SC May Have to Revisit Basic Structure Doctrine as Centre Defends Tribunal Reforms Act

In its counter-affidavit, the Centre has questioned the plea of the petitioners that the Act is unconstitutional because it violates the basic structure doctrine.

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New Delhi: In Madras Bar Association v Union of India, currently before the Supreme Court, it is not just the Tribunal Reforms Act, 2021 which will be tested for its validity. The Supreme Court’s three-judge bench comprising Chief Justice N.V. Ramana, and Justices D.Y. Chandrachud and L. Nageswara Rao, which is likely to hear the case from November 11, may also have to rule on a seminal question, which has divided the Supreme Court judges all these years:  whether the basic structure doctrine, laid down by the court’s 13-judge bench in the Kesavananda Bharati case in 1973, is applicable to ordinary laws (and not just to constitutional amendments).

The Wire has dealt with this issue while discussing different facets of the doctrine in six parts last year.

In Madras Bar Association (MBA-V), the petitioners allege that the Act violates the independence of the judiciary, that is, the independence of the members and chairperson of the tribunals. The Act, despite the Supreme Court striking them down earlier, has reintroduced the minimum age qualification of tribunal members as 50 years and the fixation of their tenure as four years. The Supreme Court had earlier directed that advocates with experience of 10 years practice must be considered for appointments, and the tenure of members should be fixed as five years.

The former Union minister, Jairam Ramesh, in his petition, has challenged the validity of Section 3(1) of the Act in so far as it bars appointments to tribunals of persons below 50 years of age as undermining the length and security of tenure and violating both judicial independence and the principle of separation of powers.

Similarly, section 3(7) of the impugned Act which mandates the recommendation of a panel of two names by the search-cum-selection committee to the Union government has also been challenged as violating the principle of separation of powers and judicial independence. While setting aside Section 184(7) of the Finance Act, 2017 – which is identical to section 3(7) of the Tribunal Reforms Act – the Supreme Court observed in Madras Bar Association-IV that executive influence should be avoided in matters of appointments to tribunals.

The Act also nullifies the directions of the Supreme Court in Madras Bar Association-III (2020) to make appointments to tribunals within three months from the date on which the Search-cum-Selection Committee completes the selection process and makes its recommendations. The Act grants discretion to the Union government to take a decision on the recommendations made by that committee, preferably within three months from the date of such recommendation.

In its counter-affidavit filed in the case, the Centre has underlined the fact that the Search-Cum-Selection Committee (SCSC) is dominated by the judiciary. The prescription of a term of four years is combined with the preferential right of reappointment, as a result of which the individual being appointed as a member could continue upto the age of 67 years, or 70 years in the case of a chairperson.

Secondly, the Centre has submitted that no single appointment of an advocate with 10 years practice has ever been made to a high court in the last 75 years. The practice as set out in the Supreme Court’s judgment in Lok Prahari v Union of India (April 20, 2021) was that the incumbent should be between 45 to 55 years to be appointed a judge of the Supreme Court. This minimum age requirement of 50 years, across the board, was upheld by Justice Hemant Gupta in his dissenting opinion in Madras Bar Association v Union of India (MBA-IV). Justice Hemant Gupta also found the provision in the 2021 Tribunals Reforms Ordinance which enabled the Centre to take a decision on the recommendation of the SCSC preferably within three months as perfectly legitimate. The Centre in its counter-affidavit has sought to justify these provisions on the ground that the dissenting judge had upheld them, as part of the Ordinance!

The Centre has submitted that each one of the grounds of challenge of the Act is an issue of policy. The justification for the Parliament and the Executive to repeatedly assert its right to make laws relating to policy is that even if this right is denied to Parliament, as it has been done by invoking the principle of independence of judiciary, a vital concomitant of legislative power would be lost to Parliament, violating the constitutional separation of powers.

