Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
Writ Petition (Civil) No.502 of 2021
Madras Bar Association .... Petitioner(s)
Versus
Union of India & Another …. Respondent (s)
J U D G M E N T
L. NAGESWARA RAO, J.
1. The Madras Bar Association has filed this Writ Petition
seeking a declaration that Sections 12 and 13 of the Tribunal
Reforms (Rationalisation and Conditions of Service)
Ordinance, 2021 and Sections 184 and 186 (2) of the Finance
Act, 2017 as amended by the Tribunal Reforms
(Rationalisation and Conditions of Service) Ordinance, 2021
as ultra vires Articles 14, 21 and 50 of the Constitution of
India inasmuch as these are violative of the principles of
separation of powers and independence of judiciary, apart
from being contrary to the principles laid down by this
Court in Union of India v. R. Gandhi, President, Madras
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Bar Association
1
, Madras Bar Association v. Union of
India & Anr.
2
, Rojer Mathew v. South Indian Bank
Limited & Ors.
3
and Madras Bar Association v. Union of
India & Anr.
4
. The Petitioner seeks a further direction to
Respondent No.2 for establishment of a separate wing to
cater to the requirements of tribunals in India.
2. A brief reference to the historical background of
tribunalisation in this country is necessary for a better
appreciation of the dispute that falls for adjudication in this
Writ Petition. The Statement of objects and reasons for
insertion of Articles 323-A and 323-B in the Constitution of
India by the Forty-Second Amendment is as follows:
“To reduce the mounting arrears in High Courts and
to secure the speedy disposal of service matters,
revenue matters and certain matters of special
importance in the context of the socio-economic
development and progress, it is considered
expedient to provide for administrative and other
tribunals for dealing with such matters while
preserving the jurisdiction of the Supreme Court in
regard to such matters under Articles 136 of the
Constitution. It is also necessary to make certain
modifications in the Writ Jurisdiction of the High
Courts under Article 226.”
1 (2010) 11 SCC 1
2 (2014) 10 SCC 1
3 (2020) 6 SCC 1
4 (2020) SCC Online SC 962
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3. The vires of the Administrative Tribunals Act, 1985,
enacted under Article 323-A (1), was challenged in S.P.
Sampath Kumar v. Union of India & Ors.
5 before this
Court. The main ground taken in the writ petition was that
the jurisdiction of the High Court under Article 226 and
Article 227 cannot be barred. It was held by this Court in
S.P. Sampath Kumar (supra) that in place of a High Court,
the Parliament can set up an effective alternative
institutional mechanism with the power of judicial review
vested in it, by placing reliance on the observation made in
Minerva Mills Ltd. & Ors. v. Union of India & Ors.
6
.
However, this Court was of the firm opinion that the tribunals
should be a real substitute to High Courts. While scrutinizing
Chapter II of the Act which dealt with the establishment of
tribunals, this Court expressed its view that a short tenure of
Members of tribunals would be a deterrent for competent
persons to seek appointment as Members.
4. The correctness of the judgment of this Court in S.P.
Sampath Kumar (supra) was considered by a larger bench
of this Court in L. Chandra Kumar v. Union of India &
Ors.
7 which found the exclusion of the jurisdiction of the
5 (1987) 1 SCC 124
6 (1980) 3 SCC 625
7 (1997) 3 SCC 261
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High Courts and the Supreme Court in Articles 323-A and
323-B to be unconstitutional. This Court declared that
tribunals shall continue to act like courts of first instance in
respect of areas of law for which they have been constituted.
5. A High-Level Committee on law relating to insolvency of
companies was constituted by the Union of India under the
Chairmanship of Justice V. Balakrishna Eradi, retired Judge of
this Court who made certain recommendations for setting up
the National Company Law Tribunal (hereinafter referred to
as NCLT) combining the powers of the Company Law Board
under the Companies Act, 1956 (hereinafter referred to as
the 1956 Act), BIFR and AAIFR under the Sick Industrial
Companies (Special Provisions) Act, 1985 and the jurisdiction
and powers relating to winding up vested in the High Courts.
The Government accepted the recommendations and passed
the Companies (Second Amendment) Act, 2002. The reason
for the said amendment was to avoid multiplicity of litigation
before various fora and to reduce pendency of cases. The
Madras Bar Association filed a writ petition in the Madras
High Court challenging the constitutional validity of the said
amendment to the 1956 Act on the ground of legislative
incompetence and violation of the doctrines of separation of
powers and independence of the judiciary. The High Court
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upheld the validity of the Amendment Act of 2002 but
pointed out certain defects in the provisions of the Act. The
High Court declared that the NCLT and the National Company
Law Appellate Tribunal (hereinafter referred to as NCLAT)
cannot be constituted without removing the defects pointed
out in the judgment. The judgment of the High Court was
upheld by this Court in Union of India v. R. Gandhi,
President, Madras Bar Association
8
(hereinafter referred
to as MBA-I). Parts I-B and I-C of the 1956 Act were directed
to be modified in accordance with the observations made in
the judgment.
6. The Companies Act, 2013 (hereinafter referred to as the
2013 Act), which replaced the 1956 Act, contained
provisions for establishment of the NCLT and the NCLAT.
Madras Bar Association filed a writ petition under Article 32
of the Constitution challenging the formation of NCLT under
Section 408 of the 2013 Act. Several other provisions
pertaining to constitution of the NCLT and the NCLAT,
qualifications for appointment of Members and Chairperson /
President and constitution of the Selection Committee were
also assailed in the said writ petition. This Court in Madras
8 (2010) 11 SCC 1
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Bar Association v. Union of India & Anr.
9
(hereinafter
referred to as MBA-II) upheld the validity of Section 408 by
which the NCLT was constituted. However, clauses (a) and
(e) of Section 409(3) relating to the appointment of Technical
Members were held to be invalid. Section 411(3), which
provided qualifications of Technical Members, and Section
412(2), which dealt with the constitution of the Selection
Committee, were also held to be invalid. A direction was
given to the Union of India to scrupulously follow the
judgment in MBA-I and set right the defects that were
pointed out therein by bringing the provisions in accord with
the MBA-I judgment.
7. The Finance Act, 2017 was brought into force from
31.03.2017 to give effect to the financial proposals for the
financial year 2017-18. Sections 183 to 189 thereof dealt
with conditions of service of Chairperson and Members of
Tribunals, Appellate Tribunals and other authorities.
According to Section 183, provisions of Section 184 applied
to the Chairperson, Vice-Chairperson, Chairman, ViceChairman, President, Vice-President, Presiding Officer or
Member of the Tribunal, Appellate Tribunal and other
specified authorities, notwithstanding anything to the
9 (2015) 8 SCC 583
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contrary contained in the provisions of the statutes listed in
Column (3) of the Eighth Schedule. The Central Government
was empowered by Section 184 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. As per the first proviso,
the Chairperson, Vice-Chairperson (and commensurate
positions bearing different nomenclature) or Member of the
Tribunal shall hold office for such term as may be specified by
the rules made by the Central Government, not exceeding
five years from the date on which such person enters office.
The Chairperson, Chairman or President can hold office till
they reach the age of 70 years and the Vice-Chairperson,
Vice-Chairman, Vice-President, Presiding Officer or any other
Member can continue till the age of 67 years, as per the
second proviso to Section 184.
8. A Notification was issued by the Central Government on
01.06.2017 by which the Tribunal, Appellate Tribunal and
other Authorities (Qualifications, Experience and other
Conditions of Service of Members) Rules, 2017 (hereinafter
referred to as the 2017 Rules) were made. The validity of
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Part XIV of the Finance Act, 2017 and the 2017 Rules framed
thereunder was questioned in Rojer Mathew (supra). The
petitioners contended that para XIV of the Finance Act, 2017
cannot be classified as a money bill. The question of money
bill was referred to a larger bench. The validity of Section
184 of the Finance Act, 2017 was upheld. The 2017 Rules
were held to be contrary to the parent amendment and
therefore, struck down. The Central Government was
directed to reformulate the rules strictly in accordance with
the principles delineated by this Court in R.K. Jain v. Union
of India
10
, L. Chandra Kumar (supra), Madras Bar
Association v. Union of India & Anr.
11 and Gujarat Urja
Vikas Nigam Ltd. v. Essar Power Ltd.
12
The Central
Government was directed to formulate a new set of rules
which would ensure non-discriminatory and uniform
conditions of service, including assured tenure. As an interim
order, this Court in Rojer Mathew (supra) directed that the
appointments to the Tribunals/ Appellate Tribunals and the
service conditions shall be in terms of the respective statutes
before the enactment of the Finance Bill, 2017. Union of
India was given liberty to seek modification of the orders
after framing fresh rules. On 12.02.2020, a notification was
10 (1993) 4 SCC 119
11 (2014) 10 SCC 1
12 (2016) 9 SCC 103
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issued by the Central Government by which the Tribunal,
Appellate Tribunal and other Authorities (Qualifications,
Experience and other Conditions of Service of Members)
Rules, 2020 (hereinafter referred to as the 2020 Rules) were
framed. The validity of the 2020 Rules was challenged by
Madras Bar Association. After detailed deliberations on the
issues involved, this Court by its judgment in Madras Bar
Association v. Union of India & Anr.
13
(hereinafter referred
to as MBA-III) disposed of the writ petition by issuing the
following directions:
“53. The upshot of the above discussion leads this
Court to issue the following directions:
(i) The Union of India shall constitute a National
Tribunals Commission which shall act as an
independent body to supervise the appointments
and functioning of Tribunals, as well as to conduct
disciplinary proceedings against members of
Tribunals and to take care of administrative and
infrastructural needs of the Tribunals, in an
appropriate manner. Till the National Tribunals
Commission is constituted, a separate wing in the
Ministry of Finance, Government of India shall be
established to cater to the requirements of the
Tribunals.
(ii) Instead of the four-member Search-cumSelection Committees provided for in Column (4) of
13 (2020) SCC Online SC 962
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the Schedule to the 2020 Rules with the Chief Justice
of India or his nominee, outgoing or sitting Chairman
or Chairperson or President of the Tribunal and two
Secretaries to the Government of India, the Searchcum-Selection Committees should comprise of the
following members:
(a) The Chief Justice of India or his nominee—
Chairperson (with a casting vote).
(b) The outgoing Chairman or Chairperson or
President of the Tribunal in case of appointment of
the Chairman or Chairperson or President of the
Tribunal (or) the sitting Chairman or Chairperson
or President of the Tribunal in case of appointment
of other members of the Tribunal (or) a retired
Judge of the Supreme Court of India or a retired
Chief Justice of a High Court in case the Chairman
or Chairperson or President of the Tribunal is not a
Judicial member or if the Chairman or Chairperson
or President of the Tribunal is seeking reappointment—member;
(c) Secretary to the Ministry of Law and Justice,
Government of India—member;
(d) Secretary to the Government of India from a
department other than the parent or sponsoring
department, nominated by the Cabinet Secretary
—member;
(e) Secretary to the sponsoring or parent Ministry
or Department—Member Secretary/Convener
(without a vote). Till amendments are carried out,
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the 2020 Rules shall be read in the manner
indicated.
(iii) Rule 4(2) of the 2020 Rules shall be amended to
provide that the Search-cum-Selection Committee
shall recommend the name of one person for
appointment to each post instead of a panel of two
or three persons for appointment to each post.
Another name may be recommended to be included
in the waiting list.
(iv) The Chairpersons, Vice-Chairpersons and the
members of the Tribunal shall hold office for a term
of five years and shall be eligible for reappointment.
Rule 9(2) of the 2020 Rules shall be amended to
provide that the Vice-Chairman, Vice-Chairperson
and Vice President and other members shall hold
office till they attain the age of sixty-seven years.
(v) The Union of India shall make serious efforts to
provide suitable housing to the Chairman or
Chairperson or President and other members of the
Tribunals. If providing housing is not possible, the
Union of India shall pay the Chairman or Chairperson
or President and Vice-Chairman, Vice-Chairperson,
Vice President of the Tribunals an amount of Rs.
1,50,000/- per month as house rent allowance and
Rs. 1,25,000/- per month for other members of the
Tribunals. This direction shall be effective from
01.01.2021.
(vi) The 2020 Rules shall be amended to make
advocates with an experience of at least 10 years
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eligible for appointment as judicial members in the
Tribunals. While considering advocates for
appointment as judicial members in the Tribunals,
the Search-cum-Selection Committee shall take into
account the experience of the Advocate at the bar
and their specialization in the relevant branches of
law. They shall be entitled for reappointment for at
least one term by giving preference to the service
rendered by them for the Tribunals.
(vii) The members of the Indian Legal Service shall
be eligible for appointment as judicial members in
the Tribunals, provided that they fulfil the criteria
applicable to advocates subject to suitability to be
assessed by the Search-cum-Selection Committee
on the basis of their experience and knowledge in
the specialized branch of law.
(viii) Rule 8 of the 2020 Rules shall be amended to
reflect that the recommendations of the Searchcum-Selection Committee in matters of disciplinary
actions shall be final and the recommendations of
the Search-cum-Selection Committee shall be
implemented by the Central Government.
(ix) The Union of India shall make appointments to
Tribunals within three months from the date on
which the Search-cum-Selection Committee
completes the selection process and makes its
recommendations.
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(x) The 2020 Rules shall have prospective effect and
will be applicable from 12.02.2020, as per Rule 1(2)
of the 2020 Rules.
(xi) Appointments made prior to the 2017 Rules are
governed by the parent Acts and Rules which
established the concerned Tribunals. In view of the
interim orders passed by the Court in Rojer
Mathew (supra), appointments made during the
pendency of Rojer Mathew (supra) were also
governed by the parent Acts and Rules. Any
appointments that were made after the 2020 Rules
came into force i.e. on or after 12.02.2020 shall be
governed by the 2020 Rules subject to the
modifications directed in the preceding paragraphs
of this judgment.
(xii) Appointments made under the 2020 Rules till
the date of this judgment, shall not be considered
invalid, insofar as they conformed to the
recommendations of the Search-cum-Selection
Committees in terms of the 2020 Rules. Such
appointments are upheld, and shall not be called
into question on the ground that the Search-cumSelection Committees which recommended the
appointment of Chairman, Chairperson, President or
other members were in terms of the 2020 Rules, as
they stood before the modifications directed in this
judgment. They are, in other words, saved.
(xiii) In case the Search-cum-Selection Committees
have made recommendations after conducting
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selections in accordance with the 2020 Rules,
appointments shall be made within three months
from today and shall not be subject matter of
challenge on the ground that they are not in accord
with this judgment.
(xiv) The terms and conditions relating to salary,
benefits, allowances, house rent allowance etc. shall
be in accordance with the terms indicated in, and
directed by this judgment.
(xv) The Chairpersons, Vice Chairpersons and
members of the Tribunals appointed prior to
12.02.2020 shall be governed by the parent statutes
and Rules as per which they were appointed. The
2020 Rules shall be applicable with the
modifications directed in the preceding paragraphs
to those who were appointed after 12.02.2020.
While reserving the matter for judgment on
09.10.2020, we extended the term of the
Chairpersons, Vice-Chairpersons and members of
the Tribunals till 31.12.2020. In view of the final
judgment on the 2020 Rules, the retirements of the
Chairpersons, Vice-Chairpersons and the members
of the Tribunals shall be in accordance with the
applicable Rules as mentioned above.”
9. The Tribunal Reforms (Rationalisation and Conditions of
Service) Bill, 2021 was introduced in the Lok Sabha on
13.02.2021 but could not be taken up for consideration.
According to the Statement of objects and reasons, the said
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Bill was proposed with a view to streamline tribunals and
sought to abolish certain tribunals and other authorities,
which “only add to another additional layer of litigation” and
were not “beneficial for the public at large”. Thereafter, the
Tribunal Reforms (Rationalisation and Conditions of Service)
Ordinance, 2021 (hereinafter referred to as the Ordinance)
was promulgated on 04.04.2021. Chapter II thereof makes
amendments to the Finance Act, 2017. The dispute raised in
this Writ Petition relates to the first proviso to Section 184(1)
according to which a person below the age of 50 years shall
not be eligible for appointment as Chairperson or Member
and also the second proviso, read with the third proviso,
which stipulates that the allowances and benefits payable to
Chairpersons and Members shall be the same as a Central
Government officer holding a post carrying the same pay as
that of the Chairpersons and Members. Section 184(7)
stipulates that the Selection Committee shall recommend a
panel of two names for appointment to the post of
Chairperson or Member and the Central Government shall
take a decision preferably within three months from the date
of the recommendation of the Committee, notwithstanding
any judgment, order or decree of any Court. The said
provision is also assailed in this Writ Petition. Section 184
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(11) which shall be deemed to have been inserted with effect
from 26.05.2017 provides that the term of office of the
Chairperson and Member of a tribunal shall be four years.
The age of retirement of the Chairperson and Members is
specified as 70 years and 67 years, respectively. If the term
of office or the age of retirement specified in the order of
appointment issued by the Central Government for those
who have been appointed between 26.05.2017 and
04.04.2021 is greater than that specified in Section 184(11),
the term of office or the age of retirement shall be as set out
in the order of appointment, subject to a maximum term of
office of five years. The validity of Section 184(11) is also
challenged in the Writ Petition.
10. We have heard Mr. Arvind P. Datar, learned Amicus
Curiae, Mr. K.K. Venugopal, learned Attorney General for
India, Mr. Balbir Singh, learned Additional Solicitor General,
Mr. Mukul Rohatgi, learned Senior Counsel, Mr. Sidharth
Luthra, learned Senior Counsel, Mr. Gaurab Banerjee, learned
Senior Counsel, Mr. Aruneshwar Gupta, learned Senior
Counsel and Mr. Krishnan Venugopal, learned Senior Counsel.
11. Mr. Arvind P. Datar, learned Amicus Curiae, made the
following submissions:
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i) The Ordinance is violative of the rule of separation of
powers which forms part of the basic structure of the
Constitution. The Ordinance is liable to be struck down
as being violative of another basic feature of the
Constitution, i.e., independence of the judiciary.
ii) Reversal of judgments which are not in accord with the
Government’s views undermines the judiciary, violating
the supremacy of the Constitution.
iii) Stipulation of a minimum age limit of 50 years for
appointment is contrary to the directions given in the
judgments of this Court in MBA-I, Rojer Mathew
(supra) and MBA-III.
iv) The provisos to Section 184(1) fixing the allowances
and benefits payable to the Members to the extent as
admissible to Central Government officers holding a post
carrying the same pay is unsustainable and requires to
be set aside.
v) Section 184(7) is liable to be declared invalid as the
direction issued by this Court in MBA-III to make
appointments within three months from the date of
recommendation of the Selection Committee is sought to
be annulled.
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vi) Section 184(11) is unconstitutional insofar as it fixes
the tenure of the Chairperson and Members as four
years.
vii) Retrospectivity given to Section 184(11) is only to
nullify the effect of interim orders of this Court which are
in the nature of mandamus and is, therefore, prohibited
legislative activity.
viii) The appointments made pursuant to the directions
of this Court on 09.02.2018, 16.07.2018 and 21.08.2018
with the consent of the learned Attorney General cannot
be disturbed. The directions issued by this Court with
the consent of the Union of India cannot be legislatively
overruled.
12. Mr. P.S. Patwalia, learned Senior Counsel appearing for
Mr. P. Dinesha, Member, CESTAT, submitted that there are at
least four orders passed by this Court on 09.02.2018,
20.03.2018, 16.07.2018 and 21.08.2018 which clarified that
the age of retirement would be 62 years for Members of the
CESTAT and the ITAT. Relying upon the judgment of this
Court in Virender Singh Hooda & Ors. v. State of
Haryana & Anr.
14, he submitted that even if this Court
14 (2004) 12 SCC 588
18 | P a g e
upholds the Ordinance, the appointments made pursuant to
the interim orders of this Court should not be disturbed.
13. Mr. Rohatgi, learned Senior Counsel, argued that Mr.
Ajay Sharma who was practicing as an AOR in this Court
responded to an advertisement issued on 29.06.2016 for the
appointment to the post of Member (Judicial), CESTAT. He
was appointed along with others on 11.04.2018 with a
condition that his tenure will be for five years or till he attains
the age of 65 years, whichever is earlier. This Court clarified
on 21.08.2018 that the retirement age of Member (Judicial),
CESTAT shall be 62 years. Proviso to Section 184(11) which
prescribes a maximum of five years tenure is a result of an
impermissible exercise undertaken by the Union of India. He
further submitted that a mandamus issued by this Court
cannot be overruled by the legislature. Mr. Gaurab Banerjee,
learned Senior Counsel, submitted that Mr. S.K. Pati was
appointed Member (Judicial), CESTAT on 11.04.2018. He
submitted that Mr. Pati left his employment as an Additional
District Judge and joined as Member (Judicial). Mr. Sidharth
Luthra, learned Senior Counsel, submitted that Mrs. Rachna
Gupta who is at present working as Member (Judicial) has
resigned as District Judge. He requested this Court to permit
the Members, CESTAT and other tribunals to continue till 62
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years as directed by this Court in its judgment in Kudrat
Sandhu v. Union of India
15
. Mr. Krishnan Venugopal,
learned Senior Counsel appearing for Advocates’ Association,
Bengaluru, which was interested in appointments being
made to the posts of Judicial and Accountant Members of the
ITAT, submitted that pursuant to the advertisement issued on
06.07.2018 inviting applications to 37 posts of Members
(Judicial)/ (Accountant) in the ITAT, 650 applications were
filed. The candidates between the age of 35 years and 50
years were eligible according to the advertisement.
Interviews were held between May-September, 2019.
Appointments to the post of Accountant Members were made
but the Judicial Members were not appointed. He submitted
that there are few persons who are below 50 years and
would not be considered for appointment in view of the
Ordinance. He argued that Section 184(11) alone is given
retrospective effect and the amendments to Section 184(1)
to (10) would be prospective and cannot be made applicable
to the recruitment and selection conducted prior to
04.04.2021. Therefore, according to Mr. Krishnan Venugopal,
learned Senior Counsel, the candidates who have been
selected pursuant to the advertisement issued in 2018
15 W.P. No. 279 of 2017
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should not be held ineligible on the ground that some of the
candidates were below the age of 50 years on the date of the
advertisement.
14. The learned Attorney General strongly refuted the
contentions of the learned Amicus Curiae and other Senior
Counsel. He stated that a judgment of a court can be
overridden by the legislature. Service conditions of Members
of tribunals is a policy decision which should be left to the
collective decision of the Parliament. Legislative overruling is
a permissible exercise as has been held in a number of
judgments of this Court. He asserted that there can be no
direction issued by this Court to make law in a particular
manner. Such directions issued by this Court are treated as
suggestions. Ultimately, the will of the people has to prevail.
Even interstitial directions given in the absence of law are
subject to future legislation. He was of the opinion that the
Ordinance cannot be challenged on the ground that it is
contrary to the judgment of this Court in MBA-III. The
learned Attorney General argued that the minimum age for
appointment to tribunals is fixed at 50 years for the purpose
of maintaining equality. All aspirants from various fields have
been put on an even keel. According to him, there is no
uniformity in the directions issued by this Court regarding the
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tenure of Chairperson and Members. Initially in S.P.
