When the legislature strikes back: Tribunal Reforms Act, 2021 and the unravelling of separation of powers

"Respect for settled law is essential for good governance as well as judicial discipline." — Chief Justice BR Gavai, while quashing the Tribunal Reforms Act.

These words carry peculiar weight. They emerge not from abstract constitutional discourse but from a judgment that exposes something troubling: a government willing to resurrect provisions a court has struck down, betting that persistence will exhaust judicial patience.

In 2014, the Madras Bar Association challenged tribunal governance. The Supreme Court responded decisively: tribunals exercising quasi-judicial power over citizens and the state must enjoy independence from executive control. Tenure was set at five years; appointments were to be made through a search-cum-selection committee insulated from government influence.

The executive listened. Or appeared to.

In 2021, Parliament enacted the Tribunal Reforms Act, reducing tenure to four years, introducing a minimum age of 50 years and restructuring the selection committee to recommend two names instead of one. This fundamentally inverted independent selection into government choice. The provisions were identical to an earlier Ordinance that the Court had already struck down in July 2021.

On November 19, 2025, the Supreme Court struck it down again.

The judgment rendered by the bench of Chief Justice BR Gavai and Justice K Vinod Chandran went beyond the standalone legal question put to the Court. The judgment's reasoning reveals a number of important legal principles which form part of a broader constitutional narrative.

1.Legislative overwriting frowned upon

The touchstone of the decision is the concept of 'legislative overwrite'--essentially a term describing a legislature's attempt to 'un-strike' provisions that were declared unconstitutional by a court, without effectively curing its constitutionally flawed character. The Court observed:

"Various provisions of the impugned Act directly contravene the judgment of this Court. Instead of curing the defects or the basis of the judgment, the 2021 Act has brought the same provisions back with minor tweaking. Such an action amounts to legislative overwriting in extreme terms. It is impermissible."

This is a principle derived from established jurisprudence. In KC Gajapati Narayan Deo v. State of Orissa, it was held that the doctrine of colourable legislation was part of the process of nullifying legislative acts that, while technically valid, were substantively motivated to avoid limitations imposed by the Constitution. The Tribunal Reforms Act, 2021 presents a novel iteration: a legislature attempting to override not a distribution of powers but binding judicial pronouncements.

The Supreme Court reiterated that the legislature cannot merely re-enact clauses that have been declared unconstitutional without addressing the flaws that have been found. Regarding the Tribunal Reforms Act 2021, the Court ruled that copying unconstitutional provisions amounted to a legislative override, which is an unlawful attempt to invalidate legally binding directives without addressing underlying constitutional defects. The executive reinstated clauses maintaining executive control in defiance of clear directives to establish a National Tribunal Commission for independent appointments.

2. Separation of powers: The foundational principle

Article 50 directs the State to maintain separation between the judiciary and the executive in public services. The Supreme Court has upheld that Article 50 represents the separation of powers, which is essential for just and impartial justice, even though it is not subject to judicial review. The Court stated that tribunals carry out judicial functions in significant rulings, such as those concerning the Madras Bar Association. Unrestricted executive authority over the appointment, tenure or removal of tribunal members compromises independence because judges under executive control are unable to be genuinely impartial.

The principle was articulated eloquently in Madras Bar Association v. Union of India (2014):

"The independence of the judiciary as well as the principle of separation of powers are maintained. Parliament must ensure that, in order to maintain the independence of the judiciary, any issue that involves the government must be dealt with by judges who are independent of the government."

The 2021 Act violates this basic principle by:

• Shortened tenure: Shortening from five to four years creates instability, making officials susceptible to re-appointment by the executive.

• Age limit: The minimum age of 50 years, combined with the shortened tenure, in effect restricts the pool of possible appointees and subjects them to greater de facto control by the executive.

• Composition of Selection Committee: The requirement of two names to be submitted allows the government to retain effective veto power. The government selects one of two candidates to be recommended, but still determines that the other candidate does not meet the requirement.

3. Judicial independence as part of the Basic Structure

The ruling confirms that judicial independence is a fundamental aspect of the Indian Constitution that cannot be changed through legislation. This stems from the principles articulated in the foundational doctrine in Kesavananda Bharati v. State of Kerala (1973). Although the 2021 Act was not an amendment to the Constitution, the Court found that it contravened principles that form part of the basic structure by undermining judicial independence through legislative action.

The dissent in the 2021 Tribunal Reforms Ordinance case (from which the 2021 Act reproduced provisions) had argued that the legislature retained the power to fix service conditions. But the majority principle, which now stands vindicated, holds that the legislature cannot exercise such power in a manner that undermines judicial independence, even if the subject matter formally falls within legislative competence.

This principle finds resonance in the rule against colourable legislation:

"If the constitution of a State distributes the legislative powers amongst different bodies... such transgressions may be patent, manifest or direct, but it may also be disguised, covert or indirect." (KC Gajapati).

Parliament was effecting an indirect attack on judicial independence by re-enacting provisions overturned, but without curing their constitutional defect.

4. The binding nature of judicial precedents and Article 141

The ruling highlights Article 141, which establishes that Supreme Court declarations are binding on all courts - a principle of constitutional discipline, not an optional policy. Article 144 strengthens this, requiring all authorities to act in aid of the Court. The judgment emphasises that ignoring Supreme Court rulings, especially after a provision is held unconstitutional, risks violating the separation of powers and the constitutional duty to obey the law declared by the Court. Compliance is thus not merely expected of lower courts; it is a mandatory constitutional obligation for all branches of government.

5. The doctrine of revival and continued operation of prior principles

When the 2021 Act was declared unconstitutional, the Court ruled that the principles established by the previous Madras Bar Association decisions (MB A-4 and MBA-5) would again become the applicable law for the appointment of tribunal members or conditions of service. This demonstrates the doctrine of revival that the Supreme Court has clarified in recent years.

Once a statute is struck down, the original legal position is restored unless Parliament undertakes remedial legislation. Given that the 2021 Act was unconstitutional and did not remedy the flaws, the previous binding principles are in application, meaning there is no vacuum of law and it retains coherence in relation to being constitutional.

Rather than legal ambiguity, the "defiance pattern" demonstrates persistent institutional resistance. The Supreme Court has maintained tribunal independence since 2014, overturning regulations and an ordinance that went against these ideals. However, the same invalidated provisions were replicated in Parliament's 2021 Act, which was later overturned once more in 2025. This sequence demonstrates intentional disregard rather than just disagreement. Because executive persistence can weaken the Court's authority, the episode highlights the limits of judicial enforcement. It also illustrates a fierce struggle over constitutional territory: the executive claims that tribunals are administrative tools, while the judiciary sees them as extensions of judicial authority. Most alarmingly, the government's adherence to the rule of law is called into question by the re-enactment of defective provisions. Justice Gavai’s warning that respect for settled law is essential for good governance underscores that constitutional boundaries are not negotiable instruments of convenience.

The 2025 judgment serves as principled confirmation of judicial constitutional authority. Its basic message is straightforward but important: the legislature cannot reinstate constitutional invalidity by re-enacting. The legislature must genuinely reform and not evade responsibility by doing nothing. The direction to create a National Tribunal Commission offers the potential for substantive reform. If implemented in a superficial manner, the judicial branch would be invited to re-litigate these issues.

For a functioning constitutional democracy, respect for judicial precedent must flow from all branches of government. The Court has spoken. The Centre must listen not because courts rule, but because Constitutions govern. The difference is the foundation upon which democratic legitimacy rests.

Anubha Shukla and Vedant Dhakad are students at Gujarat National Law University, Gandhinagar.