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Arguments in the challenge to the constitutionality of GST Appellate Tribunals under the Central and State GST Acts continued yesterday before the Madras High Court.
Lawyers have no right to be appointed as judges of tribunals unless a statute provides for the same, Additional Solicitor General G Rajagopalan argued.
The submission was made countering the plea brought by Advocate V Vasanthakumar and the Revenue Bar Association (RBA) assailing Sections 109 and 110 of Chapter XVIII of the Central Goods and Services Tax (GST) Act and the corresponding provisions in the state Act. The High Court had issued notice to the Central Government in August last year.
Senior Advocate Arvind P Datar, briefed by Advocates Rahul Unnikrishnan and Karthik Sundaram, concluded arguments on Tuesday for the RBA. Appearing in person, Advocate Vasanthakumar also argued that the exclusion of advocates from being appointed as judges of the GST Appellate Tribunals is unconstitutional.
ASG Rajagopalan contested these arguments, submitting that a lawyer’s right to practice under Article 19 (1) (g) of the Constitution does not include the right to be appointed a judge.
Appearing for the Union Ministry of Law and Justice, he emphasised that the composition of tribunals must conform to the concerned statute. Without statutory backing, he argued, the appointment of lawyers as judges would be illegal.
It was further argued that the administrative (technical) members appointed to the GST Appellate Tribunals had sufficient adjudicatory experience. On the other hand, he contended that lawyers do not have the requisite experience to be qualified as judges to the same.
The ASG also pointed out that tribunals are constituted to perform quasi judicial functions. He highlighted that quasi judicial functions denote judicial functions being performed by administrative authorities.
The Bench of Justices S Manikumar and Subramonium Prasad, however, queried whether lawyers could be excluded altogether from being considered for appointment as judges to the GST tribunals.
Justice Manikumar observed that there is a difference between the right to be appointed a judge and the right to be considered for appointment as a judge. Justice Prasad pointed out that the exclusion of lawyers from being considered as tribunal judges is a deviation from the norm. This being the case, there should be an explanation for such a deviation, opined Justice Prasad. ASG Rajagopalan submitted that he would file an affidavit on the issue if the Bench requires further explanation on this aspect.
The Bench also emphasised that the contentious issue did not lie with the appointment of administrative members to the GST tribunals, but rather on whether there can be a predominance of administrative members over judicial members.
The matter will be taken up next on Thursday, when arguments are expected to be made on behalf of the Ministry of Finance and the GST Council. Thereafter, the matter has been posted to be taken up on Monday afternoon for hearing the reply by the petitioners.