Sampath Kumar (supra), this Court recommended five to
seven years as tenure. Thereafter, directions were issued to
the effect that tenure should be five years. The learned
Attorney General submitted that tenure of four years instead
of five years was fixed after detailed deliberations by experts
which should not be interdicted by this Court. Insofar as HRA
is concerned, the learned Attorney General submitted that
Members of tribunals cannot be permitted to claim
allowances higher than officers in the Government carrying
the same pay scale. In respect of two names being sent for
each post by the Selection Committee, the learned Attorney
General stated that the recommendations are subject to
inquiry by the Intelligence Bureau (IB) and in case the
selected candidate is found to be not suitable, there should
be an alternative. Therefore, it was decided that at least two
names should be recommended by the Selection Committee
for each post. The Government is also interested in filling up
the vacant posts in the tribunals and the stipulation of taking
a decision preferably within three months does not mean
that the Government will not act with alacrity.
15. Mr. Balbir Singh, learned Additional Solicitor General
defended the retrospectivity given to Section 184(11) by
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arguing that the defect pointed out by the judgment of MBAIII has been cured by the Ordinance. It was held in MBA-III
that the 2020 Rules came into force on the date of their
notification, i.e., 12.02.2020. Further, it was held that
subordinate legislation cannot be given retrospective
operation unless authorized by the parent legislation. By the
Ordinance, the Finance Act has been amended and
retrospective effect has been given to Section 184(11). Any
judgment or orders passed between 26.05.2017 and
04.04.2021 are overridden by the Ordinance which is in the
nature of a curative legislation. The learned ASG submitted
that all appointments that have been made between
26.05.2017 and 04.04.2021 shall be governed by the
Ordinance.
Separation of Powers
16. Sir Edward Coke on being summoned by King James I to
answer why the King could not himself decide cases which
had to go before his own Courts of justice, asserted: “... no
king after the conquest assumed to himself to give any
judgment in any cause whatsoever, which concerned the
administration of justice within his realm, but these were
solely determined in the Courts of justice”. When the King
said that “he thought the law was founded on reason, and
23 | P a g e
that he and others had reason, as well as the Judges”, Coke
answered:
“True it was, that God had endowed His Majesty with
excellent science, and great endowments of nature;
but His Majesty was not learned in the laws of his
realm of England, and causes which concern the life,
or inheritance, or goods, or fortunes of his subjects,
are not to be decided by natural reason, but by the
artificial reason and judgment of the law, which law
is an act which requires long study and experience,
before that a man can attain to the cognizance of it;
and that the law was the golden metwand and
measure to try the causes of the subjects; and
which protected His Majesty in safety and peace.
(“The Higher Law —Background of American
Constitutional Law” by Edward S. Corwin, pp. 38-
39).”
16
17. This dictum of Coke, announced in Dr Bohman case
[(1610) 8 Co Rep 118-A] was soon repudiated in England, but
the doctrine announced in Coke's dictum found fertile soil in
the United States and sprouted into such a vigorous growth
that it was applied by the United States Supreme Court in the
decision of cases coming before it; and it has been said that
the doctrine of the supremacy of the Supreme Court is the
logical conclusion of Coke's doctrine of control of the Courts
16 Smt. Indira Nehru Gandhi v. Shri Raj Narain 1975 Supp SCC 1
24 | P a g e
over legislation (See: Willis on Constitutional Law, 1936 Edn.,
p. 76).
18. De l’esprit des lois was published in 1748 by
Charles de Secondat, Baron de Montesquieu. According to
Montesquieu, there can be no liberty where the legislative
and executive powers are united in the same person or body
of Magistrates. He argued that there is no liberty, if the
judicial power is not separated from the legislative and
executive. He further noted that there would be an end of
everything, were the same man or same body, whether of
the nobles or of the people, to exercise those three powers,
that of enacting laws, that of executing the public
resolutions, and of trying the causes of individuals.
19. The Federalist Papers were written by Alexander
Hamilton, James Madison, and John Jay under the collective
pseudonym "Publius" to promote the ratification of the
United States Constitution. James Madison dealt with the
particular structure of the new government and the
distribution of powers among its different parts in Federalist
No.47 and separation of the departments not having
constitutional control over each other in Federalist No.48.
The structure of the Government furnishing proper checks
25 | P a g e
and balances between different departments was the subject
matter of Federalist No.51.
20. All powers of Government — legislative, executive and
judicial — result in the legislative body. The concentration of
these powers in the same hands is precisely the definition of
despotic Government. It will be no alleviation that these
powers will be exercised by a plurality of hands and not by a
single person. One hundred and seventy-three despots would
surely be as oppressive as one. [ See: Jefferson : Works : 3,
223]
21. The American Constitution provides for a rigid
separation of governmental powers into three basic divisions,
executive, legislative and judiciary. It is an essential principle
of that Constitution that powers entrusted to one department
should not be exercised by any other department. The
Australian Constitution follows the same pattern of the
separation of powers. Unlike these Constitutions, Indian
Constitution does not expressly vest the three kinds of
powers in three different organs of the State.17
22. The doctrine of separation of powers informs the Indian
constitutional structure and is an essential constituent of rule
of law. In other words, the doctrine of separation of powers,
17 Smt. Indira Nehru Gandhi v. Shri Raj Narain (supra)
26 | P a g e
though not expressly engrafted in the Constitution, its sweep,
operation and visibility are apparent from the scheme of the
Indian Constitution. The Constitution has made demarcation,
without drawing formal lines between the three organs—
legislature, executive and judiciary. Separation of powers
between three organs—the legislature, executive and
judiciary—is also nothing but a consequence of principles of
equality enshrined in Article 14 of the Constitution of India.
Accordingly, breach of separation of judicial power may
amount to negation of equality under Article 14. Stated thus,
a legislation can be invalidated on the basis of breach of the
separation of powers since such breach is negation of
equality under Article 14 of the Constitution.18 Equality, rule
of law, judicial review and separation of powers form parts of
the basic structure of the Constitution. Each of these
concepts are intimately connected. There can be no rule of
law, if there is no equality before the law. These would be
meaningless if the violation was not subject to the judicial
review. All these would be redundant if the legislative,
executive and judicial powers are vested in one organ.
Therefore, the duty to decide whether the limits have been
transgressed has been placed on the judiciary. 19 Though,
18 State of Tamil Nadu v. State of Kerala & Anr. (2014) 12 SCC 696
19 I.R. Coelho v. State of T.N. (2007) 2 SCC 1
27 | P a g e
there is no rigid separation of governmental powers between
the executive, legislative and judiciary, it is clear from the
above judicial pronouncements and literature that separation
of powers forms part of the basic structure of the
Constitution. Violation of separation of powers would result
in infringement of Article 14 of the Constitution. A legislation
can be declared as unconstitutional if it is in violation of the
principle of separation of powers.
Independence of the Judiciary
23. Alexander Hamilton wrote in The Federalist No.78 as
follows:
“The complete independence of the courts of justice is
peculiarly essential in a limited Constitution. By a limited
Constitution, I understand one which contains certain
specified exceptions to the legislative authority; such, for
instance, that it shall pass no bills of attainder, no ex post
facto laws, and the like. Limitations of this kind can be
preserved in practice in no other way than through the
medium of courts of justice, whose duty it must be to declare
all acts contrary to the manifest tenor of the Constitution
void. Without this, all the reservations of particular rights or
privileges would amount to nothing.”
28 | P a g e
24. Basic Principles on the Independence of the Judiciary
were adopted by the 7th United Nations Congress on the
Prevention of Crime and the Treatment of Offenders held at
Milan from 26.08.1985 to 06.09.1985 and endorsed by the
General Assembly resolutions on 29.11.1985 and
13.12.1985. The relevant basic principles are that the
independence of the judiciary shall be guaranteed by the
State and enshrined in the Constitution or the law of the
country. It is the duty of the governmental and other
institutions to respect and observe the independence of the
judiciary. The term of office of Judges, their independence,
security, adequate renumeration, conditions of service,
pensions and the age of retirement shall be adequately
secured by law. The United Nations Economic and Social
Council authorized the UN Sub-Commission on Prevention of
Discrimination and Protection of Minorities to request Dr. L.M.
Singhvi to prepare a report on the independence and
impartiality of judiciary. He submitted a draft declaration on
the independence and impartiality of the judiciary, jurors,
assessors and the independence of lawyers, which came to
be known as the Singhvi Declaration. The United Nations
Commission on Human Rights invited governments to take
29 | P a g e
the Singhvi Declaration into account in implementing the
Basic Principles on the Independence of the Judiciary. The
Bangalore Principles on Judicial Conduct, the product of
several meetings and deliberations of Chief Justices and
Judges of both common law and civil law systems and
adopted by the United Nations Commission on Human Rights
on 29.04.2003, identified core values of the judiciary, one of
which is independence. The measures adopted by the
Judicial Integrity Group at its meeting held in Lusaka, Zambia
on 21st and 22nd January, 2010 for effective implementation
of the Bangalore Principles of Judicial Conduct referred to the
responsibilities of States to ensure guarantees, through
constitutional or other means, on judicial independence.
One of the guarantees required to be provided by the State
to maintain judicial independence is that the legislative or
executive powers that may affect Judges in respect of their
office, their renumeration, conditions of service or other
resources, shall not be used with the object or consequence
of threatening or bringing pressure upon a particular Judge or
Judges.
25. In his address dated 24.05.1949, Dr. B.R. Ambedkar
stated that: -
“There can be no difference of opinion in the House that
our judiciary must be both independent of the executive
30 | P a g e
and must also be competent in itself. And the question
is how these two objects can be secured”.
26. Article 50 of the Constitution of India provides that the
State shall take steps to separate the judiciary from the
executive in the public services of the State. The concept of
separation of judiciary from executive cannot be confined
only to the subordinate judiciary, totally discarding the higher
judiciary. If such a narrow and pedantic or syllogistic
approach is made and a constricted construction is given, it
would lead to an anomalous position that the Constitution
does not emphasise the separation of higher judiciary from
the executive20. Article 50, occurring in a chapter described
by Granville Austin as “the conscience of the Constitution” in
his work titled ‘The Indian Constitution: Cornerstone of a
Nation’, underlines the importance given by the Constitutionmakers to immunize the judiciary from any form of executive
control or interference. 21
27. The independence of the judiciary is a fighting faith of
our Constitution. It is the cardinal principle of the Constitution
that an independent judiciary is the most essential
characteristic of a free society like ours and the judiciary
which is to act as a bastion of the rights and freedom of the
20 Supreme Court Advocates-on-Record Association & Ors. v. Union of India (1993) 4
SCC 441
21 Union of India v. Sankalchand Himatlal Sheth & Anr. (1977) 4 SCC 193
31 | P a g e
people is given certain constitutional guarantees to
safeguard the independence of judiciary. An independent and
efficient judicial system has been recognised as a part of the
basic structure of our Constitution.22
28. Article 37 of the Constitution declares that the
principles laid down in Part IV of the Constitution are
fundamental in the governance of the country and it should
be the duty of the State to apply the principles in making
laws. Undoubtedly, it is true that the provisions of Part IV are
not enforceable by the courts of law. However, this does not
absolve the obligation of the State from applying the
principles of Part IV in making laws. It is necessary to
remind ourselves of what Dr. B.R. Ambedkar stated in the
Constituent Assembly on 19.11.1948 of Part IV, which is as
under: -
“It is the intention of this Assembly that in future
both the legislature and the executive should not
merely pay lip services to the principles enacted in
this part, but they should be made the basis of all
executive and legislative action that may be taken
hereafter in the matter of governance of the
country”.
22 Supreme Court Advocates-on-Record Association & Ors. v. Union of India (supra)
32 | P a g e
29. Impartiality, independence, fairness and
reasonableness in decision-making are the hallmarks of the
judiciary. If “impartiality” is the soul of the judiciary,
“independence” is the lifeblood of the judiciary. 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. 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)23. The independence of an individual Judge, that
is, decisional independence; and 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/ tribunal24
.
23 MBA-I
24 Supreme Court Advocates-on-Record Association & Anr. v. Union of India (2016) 5
SCC 1
33 | P a g e
30. Individual independence has various facets which
include security of tenure, procedure for renewal, terms and
conditions of service like salary, allowances, etc. which
should be fair and just and which should be protected and
not varied to his/her disadvantage after appointment.
Independence of the institution refers to sufficient degree of
separation from other branches of the Government,
especially when the branch is a litigant or one of the parties
before the tribunal. Functional independence would include
method of selection and qualifications prescribed, as
independence begins with appointment of persons of calibre,
ability and integrity. Protection from interference and
independence from the executive pressure, fearlessness from
other power centres — economic and political, and freedom
from prejudices acquired and nurtured by the class to which
the adjudicator belongs, are important attributes of
institutional independence25
.
31. The fundamental right to equality before law and equal
protection of laws guaranteed by Article 14 of the
Constitution, clearly includes a right to have the person’s
25 Rojer Mathew (supra)
34 | P a g e
rights adjudicated by a forum which exercises judicial power
in an impartial and independent manner.26
32. The constitutional mandate is that the legislature
should adhere to the principles laid down in Part IV of the
Constitution of India while enacting legislations. No provision
shall be made in legislative acts which would have the
tendency of making inroads into the judicial sphere. Any
such encroachment by the legislature would amount to
violating the principles of separation of powers, judicial
independence and the rule of law. Independence of courts
from the executive and the legislature is fundamental to the
rule of law and one of the basic tenets of the Indian
Constitution. Separation of powers between the three
organs, i.e., the legislature, the executive and the judiciary, is
a consequence of the principles of equality as enshrined in
Article 14 of the Constitution27. Any incursion into the
judicial domain by the other two wings of the Government
would, thus, be unconstitutional.
Judicial decisions and legislative overruling
I. Comparative Jurisdictions
33. It would be profitable to refer to the reaction of courts
to legislative override in comparative jurisdictions. Chief
26 MBA-I
27 State of Tamil Nadu v. State of Kerala & Anr. (supra)
35 | P a g e
Justice John Marshall of the US Supreme Court in Marbury
v. Madison
28
referred to the Constitution as the
fundamental and paramount law of the nation. He declared
that “It is emphatically the province and duty of the judicial
department to say what the law is.” In United States v.
Peters
29
, Chief Justice Marshall speaking for an unanimous
Court said that “If the legislatures of the several states may
at will annul the judgments of the Courts of the United
States, and destroy rights acquired under those judgments,
the Constitution itself becomes a solemn mockery…”
34. In Brown v. Board of Education of Topeka
30
, the
United States Supreme Court held that the Fourteenth
Amendment forbids states to use governmental powers to
bar children on racial grounds from attending school where
there is states’ participation through any arrangement,
management, funds or property. The Governor or legislature
cannot declare that they are not bound by the judgment
mentioned above. The Board of Little Rock’s Central High
School suspended its plan to do away with desegregation in
public schools. The said action of the school was rejected by
the District Court which was affirmed by the Court of Appeal.
There was an amendment to the Arkansas Constitution
28 5 U.S. 137 (1803)
29 9 U.S. 115 (1809)
30 347 U.S. 483 (1954)
36 | P a g e
pursuant to which a law was made relieving school children
from compulsory attendance at racially mixed schools. The
school filed a petition in the District Court seeking
postponement of the programme of desegregation. The
District Court allowed the writ petition. The Court of Appeal
reversed the decision of the District Court which was affirmed
by the United States Supreme Court in Cooper v. Aaron
31
. It
was held therein that the constitutional rights of children not
to be discriminated against in school admissions on grounds
of race or color as declared by the United States Supreme
Court in the Brown case can neither be nullified openly and
directly by state legislators or state executives or judicial
officers, nor nullified indirectly by them through evasive
schemes for segregation. The Supreme Court declared that
the principles announced in the decision of Brown v. Board
of Education (supra) are indispensable for the protection of
the freedoms guaranteed by the fundamental charter.
35. Chief Justice Warren speaking for the majority in
Miranda v. Arizona
32
, declared that a person in custody
must, prior to interrogation, be clearly informed that he has
the right to remain silent, and that anything he says will be
used against him in a court. He must be clearly informed that
31 358 U.S. 1 (1958)
32 384 U.S. 436 (1966)
37 | P a g e
he has the right to consult with a lawyer and have the lawyer
with him during interrogation and, that, if he is indigent, a
lawyer will be appointed to represent him. The Congress
enacted § 3501 which provided that a confession shall be
admissible in criminal prosecution brought by the United
States or by the District of Columbia if it is voluntarily given.
Charles Thomas Dickerson charged with a robbery and use of
a firearm moved the District Court to suppress his statement
which he made to the Federal Bureau of Investigation (FBI)
that he has not received Miranda warnings. The motion to
suppress was quashed by the District Court which was
reversed by the United States Court of Appeal for the Fourth
Circuit on the basis of the enactment § 3501. The United
States Supreme Court in Dickerson v. United States
33
authoritatively pronounced that the Congress cannot
legislatively supersede a decision of the Supreme Court
interpreting and applying the Constitution. As Miranda
amounts to a constitutional rule, the Supreme Court
concluded that the Congress cannot supersede the judgment
legislatively. The learned Attorney General referred to an
article written by Erwin Chemerinsky titled “The Court should
have remained silent: Why the Court erred in deciding
33 530 U.S. 428 (2000)
38 | P a g e
Dickerson v. United States”
34. The said article is a critical
analysis of the judgment of the Supreme Court in Dickerson
wherein the author wrote that the desire to rule on the
constitutionality of the law simply does not justify the courts
raising it sua sponte. He opined that the Fourth Circuit and
ultimately the Supreme Court violated the separation of
powers by considering § 3501 over the objection of the
executive branch. In Dickerson, the justice department
informed the Supreme Court that it was not invoking § 3501
and that it could not use the confession only if the Court
found that Miranda warnings were not properly administered.
In spite of the submission made by the justice department,
the Fourth Circuit ruled on the admissibility of the confession
on the basis of § 3501. Chemerinsky argues in his article
that the judiciary exceeded its jurisdiction in considering §
3501 when none of the parties raised the issue.
36. Justice Scalia speaking for the majority in Plaut v.
Spendthrift Farm, Inc.
35
referred to earlier judgments of
the United States Supreme Court which held that a judicial
decision becomes the last word of the judicial department
with regard to a particular case or controversy, and the
Congress may not declare by retrospective action that the
34 Erwin Chemerinsky, The Court Should Have Remained Silent: Why the Court Erred
in Deciding Dickerson v. United States, 149 Pennsylvania Law Review 287-308 (2001)
35 514 U.S. 211 (1995)
39 | P a g e
law applicable to that very case or a whole class of cases was
something other than what the courts said it was. Justice
Scalia held that depriving judicial judgments of the
conclusive effect that they had when they were announced
would be in violation of separation of powers.
37. In his article, “The Case for the Legislative Override”
36
,
Nicholas Stephanopoulos has explored the response of courts
to legislative overruling in various jurisdictions. Judicial
review of legislative action is limited in United Kingdom and
New Zealand as the interpretation of statutes would be in
accordance with the European Convention of Human Rights
and the New Zealand Bill of Rights, respectively. The Courts
in United Kingdom and New Zealand follow hortatory judicial
review by which the Court cannot strike down a legislation
but can declare it to be incompatible with the European
Convention or the Bill of Rights. As far as Germany is
concerned, statutes would be stricken if they are declared
unconstitutional by the courts, and would be unrescuable by
constitutional amendment if they are found to violate certain
unamendable constitutional provisions. If the statutes are
invalidated on being found unconstitutional by the courts in
36 Nicholas Stephanopoulos, The Case for the Legislative Override, 10 UCLA Journal of
International Law and Foreign Affairs 250 (2005)
40 | P a g e
Canada and Israel, the legislature could override the
judgments of the courts leveraging what is termed as the
‘notwithstanding’ clause in the Canadian context, i.e.,
notwithstanding their conflict with the Charter or Basic Law.
II. India
(A) Scope of judicial review
38. Shifting focus to legislative override in our country, it is
necessary to first appreciate the scope of judicial review of
ordinances which is the same as that of a legislative act.
Article 123 of the Constitution empowers the President to
promulgate an ordinance during recess of the Parliament,
which shall have the same force and effect as an act of the
Parliament. The validity of an ordinance can be challenged
on grounds available for judicial review of a legislative act.
An ordinance passed either under Article 123 or under Article
213 of the Constitution stands on the same footing. When
the Constitution says that the ordinance-making power is
legislative power and an ordinance shall have the same force
as an act, an ordinance should be clothed with all the
attributes of an act of legislature carrying with it all its
incidents, immunities and limitations under the Constitution.
41 | P a g e
It is settled law that judicial review of an ordinance should be
akin to that of legislative action.37
39. The controversy that arises for the consideration of this
Court relates to the legislative response to the judgment of
this Court in MBA-III. The power to strike down primary
legislation enacted by the Union of India or the State
legislatures is on limited grounds. The Courts can strike down
legislation either on the basis that it falls foul of federal
distribution of powers or that it contravenes fundamental
rights or other constitutional rights/provisions of the
Constitution of India.38 Where there is challenge to the
constitutional validity of a law enacted by the legislature, the
Court must keep in view that there is always a presumption
of constitutionality of an enactment and a clear transgression
of constitutional principles must be shown. In State of
Madhya Pradesh v. Rakesh Kohli & Anr.
39
, this Court held
that sans flagrant violation of the constitutional provisions,
the law made by Parliament or a State legislature is not
declared bad and legislative enactment can be struck down
only on two grounds: (i) that the appropriate legislature does
not have the competence to make the law, and (ii) that it
37 R.K. Garg v. Union of India & Ors. (1981) 4 SCC 675; T. Venkata Reddy & Ors. v.
State of Andhra Pradesh (1985) 3 SCC 198; Krishna Kumar Singh & Anr. v. State of
Bihar & Ors. (2017) 3 SCC 1.
38 Binoy Vishwam v. Union of India & Ors. (2017) 7 SCC 59
39 (2012) 6 SCC 312
42 | P a g e
takes away or abridges any of the fundamental rights
enumerated in Part III of the Constitution or any other
constitutional provisions. Subsequently, the Court has also
recognised “manifest arbitrariness” as a ground under Article
14 on the basis of which a legislative enactment can be
judicially reviewed.40
(B) Permissible legislative overruling
40. The judgment in Shri Prithvi Cotton Mills Ltd. &
Anr. v. Broach Borough Municipality & Ors.
41 was relied
upon by both sides. The validity of the rules framed by
Municipal Corporation under Section 73 of the Bombay
Municipal Boroughs Act, 1925 for levying a rate on open
lands was the subject matter of challenge in Patel
Gordhandas Hargovindas & Ors. v. Municipal
Commissioner, Ahmedabad & Anr
42
. The relevant rule
was declared ultra vires of the Act itself. Later, the State
legislature passed a validation act seeking to validate the
imposition of tax, the validity of which was considered in
Shri Prithvi Cotton Mills Ltd. (supra). This Court held that
it is not sufficient to merely declare that the decision of the
Court shall not bind as such declaration would amount to the
40 K.S. Puttaswamy & Anr. v. Union of India & Anr. (2019) 1 SCC 1
41 (1969) 2 SCC 283
42 (1964) 2 SCR 608
43 | P a g e
reversal of a decision of the Court which the legislature
cannot do. It was further observed that a Court’s decision
must always bind unless the conditions on which it is based
are so fundamentally altered that the decision could not have
been given in the altered circumstances.
41. It is open to the legislature within certain limits to
amend the provisions of an Act retrospectively and to declare
what the law shall be deemed to have been, but it is not
open to the legislature to say that a judgment of a Court
properly constituted and rendered in exercise of its powers in
a matter brought before it shall be deemed to be ineffective
and the interpretation of the law shall be otherwise than as
declared by the Court.43 The test of judging the validity of
the amending and validating enactment is, whether the
legislature enacting the validating statute has competence
over the subject-matter; whether by validation, the said
legislature has removed the defect which the Court had
found in the previous laws; and whether the validating law is
consistent with the provisions of Part III of the Constitution.
