SC Raps Centre for Continued Failure to Make Appointments to Tribunals

During the hearing, the bench also took exception to the Tribunal Reforms Act, 2021, which included several provisions which had earlier been struck down by the Supreme Court in various other cases.

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New Delhi: A three-judge bench of the Supreme Court consisting of Chief Justice of India N.V. Ramana and Justices L. Nageswara Rao and D.Y. Chandrachud on Monday took exception to the Union government’s failure to make appointments to various tribunals on the basis of recommendations made by the search-cum-selection committee, Bar and Bench reported.

Justice Rao questioned Solicitor General (SG) Tushar Mehta as to why the appointments were not being made, despite the recommendations coming from the court and following the rule of law.

Justice Chandrachud highlighted how the vacancies in various tribunals were affecting their functioning, making specific reference to the National Company Law Tribunal (NCLT), the National Company Law Appellate Tribunal (NCLAT) and the Armed Forces Tribunal.

“You are emasculating tribunals by not appointing members,” Justice Rao remarked.

CJI Ramana noted that the apex court did not want any confrontation with the centre, but that, in light of the numerous vacancies, the tribunals in the country are on the brink of collapse. The three options going forward that the CJI noted were that the court could either stay the Tribunal Reforms Act, close down the tribunals or appoint the members themselves and initiate contempt of court proceedings against the government.

The remarks came while the bench heard former Union minister and Congress leader Jairam Ramesh’s plea challenging certain provisions of the Tribunal Reforms Act, which received the President’s assent on August 13.

The plea pulled up Sections 3(1), 3(7), 5 and 7(1) of the act, all of which had earlier appeared in the Finance Act, 2017 and had been struck down by the Supreme Court while hearing the case of the Madras Bar Association versus the Union of India, the Times of India reported.

Section 3(1) bars the appointment of people below the age of 50 to tribunals which was found to be violative of Articles 14 and 21 of the Indian constitution (dealing with equality and personal liberty.)

Section 3(7) mandated the recommendation of two individuals by the search-cum-selection committee to the central government for each vacancy and gave the centre the choice between the two. This was deemed to be in contravention of Articles 14 and 21 as well as Article 50 of the constitution which deals with the separation of powers and judicial independence. 

Section 5 fixes the tenure of a member of a tribunal at four years and Section 7(1) gives the centre the power to determine the salaries of the chairperson and the members of the tribunal, both of which had earlier been struck down by the Supreme Court.

The three-judge bench took exception to the Tribunal Reforms Act, remarking that it is a “replica” of the earlier legislation which had been struck down. The court went on to note that it could not go on passing judgements if Parliament continues to overturn them.

Addressing SG Mehta, the chief justice noted, “We have trust and respect for you. I am sure you are not advising the centre to bring such a law and this must be bureaucrats who are doing it and this is how bureaucracy functions.” 

The court noted that it was not inclined to pass any orders at that moment and listed the matter for next Monday, stating that it expects appointments to various tribunals to be made by then. It also issued notice on the plea filed by Ramesh.