By extensively critiquing the Supreme Court’s judgment in MBA-IV, the Centre’s counter-affidavit in the ongoing case reads like a review petition against the very judgment. The affidavit claims that if there is one single principle on which the exclusive jurisdiction of Parliament and Executive rests, it is in the realm of policy making. “To this extent, because of separation of powers, the Judiciary is excluded from this area of policy. It has to be recognised that for this purpose, the question of framing of a Bill to be presented to Parliament itself involves deep discussion and research, at different levels of the bureaucracy, the Minister and thereafter the Cabinet. Then comes the debates in the Upper House and the Lower House, when clause by clause is read and put to the house for debate by the elected representatives, and finally, the Bill, if passed, becomes law. All this would be set at naught if a bench of the Supreme Court decides that the policy affects the independence of the judiciary and strikes it down, not because the policy violates any fundamental right or constitutional provision or is beyond legislative competence, but because, the court’s concept of ‘independence’ is violated”, the counter-affidavit reads.

The Centre has claimed that it would be mere semantics and the grounds of challenge to the Act have no relationship to independence of the Members or the Chairperson of the Tribunals. Independence would be affected, only if the tenure, or terms and conditions are such that the Executive is able to control the will of the Member or the Chairperson of the Tribunal, the Centre has argued. “With judicial dominance in the SCSC which recommends the continuance or re-appointment of members, whether for four years or five years, these fears are unfounded,” the Centre submits.

The Centre has also argued that to limit the experience to 10 years in the case of a professional like a lawyer without extending the same benefit to other professionals who are eligible to be appointed as members of the Tribunals like chartered accountants, environmentalists, and other technical experts would be ex facie discriminatory and would be liable to be struck down.

The Centre has emphasised that neither the Executive nor Parliament can be deprived of their right to make laws declaring policy, as otherwise the constitutional requirement of separation of powers will stand violated by the judicial pronouncements.

Referring to the Supreme Court’s decision that only one recommendation against each vacant post would be made by the SCSC for acceptance by the Government, the Centre says that it has the right to reject a recommendation on valid grounds. “Surely, since both the names are found suitable by the SCSC, even if Government were to exercise a choice between the two, that amount of faith and trust between the three great wings of the State has to exist,” the affidavit reads.

The Centre is aggrieved with the Supreme Court’s insistence that it should take a decision on appointment within three months of the SCSC’s recommendation, on the ground that the maximum time limit prescribed may not be sufficient in some cases. “The word ‘preferably’ used in Section 3(7) is a choice of Parliament, and for the court to object to it would not be conducive to good governance,” it says.

The Centre has also joined issue with the Supreme Court over the interpretation of Article 141 of the Constitution, which states that the law declared by the Supreme Court shall be binding on all courts within the territory of India.  The Centre claims that it is only the ratio decidendi that would be binding and that too only on the courts. Supreme Court’s directions can only be treated as recommendatory in nature, and that non-implementation of such directions cannot be said to be in violation of the judgments of the court, the Centre has suggested. “This is on the basis that the courts cannot direct the legislature to make a law in a particular manner,” the affidavit states.

The Centre’s affidavit deftly exploits the prevailing dilemma within the Supreme Court as to the applicability of the basic structure doctrine to ordinary laws (as against Constitutional amendments). “It has been held in a series of cases including by two Constitutional bench decisions and by a seven-judges bench of this Hon’ble Court that basic structure in the Constitution can only be used to test the validity of a Constitutional amendment but has no relevance when it comes to validity of a statute,” the Centre has averred. The principle of independence of the judiciary, which forms part of the basic structure, cannot be used to strike down a legislation, the Centre suggests citing the relevant case law.

On the allegation that the Act violates the doctrine of separation of powers, the Centre suggests that on the contrary, it is the Supreme Court which has gone against the principle of separation of powers by interfering with the policies laid down by the State. On the Supreme Court’s ruling that violation of separation of powers involves violation of Article 14 of the Constitution relying upon State of Tamil Nadu v State of Kerala (2014), the Centre says that the court had given no reasoning in this case for its position, and therefore, the statement on Article 14 violation can only be treated as obiter dicta (non-binding observation).

Even as the recent case law suggests that the Supreme Court has mostly avoided giving a definite answer on whether the basic structure doctrine can be applied to ordinary laws so as to reconcile its conflicting decisions on the issue, the Centre’s affidavit in the Madras Bar Association -V may indeed force the court to take a hard look on it.