44
In State of Tamil Nadu v. State of Kerala & Anr. (supra),
this Court held that any law enacted by the legislature may
43 Janapada Sabha Chhindwara v. Central Provinces Syndicate Ltd. & Anr. (1970) 1 SCC
509
44 I.N. Saksena v. State of Madhya Pradesh (1976) 4 SCC 750; Indian Aluminium Co. &
Ors. v. State of Kerala & Ors. (1996) 7 SCC 637; Bakhtawar Trust & Ors. v. M. D.
Narayan & Ors. (2003) 5 SCC 298
44 | P a g e
be invalidated if it is an attempt to interfere with judicial
process by being in breach of the doctrine of separation of
powers.
42. The judgment of this Court in Madan Mohan Pathak
& Anr. v. Union of India & Ors.
45
requires a close scrutiny
as it was adverted to and relied upon by both sides. A writ
petition was filed in the High Court of Calcutta for a
mandamus directing the Life Insurance Corporation (LIC) to
act in accordance with the terms of settlement dated
24.01.1974 read with administrative instructions dated
29.03.1974. The writ petition was allowed by the learned
single Judge against which a Letters Patent Appeal (LPA) was
preferred by the LIC. During the pendency of the LPA, the LIC
(Modification of Settlement) Act, 1976 came into force. The
LPA was withdrawn in view of the subsequent legislation and
the decision of the learned single Judge became final. Validity
of the said statute was assailed in a writ petition filed under
Article 32 by the employees of the LIC. Justice Bhagwati,
speaking for the majority, was of the opinion that the
judgment of the Calcutta High Court was not a mere
declaratory judgment holding an impost or tax as invalid so
that a validating statute can remove the defect pointed out
45 (1978) 2 SCC 50
45 | P a g e
in the judgment. He observed that the judgment of the
Calcutta High Court gave effect to the rights of the
petitioners by mandamus, directing the LIC to pay annual
cash bonus. As long as the judgment of the learned single
Judge is not reversed in appeal, it cannot be disregarded or
ignored. The LIC was held to be bound by the writ of
mandamus issued by the Calcutta High Court. Justice Beg, in
his concurrent opinion, held that the rights which accrued to
the employees on the basis of the mandamus issued by the
High Court cannot be taken away either directly or indirectly
by subsequent legislation. Thereafter, Madan Mohan
Pathak (supra) came up for discussion in Sri Ranga Match
Industries & Ors. v. Union of India & Ors.
46
. Justice
Jeevan Reddy was of the opinion that the Madan Mohan
Pathak case cannot be treated as an authority for the
proposition that mandamus cannot be set aside by a
legislative act. Justice Hansaria was not in agreement with
such view. Relying upon the judgment of this Court in A.V.
Nachane & Anr. v. Union of India & Anr.
47
, Justice
Hansaria held that the legal stand taken by Justice Beg in the
Madan Mohan Pathak case had received majority’s
endorsement and it was because of this that retrospectivity
46 1994 Supp (2) SCC 726
47 (1982) 1 SCC 205
46 | P a g e
given to the relevant rule assailed in A.V. Nachane was held
to have nullified the effect of the writ and was accordingly
invalid. In view of the difference of opinion, the matter was
referred to a larger bench. We are informed by the leaned
Amicus Curiae that the difference of opinion could not be
resolved as the case was settled out of court.
43. In Virender Singh Hooda (supra), this Court did not
accept the contention of the petitioners therein that vested
rights cannot be taken away by retrospective legislation.
However, it was observed that taking away of such rights
would be impermissible if there is violation of Articles 14, 16
or any other constitutional provision. The appointments
already made in implementation of a decision of this Court
were protected with the reason that “the law does not permit
the legislature to take away what has been granted in
implementation of the Court’s decision. Such a course is
impermissible.” This Court in Cauvery Water Disputes
Tribunal
48
declared the ordinance which sought to displace
an interim order passed by the statutory tribunal as
unconstitutional as it set side an individual decision inter
partes and therefore, amounted to a legislative exercise of
judicial power. When a mandamus issued by the Mysore
48 1993 Supp (1) SCC 96 (2)
47 | P a g e
High Court was sought to be annulled by a legislation, this
Court quashed the same in S.R. Bhagwat & Ors. v. State
of Mysore
49 on the ground that it was impermissible
legislative exercise. Setting at naught a decision of the Court
without removing the defect pointed out in the judgment
would sound the death knell of the rule of law. The rule of
law would cease to have any meaning, because then it would
be open to the Government to defy a law and yet to get away
with it.50
44. The permissibility of legislative override in this country
should be in accordance with the principles laid down by this
Court in the aforementioned as well as other judgments,
which have been culled out as under:
a) The effect of the judgments of the Court can be
nullified by a legislative act removing the basis of the
judgment. Such law can be retrospective. Retrospective
amendment should be reasonable and not arbitrary and
must not be violative of the fundamental rights
guaranteed under the Constitution.51
b) The test for determining the validity of a validating
legislation is that the judgment pointing out the defect
49 (1995) 6 SCC 16
50 P. Sambamurthy & Ors. v. State of Andhra Pradesh & Anr. (1987) 1 SCC 362
51 Lohia Machines Ltd. & Anr. v. Union of India & Ors. (1985) 2 SCC 197
48 | P a g e
would not have been passed, if the altered position as
sought to be brought in by the validating statute existed
before the Court at the time of rendering its judgment. In
other words, the defect pointed out should have been
cured such that the basis of the judgement pointing out
the defect is removed.
c) Nullification of mandamus by an enactment would be
impermissible legislative exercise [See: S.R. Bhagwat
(supra)]. Even interim directions cannot be reversed by a
legislative veto [See: Cauvery Water Disputes
Tribunal (supra) and Medical Council of India v. State
of Kerala & Ors.
52
].
d) Transgression of constitutional limitations and
intrusion into the judicial power by the legislature is
violative of the principle of separation of powers, the rule
of law and of Article 14 of the Constitution of India.
Validity of the Impugned Ordinance
45. The learned Amicus Curiae submitted that the
Ordinance impugned in the Writ Petition is unconstitutional
as it is violative of the separation of powers, the rule of law
and independence of the judiciary. He argued that the
52 (2019) 13 SCC 185
49 | P a g e
principle of independence of the judiciary can be traced to
Article 14 of the Constitution and the Ordinance is liable to
be struck down as being violative of the equality clause. The
learned Amicus Curiae relied upon the judgments of this
Court to submit that the impugned Ordinance is a classic
case of law laid down by this Court being overturned by the
legislature unreasonably. Responding to the submissions of
the learned Attorney General that deference has to be shown
by courts to the policy decisions of the executive and the
legislature, the learned Amicus Curiae argued that deference
has to be shown to the reasons of the policy and not the
policy itself. The learned Attorney General asserted that the
law laid down by this Court is not the final word as it is
settled that the Parliament can legislate by curing the
defects pointed out by the Court. The learned Attorney
General stated that legislation is made after the decision
undergoes detailed deliberations at various levels in the
Government and the legislature. The collective wisdom of
the Parliament cannot be interfered with by the Court. He
emphasized that service conditions of Chairperson and
Members of tribunals is a matter of policy over which the
Parliament should have the final word. He stressed the need
for judicial restraint to be shown by courts in giving directions
50 | P a g e
to legislate. He stated that any interstitial directions given
by this Court in the absence of any existing legislation shall
be treated as suggestions to the Parliament for consideration
at the time of making legislation. He insisted that a later
legislation cannot be struck down on the ground that the
directions issued by the Court earlier are violated. Judicial
review of the Ordinance can be only on those grounds that
are available for review of a legislative act. The Ordinance
cannot be declared as unconstitutional as being violative of
Article 14, as no facet of the said Article comes into play in
the instant case.
46. The grievance of the Petitioners in this Writ Petition
mainly relates to the violation of the first proviso and the
second proviso, read with the third proviso, to Section 184
(1), Sections 184(7) and 184(11) of the Finance Act, 2017.
Section 184(1) of the Finance Act, 2017, prior to amendment,
is as follows:
(1) The Central Government may, by notification, make
rules to provide for qualifications, appointment, term of
office, salaries and allowances, resignation, removal and
the other terms and conditions of service of the
Chairperson, Vice-Chairperson, Chairman, Vice-Chairman,
President, Vice-President, Presiding Officer or Member of
the Tribunal, Appellate Tribunal or, as the case may be,
51 | P a g e
other Authorities as specified in column (2) of the Eighth
Schedule:
Provided that the Chairperson, Vice-Chairperson,
Chairman, Vice-Chairman, President, Vice-President,
Presiding Officer or Member of the Tribunal, Appellate
Tribunal or other Authority shall hold office for such term
as specified in the rules made by the Central Government
but not exceeding five years from the date on which he
enters upon his office and shall be eligible for
reappointment:
Provided further that no Chairperson, Vice-Chairperson,
Chairman, Vice-Chairman, President, Vice-President,
Presiding Officer or Member shall hold office as such after
he has attained such age as specified in the rules made by
the Central Government which shall not exceed, —
(a) in the case of Chairperson, Chairman [President or
the Presiding Officer of the Securities Appellate
Tribunal], the age of seventy years;
(b) in the case of Vice-Chairperson, Vice-Chairman,
Vice-President, Presiding Officer [of the Industrial
Tribunal constituted by the Central Government and
the Debts Recovery Tribunal] or any other Member,
the age of sixty-seven years:
47. The amendment to Section 184 by the Ordinance is as
follows:
184. (1) The Central Government may, by notification,
make rules to provide for the qualifications,
52 | P a g e
appointment, salaries and allowances, resignation,
removal and the other conditions of service of the
Chairperson and Members of the Tribunal as specified in
the Eighth Schedule:
Provided that a person who has not completed the
age of fifty years shall not be eligible for appointment as
a Chairperson or Member:
Provided further that the allowances and benefits
so payable shall be to the extent as are admissible to a
Central Government officer holding the post carrying the
same pay:
Provided also that where the Chairperson or
Member takes a house on rent, he may be reimbursed a
house rent subject to such limits and conditions as may
be provided by rules.
(2) The Chairperson and Members of a Tribunal shall be
appointed by the Central Government on the
recommendation of a Search-cum-Selection Committee
(hereinafter referred to as the Committee) constituted
under sub-section (3), in such manner as the Central
Government may, by rules, provide.
(3)The Search-cum-Selection Committee shall consist
of—
(a) the Chief Justice of India or a Judge of Supreme Court
nominated by him–– Chairperson of the Committee;
(b) two Secretaries nominated by the Government of
India –– Members;
53 | P a g e
(c) one Member, who––
(i) in case of appointment of a Chairperson of a Tribunal,
shall be the outgoing Chairperson of the Tribunal; or
(ii) in case of appointment of a Member of a Tribunal,
shall be the sitting Chairperson of the Tribunal; or
(iii) in case of the Chairperson of the Tribunal seeking reappointment, shall be a retired Judge of the Supreme
Court or a retired Chief Justice of a High Court nominated
by the Chief Justice of India:
Provided that, in the following cases, such
Member shall always be a retired Judge of the Supreme
Court or a retired Chief Justice of a High Court nominated
by the Chief Justice of India, namely: ––
(i) Industrial Tribunal constituted by the Central
Government under the Industrial Disputes Act, 1947;
(ii) Tribunals and Appellate Tribunals constituted
under the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993;
(iii) Tribunals where the Chairperson or the outgoing
Chairperson, as the case may be, of the Tribunal is not a
retired Judge of the Supreme Court or a retired Chief
Justice or Judge of a High Court; and
(iv) such other Tribunals as may be notified by the
Central Government in consultation with the Chairperson
of the Search-cum-Selection Committee of that Tribunal;
and
54 | P a g e
(d) the Secretary to the Government of India in the
Ministry or Department under which the Tribunal is
constituted or established –– Member- Secretary.
(4) The Chairperson of the Committee shall have the
casting vote.
(5) The Member-Secretary of the Committee shall not
have any vote.
(6) The Committee shall determine its procedure for
making its recommendations.
(7) Notwithstanding anything contained in any judgment,
order or decree of any Court or in any law for the time
being in force, the 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 of the Committee preferably within
three months from the date on which the Committee
makes its recommendations to the Government.
(8) No appointment shall be invalid merely by reason of
any vacancy or absence in the Committee.
(9) The Chairperson and Member of a Tribunal shall be
eligible for re-appointment in accordance with the
provisions of this section:
Provided that in making such re-appointment,
preference shall be given to the service rendered by
such person.
55 | P a g e
(10) The Central Government shall, on the
recommendation of the Committee, remove from office,
in such manner as may be provided by rules, any
Member, who—
(a) has been adjudged as an insolvent; or
(b) has been convicted of an offence which involves
moral turpitude; or
(c) has become physically or mentally incapable of
acting as such a Member; or
(d) has acquired such financial or other interest as is
likely to affect prejudicially his functions as a Member; or
(e) has so abused his position as to render his
continuance in office prejudicial to the public interest:
Provided that where a Member is proposed to be
removed on any ground specified in clauses (b) to (e), he
shall be informed of the charges against him and given
an opportunity of being heard in respect of those
charges.
Explanation. –– For the purposes of this section, the
expressions ––
(i) “Tribunal” means a Tribunal, Appellate Tribunal or
Authority as specified in column (2) of the Eighth
Schedule;
(ii) “Chairperson” includes Chairperson, Chairman,
President and Presiding Officer of a Tribunal;
(iii) “Member” includes Vice-Chairman, Vice-Chairperson,
Vice-President, Account Member, Administrative
56 | P a g e
Member, Judicial Member, Expert Member, Law Member,
Revenue Member and Technical Member, as the case
may be, of a Tribunal;
53(11) Notwithstanding anything contained in any
judgment, order, or decree of any Court or 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:
Provided that where a Chairperson or Member is
appointed between the 26th day of May, 2017 and the
notified date and the term of his office or the age of
retirement specified in the order of appointment issued
by the Central Government is greater than that which is
specified in this section, then, notwithstanding anything
contained in this section, the term of office or age of
retirement or both, as the case may be, of the
Chairperson or Member shall be as specified in his order
of appointment subject to a maximum term of office of
five years.
48. The first proviso of Section 184(1) provides minimum
age for appointment as Chairperson or Member as 50 years.
One of the issues considered in MBA-III was the correctness
of the condition imposed in the 2020 Rules that an advocate
53 With effect from 26.05.2017.
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is eligible for appointment as a Member only if he has 25
years of experience. It is relevant to state that advocates
were ineligible for most of the tribunals. The learned
Attorney General fairly submitted in his arguments that
suitable amendment will be made to make advocates
eligible, subject to their having 25 years’ experience. The
learned Amicus Curiae contended in MBA-III that in order to
attract competent advocates to apply for appointment as
Members in tribunals, it is necessary that they should be
made eligible for appointment on the same criteria as
applicable for appointment of a High Court Judge. The
learned Amicus Curiae suggested that advocates with a
standing of 15 years at the bar should be made eligible for
appointment as Members of tribunals. In MBA-III, exclusion
of advocates from being appointed as Members was found to
be contrary to the judgment of this Court in MBA-I and
MBA-II. While recording the submission of the learned
Attorney General that Rules shall be amended to make
advocates eligible for appointment as Members, it was held
in MBA-III that experience at the bar for advocates to be
considered for appointment as Members should be the same
as is applicable for appointment as High Court Judges, i.e., 10
years. In such view of the matter, a direction was given in
58 | P a g e
MBA-III to amend the 2020 Rules to make advocates with at
least 10 years of experience at the bar eligible for
appointment as Members in tribunals. The experience of
advocates at the bar and their specialization in the relevant
branch of law was directed to be taken into account by the
Search-cum-Selection Committee (hereinafter referred to as
SCSC) while considering their appointment. Advocates were
held to be entitled for reappointment for at least one term by
giving preference to the service rendered by them in the
tribunals. Thereafter, an application was filed by the Union
of India for modification of the direction aforementioned by
substituting the word, “eligible for reappointment” in the
place of “entitled for reappointment”. The said request of
the Union of India was acceded to by this Court.
49. The direction given by this Court in the nature of
mandamus in MBA-III is to the effect that advocates are
entitled for appointment as Members, provided they have
experience of 10 years. The first proviso to Section 184
which prescribes a minimum age of 50 years is an attempt to
circumvent the direction issued in MBA-III striking down
the experience requirement of 25 years at the bar for
advocates to be eligible. Introduction of the first proviso to
Section 184(1) is a direct affront to the judgment of this
59 | P a g e
Court in MBA-III. This Court in MBA-I and Roger Mathew
(supra) underlined the importance of recruitment of Members
from the bar at a young age to ensure a longer tenure.
Fixing a minimum age for recruitment of Members as 50
years would act as a deterrent for competent advocates to
seek appointment. Practically, it would be difficult for an
advocate appointed after attaining the age of 50 years to
resume legal practice after completion of one term, in case
he is not reappointed. Security of tenure and conditions of
service are recognised as core components of independence
of the judiciary. Independence of the judiciary can be
sustained only when the incumbents are assured of fair and
reasonable conditions of service, which include adequate
renumeration and security of tenure. Therefore, the first
proviso to Section 184(1) is in violation of the doctrine of
separation of powers as the judgment of this Court in MBAIII has been frustrated by an impermissible legislative
override. Resultantly, the first proviso to Section 184 (1) is
declared as unconstitutional as it is violative of Article 14 of
the Constitution. Selections conducted for appointment of
Members, ITAT pursuant to the advertisement issued in 2018
should be finalized and appointments made by considering
the candidates between 35 to 50 years as also eligible.
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50. The second proviso to Section 184(1) deals with the
allowances and benefits payable to the Members which are
to be the same as are admissible to a Central Government
officer holding a post carrying the same pay. According to
Rule 15 of the 2020 Rules, Chairpersons and Members of
tribunals were entitled to House Rent Allowance at the same
rate as admissible to officers with the Government of India
holding Group ‘A’ post carrying the same pay. The
contention of the learned Amicus Curiae in MBA-III was that
the majority of the tribunals are situated in Delhi and there is
scarcity of housing in Delhi. Not many Judges of the High
Court are interested in accepting appointment to tribunals in
view of the acute problem of housing. An amount of
Rs.75,000/- per month which was paid as House Rent
Allowance (HRA) was not sufficient to get a decent
accommodation in Delhi for Chairpersons and Members of
tribunals. Taking note of the serious problem of housing and
the inadequate amount that was being paid as HRA to the
Members, this Court in MBA-III directed enhancement of
HRA to Rs.1,25,000/- per month to the Members and
Rs.1,50,000/- per month to Chairperson or Vice-Chairperson
or President of tribunals. This direction was made effective
61 | P a g e
from 01.01.2021. The learned Amicus Curiae argued that the
Union of India filed an application seeking modification of the
HRA directed in the judgment. The clarification sought by
the Union of India is to the effect that HRA payable to a
Tribunal Member should not be a fixed amount and should,
instead, be twice the HRA payable to the holder of a
subsequent rank in the Government, e.g., Secretary to the
Government. Miscellaneous Application No. 111 of 2021 filed
by the Union of India is pending as this Court directed the
Union of India to furnish details of the accommodation
available for Chairpersons and Members of tribunals and to
submit a proposal as to what amount would be reasonable
towards HRA in case accommodation cannot be provided to
Members. The learned Amicus Curiae contended that the
result of the amendment is that Members of tribunals
working in Delhi will get Rs.60,000/- as HRA. The second
proviso to Section 184(1), read with the third proviso, is an
affront to the judgment of this Court in MBA-III. By no
stretch of imagination can it be said that the said provisos
are a result of curative legislation. The direction issued by
this Court in MBA-III for payment of HRA was to ensure that
decent accommodation is provided to Tribunal Members.
Such direction was issued to uphold independence of the
62 | P a g e
judiciary and it cannot be subject matter of legislative
response. A mandamus issued by this Court cannot be
reversed by the legislature as it would amount to
impermissible legislative override. Therefore, the second
proviso, read with the third proviso, to Section 184(1) is
declared as unconstitutional.
51. It has come to our notice that after the judgement in
this Writ Petition had been reserved on 03.06.21, a
notification was issued by the Ministry of Finance
(Department of Revenue) on 30.06.21 amending the 2020
Rules. By Rule 6 of the Tribunal, Appellate Tribunal and other
Authorities (Qualifications, Experience and other Conditions
of Service of Members) (Amendment) Rules, 2021
(hereinafter referred to as the 2021 Amendment Rules),
the following rule was substituted for Rule 15 of the 2020
Rules:
“15. House rent allowance.- With effect from the 1
st
January, 2021, the Chairman, Chairperson, President, Vice
Chairman, Vice Chairperson or Vice President shall have
option to avail of accommodation to be provided by the
Central Government as per the rules for the time being in
force or entitled to house rent allowance subject to a limit
of Rs. one lakh fifty thousand rupees per month and the
Presiding Offices and Members shall have option to avail
of accommodation to be provided by the Central
63 | P a g e
Government as per the rules for the time being in force or
entitled to house rent allowance subject to a limit of Rs.
one lakh twenty-five thousand rupees per month.”
According to the notification dated 30.06.2021, the 2021
Amendment Rules shall come into force on the date of their
publication in the official gazette. However, it may be noted
that the Explanatory Memorandum at the end of the
notification states that Rule 6 of the 2021 Amendment Rules,
amending Rule 15 of the 2020 Rules on HRA, shall be given
retrospective operation with effect from 01.01.21, in order to
give effect to the judgement of this Court in MBA-III. Though
we have adjudicated the validity of the second and third
provisos to Section 184(1) of the Finance Act, 2017, as
amended by the Ordinance, we find that the amendment to
Rule 15, made with retrospective effect from 01.01.21, is in
conformity with the directions of this Court on the subject of
HRA in MBA-III. In view thereof, no further direction is
required to be given with respect to HRA.
52. Rule 4(2) of the 2020 Rules pertains to the procedure to
be followed by the SCSC. According to the said Rule, the
SCSC should recommend two or three names for
appointment to each post. A direction was given in MBA-III
to amend Rule 4(2) of the 2020 Rules to provide that the
64 | P a g e
SCSC shall recommend one person for appointment in each
post in place of a panel of two or three persons for
appointment to each post. One more name could be
recommended to be included in the waiting list. Relying
upon the earlier judgments of this Court in MBA-I, MBA-II
and Rojer Mathew (supra), the learned Amicus Curiae had
submitted during the course of the hearing in MBA-III that
the procedure for appointment to the Tribunal should be
clearly outside executive control. The learned Attorney
General submitted in MBA-III that the number of candidates
to be recommended by SCSC can be restricted to two instead
of three. To limit the discretion of the executive after the
SCSC has recommended names of selected candidates, this
Court in the interest of preserving independence of the
judiciary, directed that Rule 4(2) should be read as
empowering SCSC to recommend the name of only one
person to each post.
53. The learned Attorney General asserted that this Court
cannot direct the legislature to make law. He relied upon the
judgment in Dr. Ashwani Kumar v. Union of India & Anr.
54
wherein it was held that it is beyond the competence of this
Court to direct legislature to make law. There is no quarrel
with the said proposition. The learned Attorney General
54 (2020) 13 SCC 585
65 | P a g e
further asserted that the direction given by this Court in
MBA-III relating to the number of candidates to be
recommended for appointment to each post can only be
taken to be a suggestion. The Court, as a wing of the State,
by itself is a source of law. The law is what the Court says it
is. To clarify the position relating to Article 141 vis-à-vis
Article 142, it has been held by this Court in Ram Pravesh
Singh & Ors. v. State of Bihar & Ors.
