Appointment of civil servants as judicial members under Benami Property Transactions Act challenged in Madras HC

The provisions concerning the composition of adjudicatory authorities under The Prohibition of Benami Property Transactions Act, 1988 (Act) have been challenged in Madras High Court..The Bench of Chief Justice Indira Banerjee and Justice PT Asha issued notice in a petition filed by Advocate V Vasanthkumar..The petition has challenged the Constitutionality of Sections 9 and 32 of the Act, which deal with the eligibility criteria for the appointment of members to the adjudicatory authority and the appellate tribunal under the Act..Both sections call for the appointment of civil servants as members of the adjudicatory bodies. Section 9 provides that only members of the Indian Legal Service (ILS) and Indian Revenue Service (IRS) are eligible for appointment as member/Chairperson to the adjudicatory body under the Act..With regard to the appellate tribunal, Section 32 lays down that judicial members have to be drawn from the ILS, whereas administrative members have to be from the IRS. However, the same section mandates that the Chairperson of the appellate tribunal should be a sitting or retired High Court judge who has completed at least five years of service..Nevertheless, Vasanthkumar has contended that this statutory composition is in violation of the guidelines laid down by the Supreme Court in Union of India v. Madras Bar Association. In this case, the Court had laid down certain rules with regard to appointment of members to the National Company Law Tribunal (NCLT)..Inter alia, the Supreme Court had held that only judges and advocates can be appointed as judicial members of the tribunal. Further, it had also held that technical members cannot exceed judicial members in the composition of Benches..This 2010 decision was later endorsed in 2015 in the decision of Madras Bar Association v. Union of India..In view of the same, Vasanthkumar has argued that Sections 9 and 32 of the Act are contrary to precedent and that infringes on the advocates’ right to equality of opportunity..“Since the impugned provisions restricts the qualification of appointment of Judicial members to Indian Revenue Service and Indian Legal Service, it deprives the equality of opportunity to practicing Advocates as held by the Hon’ble Supreme Court in “Madras Bar Association Vs Union of India”…thereby infringing the fundamental right of equality guaranteed under Article 14 of Constitution of India to the legal fraternity.”.Further, it is also contended that drawing civil servants to constitute these authorities would amount to a violation of the Doctrine of Separation of Powers. As stated in the petition,.“…the impugned provisions are enabling the tribunal to be packed with members drawn from the civil services and continue to be the employees of different ministries or government departments by maintaining lien over their respective posts, which would virtually amount to transferring the judicial functions to the executive, and it runs counter to the doctrine of separation of powers and independence of Judiciary.”.For these reasons, the petitioner has prayed that the Court issue a Writ of Mandamus declaring both Sections 9 and 32 of the Act as unconstitutional..Read the petition below.