Not a very happy situation when judiciary has to look into tribunal vacancies: Supreme Court

It is unfortunate that the Supreme Court is being called upon to examine and fill up vacancies in tribunals, the top court said on Friday continuing its strong stance against the Central government for its failure to fill up vacancies in tribunals on time. .A Bench of Justices Sanjay Kishan Kaul and MM Sundresh said 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," the Bench remarked..The Court was hearing a suo motu case regarding vacancies in District and State Consumer Disputes Redressal Commissions. On August 11, the Court had directed that vacancies State Consumer Disputes Redressal Commissions in all States and Union Territories should be filled up within a period of eight weeks..When the matter was taken up today, Senior Advocate Gopal Sankaranarayanan drew the attention of the Bench to how the Centre introduced the Tribunal Reforms Act in violation of the Supreme Court judgment in Madras Bar Association case. Additional Solicitor General Aman Lekhi, representing the Central government submitted that far from being in contravention, the Act is in consonance with the Madras Bar Association judgment.The Court was, however, not impressed."It seems that bench says something and you do something else and some kind of embargo is being created and citizens are suffering. These are places of remedy like consumer forums and daily life is affected," the Bench remarked.The Court's attention was also drawn to the recent judgment of the Bombay High Court's Nagpur Bench, setting aside provisions of the Consumer Protection Rules, 2020 which govern appointment of president and members to State and District Consumer Disputes Redressal Commissions.The High Court had held that Rule 3(2) [prescribing a minimum experience of not less than 20 years for appointment of president and members of State Commission], Rule 4(2)(c) [experience of not less than 15 years for appointment of president and members of District Commission] and Rule 6(9) [providing for the selection committee to determine its procedure for making its recommendations keeping in view the requirement of the Commission] were ultra vires Article 14. The question before the Supreme Court was whether the Bombay High Court verdict would impact process of appointments initiated by the government.The Centre said that it will be filing an appeal against the same.The top court, therefore, proceeded to clarify that the verdict of the High Court will not apply to other States but will be applicable only to Maharashtra. The Court also made it clear that the timelines laid dpown by it in its August 11 order should be adhered to and the appointment process should not be affected by the Bombay High Court judgment. "In view of the objective to fill vacancies, the timeline and process laid down by us must be followed. Thus the process initiated in pursuance of our order should not be impeded by the Nagpur bench order," the Supreme Court said..This is not the first time that the Supreme Court is expressing its displeasure at the Centre's approach towards filling up vacancies in tribunals besides passing laws contrary to the top court's judgments. A Bench headed by Chief Justice of India NV Ramana has been frequently pulling up the government for its lackadaisical approach towards tribunals. .Also contributing to the friction is the Tribunal Reforms Act, 2021 passed by the parliament laying down the tenures and other service conditions of tribunal members.Many of the provisions of the Act run contrary to the mandate of the Supreme Court judgment regarding tenures of service of tribunal members.The Supreme Court had on July 14 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 (Ordinance) 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 judiciary, rule of law and Article 14 of the Constitution of India as well as the judgment of the apex court in the Madras Bar Association III case."Consequently, the declaration of this Court in para 53(iv) of (the judgment in) Madras Bar Association-III shall prevail and the term of Chairperson of a Tribunal shall be five years or till she or he attains the age of 70 years, whichever is earlier and the term of Member of a Tribunal shall be five years or till she or he attains the age of 67 years, whichever is earlier," the Supreme Court had ordered.However, as per Section 5 of the new Bill, the term of office of the Chairperson of a tribunal shall be four years or till the person attains 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."Notwithstanding anything contained in any judgment, order or decree of any court, or in any law for the time being in force, — (i) the Chairperson of a Tribunal shall hold office for a term of four years or till he attains the age of seventy years, whichever is earlier; (ii) the Member of a Tribunal shall hold office for a term of four years or till he attains the age of sixty-seven years, whichever is earlier," it said.Likewise, the Court had in its July 2021 judgment held that fixing 50 years as minimum age for appointment is unconstitutional.However, the same reappears in the new law as proviso to Section 3.Similarly, the Supreme Court in its July 14 ruling had held that the provision relating to recommendation of two names for each post by the Search-cum-Selection Committee (SCSC) and further, requiring the decision to be taken by the government preferably within three months, is violative of the Constitution.But the new Act in Section 3(7) lays down the same."Notwithstanding anything contained in any judgment, order or decree of any court, or in any law for the time being in force, the Search-cum-Selection Committee shall recommend a panel of two names for appointment to the post of Chairperson or Member, as the case may be, and the Central Government shall take a decision on the recommendations made by that Committee, preferably within three months from the date of such recommendation," the Act states.Earlier, 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.In order to get over the same, the government had introduced the 2021 Ordinance which kept the tenure at four years.This move was once again struck down in the July 2021 judgment, following which the present law was introduced.