55
that directions
given under Article 142 is not law laid down by the Supreme
Court under Article 141. Any order not preceded by any
reason or consideration of any principle is an order under
Article 142. Article 136 of the Constitution is a corrective
jurisdiction that vests a discretion in the Supreme Court to
settle the law clear and as forthrightly forwarded in Union of
India & Ors. v. Karnail Singh & Ors.
56
, it makes the law
operational to make it a binding precedent for the future
instead of keeping it vague. In short, it declares the law, as
under Article 141 of the Constitution. “Declaration of law” as
contemplated in Article 141 of the Constitution is the speech
express or necessarily implied by the highest Court of the
land. The law declared by the Supreme Court is binding on
all courts within the territory of India under Article 141,
55 (2006) 8 SCC 381
56 (1995) 2 SCC 728
66 | P a g e
whereas, Article 142 empowers the Supreme Court to issue
directions to do complete justice. Under Article 142, the
Court can go to the extent of relaxing the application of law
to the parties or exempting altogether the parties from the
rigours of the law in view of the peculiar facts and
circumstances of the case.57 Sufficient reasons were given in
MBA-III to hold that executive influence should be avoided in
matters of appointments to tribunals - therefore, the
direction that only one person shall be recommended to each
post. The decision of this Court in that regard is law laid
down under Article 141 of the Constitution. The only way the
legislature could nullify the said decision of this Court is by
curing the defect in Rule 4(2). There is no such attempt
made except to repeat the provision of Rule 4(2) of the 2020
Rules in the Ordinance amending the Finance Act, 2017.
Ergo, Section 184(7) is unsustainable in law as it is an
attempt to override the law laid down by this Court.
Repeating the contents of Rule 4(2) of the 2020 Rules by
placing them in Section 184(7) is an indirect method of
intruding into judicial sphere which is proscribed.
54. The second part of Section 184(7) provides that the
Government shall take a decision regarding the
57 State of Punjab & Ors. v. Rafiq Masih (Whitewasher) (2014) 8 SCC 883; State v.
Kalyan Singh & Ors. (2017) 7 SCC 444
67 | P a g e
recommendations made by the SCSC preferably within a
period of three months. This is in response to the direction
given by this Court in MBA-III that the Government shall
make appointments to tribunals within three months from
the completion of the selection and recommendation by the
SCSC. Such direction was necessitated in view of the
lethargy shown by the Union of India in making appointments
and filling up the posts of Chairpersons and Members of
tribunals which have been long vacant. The tribunals which
are constituted as an alternative mechanism for speedy
resolution of disputes have become non-functional due to the
large number of posts which are kept unfilled for a long
period of time. Tribunals have become ineffective vehicles of
administration of justice, resulting in complete denial of
access to justice to the litigant public. The conditions of
service for appointment to the posts of Chairpersons and
Members have been mired in controversy for the past several
years, thereby, adversely affecting the basic functioning of
tribunals. This Court is aghast to note that some tribunals
are on the verge of closure due to the absence of Members.
The direction given by this Court for expediting the process
of appointment was in the larger interest of administration of
justice and to uphold the rule of law. Section 184(7) as
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amended by the Ordinance permitting the Government to
take a decision preferably within three months from the date
of recommendation of the SCSC is invalid and
unconstitutional, as this amended provision simply seeks to
negate the directions of this Court.
55. The tenure of the Chairperson and Member of a tribunal
is fixed at four years by Section 184(11), notwithstanding
anything contained in any judgment, order or decree of any
court. It is relevant to mention that sub-section (11) of
Section 184 has been given retrospective effect from
26.05.2017. Rule 9 of 2020 Rules had specified the term of
appointment of the Chairperson or Member of the Tribunal as
four years. The learned Amicus Curiae while making his
submissions in MBA-III had insisted that the Chairperson and
Members of a tribunal should have a minimum term of five
years by placing reliance on the judgment of this Court in
S.P. Sampath (supra), MBA-I and Rojer Mathew (supra).
The stand taken by him was that a short tenure would be a
disincentive for competent persons to seek appointment as
Members of tribunals. The learned Attorney General
submitted that the term of four years is subject to
reappointment. He contended that advocates who are
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appointed at an early age can get more than one extension
and continue till they reach the age of superannuation. After
perusing the law laid down by this Court in MBA-I and Rojer
Mathew (supra) which held that a short stint is anti-merit,
we directed the modification of tenure in Rules 9(1) and 9(2)
as five years in respect of Chairpersons and Members of
tribunals in MBA-III. This Court declared in para 53(iv) that
the Chairperson, Vice-Chairperson and the Members of the
tribunals shall hold office for a term of five years and shall be
eligible for reappointment. The insertion of Section 184(11)
prescribing a term of four years for the Chairpersons and
Members of tribunals by giving retrospective effect to the
provision from 26.05.2017 is clearly an attempt to override
the declaration of law by this Court under Article 141 in
MBA-III. Therefore, clauses (i) and (ii) of Section 184(11) are
declared as void and unconstitutional.
56. The proviso to Section 184(11) refers to appointments
that were made to the posts of Chairperson or Members
between 26.05.2017 and the notified date, i.e., 04.04.2021.
The proviso lays down that if the tenure of office or age of
retirement specified in the order of appointment issued by
the Government is greater than what is specified in Section
70 | P a g e
184(11), the term of office or the age of retirement of the
Chairperson or Members shall be as specified in the order of
appointment subject to a maximum term of office of five
years. In other words, the term of office of Chairperson and
Members of tribunals who were appointed between
26.05.2017 and 04.04.2021 shall be five years even though
the order of appointment issued by the Government has a
higher term of office or age of retirement which may involve
the term of office being more than 5 years in practice. It is
necessary at this stage to deal with the validity of
retrospective effect given to sub-section (11) of Section 184.
The learned Amicus Curiae canvassed a submission that
Sections 184(1) to (10) are prospective in operation and
Section 184(11) is given retrospective effect from
26.05.2017, thereby leading to an anomalous situation. He
submitted that sub-section (11) is made with the object of
reversing the interim orders passed by this Court in Kudrat
Sandhu v. Union of India (supra). He stated that the terms
and conditions of appointments to be made to the Tribunals /
Appellate Tribunals shall be in terms of the respective
statutes in force, before the enactment of the Finance Bill,
2017, according to para 224 of Rojer Mathew (supra). Mr.
Balbir Singh, learned Additional Solicitor General, submitted
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that retrospectivity given to sub-section (11) of Section 184
is a permissible legislative override of the judgment of this
Court in MBA-III. The 2020 Rules were held to be
prospective in MBA-III on two grounds - a) it was clear from
the Notification dated 12.02.2020 that there was no intention
on the part of the Government of India to make the 2020
Rules retrospective; b) subordinate legislation cannot be
given prospective effect unless the parent statute specifically
provided the same. It is understood that while inserting subsection (11) in Section 184 in the Finance Act, 2017 and
giving it retrospective effect from 26.05.2017, the Ordinance
has attempted to cure the defect as was pointed out by this
Court in terms of retrospective application while considering
the 2020 Rules. However, the implications are not relevant
for clauses (i) and (ii) of Section 184(11) which are declared
as void and unconstitutional for the reasons mentioned
above.
57. Insofar as the proviso to Section 184(11) is concerned,
the Ordinance sets the maximum tenure at five years even
with respect to the appointment orders passed between
26.05.2017 and 04.04.2021 provide for a higher tenure. In
the process, interim directions given by this Court in Kudrat
72 | P a g e
Sandhu (supra) are also nullified. It would be relevant to
refer to the directions issued by this Court in Kudrat
Sandhu (supra) on 09.02.2018. After taking the consent of
the learned Attorney General and making modifications
incorporating his suggestions, this Court held that all
selections to the post of Chairperson/ Chairman, Judicial/
Administrative Members shall be for a period as provided in
the Act and the Rules in respect of all tribunals. On
16.07.2018, this Court directed that persons selected as
Members of ITAT can continue till the age of 62 years and
persons who were holding the post of President till 65 years.
By an order dated 21.08.2018, this Court clarified that a
person selected as Member, CESTAT shall continue till the
age of 62 years while a person holding the post of President
can continue till the age of 65 years. Though, there is
nothing wrong with the proviso to Section 184(11) being
given retrospective effect, the appointments made pursuant
to the interim directions passed by this Court cannot be
interfered with. This Court in Virender Singh Hooda (supra)
upheld the retrospectivity of the legislation which had been
challenged but the appointment of the petitioners therein
pursuant to a direction of the Court were saved. It was held
that the law does not permit the legislature to take back
73 | P a g e
what has been granted in the implementation of the Court’s
decision and such a course is impermissible. Similarly, in
S.R. Bhagwat (supra), it was declared that a mandamus
against the respondent-State giving financial benefits to the
petitioners therein cannot be nullified by a legislation. It is
also relevant to point out that even interim orders passed by
this Court cannot be overruled by a legislative act, as
discussed above. While making it clear that the
appointments that are made to the CESTAT on the basis of
interim orders passed by this Court shall be governed by the
relevant statute and the rules framed thereunder, as they
existed prior to the Finance Act, 2017, we uphold the
retrospectivity given to the proviso to Section 184 (11). To
clarify further, all appointments after 04.04.2021 shall be
governed by the Ordinance, as modified by the directions
contained herein.
58. To conclude, the first proviso and the second proviso,
read with the third proviso, to Section 184 overriding the
judgment of this Court in MBA-III in respect of fixing 50
years as minimum age for appointment and payment of HRA,
Section 184(7) relating to recommendation of two names for
each post by the SCSC and further, requiring the decision to
be taken by the Government preferably within three months
74 | P a g e
are declared to be unconstitutional. Section 184(11)
prescribing tenure of four years is contrary to the principles
of separation of powers, independence of judiciary, rule of
law and Article 14 of the Constitution of India. Though, we
have upheld the proviso to Section 184(11), the
appointments made to the CESTAT pursuant to the interim
orders passed by this Court shall be governed by the relevant
statute and the rules framed thereunder that existed prior to
26.05.2017. We have already taken notice of the notification
dated 30.06.21 by way of which Rule 15 of the 2020 Rules
dealing with HRA has been amended in conformity with our
directions in MBA-III.
Peroration
59. The Petitioner continues its relentless struggle in its
endeavour to make tribunals effective avenues of
administration of justice. The endeavour of the Petitioner is
to extricate the tribunals from the clutches of the executive
in the interest of independence of judiciary. Security of
tenure, adequate remuneration and other conditions of
service are necessary to ensure that Members of tribunals
would feel secure during their tenure. The judgment in
MBA-III was passed after a detailed dialogue with the
75 | P a g e
learned Attorney General. Existence of large number of
vacancies of Members and Chairpersons and the inordinate
delay caused in filling them up has resulted in emasculation
of the tribunals. The main reason for tribunalisation, which is
to provide speedy justice, is not achieved as tribunals are
wilting under the unbearable weight of the exploding docket.
Undoubtedly, the legislature is free to exercise its power to
make laws and the executive is the best judge to decide
policy matters. However, it is high time that a serious effort
is made by all concerned to ensure that all the vacancies in
the tribunals are filled up without delay. Access to justice
and confidence of the litigant public in impartial justice being
administered by tribunals need to be restored.
60. The Writ Petition is disposed of accordingly.
.....................................J.
[ L. NAGESWARA RAO ]
New Delhi,
14th July, 2021.
76 | P a g e
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 502 OF 2021
MADRAS BAR ASSOCIATION .....APPELLANT(S)
VERSUS
UNION OF INDIA & ANR. .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1. I have gone through the detailed judgment authored by
Justice L. Nageswara Rao as also separate but concurring
judgment of Justice Ravindra Bhat, but I am unable to
persuade myself to agree with the views expressed therein
except to the limited extent that part of Section 187(7) of
the Tribunals Reforms (Rationalisation and Conditions of
Service) Ordinance, 20211
that the Search and Selection
Committee shall recommend two names for a post and that
the tenure of members including Chairperson etc. shall be
1 For short, the ‘Ordinance’
1
four years in terms of Clauses (i) and (ii) of Section 184 (11)
of the Ordinance is illegal since the issues of constitution of
panel and tenure have already been decided in MBA-III and
that without removing such defect, the Ordinance could not
be enacted.
2. Before I advert to the grounds of challenge, some of wellestablished and settled principles of the applicability of the
principles of interpretation need to be recapitulated.
(i) The power of Legislature is to enact law and the
power of Judiciary of that of judicial review of the
statutory enactments.
3. The three organs of the State i.e., Legislature, Judiciary and
Executive have separate and distinct roles and functions as
provided in the Constitution. All the institutions must act
within their own jurisdiction and not trespass into the
jurisdiction of others. By segregating the powers and
functions of the three institutions, the Constitution ensures
such a structure where the institutions function as per their
own institutional strength. Secondly, it also creates a
system of checks and balances as the Constitution provides
a degree of latitude for interference by each branch into the
functions and tasks performed by another branch2
.
4. The Constitution does not permit the courts to direct, advise
or sermonize other organs of the State in the spheres
2 Dr. Ashwani Kumar v. Union of India & Anr., (2020) 13 SCC 585 (Para 10)
2
reserved for them, provided the legislature or executive
does not transgress its constitutional limits or statutory
conditions. Independence and adherence to constitutional
accountability and limits while exercising the power of
judicial review gives constitutional legitimacy to the court
decisions. This is the essence of the power and function of
judicial review that strengthens and promotes the rule of
law3
.
5. It is also to be noted that the application of law by the
Judges is not synonymous with the enactment of law by the
legislature. Judges have the power to spell out how precisely
the statute would apply in a particular case. In this manner,
they complete the law formulated by the legislature by
applying it. This power of interpretation or the power of
judicial review is exercised post the enactment of law, which
is then made subject-matter of interpretation or challenge
before the courts.4
6. This Court has observed that if a law is enacted by the
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
3 Ibid (Para 13)
4 Ibid (Para 25)
3
of the Constitution5
.
7. A seven Judge Bench of this Court6
held that the primary
function of the judiciary is to interpret the law. It may lay
down principles, guidelines and exhibit creativity in the field
left open and unoccupied by legislation7
. The Court while
interpreting Articles 32, 21, 141 and 142 of the Constitution
held that prescribing periods at which criminal trial would
terminate resulting in acquittal or discharge of the accused
or making such directions applicable to all cases in present
or in future would amount to judicial law making and cannot
be done by judicial directives. The Courts can declare law,
interpret law, remove obvious lacunae and fill up the gaps
but they cannot entrench upon in the field of legislation
8
.
The bars of limitation were deleted by this Court on two
grounds, first, it amounts to judicial legislation which was
not permissible and secondly, it runs counter to the doctrine
of binding precedents9
.
8. The Constitution Bench of this Court10 held that a writ of
mandamus cannot be issued to bring Section 3 of the 44th
Constitutional Amendment Act in force. It was held that the
Parliament having left to the unfettered judgment of the
5 Ibid (Para 29)
6 P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578
7 Ibid (Para 25)
8 Ibid (Para 27)
9 Ibid (Para 33)
10 A.K. Roy v. Union of India & Ors., (1982) 1 SCC 271 (Para 51)
4
Central Government, the question as regards the time for
bringing the provisions of the 44th Amendment into force, it
was not for the court to compel the Government to do what
according to the mandate of the Parliament lies in its
discretion to do so when it considered it opportune to do it.
Since the Parliament has left the matter to the judgment of
the Central Government without prescribing any objective
norms, it makes it difficult for the Courts to substitute their
own judgment for that of Government on the question
whether Section 3 of the 44th Amendment should be brought
into force.
9. This Court11 held that the Court cannot direct the legislature
to enact a particular law when an executive authority
exercises a legislative power by way of subordinate
legislation pursuant to the delegated authority of a
legislature, such executive authority cannot be asked to
enact the law which it has been empowered to do under the
delegated legislative authority.
10. In another Constitution Bench judgment of this Court12, it
was held that the duty of judicial review bestowed upon the
judiciary is not unfettered and it comes within the ambit of
judicial restraint. The Parliament and Legislative Assemblies
exercise sovereign power to enact law and no outside power
or authority can issue a direction to enact a particular kind
11 Mangalam Organics Limited v. Union of India, (2017) 7 SCC 221 (Para 36)
12 Kalpana Mehta & Ors. v. Union of India & Ors., (2018) 7 SCC 1 (Para 42)
5
of legislation.
11. In a separate but concurring judgment in Kalpana Mehta
authored by D.Y. Chandrachud, J., the Court held as under:
“255. Parliament and the State Legislatures
legislate. The executive frames policies and
administers the law. The judiciary decides and
adjudicates upon disputes in the course of which
facts are proved and the law is applied. The
distinction between the legislative function and
judicial functions is enhanced by the basic structure
doctrine. The legislature is constitutionally entrusted
with the power to legislate. Courts are not entrusted
with the power to enact law. Yet, in a constitutional
democracy which is founded on the supremacy of
the Constitution, it is an accepted principle of
jurisprudence that the judiciary has the authority to
test the validity of legislation. Legislation can be
invalidated where the enacting legislature lacks
legislative competence or where there is a violation
of fundamental rights. A law which is constitutionally
ultra vires can be declared to be so in the exercise of
the power of judicial review. Judicial review is indeed
also a part of the basic features of the Constitution.
Entrustment to the judiciary of the power to test the
validity of law is an established constitutional
principle which co-exists with the separation of
powers. Where a law is held to be ultra vires there is
no breach of parliamentary privileges for the simple
reason that all institutions created by the
Constitution are subject to constitutional limitations.
The legislature, it is well settled, cannot simply
declare that the judgment of a court is invalid or that
it stands nullified. If the legislature were permitted to
do so, it would travel beyond the boundaries of
constitutional entrustment. While the separation of
powers prevents the legislature from issuing a mere
declaration that a judgment is erroneous or invalid,
the law-making body is entitled to enact a law which
remedies the defects which have been pointed out
by the court. Enactment of a law which takes away
the basis of the judgment (as opposed to merely
invalidating it) is permissible and does not constitute
a violation of the separation doctrine. That indeed is
the basis on which validating legislation is
6
permitted.”
12. The lack of binding nature of the guidelines on the
legislature is also evident from the fact that even though
directions that are mandatory in nature may be issued
within the ambit of Article 142 of the Constitution, but the
same cannot be enforced against the legislature as the
legislators have absolute and unfettered freedom in terms of
Article 194(2) in respect of State Legislatures, which is pari
materia with Article 105(2) relating to Parliament. The seven
Judges Bench of this Court13 in the celebrated case of
controversy between the Uttar Pradesh Assembly and the
High Court held as under:
“32. Having conferred freedom of speech on the
legislators, clause (2) emphasises the fact that the
said freedom is intended to be absolute and
unfettered. Similar freedom is guaranteed to the
legislators in respect of the votes they may give in
the legislature or any committee thereof. In other
words, even if a legislator exercises his right of
freedom of speech in violation, say, of Article 211, he
would not be liable for any action in any court.
Similarly, if the legislator by his speech or vote, is
alleged to have violated any of the fundamental
rights guaranteed by Part III of the Constitution in the
Legislative Assembly, he would not be answerable
for the said contravention in any court. If the
impugned speech amounts to libel or becomes
actionable or indictable under any other provision of
the law, immunity has been conferred on him from
any action in any court by this clause. He may be
answerable to the House for such a speech and the
Speaker may take appropriate action against him in
respect of it; but that is another matter. It is plain
13 Powers, Privileges and Immunities of State Legislatures, AIR 1965 SC 745
7
that the Constitution-makers attached so much
importance to the necessity of absolute freedom in
debates within the legislative chambers that they
thought it necessary to confer complete immunity on
the legislators from any action in any court in respect
of their speeches in the legislative chambers in the
wide terms prescribed by clause (2). Thus, clause (1)
confers freedom of speech on the legislators within
the legislative chamber and clause (2) makes it plain
that the freedom is literally absolute and unfettered.
40. Our legislatures have undoubtedly plenary
powers, but these powers are controlled by the basic
concepts of the written Constitution itself and can be
exercised within the legislative fields allotted to their
jurisdiction by the three Lists under the Seventh
Schedule; but beyond the Lists, the legislatures
cannot travel. They can no doubt exercise their
plenary legislative authority and discharge their
legislative functions by virtue of the powers
conferred on them by the relevant provisions of the
Constitution; but the basis of the power is the
Constitution itself. Besides, the legislative supremacy
of our legislatures including the Parliament is
normally controlled by the provisions contained in
Part III of the Constitution. If the legislatures step
beyond the legislative fields assigned to them, or
acting within their respective fields, they trespass on
the fundamental rights of the citizens in a manner
not justified by the relevant articles dealing with the
said fundamental rights, their legislative actions are
liable to be struck down by courts in India. Therefore,
it is necessary to remember that though our
legislatures have plenary powers, they function
within the limits prescribed by the material and
relevant provisions of the Constitution.”
13. A conspectus of the above judgments, inter alia, among
many others, is that the judiciary in exercise of power of
judicial review can strike down any legislation which violates
fundamental rights or if it is beyond the legislative
competence but the courts cannot direct the legislature to
8
frame or enact a law and in a particular manner. The law
declared by the Supreme Court is binding on all Courts in
India in terms of Article 141 of the Constitution. The
directions issued under Article 142 of the Constitution, are
binding on every Court in terms of Article 141 of the
Constitution. The legislature cannot be said to be Court
within the meaning of Article 141 of the Constitution by any
stretch of imagination. Article 144 of the Constitution
mandates, civil and judicial authorities in India shall act in
aid of the Supreme Court meaning thereby executive and
judicial authorities shall act in aid of the Supreme Court. The
legislature is neither civil or judicial authority who is
mandated by the Constitution to act in the aid of Court. The
legislature is supreme so as to enact a law falling within its
legislative competence. The directions of the court cannot
compel the legislature to frame law in that particular
manner only. The legislature while enacting laws can
legislate in a manner which is not in accordance with the
directions issued by the Court to the legislature, even if the
Court has specially chosen to do so. The directions of this
Court stop outside the four walls of legislature. The judiciary
will step in only after a law is enacted to test the legality of
a statue on the known principles of judicial review. The
Judiciary cannot and should not usurp the powers vested
with legislature. The Judiciary cannot legislate in the scheme
9
of the constitution as propounded by many judgments
including larger Bench Judgments, which are binding on the
smaller strength benches. The directions of this Court in
MBA-III are encroaching upon the field reserved for
legislature.
(ii) Whether a judgment has to be read in the context in
which it was given and cannot be read as a statute,
inter alia, in view of the principles that the Court
while interpreting a provision cannot generally add
word to a statute in view of doctrine of Casus
Omissus.
14. A Constitution Bench14 of this Court has held that Courts
should not place reliance on decisions without discussing as
to how the factual situation of the matter fits in with the
factual situation of the decision on which reliance is placed.
There is always peril in treating the words of a speech or
judgment as though they are words in a legislative
enactment, and it is to be remembered that judicial
utterances are made in the setting of the facts of a
particular case. This Court further held as under:
“12. The rival pleas regarding rewriting of statute
and casus omissus need careful consideration. It is
well-settled principle in law that the court cannot
read anything into a statutory provision which is
plain and unambiguous. A statute is an edict of the
legislature. The language employed in a statute is
the determinative factor of legislative intent. The
first and primary rule of construction is that the
intention of the legislation must be found in the
words used by the legislature itself. The question is
not what may be supposed and has been intended
but what has been said. “Statutes should be
construed, not as theorems of Euclid”, Judge Learned
14 Padma Sundara Rao (Dead) & Ors. v. State of T.N. & Ors., (2002) 3 SCC 533 (Para 9)
10
Hand said, “but words must be construed with some
imagination of the purposes which lie behind them”.
