With the Supreme Court striking down key provisions of the Tribunals Reforms Act, experts said that some appointments are likely to be affected. Also, the judgment gives a strong message to the government against overriding court decisions through ordinance.
According to a division bench of Chief Justice B R Gavai and Justice K Vinod Chandran, the provisions introduced by the 2021 Ordinance through amendments to Section 184 of the Finance Act, 2017, are now being replicated in the Impugned Act through Sections 3, 5 and 7. All the provisions that have already been judicially reviewed and struck down, including the minimum age requirement of 50 years for appointments, a reduced four-year tenure with upper age limits of 70/67, the mandate for the Search-cum-Selection Committee to recommend a panel of two names for each vacancy, and the linkage of allowances and benefits to those of equivalent civil servants, have been replicated.
“The Court has expressly held that these measures are arbitrary, destructive of judicial independence, and amount to an impermissible legislative override of binding directions,” the bench observed.
Ved Jain, former President of the Institute of Chartered Accountants of India, said that now all members of the Tribunal appointed under the new Rules, notified under the Tribunal Reforms Act, 2021, will have to meet the criteria laid down by the SC. “It will be a challenge particularly for all those presently posted members who are more than 62 years as on date. As per this judgement, the superannuation age for members is fixed 62 years irrespective of date of joining or tenure,” he said.
Accordingly, all those above 62 years apparently can’t continue and their tenure ends on Wednesday with the pronouncement of this judgment. “As against this all those members who were shortlisted before 2021 but appointment letters were issued later under 2021 Act will have extended tenure up to 62 years of age as against 4 years stated in their appointment letter,” he said.
Manish Garg, Lead - Transfer Pricing and Litigation at AKM Global, emphasised that it is very important to ensure the independence of Tribunal members and to provide them with certainty about their tenure and selection process. “By striking down the key provisions of Tribunal Reform Act, 2021, Supreme Court has sent a strong message that judicial independence is non-negotiable and any effort to modify the legislation which impacts the independence of Tribunal members is not constitutionally valid,” he said. Further,
it also established the principle that the government can not introduce a new law with minor modifications, which the courts earlier struck down. “Having a fixed and long tenure of tribunal members is very crucial for faster disposal of cases,” he said.
Sunil Narula - Principal Lawyer, Naroola & Narula Advocates, said that the Court also admonished the Central government for repeatedly re-enacting provisions already declared unconstitutional. “It further underscored that once the Court has struck down a provision or issued binding directions after identifying a constitutional defect, Parliament cannot override or contradict that decision by reintroducing the same measure in a different form,” he said.
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