The Supreme Court on Wednesday listed for final disposal all challenges to the constitutional validity of the Tribunal Reforms Act, 2021..A Bench of Justices DY Chandrachud, Surya Kant and Bela M Trivedi stated that it would hear the batch of petitions finally on July 26. The Court was hearing a matter related to vacancies at the Telecom Disputes Settlement and Appellate Tribunal (TDSAT), and took note of Attorney General KK Venugopal's submissions that the 2021 Act allows the Central government to reject the top court's shortlisted candidates for tribunals."AG Venugopal has relied on Section 5 of the Tribunal Reforms Act. Since the term of the applicants continue till April 10, 2023, it is better to take up the main challenge to the Tribunal Reforms Act. However, we clarify by any reason the challenge to main act cannot be taken up the IAs will be dealt on its own merits," the Court said. .Senior Advocate Vikas Singh informed the Bench that a committee headed by Justice L Nageswara Rao had recommended the petitioner-applicant's name against the TDSAT vacancy. On the Bench asking the Central government as to why, in 2020, a candidate was overlooked after his selection, the AG said,"The Tribunal Reforms Act empowers us to reject...The government [after IB-approves shortlisted candidate] then refers the matters to other departments, it is seen if there are Income Tax matters pending against him, then he is not appointed."Noting that there has to be a valid reason for the rejection, the Bench listed the TDSAT matter for Wednesday..Senior Advocate Arvind Datar then told the Court that the 2021 Act copies a struck-down ordinance without even changing the punctuation."The case falls here only," he said. Justice Chandrachud then remarked,"It would have been nice if Justice L Nageswara Rao only heard this. We cannot stop the constitutional process of judges turning 65 you see."Soon after, the Bench stated, "Once the ordinance is struck down...how can the act survive if the provision is exactly similar?" The AG then pointed to a non-obstante (notwithstanding) clause, and said "they should have challenged this Section 5 saying it was similar to the Ordinance, but separately than the challenge to the Tribunal Reforms Act."Datar replied, "Justice Rao had struck down the provision that people below 50 cannot apply...Here in the Reforms Act is also the same age. Once a Supreme Court judge-headed committee selects a person, why should the committee give 2 names? All the tribunals being filled up now, below 50 cannot apply. Look at the unfortunate thing, the judgment was passed on July 14, 2021, and the new Act was passed on July 28 without changing anything. It is a good case to stay the operation of this act itself."Noting that the terms of the applicants for the TDSAT and other tribunals were coming to end, the Court said that it would hear the challenges to the main Act in July..In October, the Supreme Court had said that it was unfortunate that it is being called upon to examine and fill up vacancies in tribunals, adding that if the government is not inclined to continue with tribunals, it should abolish them."If the government does not want the tribunals then abolish the Act! We are stretching our jurisdictions to see the vacancies are filled in. It is unfortunate that judiciary is called upon to look into this issue...This is not a very happy situation," a Bench of Justices Sanjay Kishan Kaul and MM Sundresh had remarked.In September, the Court had taken strong exception to the Central government's inaction in filling up vacancies in tribunals, and berated it for enacting the 2021 Act in violation of its judgments."It is clear that you don't want to respect the judgments of this court. Now we have the option to stay the Tribunal Reforms Act or close down tribunals or we ourselves appoint the people or the next option is initiate contempt of courts act. These are 3 options," the Court had said."You are emasculating tribunals by not filling vacancies," Justice L Nageswara Rao had remarked..Solicitor General Tushar Mehta, representing the Central government, had stated that there is "no remotest intention to close tribunals".While defending the validity of the Tribunal Reforms Act, 2021, the Centre argued that even if there is a violation of the basic structure doctrine, it is not a ground to attack the validity of a statute."Basic structure in the Constitution can only be used to test the validity of a Constitutional amendment but has no relevance when it comes to validity of a statute," its reply stated..Parliament had passed the 2021 Tribunal Reforms Act laying down the tenures and other service conditions of tribunal members. However, many of the provisions of the law run contrary to the mandate of the Supreme Court judgment regarding tenures of service of tribunal members.The Supreme Court had in July 2021 struck down the newly inserted Section 184 of the Finance Act, 2017, as amended by the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 to the extent that it fixed the tenure of members and Chairperson of tribunals at 4 years.The top court had ruled that Section 184(11) of the Finance Act, which prescribes a tenure of four years for members, was contrary to the principles of separation of powers, independence of the judiciary, rule of law and Article 14 of the Constitution, as well as the judgment of the apex court in the Madras Bar Association III case..As per Section 5 of the 2021 Act, the term of office of the Chairperson of a tribunal shall be four years or till the person attains the age of 70, whichever is earlier. Similarly, for members of tribunals, the tenure has been prescribed as four years or till he/she attains 67 years, whichever is earlier.The Supreme Court had in its July 2021 judgment had held that fixing 50 years as the minimum age for appointment is unconstitutional. However, the same reappears in the new law as a proviso to Section 3..Before that, in November 2020, the Supreme Court in its judgment had ordered that the term of office of the Chairperson and tribunal members should be five years. The Court had also ordered some other modifications to the 2020 Rules in this regard.The government had then introduced the 2021 Ordinance that kept the tenure at four years. That move was struck down in the July 2021 judgment, following which the present Act was passed.