(See Lenigh Valley Coal Co. v. Yensavage [218 FR
547] .) The view was reiterated in Union of
India v. Filip Tiago De Gama of Vedem Vasco De
Gama [(1990) 1 SCC 277 : AIR 1990 SC 981] .
xx xx xx
14. While interpreting a provision the court only
interprets the law and cannot legislate it. If a
provision of law is misused and subjected to the
abuse of process of law, it is for the legislature to
amend, modify or repeal it, if deemed necessary.
(See Rishabh Agro Industries Ltd. v. P.N.B. Capital
Services Ltd. [(2000) 5 SCC 515] ) The legislative
casus omissus cannot be supplied by judicial
interpretative process……”
15. This Court15 held that according to the well-settled theory of
precedents, every decision contains three basic postulates:
(i) findings of material facts, direct and inferential. An
inferential finding of facts is the inference which the Judge
draws from the direct, or perceptible facts; (ii) statements of
the principles of law applicable to the legal problems
disclosed by the facts; and (iii) judgment based on the
combined effect of the above. A decision is an authority for
what it actually decides. What is of the essence in a decision
is its ratio and not every observation found therein, nor what
logically flows from the various observations made in the
judgment. The said view has been relied upon by the
Constitution Bench of this Court16
.
15 State of Orissa & Ors. v. Md. Illiyas, (2006) 1 SCC 275 (Para 12)
16 Natural Resources Allocation, in Re, Special Reference No. 1 of 2012
11
16. This Court17 also held that the observations of courts are
neither to be read as Euclid's theorems nor as provisions of
the statute and that too taken out of their context. The
observations must be read in the context in which they
appear to have been stated.
17. This Court18 has observed that judgments are not to be
construed as statutes. The words or phrases in judgments
are not to be interpreted like provisions of a statute. The
words in a judgment should be read and understood
contextually and not intended to be taken literally. Such
interpretation has been followed by a two Judge Bench of
this Court19 wherein it was held that the ratio of any decision
must be understood in the background of the facts of that
case.
18. In another recent judgment20, it was held that the ratio of a
judgment is what it decides and not what logically follows
therefrom. The Court held as under:
“31. It is trite that ratio of a judgment is what it
decides and not what logically follows therefrom. The
observations in the Three Judges cases [Supreme
Court Advocates-on-Record Assn. v. Union of India,
(1993) 4 SCC 441] ,
[S.P. Gupta v. Union of India,
1981 Supp SCC 87] ,
[Special Reference No. 1 of
1998, In re, (1998) 7 SCC 739] are to be read in the
context in which they are rendered. Once that is kept
in mind, we arrive at a conclusion that the ratio of
those judgments cannot be extended to read the
17 Union of India v. Amrit Lal Manchanda & Anr., (2004) 3 SCC 75 (Para 15)
18 Som Mittal v. Government of Karnataka, (2008) 3 SCC 574 (Para 9)
19 Arasmeta Captive Power Company Private Limited & Anr. v. Lafarge India Private
Limited, (2013) 15 SCC 414 (Para 32)
20 Shanti Bhushan v. Supreme Court of India & Anr., (2018) 8 SCC 396
12
expression “Chief Justice”, wherever it occurs, to
mean the “Collegium” of the senior Judges.”
19. This Court21 observed that the plenary powers of this Court
under Article 142 of the Constitution are inherent in the
Court and are “complementary” to those powers which are
specifically conferred on the Court by various statutes. The
powers conferred on the Court by Article 142 are curative in
nature, they cannot be construed as powers which authorize
the Court to ignore the substantive rights of a litigant. This
power cannot be used to “supplant” substantive law
applicable to the case or cause under consideration of the
Court. Article 142, even with the width of its amplitude,
cannot be used to build a new edifice where none existed
earlier, by ignoring express statutory provisions dealing with
a subject and thereby achieve something indirectly which
cannot be achieved directly. The Court held as under:
“19. …Article 142, even with the width of its
amplitude, cannot be used to build a new edifice
where none existed earlier, by ignoring express
statutory provisions dealing with a subject and
thereby achieve something indirectly which cannot
be achieved directly.”
20. Thus, the Court will not direct to the State or Union to enact
any particular law, or amend/ issue any notification for
amendment of any statutory Rule or even to direct an Act to
be enforced, when the legislature has conferred such power
21 M.C. Mehta v. Kamal Nath & Ors., (2000) 6 SCC 213
13
on the executive. The directions of this Court in MBA-III
were issued in the peculiar facts to make the Tribunal
functional at the earliest rather than mandating legislature
to amend the law in a particular manner. The legislature has
a right to enact law, which may not be necessarily in terms
of the directions of this Court. Such law when enacted by
Parliament or the State Legislature, even if contrary to the
directions or guidelines issued by the Court, cannot be
struck down for the said reason. The legislation can be
struck down if the basis of the provision interpreted by the
Court is not altered or if it violates the fundamental rights or
the right to equality under Article 14 of the Constitution.
21. The questions of law raised in MBA-III were in respect of
separation of powers and independence of judiciary in the
matter of constitution of Search and Selection Committee;
appointment of persons without judicial experience as
Judicial Members; failure to provide proper technical
specialized expertise; failure to provide for adequate tenure
of members; exclusion of advocates for being appointed as
members of tribunals; continuing role of the parent
department in Search and Selection Committee; the
preliminary inquiry by the Central Government for removal
of the members is invalid and the Executive’s continuing
administrative and financial control over the tribunals.
22. The directions of this Court which are at variance with the
14
Ordinance are as follows:
“53. The upshot of the above discussion leads this
court to issue the following directions:
(i) xxx xxx
(iii) Rule 4(2) of the 2020 Rules shall be amended to
provide that the Search-cum-Selection Committee
shall recommend the name of one person for
appointment to each post instead of a panel of two
or three persons for appointment to each post.
Another name may be recommended to be included
in the waiting list.
(iv) The Chairpersons, Vice-Chairpersons and the
members of the Tribunal shall hold office for a term
of five years and shall be eligible for reappointment.
Rule 9(2) of the 2020 Rules shall be amended to
provide that the Vice-Chairman, Vice-Chairperson
and Vice President and other members shall hold
office till they attain the age of sixty-seven years.
(v) The Union of India shall make serious efforts to
provide suitable housing to the Chairman or
Chairperson or President and other members of the
Tribunals. If providing housing is not possible, the
Union of India shall pay the Chairman or Chairperson
or President and Vice-Chairman, Vice-Chairperson,
Vice President of the Tribunals an amount of Rs.
1,50,000/- per month as house rent allowance and
Rs. 1,25,000/- per month for other members of the
Tribunals. This direction shall be effective from
01.01.2021.
(vi) xxx xxx
(ix) The Union of India shall make appointments to
Tribunals within three months from the date on which
the Search-cum-Selection Committee completes the
selection process and makes its recommendations.
(x) The 2020 Rules shall have prospective effect and
will be applicable from 12.02.2020, as per Rule 1(2)
of the 2020 Rules.
(xi) Appointments made prior to the 2017 Rules are
15
governed by the parent Acts and Rules which
established the concerned Tribunals. In view of the
interim orders passed by the Court in Rojer
Mathew (supra), appointments made during the
pendency of Rojer Mathew (supra) were also
governed by the parent Acts and Rules. Any
appointments that were made after the 2020 Rules
came into force i.e. on or after 12.02.2020 shall be
governed by the 2020 Rules subject to the
modifications directed in the preceding paragraphs
of this judgment.
(xii) xxx xxx
(xiv) The terms and conditions relating to salary,
benefits, allowances, house rent allowance etc. shall
be in accordance with the terms indicated in, and
directed by this judgment.
(xv) The Chairpersons, Vice Chairpersons and
members of the Tribunals appointed prior to
12.02.2020 shall be governed by the parent statutes
and Rules as per which they were appointed. The
2020 Rules shall be applicable with the modifications
directed in the preceding paragraphs to those who
were appointed after 12.02.2020. While reserving
the matter for judgment on 09.10.2020, we extended
the term of the Chairpersons, Vice-Chairpersons and
members of the Tribunals till 31.12.2020. In view of
the final judgment on the 2020 Rules, the
retirements of the Chairpersons, Vice-Chairpersons
and the members of the Tribunals shall be in
accordance with the applicable Rules as mentioned
above.”
23. The arguments were concluded on 3rd June 2021 but before
we could finalize our views, the Tribunal, Appellate Tribunal
and other Authorities (Qualifications, Experience and other
Conditions of Service of Members) (Amendment) Rules,
2021 stands notified on 30th June 2021. The Search and
Selection Committee as ordered by this Court in MBA-III,
16
the Advocate being eligible for appointment in certain
Tribunal and option to pay House Rent Allowance in terms of
the directions of this Court in MBA-III stands incorporated in
such Rules. The questions raised now have to be examined
in the light of amended Rules.
24. The judgment authored by Justice L. Nageswara Rao has
held as under:
“43. The permissibility of a legislative override in
this country should be in accordance with the
principles laid down by this Court in the
aforementioned as well as other judgments, which
have been culled out as under:
a) The effect of the judgments of the Court can be
nullified by a legislative act removing the basis of the
judgment. Such law can be retrospective.
Retrospective amendment should be reasonable and
not arbitrary and must not be violative of the
fundamental rights guaranteed under the
Constitution. (Lohia Machines Ltd. & Anr. v. Union of
India & Ors. ((1985) 2 SCC 1987).
b) The test for determining the validity of a
validating legislation is that the judgment pointing
out the defect would not have been passed, if the
altered position as sought to be brought in by the
validating statute existed before the Court at the
time of rendering its judgment. In other words, the
defect pointed out should have been cured such that
the basis of the judgment pointing out the defect is
removed.
c) Nullification of mandamus by an enactment would
be impermissible legislative exercise (See: S.R.
Bhagwat & Ors. v. State of Mysore, ((1995) 6 SCC
16). Even interim directions cannot be reversed by a
legislative veto (See: Cauvery Water Disputes
Tribunal, 1993 Supp (1) SCC 96) and Medical Council
of India v. State of Kerala & Ors., ((2019) 13 SCC
17
185).
d) Transgression of constitutional limitations and
intrusion into the judicial power by the legislature is
violative of the principle of separation of powers, the
rule of law and of Article 14 of the Constitution of
India.”
25. I have my reservation with respect to the aforementioned
conclusions (c) and (d). In Cauvery Water Disputes
Tribunal, the State of Karnataka promulgated Karnataka
Cauvery Basin Irrigation Protection Ordinance, 1991 on
25.7.1991. In pursuance of the order passed by this Court in
a writ petition, the Tribunal by way of an interim order
directed the State of Karnataka to release water from its
reservoirs to ensure 205 TMC is available in Tamil Nadu’s
Mettur reservoir in a year from June to May vide its order
dated 25.6.1991. It is thereafter the Ordinance in dispute
was promulgated. It is the said interim order which was
sought to be nullified by enactment of the Ordinance, later
substituted by an Act by the State of Karnataka. This Court
held as under:
“73. The Ordinance is unconstitutional because it
affects the jurisdiction of the Tribunal appointed
under the Central Act, viz., the Inter-State Water
Disputes Act which legislation has been made under
Article 262 of the Constitution. As has been pointed
out above, while analysing the provisions of the
Ordinance, its obvious purpose is to nullify the effect
of the interim order passed by the Tribunal on June
25, 1991. The Ordinance makes no secret of the said
fact and the written statement filed and the
submissions made on behalf of the State of
18
Karnataka show that since according to the State of
Karnataka the Tribunal has no power to pass any
interim order or grant any interim relief as it has
done by the order of June 25, 1991, the order is
without jurisdiction and, therefore, void ab initio. This
being so, it is not a decision, according to Karnataka,
within the meaning of Section 6 and not binding on it
and in order to protect itself against the possible
effects of the said order, the Ordinance has been
issued. The State of Karnataka has thus arrogated to
itself the power to decide unilaterally whether the
Tribunal has jurisdiction to pass the interim order or
not and whether the order is binding on it or not.
Secondly, the State has also presumed that till a final
order is passed by the Tribunal, the State has the
power to appropriate the waters of the river Cauvery
to itself unmindful of and unconcerned with the
consequences of such action on the lower riparian
States……….. To the extent that the Ordinance
interferes with the decision of this Court and of the
Tribunal appointed under the Central legislation, it is
clearly unconstitutional being not only in direct
conflict with the provisions of Article 262 of the
Constitution under which the said enactment is
made but being also in conflict with the judicial
power of the State.” (Emphasis Supplied)
26. The judgment of this Court in Medical Council of India
was again to nullify the judgment of this Court where this
Court had struck down the admission of 180 students in
Kannur Medical College and Karuna Medical College in the
State of Kerala. This Court held as under:
“23. What has been done by the impugned
Ordinance by the State Government is clearly
entrenching upon the field of judicial review and it
was obviously misadventure resorted to. In our
considered opinion, it was not at all permissible to
the State Government to promulgate the
Ordinance/legislate in the matter. Not only the
judgment of the court is nullified and the
arbitrariness committed in admissions was glaring,
and the decision of the High Court of Kerala which
19
was affirmed by this Court with respect to
applications to be entertained if they were online
applications has been undone. It was clearly an act
of nullifying judgment and is violative of judicial
powers which vested in the judiciary. It was not open
for the State Government to nullify the
judgment/orders passed by the Kerala High Court or
by this Court. It was not a case of removal of a
defect in existing law. Various Constitution Bench
decisions of this Court have settled the principles of
law governing the field. It passes comprehension
how the State Government has promulgated the
Ordinance in question”.
(Emphasis Supplied)
27. In S.R. Bhagwat, the petitioners were senior in the final
seniority list but their juniors got promoted on the basis of
higher ranking in the provisional seniority list which was
earlier operative. The writ petitions were allowed wherein
the petitioners were directed to be considered for
promotion. In implementation of the said judgment, the
State granted deemed dates of promotions but denied the
consequential monetary benefits. The petitioners filed
contempt petitions before the High Court. It was at that
stage that an Ordinance was promulgated whereby payment
of actual financial benefits was sought to be taken away.
The said judgment is clearly not applicable to the facts of
present case as the defect was not even attempted to be
cured. The legislative action was to deny financial benefits
arising out of a judgment, which had attained finality. In the
present case, I am of the opinion that except two aspects
20
that are contained in Rules 4(2) and 9(2) of the 2020 Rules,
rest of directions were dehors the legality or illegality of the
Rules with an idea of making Tribunals being made
functional at the earliest.
28. Therefore, three judgments referred hereinabove have to be
read in the context of the facts and the issues raised
therein. In fact, none of the judgments was to the effect that
whatever are the directions of this Court to enact law, it is
binding on the legislature. The three judgments arise out of
facts, wherein, the defect was not even attempted to be
cured but simpliciter, the judgment was sought to be
nullified.
29. In respect of conclusion (d), though transgression of
constitutional limitations and intrusion into the judicial
power by the legislature is violative of the principle of
separation of powers, the rule of law and of Article 14 of the
Constitution of India, but it is equally true that judiciary in
exercise of power of judicial review cannot direct legislature
to frame any law in a particular manner.
Legality and validity of first proviso to Section 184(1) of the
Ordinance
30. The said proviso to Section 184(1) of the Ordinance reads as
below:
“Provided that a person who has not completed the
age of fifty years shall not be eligible for
appointment as a Chairperson or Member”
21
31. I am unable to agree to the opinion that the first proviso to
Section 184 prescribing a minimum age of fifty years is an
attempt to circumvent the direction issued in MBA-III. The
condition of eligibility for appointment as a Judge of a High
Court was kept in view while considering the eligibility of
advocates as members of Tribunals. However, the
Memorandum of Procedure for appointment as judges of the
High Court finalized by this Court and forwarded to the
Central Government in March, 2017 was that a person shall
not be eligible to be considered for appointment as Judge of
a High Court against Bar quota unless he has completed
forty-five years of age on the date of recommendation by
the High Court Collegium. Though, in terms of Article 217 of
the Constitution, a candidate becomes eligible for
appointment after 10 years of practice as an Advocate.
Thus, an Advocate would be eligible for appointment as
judge of the High Court around the age of 35 years. The
Memorandum of Procedure adopted by the Collegium of this
Court prescribed forty-five years of age as the minimum
age. I find that eligibility to seek appointment is not solely
dependent upon qualification of a candidate but experience
and suitability, likely term which a candidate may have are
necessary considerations. The relevant part from the
memorandum of the collegium is reproduced as under:
22
“17. A person shall not be eligible to be considered
for appointment as Judge of a High Court against Bar
quota, unless he has completed 45 years of age on
the date of recommendation by the High Court
Collegium.”
32. In terms of the Constitution read with the Memorandum of
Procedure adopted by this Court, an advocate would have
maximum tenure of 17 years as a Judge of the High Court,
may be another three years as Judge of this Court. On the
other hand, an advocate appointed as member of a Tribunal
can have a tenure of 17 years, even if 50 is the minimum
age for appointment. The tenure of such member is up to
the age of 67 years with the possibility of being appointed
as the Chairperson. This is not to compare the status of a
High Court Judge with that of a member of a Tribunal. The
members would be appointed on the basis of
recommendation of the high-powered Search and Selection
Committee having judicial dominance. If a member is
discharging his functions legally, there is no need to bear
any apprehension about his not being re-appointed. The
process of re-appointment is again with the High-Powered
Search and Selection Committee with judicial dominance. A
provision in the statute cannot be found to be untenable
merely for the reason that there is a possibility of not being
reappointed.
23
33. The advocates were not eligible for appointment under 2020
Rules. Therefore, there was no condition of age of eligibility
of such candidates. It may be noted that though this Court
discussed the age of the candidates eligible for appointment
to be “around 45 years” in para 44, but there was no
particular direction qua age.
34. The discussions in the judgment are not to be considered as
directions. There is background in which the ultimate
directions are issued. Since no directions were issued in
respect of eligibility conditions particularly relating to age,
thus, fixing of eligible age as fifty years cannot be treated to
be in contradiction to the directions issued in MBA-III. Even
if it is contravening to any such direction, the legislature is
within its jurisdiction to determine the minimum eligibility
age for the purpose of appointment.
35. Mr. R. Gandhi, the President of Madras Bar Association
challenged the provisions of The Companies Act, 1956 as
amended by Central Act 11 of 2003 when Part 1B and Part
1C were inserted constituting National Company Law
Tribunal and the Appellate Tribunal respectively before the
Madras High Court. The High Court allowed the writ
petition22 on 30.3.2004. The High Court held that the power
of reappointment was read to be a ‘renewal’, apart from
22 2004 (2) Current Tamil Nadu Cases 561
24
rendering many provisions of the amending Act as illegal in
as much as they were in breach of basic constitutional
scheme of separation of powers and independence of the
judicial function. The Madras High Court held as under:
“74. Unless the term of office is fixed as at least five
years with a provision for renewal, except in cases of
incapacity, misconduct and the like, and the period
for which lien may be retained is fixed at not more
than one year, the constitution of the Tribunal cannot
be regarded as satisfying the essential requirements
of an independent and impartial body exercising
judicial functions of the State.
xx xx xx
123. In the light of foregoing discussions it is
declared that until the provisions in parts 1B and 1C
of the Companies Act introduced by the Companies
(Amendment) Act, 2002, which have been found to
be defective in as much as they are in breach of the
basic constitutional scheme of separation of powers
and independence of the judicial function, are duly
amended, by removing the defects that have been
pointed out, it would be unconstitutional to
constitute a Tribunal and Appellate Tribunal to
exercise the jurisdiction now exercised by the High
courts or the Company Law Board.”
36. In an appeal against the said order, this Court in MBA-I
noticed the contention of the Union as under:
“11. The Union Government has accepted the
finding and agreed to amend Sections 10-FE and 10-
FT of the Act to provide for a five-year term for the
Chairman/President/Members. However, the
Government proposes to retain the provision for
reappointment instead of “renewal”, as the
reappointments would be considered by a Selection
Committee which would be headed by the Chief
Justice of India or his nominee. As the Government
proposes to have minimum eligibility of 50 years for
first appointment as a Member of the Tribunal, a
25
Member will have to undergo the process of
reappointment only once or twice.”
37. The finding of the High Court that the President or the
Chairman was entitled to renewal of term was not accepted.
This Court held as under:
“120 (ix). The term of office of three years shall be
changed to a term of seven or five years subject to
eligibility for appointment for one more term. This is
because considerable time is required to achieve
expertise in the field concerned. A term of three
years is very short and by the time the members
achieve the required knowledge, expertise and
efficiency, one term will be over. Further the said
term of three years with the retirement age of 65
years is perceived as having been tailor-made for
persons who have retired or shortly to retire and
encourages these Tribunals to be treated as postretirement havens. If these Tribunals are to function
effectively and efficiently they should be able to
attract younger members who will have a reasonable
period of service.”
38. Subsequently, the Companies Act, 2013 was enacted,
repealing the Companies Act, 1956. The said Act provided
for establishment of National Company Law Tribunal and
National Company Law Appellate Tribunal. The provisions of
the new Companies Act, 2013 were upheld by this Court
subject to certain modifications as provided in MBA-II. The
provisions of the Act which were not challenged or interfered
with are contained in Sections 413 and 414 of the Act.
Sections 413 prescribes that a person who has not
completed fifty years of age shall not be eligible to be
26
appointed as a Member or Chairperson.
39. This Court in MBA-II held the provisions contained under
Section 409(3)(a), (c) and Section 411(3) of the Companies
Act, 2013 to be invalid. The appointments of technical
members as in the Madras Bar judgment rendered in the
year 2010 were to be scrupulously followed. This Court held
as under:
“28. Having regard to the aforesaid clear and
categorical dicta in 2010 judgment [(2010) 11 SCC
1], tinkering therewith would evidently have the
potential of compromising with standards which the
2010 judgment [(2010) 11 SCC 1] sought to achieve,
nay, so zealously sought to secure. Thus, we hold
that Sections 409(3)(a) and (e) are invalid as these
provisions suffer from same vice. Likewise, Section
411(3) as worded, providing for qualifications of
Technical Members, is also held to be invalid. For
appointment of Technical Members to NCLT,
directions contained in sub-paras (ii), (iii), (iv), (v) of
para 120 of the 2010 judgment [(2010) 11 SCC 1]
will have to be scrupulously followed and these
corrections are required to be made in Section
409(3) to set right the defects contained therein. We
order accordingly, while disposing of Issue 2.”
40. In MBA-II, the age for appointment of members of the
National Law Company Tribunal was fixed as fifty years.
Same was not disputed by the present petitioner in the writ
petition before the Madras High Court or before this Court.
Therefore, the age of 50 years as the eligibility condition is
not off the hat but is based upon previous legislation in
respect of members of the National Company Law Tribunal.
27
Thus, the fixation of fifty years of age as the eligibility
condition cannot be said to be manifestly arbitrary or
violative of any of the Fundamental Rights of any of the
candidates which may render such condition of age as
illegal. The argument is based on apprehension that it would
be difficult for an advocate appointed after attaining the age
of fifty years to resume legal practice after completion of
one term, in case he is not reappointed. A person who is
competent and good in his work will not find any difficulty to
resume his practice but what would happen to his
professional career if his term is not extended is a calculated
risk which a candidate shall take at the time of seeking
appointment. Such apprehensions as to what will happen in
future cannot be a ground to strike down a condition of age
in the statute. This Court is not possessed of the expertise
to say that it will be difficult for an advocate to resume
practice if he is not reappointed. I am unable to agree that
the statutory provisions can be struck down on such grounds
based on presumed apprehensions.
