New Delhi: The Supreme Court bench of the Chief Justice of India D.Y. Chandrachud and Justice J.B.Pardiwala on Thursday extended the tenure of four judicial members of a tribunal whose terms are about to expire. They will now continue in office pending the final disposal of their writ petitions.Four members of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) had filed interlocutory applications before the Supreme Court in the case of Madras Bar Association vs Union of India, which is pending for adjudication. They are P. Dinesha, Ajay Sharma, Rachna Gupta and Suvendu Kumar Pati. Their terms would have otherwise expired on April 18, May 1, May 3 and May 9, respectively.Their common prayer was that they should be entitled to continue until the age of 62 years, particularly in view of the Supreme Court’s order dated August 21, 2018. The essence of this interim order, insofar as the CESTAT is concerned, is that people who were recruited at a time when the retirement age was 62 years would continue to be governed by the original date of retirement under the parent legislation.All the four judicial members had applied for selection to the CESTAT in 2016. The advertisements they were responding to stipulated that the age of retirement would be 62 years.Despite the Supreme Court’s decisions in Rojer Mathew v South Indian Bank Limited represented by its Chief Manager and Others, Madras Bar Association (1) vs Union of India and Another, and Madras Bar Association (2) vs Union of India and Another, the Union government has successively come out with legislations which are identical to previous enactments which were struck down by the Supreme Court.Out of the four judicial members, two – Gupta and Pati – had resigned from judicial services to join the CESTAT since the age of retirement stood at 62 years. Sharma was a practising advocate who took up the assignment based on the prevailing age of retirement of 62 years at the time under the parent legislation.Also read: Proportionality, Sealed Covers and the Supreme Court’s Media One JudgmentOn Thursday, Attorney General for India R. Venkataramani submitted to the bench that a limited vacancy circular was brought out by the Union government and except Dinesha, all the other members have applied for selection. Therefore, he told the bench that the Union government would apprise the court on the result of the selection process, and in the event that any of them are selected, they would have a tenure of a further period of four years. He suggested that since Dinesha chose not to respond to the limited vacancy circular, there is no reason to continue his tenure which is to end on April 18.The bench, prima facie, found on Thursday that it appeared that the selection of these four members of the CESTAT was in under a selection process which took place in 2016. At the time, the parent legislation stipulated that the age of retirement would be 62 years.The bench then went on to recall portions of the judgment delivered by Justice L. Nageswara Rao in Madras Bar Association (2), and the relevant principle set out in the concurring judgment of Justice S. Ravindra Bhat.Justice Bhat had observed that the divesting of judicial office by legislative fiat directly affects the independence of the judiciary. He held that the curtailment of tenure to five years of the members of tribunals, who were entitled to continue in office in terms of the pre-existing enactments (up to the age of 62 years etc.), is arbitrary.“Apart from the fact that Union wishes to curtail their tenure despite the finality of directions of this Court in Roger Mathew and MBA-II, there is no conceivable rationale. Nor has any overriding public interest been espoused as a justification for this. …It also amounts to naked discrimination, because all other members of the same tribunals would enjoy longer tenure, in terms of the pre-existing conditions of service, which prevailed at the time of their appointment,” Justice Bhat had reasoned.In view of these pronouncements, the bench on Thursday expressed its view that it would be wholly unjust to allow the tenures of these four judicial members to lapse between April 18 and May 9. Though some of them have applied for selection under the limited vacancy circular, this cannot deprive them of the right to assert that they are entitled to continue until the age of 62 years, particularly in view of the Supreme Court’s order dated August 21, 2018, the bench clarified.BackgroundThe Supreme Court, in a series of cases before it, has held that tribunals, being quasi-judicial bodies, should have the same level of independence from the executive as the judiciary. The key factors which the court identified as elements of this independence are the mode of selection of members, the composition of tribunals, and the terms and tenure of service.In August 2021, parliament enacted the Tribunal Reforms Act, 2021. The Madras Bar Association challenged the Act for damaging the independence of the judiciary and reversing the court’s earlier rulings on tribunal design. The Association has successfully challenged several previous attempts to create an executive-dominated tribunals system. In R. Gandhi (2010), and four cases titled Madras Bar Association v Union of India, the Association secured favourable verdicts from the Supreme Court. It is these five judgments, particularly the 2020 and 2021 judgments, which the Association argues have been illegally overruled by parliament.Also read: Why the Gujarat High Court’s Reasoning in the Modi MA Degree Matter Is FlawedIn Rojer Mathew vs South Indian Bank Limited and Others (2019), the Supreme Court held that judicial functions cannot be performed by technical members. In this case, the bench held that there should be a uniform age of retirement for all members of all the tribunals. Short tenures, the bench held, lead to control of the executive over tribunals, causing adverse effects on the independence of the judiciary.In Madras Bar Association vs Union of India (2020), the Supreme Court held that the National Tribunals Commission should be set up to supervise appointments, as well as functioning and administration of tribunals. The court also held that the members will have a term of five years instead of four years, and that they will be allowed to hold office till they reach 67 years of age (instead of 65), subject to a maximum age limit of 70 years for the chairperson. More importantly, the court struck down provisions related to the four-year tenure and minimum age requirement of 50 years for members. The court reasoned that short tenures along with provisions on re-appointment increase the influence and control of the executive over the judiciary. This prevents enhancement of adjudicatory experience, thereby impacting the efficacy of tribunals, it had held.The Supreme Court has also held that only people with a judicial background (such as judges of a high court and lawyers with the prescribed experience who are eligible for appointment as high court judges) may be considered for appointment as judicial members of tribunals. Besides, it held that where a tribunal has technical members, the technical member must always sit with a judicial member in a two-member bench and in case of a larger bench, the number of non-judicial members must not exceed the judicial members.In its latest challenge to the 2021 Act, the Madras Bar Association, apart from other provisions, had challenged the proviso to Section 5 of the Act, which says that members will have a maximum tenure of five years. The Association argues that this violates the previous interim order of the court which stated that they would enjoy a tenure till the age of 62.The 2021 Act was passed when parliament was in disarray as the opposition was protesting the government’s refusal to modify the agenda of the House. The Madras Bar Association has submitted that this lack of deliberation in parliament calls for judicial review.(The background information for this article has been culled from PRS India and Supreme Court Observer.)
