You are emasculating tribunals by not filling vacancies: Supreme Court to Centre

The Supreme Court on Monday took strong exception to the Central government's inaction in filling up vacancies in tribunals and also berated it for enacting the Tribunals Reforms Act, 2021 in violation of its judgments..A three-judge Bench headed by Chief Justice of India NV Ramana said that the government is leaving the Supreme Court with no option but to initiate contempt of court action or close down tribunals."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 said..The Court maintained that it does not want confrontation with the government and was happy with the way the government cleared recommendations made by the Collegium to appoint nine judges to the Supreme Court. However, with burgeoning vacancies, the tribunals are collapsing, the Court added. "We don't want confrontation with the government and we are happy with the way Supreme Court judges were appointed. These tribunals are collapsing with no members or chairperson," the CJI said."You are emasculating tribunals by not filling vacancies," said Justice L Nageswara Rao.Solicitor General Tushar Mehta representing the Central government told the Court that there is "no remotest intention to close tribunals"."The note from Finance Ministry says the tribunal reforms act has been notified now. The rules are being process of being finalised and this new law will pave the way for filling vacancies. Centre will take up those cases where search and selection committee has made recommendations," he said.The Bench then took exception to the enactment of Tribunal Reforms Act, the Court said that it cannot go on passing judgments with the Parliament continuing to overturn the same."The Tribunal Reforms Act is a replica of the provisions struck down in madras bar association case. We cannot have Madras Bar Association 1,2,3,4,5....This will continue and the act will be passed which will be replica of the earlier one. Also you need to clear appointments which are cleared and in the pipeline," said Justice DY Chandrachud.The Court eventually adjourned the matter for Monday stating that if appointments are not made by then, the Court will pass orders."We are not inclined to pass any orders at present. Mr Mehta seeks time to get instruction about appointments on next date of hearing," the Court stated.The Court also added that it has trust and respect for SG Mehta while observing that the law overturning the Supreme Court judgments be the work of the bureaucracy."We have trust and respect for you. I am sure you are not advising the Centre to bring such a law and this must be bureaucrats who are doing it and this is how bureaucracy functions. We are deeply upset. We will give you three-four days to come back," the Court remarked..Parliament had passed the Tribunal Reforms Act, 2021 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 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.