41. The apprehensions or misuse of a statutory provision is not
a ground to declare the provisions of a statute as void. A
five Judges Bench of this Court23 held as under:
“33. …This Court has held in numerous rulings, to
which it is unnecessary to refer, that the possibility
of the abuse of the powers under the provisions
23 Collector of Customs, Madras & Anr. v. Nathella Sampathu Chetty & Anr., AIR 1962
SC 316
28
contained in any statute is no ground for declaring
the provision to be unreasonable or void.
Commenting on a passage in the judgment of the
Court of Appeal of Northern Ireland which stated:
“If such powers are capable of being exercised
reasonably it is impossible to say that they
may not also be exercised unreasonably”
and treating this as a ground for holding the statute
invalid Viscount Simonds observed in Belfast
Corporation v. O.D. Commission [1960 AC 490 at pp.
520-521] :
“It appears to me that the short answer to
this contention (and I hope its shortness will
not be regarded as disrespect) is that the
validity of a measure is not to be determined
by its application to particular cases.… If it is
not so exercised (i.e. if the powers are
abused) it is open to challenge and there is no
need for express provision for its challenge in
the statute.”
The possibility of abuse of a statute otherwise valid
does not impart to it any element of invalidity. The
converse must also follow that a statute which is
otherwise invalid as being unreasonable cannot be
saved by its being administered in a reasonable
manner. The constitutional validity of the statute
would have to be determined on the basis of its
provisions and on the ambit of its operation as
reasonably construed. If so judged it passes the test
of reasonableness, possibility of the powers
conferred being improperly used is no ground for
pronouncing the law itself invalid and similarly if the
law properly interpreted and tested in the light of the
requirements set out in Part III of the Constitution
does not pass the test it cannot be pronounced valid
merely because it is administered in a manner which
might not conflict with the constitutional
requirements.”
42. Similar view was reiterated by this Court in number of
29
judgments24. In another judgment25, it was held as under:
“24. … It is also necessary to reiterate that a mere
possibility of abuse of a provision, does not, by itself,
justify its invalidation. The validity of a provision
must be tested with reference to its operation and
efficiency in the generality of cases and not by the
freaks or exceptions that its application might in
some rare cases possibly produce. The affairs of
government cannot be conducted on principles of
distrust. If the selectors had acted mala fide or with
oblique motives, there are administrative law
remedies to secure reliefs against such abuse of
powers. Abuse vitiates any power.” (Emphasis
supplied)
43. Therefore, I am of the opinion that in case of failing to
secure reappointment, the candidate will not be able to
resume practice is based upon apprehensions. Whether
they are good or valid grounds to refuse reappointment can
be subject matter of judicial review although I am of the
opinion that the decision of the high-power Search and
Selection Committee not to re-appoint a candidate may not
warrant interference in exercise of judicial review.
Legality and validity of the Second & Third proviso to Section
184(1) of the Ordinance
44. The said proviso reads thus:
“ Provided further that the allowances and
benefits so payable shall be to the extent as are
admissible to a Central Government officer holding the
post carrying the same pay:
Provided also that where the Chairperson or
24 Government of Andhra Pradesh & Anr. v. G. Jaya Prasad Rao & Ors., (2007) 11 SCC
528; People’s Union for Civil Liberties & Anr. v. Union of India, (2004) 9 SCC 580;
Charan Lal Sahu v. Union of India, (1990) 1 SCC 613
25 Mehmood Alam Tariq & Ors. v. State of Rajasthan & Ors., (1988) 3 SCC 241
30
Member takes a house on rent, he may be reimbursed
a house rent subject to such limits and conditions as
may be provided by rules.”
45. The second proviso is to the effect that allowances and benefits shall be to the extent as are admissible to a Central
Government officer holding the post carrying the same pay.
The third proviso to Section 184(1) is that where Chairperson or Members take a house on rent, he may be reimbursed a house rent subject to such limits and conditions as
may be prescribed. In terms of third proviso, the Tribunal,
Appellate Tribunal and other Authorities (Qualifications,
Experience and other Conditions of Service of Members)
(Amendment) Rules, 2021 have been published. As per the
Rules now notified, the Chairman, Chairperson, President,
Vice Chairman, Vice Chairperson or Vice President shall
have option to avail of accommodation to be provided by
the Central Government as per the rules for the time being
in force or entitled to house rent allowance subject to a limit
of Rs. one lakh fifty thousand rupees per month and the
Members shall have option to avail of accommodation to be
provided by the Central Government as per the rules for the
time being in force or entitled to house rent allowance
subject to a limit of Rs.one lakh twenty-five thousand rupees
per month with effect from the 1st January, 2021. Therefore,
the directions issued stands complied with.
31
46. As a matter of fact, there is a common grievance of the
members of the Bar and the litigating parties other than
from Delhi that there is a concentration of Tribunals in Delhi
which deprives the advocates from other parts of the
country to deal with the matters entrusted to the Tribunals.
It is also expensive for the litigants to engage professional
services in Delhi, which is out of capacity for a large section
of the society. In fact, because of housing scarcity and
expensive professional services, it will be open to the
Government/legislature to shift the principal benches of the
certain Tribunals outside Delhi so that concentration of
Tribunals in Delhi is minimized which will in turn help the Bar
to grow at different places, ensuring affordable
administration of justice and resolution of the challenge of
scarcity of housing in Delhi.
Section 184(7)
47. The direction of this Court in Para 53(ix) was that the Union
shall make appointments to Tribunals within three months
whereas the Ordinance has used the expression that the
Central Government shall take a decision on the
recommendations of the Committee “preferably within three
months”. Both the directions in sub-para (ix) and in subsection (7) are only directory. It is well-settled that the use
of expression ‘shall’ or ‘may’ is not determinative of the fact
that whether the condition is mandatory or directory.
32
Therefore, there is no reason to set aside the expression
‘preferably’ used in sub-section (7) of Section 184. Such
directions were issued in terms of Article 142 of the
Constitution which stop at the four walls of the Parliament.
The language to be used falls within the legislative
competence and do not violate any fundamental right nor
can be said to be manifestly arbitrary.
Whether the Ordinance nullifies the judgment of this Court in
MBA-III without removing the defect in the 2020 Rules?
48. The Petitioner herein has relied upon certain judicial
pronouncements to contend that the effect of the Ordinance
is to nullify the judgment of this Court in MBA-III without
removing the defects in the 2020 Rules. They are produced
and analyzed hereinbelow.
49. In a judgment26 relied upon, the levy of the property tax
was found to be not legal in view of the language of the
Statute. The State legislature thus altered the basis of levy
of property tax. Therefore, the said judgment is not
appliable to the facts of the present case where the
directions were issued dehors the legality of the 2020 Rules.
50. The reliance on another judgment of this Court27 is not
tenable wherein a settlement was arrived at regarding
payment of bonus effective from April 1, 1973 to March 31,
1977 with four different associations of employees. A writ of
26 Shri Prithvi Cotton Mills Ltd. & Anr. v. Broach Borough Municipality & Ors., (1969) 2
SCC 283
27 Madan Mohan Pathak & Anr. v. Union of India & Ors., (1978) 2 SCC 50
33
Mandamus was issued by the Calcutta High Court. The
Payment of Bonus (Amendment) Ordinance, 1975 was
thereafter promulgated in September, 1975. The Payment of
Bonus Act was not applicable to the Life Insurance
Corporation by virtue of Section 32 of the said impugned
Act. This Court found that the impugned Act did not set at
naught the entire settlement relating to payment of annual
cash bonus of Class III and Class IV employees and that too
from April, 1 1975. Since the settlement had attained
finality as the same was approved by the Board of Directors
as well as by the Central Government, and that the Writ of
Mandamus was issued by the Calcutta High Court to pay
annual cash bonus to the employees, it was held that the
judgment can be remedied by way of an appeal or review,
but it cannot be disregarded or ignored and must be obeyed
by Life Insurance Company. In S.S. Bola & Ors. v. B.D.
Sardana & Ors.
28
, this Court explained the Judgment in
Madan Mohan Pathak. It was found that in as much as six
Hon’ble Judges out of seven rested their decision on the
ground that the impugned Act violates Article 31(2) of the
Constitution and did not consider the enactment in question
to be an act of usurpation of judicial power by the
legislature. It was held as under:
“189………The majority judgment came to hold that
28 (1997) 8 SCC 522
34
the impugned Act is violative of Article 31 clause (2)
as the effect of the Act was to transfer ownership
debts due owing to Class III and Class IV employees
in respect of annual cash bonus to the Life Insurance
Corporation and there has been no provision for
payment of any compensation for the compulsory
acquisition of these debts It may be stated that the
majority judgment did not consider the question as
to whether the legislatures by enacting the Act have
usurped the judicial power and have merely declared
the judgment of a competent court of law to be
invalid. Beg, CJ. in his concurring judgement in para
32 of the judgment, however, has observed that the
real object of the Act was to set aside the result of
the mandamus issued by the Calcutta High Court,
though, it does not mention as such, and therefore,
the learned Judge held that Section 3 of the Act
would be invalid for trenching upon the judicial
power.
190. Three other learned Judges, namely, Y.V. Chandrachud, S. Murtaza Fazal Ali and P.N. Shinghal, JJ.
agreed with the conclusion of Bhagwati, J. but preferred to rest their decision on the sole ground that
the impugned Act violates the provisions of Article
31(2) of the Constitution and in fact they considered
it unnecessary to express any opinion on the effect
of the judgment of the Calcutta High Court in Writ Petition No.371 of 1976. Thus out of seven learned
Judges, six learned Judges rested their decision on
the ground that the impugned Act violates Article
31(2) of the Constitution and did not consider the enactment in question to be an act of usurpation of judicial power by the legislature. The observation of
Beg, C.J., in para 32 does not appear to be in consonance with the several authorities of this Court on
the point to be discussed hereafter…….”
51. In B.K. Pavitra v. Union of India
29
, the judgment in
Madan Mohan Pathak has been considered. It was held
that the said case did not involve a situation where a law
was held to be ultra vires and the basis of the declaration of
29 (2019) 16 SCC 129
35
invalidity of the law was sought to be cured. It was observed
as under:
“83.2. Indian Aluminium Co. [Indian Aluminium
Co. v. State of Kerala, (1996) 7 SCC 637] , where it
was held that : (SCC p. 660, para 49)
“49. In Madan Mohan Pathak v. Union of
India [Madan Mohan Pathak v. Union of India,
(1978) 2 SCC 50 : 1978 SCC (L&S) 103] … From
the observations made by Bhagwati, J. per
majority, it is clear that this Court did not
intend to lay down that Parliament, under no
circumstance, has power to amend the law
removing the vice pointed out by the court.
Equally, the observation of Chief Justice Beg is
to be understood in the context that as long as
the effect of mandamus issued by the court is
not legally and constitutionally made
ineffective, the State is bound to obey the
directions. Thus understood, it is
unexceptionable. But it does not mean that the
learned Chief Justice intended to lay down the
law that mandamus issued by court cannot at
all be made ineffective by a valid law made by
the legislature, removing the defect pointed
out by the court.”
(emphasis supplied)
84. Madan Mohan Pathak [Madan Mohan
Pathak v. Union of India, (1978) 2 SCC 50 : 1978 SCC
(L&S) 103] involved a situation where a
parliamentary law was enacted to override a
mandamus which was issued by the High Court for
the payment of bonus under an industrial
settlement. The case did not involve a situation
where a law was held to be ultra vires and the basis
of the declaration of invalidity of the law was sought
to be cured.”
52. Another judgment30 which has been relied upon dealt with
an inter-se water dispute between two states relating to the
height of Mullaperiyar Dam. Kerala Irrigation and Water Con30 State of Tamil Nadu v. State of Kerala, (2014) 12 SCC 696
36
servation Act, 200331 was enacted by Kerala legislature,
which came into force on 18.09.2003. Such Act was neither
referred to nor relied upon by the State of Kerala at the time
of hearing by this Court on 27.2.2006. On 18.03.2006, in
less than three weeks of the decision of this Court32, the Kerala State legislature amended the 2003 Act by introducing
Kerala Irrigation and Water Conservation (Amendment) Act,
200633, which was the subject matter of judgment in question. The said Act was challenged by the State of Tamil Nadu
in an original suit before this Court. An argument was raised
that the impugned legislation amounts to usurpation of judicial power inasmuch as Kerala State Legislature has arrogated to itself the role of a judicial body and has itself determined the questions regarding the dam safety and raising
the water level when such questions fall exclusively within
the province of the judiciary and have already been determined by this Court in its judgment dated 27.02.2006. This
Court in an exhaustive judgment held as under:
“126. The decision of this Court on 27.02.2006 in the
Mullaperiyar Environmental Protection Forum case
was the result of judicial investigation, founded upon
facts ascertained in the course of hearing. It was
strictly a judicial question. The claim of the State of
Kerala was that water level cannot be raised from its
present level of 136 ft. On the other hand, Tamil
Nadu sought direction for raising the water level to
142 ft. and, after strengthening, to its full level of
31 For short, ‘2003 Act’
32 Mullaperiyar Environmental Protection Forum v. Union of India, (2006) 3 SCC 643
33 For short, ‘2006 (Amendment) Act’
37
152 ft. The obstruction by Kerala to the water level in
the Mullaperiyar dam being raised to 142 ft. on the
ground of safety was found untenable, and, in its
judgment, this Court so pronounced.
xx xx xx
154. Where a dispute between two States has
already been adjudicated upon by this Court, which
it is empowered to deal with, any unilateral law
enacted by one of the parties that results in
overturning the final judgment is bad not because it
is affected by the principles of res judicata but
because it infringes the doctrine of separation of
powers and rule of law, as by such law, the
legislature has clearly usurped the judicial power.
xx xx xx
164. In light of the above legal position, if the 2006
judgment is seen, it becomes apparent that after
considering the contentions of the parties and
examining the reports of Expert Committee, this
Court posed the issue for determination about the
safety of the dam to increase the water level to 142
ft. and came to a categorical finding that the dam
was safe for raising the water level to 142 ft. and,
accordingly, in the concluding paragraph the Court
disposed of the writ petition and the connected
matters by permitting the water level of
Mullaperiyar dam being raised to 142 ft. and also
permitted further strengthening of the dam as per
the report of the Expert Committee appointed by
the CWC. The review petition filed against the said
decision was dismissed by this Court on 27.7.2006.
The 2006 judgment having become final and
binding, the issues decided in the said proceedings
definitely operate as res judicata in the suit filed
under Article 131 of the Constitution.”
53. Ram Pravesh Singh is another case where the State law
was under consideration. It was not a case where the
legislature had intervened to enact a law contrary to the
directions given by the High Court. Similarly, Karnail
38
Singh was a case of interpretation of statute and not
dealing with enactment by the legislature or Parliament
consequent to the directions issued by this Court. The law
declared by this Court is binding on all Courts within the
territory of India under Article 141 of the Constitution
whereas Article 142 of the Constitution empowers this Court
to issue directions to do complete justice. The interpretation
of law is binding under Article 141 of the Constitution even if
there is a direction under Article 142 but such direction is
not all pervasive and binding on the legislature. Such is the
consistent line of judgments by this Court ending with three
Judge Bench judgment in Dr. Ashwani Kumar.
Proviso to Section 184 (11)
54. The inserted proviso to Section 184(11) by the Ordinance
deals with two situations. One is in respect of the candidates
appointed from 26.5.2017 till the notified date that is
4.4.2021 in terms of sub-Section (11) of Section 184. Second
is in respect of the candidates who have not been appointed
falling within proviso to sub-Section (1) of Section 184,
which provides that a person who has not completed the
age of fifty years shall not be eligible for appointment as a
Chairperson or Member. There is no doubt that this is a
prospective provision as no candidate who has not
completed 50 years of age is eligible to seek appointment.
39
55. I do not find any merit in the argument raised by Mr.
Krishnan Venugopal that a selected candidate has a right to
seek appointment and that too within three months of the
order of this Court. Firstly, a selected candidate has no right
to seek appointment. A Constitution Bench of this Court34
had held that the successful candidates do not acquire an
indefeasible right to be appointed which cannot be
legitimately denied. This Court held as under:
“7. It is not correct to say that if a number of
vacancies are notified for appointment and adequate
number of candidates are found fit, the successful
candidates acquire an indefeasible right to be
appointed which cannot be legitimately denied.
Ordinarily the notification merely amounts to an
invitation to qualified candidates to apply for
recruitment and on their selection they do not acquire
any right to the post. Unless the relevant recruitment
rules so indicate, the State is under no legal duty to fill
up all or any of the vacancies. However, it does not
mean that the State has the licence of acting in an
arbitrary manner. The decision not to fill up the
vacancies has to be taken bona fide for appropriate
reasons. And if the vacancies or any of them are filled
up, the State is bound to respect the comparative
merit of the candidates, as reflected at the
recruitment test, and no discrimination can be
permitted. This correct position has been consistently
followed by this Court, and we do not find any
discordant note in the decisions in ………”
56. The fact that the legislation has intervened to prescribe a
particular age which is at variance with the condition in the
advertisement is a good reason not to appoint the
candidates. The legality of Sections 174, 175 and 184 of the
34 Shankarsan Dash v. Union of India, (1991) 3 SCC 47
40
Finance Act, 2017 has been upheld in the matter of Rojer
Mathew. Therefore, after such an amendment,
appointments can be made only in terms of the Rules famed
under Section 184 of the Finance Act. Now, some of the
Rules stand substituted by the Ordinance. Therefore,
candidates who have not been appointed will have to seek
appointment only in terms of the substituted Section 184 of
the Finance Act. The candidates who were selected cannot
seek appointment on the basis of their old selection and
being in merit.
57. Some of the Chairpersons and Members of the Tribunals
were appointed between 26.5.2017 to 4.4.2021 in terms of
the interim orders passed by this Court in Kudrat Sandhu.
The argument raised is that such interim orders have been
nullified though such orders were issued on the basis of
concession of the learned Attorney General and that such
orders are couched in the form of mandate, therefore such
mandatory orders cannot be nullified.
58. The concession of the learned Attorney General at the time
when interim orders were passed was in view of the
prevalent situation to keep the Tribunals functional. The
interim orders in Rojer Mathew have merged with the final
orders wherein again, this Court directed the appointments
to the Tribunals and terms of conditions of appointment shall
be in terms of the respective statute before the enactment
41
of the Finance Bill, 2017. Liberty was granted to the Union
to seek modification of this order. Therefore, the interim
order which permitted the appointments now stands
subsumed in the Ordinance which has defined the tenure
and the terms and conditions of appointment. The
Ordinance is in fact in terms of the liberty granted to Union
to seek modification. Mere fact that an application for
modification is pending will not bar the legislature to enact a
statute by way of an Ordinance. The appointments made
after 26.5.2017 by virtue of Section 184(11) will be
governed not by the parent statute but by the terms and
conditions as enumerated in the Ordinance. The consent of
the learned Attorney General will not act as an estoppel
against the statute i.e. the Ordinance.
59. The interim orders which have been set aside by this Court
such as in Cauvery Water Disputes Tribunal, or the
Medical Council of India were the cases where the State
Legislature had nullified interim orders simpliciter without
even attempting to cure the defects.
60. The judgment in Virender Singh Hooda is quite different.
The appellants before this Court were successful in an earlier round of litigation and were thus appointed. It was thereafter that the Act in question was enacted with retrospective
effect. The appellants were falling in the first category out of
three category of candidates such as (i) those who had been
42
appointed in implementation of decision in Hooda and
Sandeep Singh's cases before passing of the impugned Act
(ii) those, though not so appointed, who have judgments of
High Court passed in their favour relying upon Hooda and
Sandeep Singh's cases, and claim a right to appointment but
would be deprived of it if the validity of the Act is upheld and
on that basis the judgments of the High Court upturned and
(iii) those, who would be covered by law laid down in
Hooda's case on interpretation and applicability of the
aforenoted two circulars. This Court held as under:
“47. There is a distinction between encroachment
on the judicial power and nullification of the effect
of a judicial decision by changing the law retrospectively. The former is outside the competence of the
legislature but the latter is within its permissible
limits {M/s Tirath Ram Rajindra Nath, Lucknow v.
State of U.P. & Anr., [(1973) 3 SCC 585]}. The reason for this lies in the concept of separation of powers adopted by our constitutional scheme. The adjudication of the rights of the parties according to law
is a judicial function. The legislature has to lay down
the law prescribing norms of conduct which will govern parties and transactions and to require the court
to give effect to that law [I.N. Saksena's case
(supra)].
48. The legislature can change the basis on which a
decision is given by the Court and thus change the
law in general, which will affect a class of persons
and events at large. It cannot, however, set aside
an individual decision inter parties and affect their
rights and liabilities alone. Such an act on the part
of the legislature amounts to exercising the judicial
power by the State and to function as an appellate
court or tribunal, which is against the concept of
separation of powers. {Re : Cauvery Water Disputes
Tribunal [1993 Supp.(1) SCC 96(II)]}.
xx xx xx
43
52. It is not possible to accept the contention that
vested rights cannot be taken away by legislature
by way of retrospective legislation. Taking away of
such right would, however, be impermissible if violative of Articles 14, 16 and any other constitutional provision. In State of Tamil Nadu v. Aroorran
Sugars Ltd., [(1997) 1 SCC 326], this Court held that
whenever any amendment is brought in force retrospectively or any provision of the Act is deleted retrospectively, in this process rights of some are
bound to be affected one way or the other. In every
case, it cannot be urged that the exercise by the
legislature while introducing a new provision or
deleting an existing provision with retrospective effect per se shall be violative of Article 14 of the Constitution. If that stand is accepted, then the necessary corollary shall be that legislature had no power
to legislate retrospectively, because in that event a
vested right is affected.”
61. It is thereafter that this Court protected the appointment of
candidates falling in the first category i.e., those who were
appointed prior to the commencement of the Act in question. It was held as under:
“68. Despite the aforesaid conclusion, the Act
[proviso to Section 4(3)] to the extent it takes away
the appointments already made, some of the
petitioners had been appointed much before
enforcement of the Act (ten in number as noticed
hereinbefore) in implementation of this Court's
decision, would be unreasonable, harsh, arbitrary
and violative of Article 14 of the Constitution. The
law does not permit the legislature of take back what
has been granted in implementation of the court's
decision. Such a course is impermissible”.
62. The candidates in question were appointed during the pendency of lis. These appointments were not concluded appointments but were subject to the provisions of the parent
44
Act which has been amended by the Finance Act, 2017.
They cannot claim any right to continue on the post till the
age of retirement under the parent Act in terms of proviso to
sub-section (11) of Section 184 of the Finance Act as substituted. The provisions of the parent Act cease to be in existence with the order passed in Rojer Mathew and subsequent legislative enactments introduced by way of the Ordinance.
63. Thus, I find that the first, second and third proviso to Section
184(1), the use of expression ‘preferably’ in Section 184(7)
and the proviso to Section 184(11) are legal and valid as
such provisions fall within the exclusive domain of the
legislature. The legislature has not nullified the judgment of
this Court on the above aspects as there were no such
corresponding provisions in the 2020 Rules, which were part
of judicial review process.
64. It is open to the legislature to fix tenure of the Chairperson
and the members other than four years as the tenure of four
years was found to be not tenable in MBA-III. Section
184(7) which contemplates that Select Committee should
recommend a panel of two names is contrary to the
directions of this Court in MBA-III. Thus, Section 184(11)(i)
(ii) and Section 184(7) is declared to be void as the
Ordinance has reiterated the provisions which were in 2020
Rules. The challenge to other provisions is not legally
45
sustainable. The writ petition is thus dismissed except to the
extent mentioned above.
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
JULY 14, 2021.
