Supreme Court Strikes Down Tribunals Ordinance

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    Recently, the Supreme Court (SC) struck down certain provisions of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021.

    About

    • In a 2:1 verdict, the SC struck down certain provisions such as fixing 4-year terms for members.
    • It relates to the minimum age requirement of 50 for appointment as Chairperson or Members and fixing their tenure at four years.
    • The ruling came on an appeal by the Madras Bar Association, challenging the provisions of the Ordinance.

    Section 184

    • The court held certain provisions of Section 184 introduced by Section 12 of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 as void, inoperative and unconstitutional.
      • Section 184 of the Finance Act, 2017, empowered the government to make rules 
        • to provide for qualifications, 
        • appointment, 
        • term of office, 
        • salaries and allowances, 
        • resignation, 
        • removal and 
        • other terms and conditions of service of the Chairperson and Vice-Chairperson (and commensurate positions bearing different nomenclature) and other Members of tribunals.
    • The majority verdict said the term of Chairperson of a tribunal shall be five years or till she or he attains the age of 70, whichever is earlier, 
    • And the term of a Member of a tribunal shall be five years or till she or he attains the age of 67, whichever is earlier.

    Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021

    • Introduced by the Ministry of Law and Justice.
    • The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 was promulgated on April 4, 2021.  
    • It dissolves certain existing appellate bodies and transfers their functions (such as adjudication of appeals) to other existing judicial bodies. 
    • A Bill with similar provisions was introduced in Lok Sabha on February 13, 2021 and is currently pending.
    • The Finance Act, 2017 empowered the central government to notify rules on: 
      • qualifications of members of tribunals, 
      • terms and conditions of their service, and 
      • composition of search-cum-selection committees for 19 tribunals (such as the Customs, Excise, and Service Tax Appellate Tribunals).  
    • Transfer of functions of key appellate bodies as proposed under the Ordinance:
      • The Cinematograph Act, 1952
      • The Trade Marks Act, 1999
      • The Copyright Act, 1957
      • The Customs Act, 1962
      • The Patents Act, 1970
      • The Airports Authority of India Act, 1994
      • The Control of National Highways (Land and Traffic) Act, 2002
      • The Geographical Indications of Goods (Registration and Protection) Act, 1999
    • Search-cum-selection committees: 
      • The 2017 Act specifies that the Chairperson and Members of the Tribunals will be appointed by the central government on the recommendation of a Search-cum-Selection Committee.  
      • The Ordinance specifies that these Committees will consist of: 
        • the Chief Justice of India, or a Supreme Court Judge nominated by him, as the Chairperson (with casting vote), 
        • two Secretaries nominated by the central government, 
        • the sitting or outgoing Chairperson, or a retired Supreme Court Judge, or a retired Chief Justice of a High Court, and 
        • the Secretary of the Ministry under which the Tribunal is constituted (with no voting right).  
    • Term of office: 
      • The Ordinance specifies that the term of office for the Chairperson of the tribunals will be of four years or till the attainment of the age of seventy years, whichever is earlier.  
      • For other members of the tribunals, the term will be of four years or till the age of sixty-seven years, whichever is earlier. 
    • National Consumer Disputes Redressal Commission: 
      • The Ordinance includes the NCDRC established under the Consumer Protection Act, 2019 within the purview of the Finance Act, 2017.  
      • The Ordinance removes the following bodies from the purview of the Finance Act, 2017: 
        • the Airport Appellate Tribunal established under the Airports Authority of India Act, 1994, 
        • the Appellate Board established under the Trade Marks Act, 1999, 
        • the Authority of Advance Ruling established under the Income Tax Act, 1961, and 
        • the Film Certification Appellate Authority established under the Cinematograph Act, 1952.

    Stand of the Judges on Verdict (Ethical)

    • Without independence, impartiality cannot thrive:
      • Independence is not the freedom for Judges to do what they like. It is the independence of judicial thought. 
      • It is the freedom from interference and pressures which provides the judicial atmosphere where he can work with absolute commitment to the cause of justice and constitutional values.
    • Habits and Outlook:
      • It is also the discipline in life, habits and outlook that enables a Judge to be impartial. 
      • Its existence depends, however, not only on philosophical, ethical or moral aspects but also upon several mundane things — security in tenure, freedom from ordinary monetary worries, freedom from influences and pressures within (from others in the judiciary) and without (from the executive).
    • Principle of Independence of any organization: 
      • Independence of the judiciary as an institution or an organ of the State, that is, functional independence, are the broad concepts of the principle of independence of the judiciary/ tribunal.
    • Security of tenure:
      • Security of tenure and conditions of service are recognised as core components of independence of the judiciary.
      • It can be sustained only when the incumbents are assured of fair and reasonable conditions of service, which include adequate remuneration and security of tenure.
    • Judicial overreach: 
      • Courts can declare law, interpret law, remove obvious lacunae and fill up the gaps but they cannot entrench upon in the field of legislation”.
      • Supreme Court has observed that if a law is enacted by Parliament or Legislature, even if it is assumably contrary to the directions or guidelines issued by the court, it cannot be struck down by reason of such directions/guidelines issued by the court; 
      • It can be struck down only if it violates the fundamental rights or the right to equality under Article 14.

    Conclusion

    • Impartiality, independence, fairness and reasonableness in decision-making are the hallmarks of the judiciary.
    • The Parliament should take caution while overriding or manipulating the judgements/orders of the Court.

    Source: IE