appointments

SC has issued notice to the centre on the Tribunals Reforms Act on the basis of the writ petition filed by Congress leader Jairam Ramesh. The court held that the Act was an exact replica of the provisions struck down by the court in the Madras Bar Association case.

SC on Tribunals Reforms Act 2021

Live Law report in the matter states:

Justice Chandrachud referred to the provisions of the Act which fix the minimum age qualification for appointment as Tribunal Members as 50 years and limiting their tenure as 4 years.

In the Madras Bar Association case, the Supreme Court had struck down by the minimum age qualification of 50 years in the Tribunals Reforms Ordinance 2021 and had directed that advocates with experience of 10 years practice must be considered for appointments. Also, the said judgment had directed that the tenure of the members should be fixed as 5 years.

“The basis of a judgment can be taken away… but you cannot enact a law which is contrary to a judgment. This is not a validating legislation”, Justice Chandrachud commented.

“There is no respect for our judgment. You are emasculating these Tribunals by not appointing members. Many Tribunals are on the verge of closing down”, Justice Nageswara Rao, who authored the Madras Bar Association judgments of 2020 and 2021, observed.

The CJI said that the Court is “extremely upset” with the situation. “We have only three options. One, we stay the legislation. Two, we close down the Tribunals and give the powers to the High Court. Three, we ourselves make the appointments”, the CJI added.

Justice Chandrachud observed that the functioning of Tribunals like NCLT and NCLAT have been stalled due to the lack of members.

What are tribunals?

In essence, it appears that the judiciary is excessively interfering in the executive domain through this judgment. It appears that the Act is being challenged only because it reduces judicial interference in tribunal appointments.

However, tribunalization is itself an unhealthy development for the country as it creates more power centres, and some legal experts believe that tribunals have become post-retirement sinecures for judges and others.

Extreme caution needs to be exercised while setting up tribunals that have their roots in the emergency and the subsequent 42nd amendment of the Constitution. Reckless tribunalisation is covertly increasing the control of those without domain knowledge or expertise over judicial proceedings while at the same time access to justice for the common citizens is being affected due to these tribunals.

The argument that tribunals help reduce the burden on the judiciary also doesn’t hold water since judicial backlog has only increased after creation of tribunals. The biggest drawback is that the tribunals fall under the very ministry against whom litigants approach it.

Another important point is that majority of the members lack legal qualification and despite the fact that they aren’t even eligible to appear before the tribunals, they end up as members exercising judicial powers.

As Swarajya Mag had earlier highlighted “Tribunals should only be allowed to be constituted in highly technical matters, where scientific expertise of non-judicial members is required, such as engineering and electricity, or in benign areas such as consumer rights where an informal approach is preferred”.

Judicial interference in executive matters as seen in the present case brings to question the extent to which courts should be getting into the latter’s domain. It is further important to highlight that excessive litigation, often encouraged by courts which accept PILs on anything and everything, is draining the country’s exchequer by hampering development projects.

Also, sidelining the executive from the tribunal appointment process, just as it has been sidelined from judicial appointments through collegium, is a mockery of democracy. Such excessive judicial interference has raised created an impression among the citizenry that the judiciary is increasingly running a parallel, unaccountable government.

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