46
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
(CIVIL ORIGINAL/APPELLATE JURISDICTION)
W.P.(C). 502/2021
MADRAS BAR ASSOCIATION ...PETITIONER(S)
VERSUS
UNION OF INDIA AND ANR. ...RESPONDENT(S)
J U D G M E N T
S. RAVINDRA BHAT, J.
1. One may well ask why there is need for a concurrence when the judgment
with which this author agrees, both as to its reasoning as well as its conclusions, is
as fully and well-reasoned as L. Nageswara Rao, J’s judgment is. The reason lies in
the importance of the themes which have been deliberated- independence of the
judiciary and separation of powers, both of which are timeless in their resonance
and relevance. This brief prefatory aside at the beginning, outlines the approach
this opinion strives to take, while wholeheartedly supporting the conclusions
recorded by Rao, J. With great respect to Hemant Gupta, J, I cannot persuade
myself to agree with him, that as regards prescription of minimum age (for
appointment to tribunals, i.e. 50 years) or with respect to conditions of service such
as payment of house rent allowance, this court ought to respect legislative wisdom,
and that directions issued in past judgments cannot bind Parliament, as they fell
outside the judicial sphere.
2
2. Independence of the judiciary is one of the foundational pillars of every
democracy governed by the rule of law, where the constitution reigns supreme.
Some constitutions may guarantee this in emphatic terms, whereas in others, there
may be no single provision manifested in the constitution, but rather, the idea may
emerge as a compelling inference - through the kind of assurances articulated by
express provisions (tenure, eligibility, age of superannuation, conditions where
removal is possible only through Parliamentary or legislative process, manner of
appointment etc). The Attorney General’s assertion that since there is no single
provision which expressly articulates independence of the judiciary, and that being
the case, the court cannot direct the length of tenure or other eligibility conditions
which are in the domain of the executive, (which, as a co-equal organ of
governance) is exclusively entitled to prescribe criteria for selection of tribunal
members, therefore, needs careful scrutiny.
3. The original constitution did not expressly – through any entry in the three
legislative lists, deal with tribunals. This field of legislation, creating courts, was
left to Parliament1
as well as the states2
. The absence of an entry pertaining to
tribunals meant that the creation of administrative and quasi-judicial tribunals, or
offices and agencies conferred with quasi-judicial functions - was recognised as
part of legislative activity, whereby laws could create appropriate bodies for their
enforcement in exercise of “incidental” and “ancillary powers” adjunct to the
concerned legislative head. As has been elaborated by L. Nageswara Rao, J., the
Constitution (Forty Second) Amendment Act, 1976 introduced Articles 323A3
and
323B4
which paved the way for the creation of tribunals as substitutes for courts.
1Entries 77,78 and 79, List I, Seventh Schedule to the Constitution of India.
2Entry 65, List II, Seventh Schedule to the Constitution of India.
3Which enables setting up of tribunals to adjudicate disputes “with respect to recruitment and conditions of service
of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of
any local or other authority”
4Which enables setting up of tribunals to adjudicate disputes relating to:
3
Many tribunals5
which were created by legislation introduced in the 1990s and the
decade beginning in 2000 do not conform to the heads or subject matters
enumerated in either of those Articles. Yet, they were created under the relevant
fields of legislation combined with Entry 11A of the Concurrent List (List III,
Seventh Schedule to the Constitution of India).6
4. The Union’s position that when a legislation or legislative instrument (such
as an ordinance in this case) is questioned, its validity can be scrutinized only by
considering its impact on some express provision of the constitution, and not on
any concept or notion such as separation of powers and judicial independence,
requires examination in the first instance.
5. There can be no doubt that any enactment or subordinate legislation can be
questioned as offending a constitutional provision. However, does this articulation
preclude a challenge based on principles which are evident in the constitution, but
yet, are not clearly spelt out in its plain text through any express provision? In the
Constitution Bench judgment of this court in Madras Bar Association v. Union of
India7
(“MBA-I”) the issue was whether High Courts could be divested of their
statutory appellate jurisdiction in tax disputes, which they had been exercising for
“a) levy, assessment, collection and enforcement of any tax; (b) foreign exchange, import and export across
customs frontiers; (c) industrial and labour disputes; (d) land reforms by way of acquisition by the State of any
estate as defined in article 31A or of any rights therein or the extinguishment or modification of any such rights or
by way of ceiling on agricultural land or in any other way; (e) ceiling on urban property; (f) elections to either
House of Parliament or the House or either House of the Legislature of a State, but excluding the matters referred to
in article 329 and article 329A; (g) production, procurement, supply and distribution of food-stuffs (including edible
oilseeds and oils) and such other goods as the President may, by public notification, declare to be essential goods
for the purpose of this article and control of prices of such goods; (h) rent, its regulation and control and tenancy
issues including the right, title and interest of landlords and tenants; (i) offences against laws with respect to any of
the matters specified in sub-clauses (a) to (h) and fees in respect of any of those matters; (j) any matter incidental to
any of the matters specified in sub-clauses (a) to (i).”
5The Telecom Disputes Settlement Commission, the Appellate Tribunal for Electricity; the Securities Appellate
Tribunal; Consumer forums and the National Consumer Disputes Redressal Commission;
6
Entry 11A pertains to ‘Administration of justice, constitution and organisation of all courts, except the Supreme
Court and High Courts’.
7
(2014) 10 SCC 1.
4
over 80 years, to confer this jurisdiction on a new tribunal whose membership was
to be different from judges of High Courts. This court then examined the
applicability of the basic structure doctrine, of which independence of the judiciary
and separation of powers have been held to be a part, and observed as follows:
“113.2. We have given our thoughtful consideration to the submission advanced
at the hands of the learned counsel for the petitioners insofar as the first
perspective is concerned. We find substance in the submission advanced at the
hands of the learned counsel for the petitioners, but not exactly in the format
suggested by the learned counsel. A closer examination of the judgments relied
upon lead us to the conclusion, that in every new Constitution, which makes
separate provisions for the legislature, the executive and the judiciary, it is taken
as acknowledged/conceded that the basic principle of “separation of powers”
would apply. And that, the three wings of governance would operate in their
assigned domain/province. The power of discharging judicial functions which was
exercised by members of the higher judiciary at the time when the Constitution
came into force should ordinarily remain with the court, which exercised the said
jurisdiction at the time of promulgation of the new Constitution. But the judicial
power could be allowed to be exercised by an analogous/similar court/tribunal
with a different name. However, by virtue of the constitutional convention while
constituting the analogous court/tribunal it will have to be ensured that the
appointment and security of tenure of Judges of that court would be the same as
of the court sought to be substituted. This was the express conclusion drawn
in Hinds case [Hinds v. R., 1977 AC 195 : (1976) 2 WLR 366 : (1976) 1 All ER
353 (PC)] . In Hinds case [Hinds v. R., 1977 AC 195 : (1976) 2 WLR 366 : (1976)
1 All ER 353 (PC)] , it was acknowledged that Parliament was not precluded
from establishing a court under a new name to exercise the jurisdiction that was
being exercised by members of the higher judiciary at the time when the
Constitution came into force. But when that was done, it was critical to ensure
that the persons appointed to be members of such a court/tribunal should be
appointed in the same manner and should be entitled to the same security of
tenure as the holder of the judicial office at the time when the Constitution came
into force. Even in the treatise Constitutional Law of Canada by Peter W. Hogg, it
was observed: if a province invested a tribunal with a jurisdiction of a kind,
which ought to properly belong to a Superior, District or County Court, then that
court/tribunal (created in its place), whatever is its official name, for
constitutional purposes has to, while replacing a Superior, District or County
Court, satisfy the requirements and standards of the substituted court. This would
mean that the newly constituted court/tribunal will be deemed to be invalidly
constituted, till its members are appointed in the same manner, and till its
members are entitled to the same conditions of service as were available to the
Judges of the court sought to be substituted. In the judgments under reference it
has also been concluded that a breach of the above constitutional convention
could not be excused by good intention (by which the legislative power had been
exercised to enact a given law). We are satisfied, that the aforesaid exposition of
5
law is in consonance with the position expressed by this Court while dealing with
the concepts of “separation of powers”, the “rule of law” and “judicial review”.
In this behalf, reference may be made to the judgments in L. Chandra Kumar
case [L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L&S)
577] , as also, in Union of India v. Madras Bar Assn. [Union of India v. Madras
Bar Assn., (2010) 11 SCC 1] Therein, this Court has recognised that transfer of
jurisdiction is permissible but in effecting such transfer, the court to which the
power of adjudication is transferred must be endured with salient characteristics,
which were possessed by the court from which the adjudicatory power has been
transferred. In recording our conclusions on the submission advanced as the first
perspective, we may only state that our conclusion is exactly the same as was
drawn by us while examining the petitioners' previous submission, namely, that it
is not possible for us to accept that under recognised constitutional conventions,
judicial power vested in superior courts cannot be transferred to coordinate
courts/tribunals. The answer is, that such transfer is permissible. But whenever
there is such transfer, all conventions/customs/practices of the court sought to be
replaced have to be incorporated in the court/tribunal created. The newly created
court/tribunal would have to be established in consonance with the salient
characteristics and standards of the court which is sought to be substituted.”
6. Likewise, in Dr. D.C. Wadhwa & Ors v. State of Bihar & Ors,8
a constitution
bench of this court held that the power to promulgate an ordinance does not enable
the executive to re-promulgate it several times, without seeking its enactment by
the appropriate legislature. There is no provision in the constitution, which
precludes the executive from re-promulgating ordinances; yet this court ruled that
to be the case, and observed as follows:
“The Executive cannot by taking resort to an emergency power exercisable by it
only when the Legislature is not in Session, take over the law- making function of
the Legislature. That would be clearly subverting the democratic process which
lies at the core of our constitutional scheme, for then the people would be
governed not the laws made by the Legislature as provided in the Constitution but
by laws made by the Executive. The Government cannot by-pass the Legislature
and without enacting the provisions of the Ordinance into an Act of the
Legislature, repromulgate the Ordinance as soon as the Legislature is prorogued.
Of course, there may be a situation where it may not be possible for the
Government to introduce and push through in the Legislature a Bill containing
the same provisions as in the Ordinance, because the Legislature may have too
much legislative business in a particular Session or the time at the disposal of the
Legislature in a particular Session may be short, and in that event, the Governor
may legitimately find that it is necessary to repromulgate the Ordinance. Where
such is the case, re-promulgation of the Ordinance may not be open to attack. But
otherwise, it would be a colourable exercise of power on the part of the Executive
8
1987 (1) SCR 198.
6
to continue an Ordinance with substantially the same provisions beyond the
period limited by the Constitution, by adopting the methodology of
repromulgation.”
7. The above decision was endorsed in Krishna Kumar Singh v. State of
Bihar9which also held that re-promulgation “represents an effort to overreach the
legislative body which is a primary source of law-making authority in a
parliamentary democracy.”The court pointed out that:
“The danger of repromulgation lies in the threat which it poses to the sovereignty
of Parliament and the State Legislatures which have been constituted as primary
law-givers under the Constitution. Open legislative debate and discussion
provides sunshine which separates secrecy of Ordinance-making from transparent
and accountable governance through law-making.”
8. In a decision of the Privy Council (which has been cited and approved by
decisions of this court, including in Kesavananda Bharati v. State of Kerala10) viz,
Liyanage v. The Queen11 the compulsive, though inarticulate premise of these
principles was elaborated in the following manner:
“What, however, is implicit in the very structure of a Constitution on the
Westminster model is that judicial power, however it be distributed from time to
time between various courts, is to continue to be vested in persons appointed to
hold judicial office in the manner and on the terms laid down in the Chapter
dealing with the judicature, even though this is not expressly stated in the
Constitution.”
9. In L. Chandra Kumar v Union of India12this court invalidated Section 28 of
the Administrative Tribunals Act on the ground that it excluded jurisdiction under
Articles 226 and 227, and was thus in conflict with the basic structure of the
constitution, as judicial review was part of the basic structure:
“100. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article
323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction
of the High Courts and the Supreme Court under Articles 226/227 and 32 of the
Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of
jurisdiction" clauses in all other legislations enacted under the aegis of Articles
9
(2017) 3 SCC 1.
101973 Supp. SCR 1.
11[1967] 1 AC 259, 287–288.
121997 (3) SCC 261
7
323A and 323B would, to the same extent, be unconstitutional. The jurisdiction
conferred upon the High Courts under Articles 226/227 and upon the Supreme
Court under Article 32 of the Constitution is part of the inviolable basic structure
of our Constitution.”
In Ismail Faruqui v Union of India13 provisions of a Central enactment14 [Section
4 (3)] which abated all pending legal proceedings was held to be unconstitutional
because: it amounted to “an extinction of the judicial remedy for resolution of the
dispute amounting to negation of rule of law. Sub-section (3) of Section 4 of the
Act is, therefore, unconstitutional and invalid.”It is therefore, too late in the day to
contend that infringement by a statute, of the concept of independence of the
judiciary - a basic or essential feature of the constitution, which is manifested in its
diverse provisions, cannot be attacked, as it is not evident in a specific Article of
the Constitution.
10. The challenges to executive or legislative measures based on violation of the
twin concepts of separation of powers and independence of the judiciary have to be
seen in terms of their impacts, not at one point in time, but cumulatively, over a
time continuum. This idea was expressed in Pareena Swarup v. Union of
India15 where the court observed that:
“9. It is necessary that the court may draw a line which the executive may not
cross in their misguided desire to take over bit by bit and (sic) judicial functions
and powers of the State exercised by the duly constituted courts. While creating
new avenue of judicial forums, it is the duty of the Government to see that they are
not in breach of basic constitutional scheme of separation of powers and
independence of the judicial function. We agree with the apprehension of the
petitioner that the provisions of the Prevention of Money-Laundering Act are so
provided that there may not be independent judiciary to decide the cases under
the Act but the members and the Chairperson to be selected by the Selection
Committee headed by Revenue Secretary.
13(1994) 6 SCC 360,
14the Acquisition of Certain Area at Ayodhya Act, 1993 (No. 33 of 1993)
15(2008) 14 SCC 107
8
10. It is to be noted that this Court in L. Chandra Kumar v. Union of
India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] has laid down that the power of
judicial review over legislative action vested in the High Courts under Article 226
as well as in this Court under Article 32 of the Constitution is an integral and
essential feature of the Constitution constituting part of its (sic basic) structure.
The Constitution guarantees free and independent judiciary and the constitutional
scheme of separation of powers can be easily and seriously undermined, if the
legislatures were to divest the regular courts of their jurisdiction in all matters,
and entrust the same to the newly created Tribunals which are not entitled to
protection similar to the constitutional protection afforded to the regular courts.
The independence and impartiality which are to be secured not only for the court
but also for Tribunals and their members, though they do not belong to the
“judicial service” but are entrusted with judicial powers. The safeguards which
ensure independence and impartiality are not for promoting personal prestige of
the functionary but for preserving and protecting the rights of the citizens and
other persons who are subject to the jurisdiction of the Tribunal and for ensuring
that such Tribunal will be able to command the confidence of the public. Freedom
from control and potential domination of the executive are necessary
preconditions for the independence and impartiality of Judges. To make it clear
that a judiciary free from control by the executive and legislature is essential if
there is a right to have claims decided by Judges who are free from potential
domination by other branches of Government. With this background, let us
consider the defects pointed out by the petitioner and amended/proposed
provisions of the Act and the Rules.”
11. The decision in S.P. Sampath Kumar v. Union of India & Ors.16 upheld the
validity of the Administrative Tribunals Act, 1985 and the exclusion of High
Courts’ jurisdiction under Article 226 of the Constitution (based on an enabling
clause in Article 323A); yet, the reasoning in the judgments delivered are a clear
indicator that this court would always be careful in considering the efficacy of the
body and its ability to administer justice in a fair and impartial manner, having
regard to the qualifications and experience of its personnel as well as the
safeguards of tenure, salary etc. L. Chandra Kumar v. Union of India &
Ors17
,a seven-judge decision, decisively overruled Sampath Kumar (supra) with
respect to the preclusion of jurisdiction of Article 226 of the Constitution; this
Court also declared that judicial review is a part of the basic structure of the
Constitution. In the next phase, where amendments were proposed to the
161987 SCC Supp. 734
17(1997) 3 SCC 261
9
Companies Act, 1956 to set up a National Company Law Tribunal, this Court, by
the Constitution Bench decision in Union of India v. R. Gandhi18 again found
several provisions of enacted Parliamentary law to be objectionable – they are
related to tenure, manner of appointment, qualifications of members etc. Likewise,
in Madras Bar Association v Union of India (MBA-I) (supra), the complete
divesting of High Courts’ jurisdiction under tax enactments (income tax, customs,
central excise and service tax etc) and parliamentary setting up of a National Tax
Court was held to be unconstitutional. Here again, the court highlighted the quality
of justice expected from such bodies and underlined that the divestment of such
jurisdiction was prohibited by the Constitution. Madras Bar Association19 (“MBAII”) considered the amended provisions of the Companies Act and proceeded to
pronounce that many of them could not pass muster of the Constitution.
Once again, as in R. Gandhi (supra), this court was concerned with the likely
impact on the nature of the justice delivery mechanism envisioned by the new
law. The method of appointment, qualifications, eligibility conditions and tenure of
all these fell within the undoubted domain of parliamentary concern. Yet, this court
held that many of these policy decisions enacted into law were contrary to the
principle of an independent judiciary which could guarantee effective and impartial
justice. Roger Mathew20 held that the rules framed under the Finance Act, 2017
(“the 2017 Rules”) were not sustainable due to defects in the constitution of
selection cum appointment committees and tenure of members of tribunals, among
other aspects. Madras Bar Association v. Union of India21(“MBA-III”) held that
rules framed in 2020 were invalid as regards the tenure of members of tribunals,
constitution of the mechanism for their selection, lack of any substantive rules for
their re-appointment, etc.
18(2010) 11 SCC 1
19(2015) 8 SCC 583.
20 (2020) 6 SCC 1.
212020 SCC OnLine SC 962.
10
12. In all these decisions, this court’s scrutiny was based upon its role as
the guardian of the constitution and, more specifically, independence of the
judiciary. If one were asked to pinpoint any specific provision of the constitution
that this court relied upon while holding the enacted provisions to be falling afoul
of, there would be none. It is too late now to contend that independence of the
judiciary and separation of powers are vague concepts based on which
Parliamentary re-enactment cannot be invalidated.
13. The role of this court in considering whether or not provisions of law or
executive policies are in consonance with the Constitution is well recognized and
cannot be overemphasized. The Attorney General’s assertion that the
executive or indeed the Parliament acts within its rights in interpreting the
Constitution, and therefore this court should adopt a deferential standard in matters
of policy are therefore insubstantial, and also disquieting. As conceded by the
Union, if a law (passed validly in exercise of its exclusive power by the Parliament
on its interpretation of the Constitution) violates any express provision or principle
that lies at the core of any express provision or provisions, this Court’s voice is
decisive and final.
14. Pertinently, in matters of independence of the judiciary or arrangement of
courts or tribunals, when these provisions come up for interpretation, this court
would apply a searching scrutiny standard in its judicial review to ensure that the
new body, court, tribunal, commission or authority created to adjudicate
(between citizens and government agencies or departments, citizens and citizens,
or citizens and corporate entities) are efficient, efficacious and inspire public
confidence. The role of courts in considering a provision of law setting up
adjudicatory bodies, was recognized in R.K. Jain v. Union of India22 in the
following terms:
221993 (3) SCR 802
11
“The faith of the people is the bed-rock on which the edifice of judicial review
and efficacy of the adjudication are founded. The alternative arrangement must,
therefore, be effective and efficient. For inspiring confidence and trust in the
litigant public they must have an assurance that the person deciding their
causes is totally and completely free from the influence or pressure from the
Govt. To maintain independence and impartiality it, is necessary that the
personnel should have at least modicum of legal training, learning and
experience. Selection of competent and proper people instil people's faith and
trust in the office and help to build up reputation and acceptability. Judicial
independence which is essential and imperative is secured and independent and
impartial administration of justice is assured. Absence thereof only may get both
law and procedure wronged and wrongheaded views of the facts and may likely
to give rise to nursing grievance of injustice. Therefore, functional
fitness, experience at the liar and aptitudinal approach are fundamental for
efficient judicial adjudication. Then only as a repository of the confidence. as its
duty, the tribunal would properly and efficiently interpret the law and apply the
law to the given set of facts. Absence thereof would be repugnant or derogatory
to the constitution. The daily practice in the courts not only gives training to
Advocates to interpret the rules but also adopt the conventions of courts. In built
experience would play vital role in the administration of justice and strengthen
and develop the qualities, of intellect and character, forbearance and patience,
temper and resilience which are very important in the practice of law. Practising
Advocates from the Bar generally do endow with those qualities to discharge
judicial functions. Specialised nature of work gives them added advantage and
gives benefit to broaden the perspectives. "Judges " by David Pannick (1987
Edition), at page 50, stated that, "we would not allow a man to perform a
surgical operation without a thorough training and certification of fitness. Why
not require as much of a trial judge who daily operates on the lives and fortunes
of others".
15. It would be useful to notice that whenever Parliament creates tribunals with
exclusive jurisdiction, the parent enactment or law invariably bars the jurisdiction
of ordinary civil courts.23 This in my opinion is the clearest indicator of the fact
that but for such provisions and the creation of such exclusive bodies, civil
courts would of necessity have enjoyed jurisdiction to adjudicate disputes arising
out of such new legislation24. This underscores the fact that the appropriate
23Section 293, Income Tax Act; Section 20A of the Securities and Exchange Board of India Act, 1992; Section 18,
the Recovery of Debts and Bankruptcy Act, 1993; Section 34 of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002;Section 268, Companies Act, 2013; Section 231 of the
Insolvency and Bankruptcy Code, 2016; Section 56, Petroleum and Natural Gas Regulatory Board Act, 2006;
Section 154, Electricity Act, 2003; Section 27 of the Telecom Regulatory Authority of India Act, 1997; Section 61 of
the Competition Act, 2002.
24Section 9 of the Civil Procedure Code
12
legislature wishes those disputes arising from such new legislation not to be
adjudicated by civil courts: which otherwise would have possessed jurisdiction
over them. Such disputes may include issues such as refund of excess amounts
claimed as tax, private disputes between two licensees under a statutory regime
such as telecom or electricity laws etc., consumer disputes, liability to banks and
financial institutions, and so on.
16. Parliament has, over the years, created several tribunals and commissions
which exercise judicial functions that would ordinarily fall within the jurisdiction
of courts; they would also have been subjected to the supervisory jurisdiction of
High Courts under Article 227. This gradual “hiving off” of jurisdiction from the
courts, therefore, calls for a careful and searching scrutiny to ensure that those who
approach these bodies are assured of the same kind and quality of justice, infused
with what citizens expect from courts, i.e., independence, fairness, impartiality,
professionalism and public confidence. These considerations are relevant, given
that “policy” choices adopted by the executive or legislature in the past, when it
concerned dispensation of justice through courts, were the subject matter of
scrutiny under judicial review by courts.
17. In the exercise of such judicial review, in the past, this court has ruled that
High Courts have a decisive say in matters of recruitment, promotion and
conditions of services of judges of District and other courts, although the
Constitution only requires the Governor to consult that institution (High Courts). In
Chandra Mohan v. State of U.P25
, this court unanimously held:
“The exercise of the power of appointment by the Governor is conditioned by his
consultation with the High Court, that is to say, he can only appoint a person to
the post of District Judge in consultation with the High Court. The object of
consultation is apparent. The High Court is expected to know better than the
Governor in regard to the suitability or otherwise of a person, belonging either to
the “Judicial Service” or to the Bar, to be appointed as a District Judge.
