Govt and Supreme Court at loggerheads again over tenure of tribunal members

Govt and Supreme Court at loggerheads again over tenure of tribunal members

Provisions under the Tribunal Reforms Bill 2021 run contrary to Supreme Court judgment

The Central government has once again coked a snook at the Supreme Court with the introduction of the Tribunal Reforms Bill, 2021 provisions of which are contrary to the recent judgement of India's highest court.

The bone of contention is over the tenures and other service conditions of tribunal members as many provisions under the Bill disregard the Supreme Court judgment in this contentious matter.

The Supreme Court had on 14 July struck down the recently inserted Section 184 of the Finance Act, 2017 as amended by the Tribunal Reforms (Rationalisation and Condition of Service) Ordinance, 2021.

The Ordinance has fixed the tenure of members and chairpersons of tribunals at four years while the Apex Court had ruled that it should be for five years.

The Supreme Court in its 14 July judgement had ruled that Section 184(11) of the Finance Act prescribing a tenure of four years for members was contrary to the principles of separation of powers, independence of the judiciary, rule of law and Article 14 of the Constitution of India as well as the judgment of the Apex Court in the Madras Bar Association III case.

"Consequently, the declaration of this Court in para 53(iv) of (the judgment in) Madras Bar Association-III shall prevail and the term of Chairperson of a Tribunal shall be five years or till she or he attains the age of 70 years, whichever is earlier and the term of Member of a Tribunal shall be five years or till she or he attains the age of 67 years, whichever is earlier," the Supreme Court had ruled.

However, Section 5 of the new Bill has disregarded this and once again fixed tenures of the members and chairpersons of a tribunal at four years or till that person attains the age of 67 and 70 respectively, whichever is earlier.

"Notwithstanding anything contained in any judgment, order or decree of any court, or in any law for the time being in force, — (i) the Chairperson of a Tribunal shall hold office for a term of four years or till he attains the age of seventy years, whichever is earlier; (ii) the Member of a Tribunal shall hold office for a term of four years or till he attains the age of sixty-seven years, whichever is earlier," Section 5 of the new Bill states.

Similarly, the Central Government has once again ignored the Supreme Court ruling that fixing 50 years as the minimum age for appointment to various tribunals is unconstitutional. The minimum age requirement of 50 years is back in Section 3 of the new Bill.

Likewise, the Apex Court's ruling that the provision relating to recommendation of two names for each post by the Search-cum-Selection Committee (SCSC) and a final decision on selection by the government within three months stays despite the Supreme Court saying that such a provision was violative of the Constitution.

"Notwithstanding anything contained in any judgment, order or decree of any court, or in any law for the time being in force, the Search-cum-Selection Committee shall recommend a panel of two names for appointment to the post of Chairperson or Member, as the case may be, and the Central Government shall take a decision on the recommendations made by that Committee, preferably within three months from the date of such recommendation," the Bill says.

The Supreme Court in its November 2020 judgement had laid down that the term of office of the Chairperson and tribunal members should be five years along with calling for some other modifications to the 2020 Rules.

Notably, the Finance Act was last amended in 2017 after another round of litigation following which the service conditions of tribunal members were introduced, leading to the same being challenged in the Supreme Court.

The Supreme Court had in Rojer Mathew v South Indian Bank case settled the dispute by ruling that the tenure of tribunal members should be five years, which has failed to find favour with the government. There is no explanation yet on why the government wants to reduce it by a year and take up the cudgels with the judiciary yet again.