Madras Bar Association Approaches Supreme Court Challenging Tribunals Reforms Ordinance

Madras Bar Association Approaches Supreme Court Challenging Tribunals Reforms Ordinance

The Madras Bar Association has moved to the Supreme Court (SC) challenging Sections 12 and 13 of the Tribunal Reforms (Rationalization and Conditions of Service) Ordinance, 2021 (Ordinance) and Sections 184 and 186(2) of the Finance Act, 2017 that are amended by the Ordinance.

The Ordinance had abolished nine appellate tribunals including Film Certification Appellate Tribunal (FCAT), IPAB, etc., and had transferred their appellate functions to the High Courts (HCs) which are not challenged in the plea of Madras Bar Association. The plea confines its challenge only to the changes made to the Finance Act, 2017.

On 4 April 2021, the ordinance was issued by the Ministry of Law and Justice. The ordinance introduced amendments to the Cinematograph Act, Copyright Act, Customs Act, Patents Act, Airports Authority of India Act, Trade Marks Act, Geographical Indications of Goods (registration and protection) Act, Protection of Plant Varieties and Farmers Rights Act, Control of National Highways (land and traffic) Act, and Finance Act.

The Madras Bar Association has mentioned in its plea that many provisions of the ordinance are not in consonance with the directions issued by the Top Court.

The Tribunal Rules of 2017 were quashed by the Apex Court in the case titled Rojer Mathew v. South Indian Bank Ltd. & Ors. stating that they affected judicial independence.

The Union then framed another set of Rules in February 2020 and the Bar Association had challenged the said rules contending that they were inconsistent with the judgments in Rojer Mathew and other precedents.

Following are some of the issues raised by the Bar Association in its plea-

1. The minimum age limit fixed by the Ordinance for appointment as Tribunal Members is 50 years and it is contrary to the directions mentioned under the judgment of Madras Bar Association Case 2020. That the Apex Court has highlighted the need of appointing young members to ensure smooth and robust functioning.

2. It was highlighted that a person below the age of 50 years is eligible to be made a High Court Judge and hence there is no rationale to keep a minimum age limit of 50 years for Tribunals.

3. The Ordinance does not exclude the voting rights and leaves the scope for a Secretary from the parent department to exercise voting rights. It is in contravention to the directions given by the Apex Court, wherein it directed that no voting rights should be given to the Secretary of the parent department in the search-cum-selection committee for Tribunals.

4. The Ordinance fixes the term of Chairpersons and Members of Tribunals as 4 years. However, the Top Court had directed to give 5-year tenure to them considering that a short tenure will discourage meritorious candidates. A short-tenure increases executive interference jeopardizing the independence of the Tribunals.

5. The Apex Court had directed that the committee should only recommend one name for each post. However, the Ordinance has re-introduced the idea of a panel of two names being recommended by the Committee.

6. The Supreme Court had given an unconditional direction that the Union Government should make appointments within 3 months of the recommendations being given by the Committee. But the Ordinance has not taken care of the said direction and provided that the Union Government should make appointments 'preferably within 3 months'.

The Bar Association stated in its plea that the Ordinance is amounting to 'legislative overruling', and it further mentioned in the petition that "in the Indian constitutional scheme, judgments passed by the Courts cannot be directly overruled through legislation".

The petition reads, "Sections 12 and 13 of the 2021 Ordinance and Sections 184 and 186(2) of the Finance Act, 2017 (as amended by the 2021 Ordinance) ought to be struck down for being violative of Articles 14 and 21 of the Constitution for being arbitrary and unreasonable, against the principles of Separation of Powers and Independence of the Judiciary, and in contravention of previous decisions of this Hon'ble Court".

The Association further sought for the establishment of National Tribunal Commission and stated that the Apex Court in the Madras Bar Association case (2020), had directed the Union to constitute a National Tribunals Commission, as an independent body for supervising the appointments and functioning of Tribunals, and to conduct disciplinary proceedings against members of Tribunals and to take care of administrative and infrastructural needs of the Tribunals.

It added that the Union took no step regarding the said directions given by the Top Court and a considerable amount of time has already been passed. It sought a further direction to constitute the National Tribunals Commission in a time-bound manner.