The Supreme Court on Wednesday listed for final disposal all challenges to the constitutional validity of the Tribunal Reforms Act, 2021..A Bench of Justices DY Chandrachud, Surya Kant and Bela M Trivedi stated that it would hear the batch of petitions finally on July 26. The Court was hearing a matter related to vacancies at the Telecom Disputes Settlement and Appellate Tribunal (TDSAT), and took note of Attorney General KK Venugopal's submissions that the 2021 Act allows the Central government to reject the top court's shortlisted candidates for tribunals."AG Venugopal has relied on Section 5 of the Tribunal Reforms Act. Since the term of the applicants continue till April 10, 2023, it is better to take up the main challenge to the Tribunal Reforms Act. However, we clarify by any reason the challenge to main act cannot be taken up the IAs will be dealt on its own merits," the Court said. .Senior Advocate Vikas Singh informed the Bench that a committee headed by Justice L Nageswara Rao had recommended the petitioner-applicant's name against the TDSAT vacancy. On the Bench asking the Central government as to why, in 2020, a candidate was overlooked after his selection, the AG said,"The Tribunal Reforms Act empowers us to reject...The government [after IB-approves shortlisted candidate] then refers the matters to other departments, it is seen if there are Income Tax matters pending against him, then he is not appointed."Noting that there has to be a valid reason for the rejection, the Bench listed the TDSAT matter for Wednesday..Senior Advocate Arvind Datar then told the Court that the 2021 Act copies a struck-down ordinance without even changing the punctuation."The case falls here only," he said. Justice Chandrachud then remarked,"It would have been nice if Justice L Nageswara Rao only heard this. We cannot stop the constitutional process of judges turning 65 you see."Soon after, the Bench stated, "Once the ordinance is struck down...how can the act survive if the provision is exactly similar?" The AG then pointed to a non-obstante (notwithstanding) clause, and said "they should have challenged this Section 5 saying it was similar to the Ordinance, but separately than the challenge to the Tribunal Reforms Act."Datar replied, "Justice Rao had struck down the provision that people below 50 cannot apply...Here in the Reforms Act is also the same age. Once a Supreme Court judge-headed committee selects a person, why should the committee give 2 names? All the tribunals being filled up now, below 50 cannot apply. Look at the unfortunate thing, the judgment was passed on July 14, 2021, and the new Act was passed on July 28 without changing anything. It is a good case to stay the operation of this act itself."Noting that the terms of the applicants for the TDSAT and other tribunals were coming to end, the Court said that it would hear the challenges to the main Act in July..In October, the Supreme Court had said that it was unfortunate that it is being called upon to examine and fill up vacancies in tribunals, adding that if the government is not inclined to continue with tribunals, it should abolish them."If the government does not want the tribunals then abolish the Act! We are stretching our jurisdictions to see the vacancies are filled in. It is unfortunate that judiciary is called upon to look into this issue...This is not a very happy situation," a Bench of Justices Sanjay Kishan Kaul and MM Sundresh had remarked.In September, the Court had taken strong exception to the Central government's inaction in filling up vacancies in tribunals, and berated it for enacting the 2021 Act in violation of its judgments."It is clear that you don't want to respect the judgments of this court. Now we have the option to stay the Tribunal Reforms Act or close down tribunals or we ourselves appoint the people or the next option is initiate contempt of courts act. These are 3 options," the Court had said."You are emasculating tribunals by not filling vacancies," Justice L Nageswara Rao had remarked..Solicitor General Tushar Mehta, representing the Central government, had stated that there is "no remotest intention to close tribunals".While defending the validity of the Tribunal Reforms Act, 2021, the Centre argued that even if there is a violation of the basic structure doctrine, it is not a ground to attack the validity of a statute."Basic structure in the Constitution can only be used to test the validity of a Constitutional amendment but has no relevance when it comes to validity of a statute," its reply stated..Parliament had passed the 2021 Tribunal Reforms Act laying down the tenures and other service conditions of tribunal members. However, many of the provisions of the law run contrary to the mandate of the Supreme Court judgment regarding tenures of service of tribunal members.The Supreme Court had in July 2021 struck down the newly inserted Section 184 of the Finance Act, 2017, as amended by the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 to the extent that it fixed the tenure of members and Chairperson of tribunals at 4 years.The top court had ruled that Section 184(11) of the Finance Act, which prescribes a tenure of four years for members, was contrary to the principles of separation of powers, independence of the judiciary, rule of law and Article 14 of the Constitution, as well as the judgment of the apex court in the Madras Bar Association III case..As per Section 5 of the 2021 Act, the term of office of the Chairperson of a tribunal shall be four years or till the person attains the age of 70, whichever is earlier. Similarly, for members of tribunals, the tenure has been prescribed as four years or till he/she attains 67 years, whichever is earlier.The Supreme Court had in its July 2021 judgment had held that fixing 50 years as the minimum age for appointment is unconstitutional. However, the same reappears in the new law as a proviso to Section 3..Before that, in November 2020, the Supreme Court in its judgment had ordered that the term of office of the Chairperson and tribunal members should be five years. The Court had also ordered some other modifications to the 2020 Rules in this regard.The government had then introduced the 2021 Ordinance that kept the tenure at four years. That move was struck down in the July 2021 judgment, following which the present Act was passed.
