Benami Act provision allowing bureaucrats to be judicial members of appellate tribunal unconstitutional: Madras High Court

The Madras High Court recently declared unconstitutional Section 32(2)(a) of the Prohibition of Benami Property Transactions Act, 1988, which made a member of the Indian Legal Service eligible for appointment as a judicial member in the appellate tribunal under the Act [V Vasanthakumar v. Union of India]..A Bench of Chief Justice Munishwar Nath Bhandari and Justice D Bharatha Chakravarthy held that when the Supreme Court called for judicial independence of tribunals, the same was required to be followed by High Courts as well as the executive..Therefore, the respondents were directed to amend the provision keeping in mind the apex court's judgment in Union of India v. R.Gandhi."...when the qualification for the post of Judicial Member is to be provided, it should be keeping in mind the independence of the judicial system and, accordingly, the Apex Court while delivering the judgment in the case of Union of India v. R. Gandhi, President, Madras Bar Association, supra, held that only Judges and advocates can be considered for appointment as Judicial Member of the Tribunal," the Court held..The petitioner had moved the Court citing certain judgments of the top court including R Gandhi, which held that the post of judicial member of a tribunal should be manned only by a person who has served as a judge or a member of the Bar, and not by a member of Indian Legal Service. It was claimed that the provision under challenge was hit by this judgment..Further, in Shamnad Basheer v. Union of India, certain provisions were declared to be unconstitutional as they made a member of the Indian Legal Service eligible for appointment for the post of Chairperson or judicial member of the Intellectual Property Appellate Board. A similar decision in Revenue Bar Association v Union of India was also referred to..Therefore, the petitioner prayed for a declaration that Section 32(2)(a) of the Act was unconstitutional and for an order to amend the provision so as to make a person who had served as a judge or a member of the Bar to be eligible for appointment as judicial member of the appellate tribunal..Before the High Court, the Additional Solicitor General opposed the plea, stating that the provision under challenge did not offend any constitutional provision and the government was empowered to legislate on the subject-matter..The Court, on hearing both parties, found that while appointing a technical member, the appropriate qualification could be provided by the legislature. However, keeping in mind the independence of the judicial system, the apex court had held that only Judges and advocates could be considered for appointment as judicial members of tribunals.“The principal issue decided qua the basic structure of constitution ensures the separation of powers and independence of the Judiciary from the clutches of the Executive,” the Court noted while stating that the principle laid down in R. Gandhi was applicable to all tribunals..Therefore, the Court said that although judicial restraint was a virtue and the extent of judicial review that could be exercised in a given case was quite limited, a direction of the apex court regarding judicial independence was required to be followed..With this, the petition was disposed of and the Central government was asked to amend the provision immediately..The petitioner appeared in person while the Additional Solicitor General R Sankaranarayanan appeared for the Union of India..[Read Judgment]