Madras Bar Association moves Supreme Court challenging provisions of Tribunals Reforms Ordinance 2021

The Madras Bar Association has moved Supreme Court challenging Sections 12 and 13 of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 (Ordinance) and Sections 184 and 186(2) of the Finance Act, 2017 as amended by the Ordinance. .In its plea before the Supreme Court, the Association submitted that the challenged provisions are in "contravention of the principles of separation of powers, independence of the judiciary (both being part of the basic structure of our Constitution), and are against efficient and effective administration of justice"..Senior Advocate Arvind Datar mentioned the plea on Monday before a special bench of Justices L Nageswara Rao, AS Bopanna and V Ramasubhramaniam seeking urgent listing The Court acceded to the request and the case is likely to be taken up this Friday. .The plea stated that Section 184 of the Finance Act, 2017 contravenes the previous decision of the Supreme Court in Union of India v R. Gandhi [(2010) 11 SCC 1], Madras Bar Association v Union of India, [(2014) 10 SCC 1], Rojer Mathew v South Indian Bank Ltd, [(2020) 6 SCC 1] and Madras Bar Association v Union of India (2020)..After the 2020 judgment of the Supreme Court in Madras Bar Association, the ordinance was promulgated in April 2021, whereby nine central legislations were amended thereby abolishing four tribunals.With respect to Finance Act, 2017, Section 12 of the Ordinance substituted Section 184, Section 13 of the Ordinance inserted Section 186(2) and the Eighth Schedule was amended so as to omit the aforesaid four tribunals and to substitute the item relating to the National Consumer Disputes Redressal Commission..The plea stated that first proviso to Section 184(1) provides for a minimum age limit of 50 years and that it is "arbitrary, unconstitutional and against the directions of Supreme Court in R Gandhi, Rojer Mathew and, in particular, Madras Bar Association case. "Section 184(1), second proviso states that all allowances and benefits shall be to the extent as are admissible to a Central Government officer holding the post carrying the same pay. It is submitted that this provision is contrary to the decision of this Hon’ble Court in Madras Bar Assn. (2020) [Para 53(xiv)], and would also have the effect of denying the benefits under the decision to future members," the plea said. .Further, Section 184(11) provides that the term of members will be 4 years. This provision, the plea said, is unconstitutional and against various decisions of the Supreme Court including in Madras Bar Association wherein it has been consistently held that members must have a minimum term of 5 years."It is submitted that the proviso to Section 184(11) proviso and Section 186(2) are unconstitutional for the reason that they vary the terms of appointment of members to their disadvantage after their appointment, and ought to be struck down for tending to dilute independence of the Judiciary," the petition said. .Centre introduces new tribunal bill; seeks to override three Supreme Court rulings on minimum tenure of tribunal members.The association further submitted that it is settled law that the legislature does not have the power to directly overrule the orders of Supreme Court, which Section 184(7) and Section 184(11) seek to do through non-obstante clauses. .In furtherance to the above challenge, the petitioner also submitted that in 2020 Madras Bar Association judgment, the Supreme Court had directed the Central government to constitute a National Tribunals Commission to supervise the appointments to and functioning of tribunals. Till the constitution of National Tribunals Commission, a separate wing should be established at the Ministry of Finance to cater to the requirements of tribunals, the Court had directed. However, no steps have been taken though more than four months have passed since the date of the judgement, the plea highlighted. The petitioner has, therefore, prayed that Sections 12 and 13 of the Ordinance, 2021 and Section 184 and 186(2) of the Finance Act, 2017 as amended by the Ordinance, as ultra vires Articles 14, 21 and 50 of the Constitution of India, for being violative of the principles of separation of powers and independence of the judiciary.