Therefore, a duty is enjoined on the Governor to make the appointment in
consultation with a body which is the appropriate authority to give advice to
251967 (1) SCR 77
13
him.... These provisions indicate that the duty to consult is so integrated with the
exercise of the power that the power can be exercised only in consultation with
the person or persons designated therein.”
To the same effect are the decisions in Chandramouleshwar Prasad v. Patna High
Court26and many other judgments.27 In State of Bihar v Bal Mukund Sah28 it was
held that:
“the framers of the Constitution separately dealt with Judicial Services of the
State and made exclusive provisions regarding recruitment to the posts of District
Judges and other civil judicial posts inferior to the posts of the District Judge.
Thus these provisions found entirely in a different part of the Constitution stand
on their own and quite independent of part XIV dealing with Services in general
under the State. Therefore, Article 309, which, on its express terms, is made
subject to other provisions of the Constitution, does get circumscribed to the
extent to which from its general field of operation is carved out a separate and
exclusive field for operation by the relevant provisions of Articles dealing with
Subordinate Judiciary as found in Chapter VI of Part VI of the Constitution.”
18. This court, therefore, as the ultimate guardian of the Constitution, and the
rule of law, which it is sworn to uphold, has been asserting its role in regard to
matters of appointment, and other conditions of service of judges of district and
other courts. Since tribunals function within the larger ecosystem of administration
of justice, and essentially discharge judicial functions, this court is equally
concerned with the qualifications, eligibility for appointment, procedure for
selection and appointment, conditions of service, etc of their members. This court’s
concern, therefore, is unlike any other subject matter of judicial review. It cannot
be gainsaid that if tenures of tribunals’ members are short: say two years, or if their
salaries are pegged at unrealistically low levels, or if their presiding members are
given no administrative control or powers, the objective of efficient, fair, and
impartial justice delivery would be defeated. It cannot then be argued that each of
these are “policy” matters beyond the court’s domain.
26(1969) 3 SCC 56
27State of Kerala v. A. Lakshmikutty and Ors. 1987 (1) SCR136 where the court emphasized that the Constitution
required the Governor to have a “real, full and effective consultation” with the High Court in the matter of
appointment of District judges; M.M. Gupta and Ors. v. State of Jammu and Kashmir & Ors (1982) 3 SCC 412.
28(2004) 4 SCC 640.
14
19. Ordinarily in pure “policy” matters falling within Parliamentary or executive
domain, such as economic, commercial, financial policies, or other areas such as
energy, natural resources etc, this court’s standard of judicial review is deferential.
In almost all subject matters over which legislative bodies enact law, the wisdom
of the policy is rarely questioned; it is too well recognised that in such matters,
judicial review extends to issues concerning liberties of citizens, and further,
whether the particular subject matter falls within the legislative field of the
concerned legislative body. In matters where the executive implements those laws,
the scrutiny extends to further seeing the legality and constitutionality of such
action. Where there is no law, the court considers whether executive competence to
act is traceable to the particular legislative field under the Constitution, and
whether the executive action sans law, abridges people’s liberties. Deference to
matters executive appears to be highest, when the country faces emergencies and
existential threats. However, in matters that concern administration of justice,
especially where alternative adjudicatory forums are created, the court’s concern is
greater. This is because the Constitution does not and cannot be read so as to
provide two kinds of justice: one through courts, and one through other bodies. The
quality and efficacy of these justice delivery mechanisms have to be the same, i.e.,
the same as that provided by courts, as increasingly, tribunals adjudicate disputes
not only between state agencies and citizens, but also between citizens and citizens
as well as citizens and powerful corporate entities. Therefore, it is the “equal
protection” of laws29, guaranteed to all persons, through institutions that assure the
same competence of its personnel, the same fair procedure, and the same
independence of adjudicators as is available in existing courts, that stands directly
implicated. Consequently, when this court scrutinizes any law or measure dealing
with a new adjudicatory mechanism, it is through the equal protection of law
clause under Article 14 of the Constitution.
29Under Article 14 of the Constitution of India
15
20. With these observations, I proceed to deal with the minimum age
requirement (hereafter called “age qualification”) which precludes otherwise
qualified candidates possessing the requisite experience from appointment to all
tribunals, unless they are 50 years of age or older. This age qualification is that
candidates, to be appointed, should not be less than 50 years, and has been
introduced by the first proviso to Section 184 (1) of the Finance Act. What is
immediately noticeable is that this age qualification (more by way of an age bar or
minimum age requirement) did not find place in any parent enactment30, which set
out the eligibility conditions for appointments to various tribunals, with the
exception of appointment as members to the National Company Law Tribunal, for
which, candidates should have completed 50 years to be eligible for appointment,
apart from the prescribed eligibility and condition criteria. Such age criteria was
not enacted under the provisions of the Finance Act, 2017; nor was it introduced in
the 2017 Rules (which were invalidated by Rojer Mathew). An indirect age barrier,
for the first time was introduced in the 2020 Rules framed under the Finance Act,
2017, in the form of the requirement of otherwise qualified advocates and
chartered accountant candidates having to possess 25 years of practice. This court
held that requirement to be untenable, and directed it to be suitably amended. In
response, as it were, for the first time, the 50-year minimum age requirement has
been enacted in the parent enactment (Finance Act, 2017) through amendment by
the impugned Ordinance. The justification given for this age requirement or
qualification is threefold:
(a) Advocate members, technical members (including chartered accountants)
and those joining the tribunal as departmental members would have a
uniform age, which is relatable to the approximate age by which a public
30 Income Tax Act, 1961, Customs Act, 1962, Securities Exchange of India Act, 1992, Electricity Act, 2003, etc.
16
servant attains the status and rank of Additional Secretary, which enables
consideration of her or his name for appointment as member of a tribunal;
(b) Considerations of equivalence with Additional Secretaries, weighed with the
Union in enacting the age qualification;
(c) Whether the minimum age of a tribunal member ought to be 50 years, or
less, is within the exclusive domain of the executive, and Parliament and
cannot be dependent upon the views of this court, being a pure policy issue.
21. The challenge to the first proviso to Section 184, which prescribes the age
qualification, has to be seen from several angles. First, the underlying parent
statutes which created the tribunals (ITAT, CESTAT, TDSAT, CAT) did not prescribe, as an eligibility criterion for selection of candidates as members, any minimum age. The prescription of 50 years as a minimum eligibility criterion, in the
opinion of this court, is without any rationale. The ITAT has existed for the last 79
years; no less than 33 of its members were appointed as judges of various High
Courts; one of them (Ranganathan, J.) was appointed to this court. The CESTAT
too has comprised advocates who have staffed the tribunal efficiently. The absence
of any explanation for the preference given to older persons, in fact leads to an absurd result- as was pointed out in MBA-III and as has been reiterated by L.
Nageswara Rao, J. in his opinion. The Constitution of India makes an advocate
who has practiced for more than 10 years, eligible for consideration for appointment as a judge of the High Court and even this Court. An advocate with 7 years’
practice with the Bar can be considered for appointment to the position of a District Judge. Prescribing 50 years as a minimum age limit for consideration of advocates has the devastating effect of entirely excluding successful young advocates, especially those who might be trained and competent in the particular subject
(such as Indirect Taxation, Anti-Dumping, Income-Tax, International Taxation and
Telecom Regulation). The exclusion of such eligible candidates in preference to
those who are more than 50 years of age is inexplicable and therefore entirely arbitrary. As this Court in its previous judgment (Rojer Mathew) has pointed out in an-
17
other context, the exclusion of such young and energetic legal practitioners could
result in not so efficient or competent practitioners left in a field for consideration
which would have telling effects on the quality of decisions they are likely to render.
22. Prescribing 50 years’ minimum age as a condition for appointment to these
tribunals is arbitrary also because absolutely no reason is forthcoming about what
impelled Parliament to divert from the long-established criteria of giving weightage to actual practice, reputation, integrity and subject expertise, without a minimum age criterion, in the pleadings in this case, nor in any other cases (R. Gandhi
–MBA –I; Madras Bar Association –III and Roger Mathew). Such being the case,
it is astonishing that in the span of a year (i.e. after the decision in Roger
Mathew) “new thinking” seems to have prevailed to frame rules excluding advocates who can otherwise, based on their expertise, be considered for appointment
to even High Courts.
23. This Court would also observe that the consideration of such younger advocates in the age group of 40-45 years would have long term benefits since the domain knowledge and expertise in such areas (Telecom Regulation, Taxation –both
Direct and Indirect, GATT Rules, International Taxation etc.) would be useful in
adjudication in these tribunals and lead to a body of jurisprudence. Depending on
how such counsel/advocates fare as members of the Tribunal, having regard to
their special knowledge of these laws, at a later and appropriate stage, they may
even be considered for appointment to High Courts.
24. The age criteria, impugned in this case also leads to wholly anomalous and
absurd results. For instance, an advocate with 18- or 20-years’ practice, aged 44
years, with expertise in the field of indirect taxation, telecom, or other regulatory
laws, would be conversant with the subject matter. Despite being eligible, (as she
or he would fulfil the parameters of at least 10 years’ practice, in the light of the
decision in MBA-III) such a candidate would be excluded. On the other hand, an
individual who might have practiced law for 10 years, and later served as a private
or public sector executive in an entirely unrelated field, but who might be 50 years
18
of age, would be considered eligible, and can possibly secure appointment as a
member of a tribunal. Thus, the age criterion would result in filtering out candidates with more relevant experience and qualifications, in preference to those with
lesser relevant experience, only on the ground of age.
25. In the decision reported as State of J&K v. Triloki Nath Khosa31
, this court
explained that a classification for the purpose of Article 14 of the Constitution (as
the present minimum age criteria undoubtedly is, in the present case) based on any
criteria, must be based on a distinct characteristic, having a rational nexus with the
object of the norm, or the law:
“31. Classification, however, is fraught with the danger that it may produce
artificial inequalities and therefore, the right to classify is hedged in with salient
restraints; or else, the guarantee of equality will be submerged in class legislation
masquerading as laws meant to govern well marked classes characterized by
different and distinct attainments. Classification, therefore, must be truly founded
on substantial differences which distinguish persons grouped together from those
left out of the group and such differential attributes must bear a just and rational
relation to the object sought to be achieved.”
26. Similarly, in Mohd. Shujat Ali v. Union of India32 this Court cautioned
against over-classification, based on artificial distinctions between two categories
falling within the same class, in matters of public employment:
“To permit discrimination based on educational attainments not obligated by the
nature of the duties of the higher post is to stifle the social thrust of the equality
clause. A rule of promotion which, while conceding that non-graduate
Supervisors are also fit to be promoted as Assistant Engineers, reserves a higher
quota of vacancies for promotion for graduate Supervisors as against nongraduate Supervisors, would clearly be calculated to destroy the guarantee of
equal opportunity.”
27. Given that the essential educational qualifications and experience in the
relevant field are fixed for all candidates, for a classification based on minimum
age for appointment (like in the present case) to succeed, the Union cannot say that
it should be held to be valid, irrespective of the nature and purposes of the
31(1974) 1 SCC 19
321975 (3) SCC 76
19
classification or the quality and extent of the difference in experience between
candidates. As between someone with 18 years’ experience but aged 42 or 43
years, and someone with only 12 years’ experience, if a system of weightage for
experience and qualification were to be applied, the one with greater experience
would in all likelihood be selected. Then, to say that one with lesser experience,
but who is more aged should be selected and appointed, not only eliminating the
one with more experience, but even disqualifying her or him, would mean that
better candidates have to be overlooked and those with lesser experience would be
appointed, solely on the ground that the latter is over 50 years of age. Prime
Minister Jawaharlal Nehru, in the course of the Constituent Assembly debates,
(though in the context of fixing age of retirement of judges) remarked that33
“But the fact is, when you reach certain top grades where you require absolutely
first-class personnel, then it is a dangerous thing to fix a limit which might
exclude these first-rate men.”
In the present case, the rule has the effect of excluding deserving candidates,
without subserving any discernible public policy or goal. Thus, the classification is
based on no justifiable rationale; nor can it be said that the age criterion has some
nexus with the object sought to be achieved, such as greater efficiency or
experience.
28. In Anuj Garg v. Hotel Assn. of India34one of the issues was the bar to
employment of anyone less than 25 years of age in the hotel industry. This court
held that such age discrimination was unsustainable, and struck it down, observing
as follows:
“25. Hotel management has opened up a vista for young men and women for
employment. A large number of them are taking hotel management graduation
courses. They pass their examinations at a very young age. If prohibition in
employment of women and men below 25 years is to be implemented in its letter
and spirit, a large section of young graduates who have spent a lot of time, money
and energy in obtaining the degree or diploma in hotel management would be
deprived of their right of employment. Right to be considered for employment
33CAD, Vol. VIII dated 24th May, 1949
34(2008) 3 SCC 1.
20
subject to just exceptions is recognised by Article 16 of the Constitution. Right of
employment itself may not be a fundamental right but in terms of both Articles 14
and 16 of the Constitution of India, each person similarly situated has a
fundamental right to be considered therefor.
**********
56. Young men who take a degree or diploma in hotel management enter into
service at the age of 22 years or 23 years. It, thus, cannot prohibit employment of
men below 25 years. Such a restriction keeping in view a citizen's right to be
considered for employment, which is a facet of the right to livelihood does not
stand judicial scrutiny.”
29. In this court’s decision in Lt. Col. Nitisha & Ors. v. Union of India,35 a reference was made to a US statute - the Age Discrimination in Employment Act, 1967
and the US Supreme Court decision in Smith v. City of Jackson36which dealt with
discrimination based on age. The relevant provisions of the said enactment
proscribe age discrimination in regard to matters of employment.37 A recent US
Supreme Court decision Baab v. Wilke38 explained what is meant by age
discrimination, in the following terms:
“The Civil Service Reform Act of 1978, which governs federal employment,
broadly defines a “personnel action” to include most employment-related
decisions, such as appointment, promotion, work assignment, compensation, and
performance reviews. See 5 U. S. C. §2302(a)(2)(A). That interpretation is
consistent with the term’s meaning in general usage, and we assume that it has
352021 SCCOnLine SC 261.
36 544 US 228 (2005).
37The relevant provisions of the Age Discrimination in Employment Act, 1967, Sec 623 (Section 4) are as follows:
“(a) Employer practices
It shall be unlawful for an employer-
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age;
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect his status as an employee, because of such
individual's age; or
(3) to reduce the wage rate of any employee in order to comply with this chapter.
(b) It shall be unlawful for an employment agency to fail or refuse to refer for employment, or otherwise to
discriminate against, any individual because of such individual's age, or to classify or refer for employment any
individual on the basis of such individual's age….”
38No. 18-882, 589 U. S. ____ (2020)
21
the same meaning under the ADEA. Under §633a(a), personnel actions must be
made “free from” discrimination. The phrase “free from” means “[c]lear of
(something which is regarded as objectionable).” Webster’s Third New
International Dictionary 905 (def. 4(a)(2)) (1976); 4 Oxford English Dictionary
521 (def. 12) (1933); see also American Heritage Dictionary 524 (def. 5(a))
(1969) (defining “free” “used with from” as “[n]ot affected or restricted by a
given condition or circumstance”); Random House Dictionary of the English
Language 565 (def. 12) (1966) (defining “free” as “exempt or released from
something specified that controls, restrains, burdens, etc.”). Thus, under
§633a(a), a personnel action must be made “untainted” by discrimination based
on age, and the addition of the term “any” (“free from any discrimination based
on age”) drives the point home. And as for “discrimination,” we assume that it
carries its “‘normal definition,’” which is “‘differential treatment.’” Jackson v.
Birmingham Bd. of Ed., 544 U. S. 167, 174 (2005). Under §633a(a), the type of
discrimination forbidden is “discrimination based on age,” and “[i]n common
talk, the phrase ‘based on’ indicates a but-for causal relationship.” Safeco Ins.
Co. of America v. Burr, 551 U. S. 47, 63 (2007); cf. Comcast Corp. v. National
Assn. of African American Owned Media, ante, at 6. Therefore, §633a(a) requires
that age be a but-for cause of the discrimination alleged. What remains is the
phrase “shall be made.” “[S]hall be made” is a form of the verb “to make,”
which means “to bring into existence,” “to produce,” “to render,” and “to cause
to be or become.” Random House Dictionary of the English Language, at 866.
Thus, “shall be made” means “shall be produced,” etc. And the imperative mood,
denoting a duty, see Black’s Law Dictionary 1233 (5th ed. 1979), emphasizes the
importance of avoiding the taint. So much for the individual terms used in
§633a(a). What really matters for present purposes is the way these terms relate
to each other. Two matters of syntax are critical. First, “based on age” is an
adjectival phrase that modifies the noun “discrimination.” It does not modify
“personnel actions.” The statute does not say that “it is unlawful to take
personnel actions that are based on age”; it says that “personnel actions . . .
shall be made free from any discrimination based on age.” §633a(a). As a result,
age must be a but-for cause of discrimination—that is, of differential treatment—
but not necessarily a but-for cause of a personnel action itself. Second, “free from
any discrimination” is an adverbial phrase that modifies the verb “made.” Ibid.
Thus, “free from any discrimination” describes how a personnel action must be
“made,” namely, in a way that is not tainted by differential treatment based on
age. If age discrimination plays any part in the way a decision is made, then the
decision is not made in a way that is untainted by such discrimination. This is the
straightforward meaning of the terms of §633a(a), and it indicates that the statute
does not require proof that an employment decision would have turned out
differently if age had not been taken into account.”
(emphasis supplied)
22
30. The Delhi High Court, in its decision reported as Commissioner, M.C.D. v.
Shashi39 invalidated a rule that allowed the public employer to screen candidates
based on their age, emphasizing that:
“Subject to constitutionally permissible reservations, every endeavour must be
made by the State to employ or engage the most qualified or the most meritorious
persons. In doing so, the State may fix shortlisting criteria on the basis of
educational qualifications or experience or marks obtained in an examination or
an interview or any other criterion which enables the most competent person to
be selected. Unfortunately, age has nothing to do either with merit or competence.
Wisdom may be an attribute of age, but not merit or competence.
13. There is not even an iota of material to suggest, nor indeed has anything been
pointed out by learned Counsel for the Petitioner, that merely because an
applicant falls within the age group of 28 to 30 years he is better qualified as a
teacher than a person falling in the age group of 18 to 27 years. It is not the case
of the Petitioner that persons in the age group of 28 to 30 years are either better
qualified educationally or have more experience or are in any manner more
meritorious or competent than the applicants falling within the age group of 18 to
27 years solely because of their age. It seems to us that the Petitioner has literally
picked the age group of 28 to 30 years out of the hat (as it were) without any
reference to any logical or empirical basis”
31. In the present case, therefore, the qualification of a minimum age of 50 years
as essential for appointment, is discriminatory because it is neither shown to have a
rational nexus with the object sought to be achieved, i.e. appointing the most
meritorious candidates; nor is it shown to be based on any empirical study or data
that such older candidates fare better, or that younger candidates with more
relevant experience would not be as good, as members of tribunals. It is plain and
simple, discrimination based on age. The criterion (of minimum 50 years of age) is
virtually “picked out from a hat”40 and wholly arbitrary.
32. As stated earlier, the tribunals which were reorganized by the Finance Act,
2017 and now, through the impugned ordinance, exercise judicial functions of the
State, interpret and enforce the law, in the course of adjudication of disputes. As
39(2009) 165 DLT 17
40An expression used in an analogous context, while declaring a cut-off date to be arbitrary, in D.R. Nim v Union of
India 1967 (2) SCR 325.
23
repeatedly emphasized by this court in previous Constitution Bench judgments,
appointment of members (of such tribunals), their conditions of service, manner of
selection, remuneration and security of tenure are vital to their efficiency and
independent functioning. It is in this backdrop that the Union’s contention
regarding “equivalence” or “parity” with members of the civil services of the
Union or holders of civil posts under the Union, as a justification for the age
criterion, needs to be examined.
33. This Court in All India Judges' Assn. (II) v. Union of India41
, held that:
“9. So much for the contention of the review petitioners that the directions given
by this Court would lead to the demand from the members of the other services
for similar service conditions. It is high time that all concerned appreciated that
for the reasons pointed out above there cannot be any link between the service
conditions of the Judges and those of the members of the other services. It is true
that under Article 309 of the Constitution, the recruitment and conditions of
service of the members of the subordinate judiciary are to be regulated by the Acts
of the appropriate legislature and pending such legislation, the President and the
Governor or their nominees, as the case may be, are empowered to make rules
regulating their recruitment and the conditions of service. It is also true that after
the Council of States makes the necessary declaration under Article 312, it is the
Parliament which is empowered to create an All India Judicial Service which will
include posts not inferior to the post of District Judge as defined under Article
236. However, this does not mean that while determining the service conditions of
the members of the judiciary, a distinction should not be made between them and
the members of the other services or that the service conditions of the members of
all the services should be the same. As it is, even among the other services, a
distinction is drawn in the matter of their service conditions. This Court has in the
judgment under review, pointed out that the linkage between the service
conditions of the judiciary and that of the administrative executive was an
historical accident. The erstwhile rulers constituted, only one service, viz., the
Indian Civil Service for recruiting candidates for the judicial as well as the
administrative service and it is from among the successful candidates in the
examination held for such recruitment, that some were sent to the administrative
side while others to the judicial side. Initially, there was also no clear
demarcation between the judicial and executive services and the same officers
used to perform judicial and executive functions. Since the then Government had
failed to make the distinction between the two services right from the stage of the
recruitment, its logical consequences in terms of the service conditions could not
be avoided. With the inauguration of the Constitution and the separation of the
State power distributed among the three branches, the continuation of the linkage
has become anachronistic and is inconsistent with the constitutional provisions.
41(1993) 4 SCC 288.
24
As pointed out earlier, the parity in status is no longer between the judiciary and
the administrative executive but between the judiciary and the political executive.
Under the Constitution, the judiciary is above the administrative executive and
any attempt to place it on a par with the administrative executive has to be
discouraged. The failure to grasp this simple truth is responsible for the
contention that the service conditions of the judiciary must be comparable to
those of the administrative executive and any amelioration in the service
conditions of the former must necessarily lead to the comparable improvement in
the service conditions of the latter.”
34. In addition, it is worthwhile to recollect that a civil servant’s experience,
though varied and diverse – ranging from co-ordination and administration at
taluk, district and state levels, to devising, framing and implementing the
government’s policies and programmes, to managing statutory corporations and
even commercial enterprises of the state, does not always entail adjudicatory
functions. However, legal practitioners, chartered accountants and one segment of
civil servants, i.e. tax administrators and adjudicators are involved in the day to
day interpretation of law, leading to adjudicatory outcomes. Such being the case,
the equivalence of “status” of members of tribunals cannot be compared in a linear
or rigid manner. That according to the Union’s scheme of rules and regulations,
members of its services can attain a certain rank upon attaining the age of, say, 50
years, therefore, cannot be determinative. In any case, the argument of equivalence
is not relevant. This point too, was brought home in the judgment of this court, in
All India Judges Association II (supra):
“Unlike the administrative officer, the judicial officer is obliged to work for long
hours at home. When he reserves a judgment he has usually to prepare the same
at his residence. For that purpose, he has to read the records as also the judicial
precedents cited by counsel for the adversaries. Even otherwise with a view to
keeping himself up to date about the legal position he has to read judgments of his
own High Court, other High Courts and of the Supreme Court. He has also to
read legal journals.”
35. There are other points of distinction too between civil servants and members
of tribunals. Members of tribunals are not drawn from any civil service; they are
not holders of civil posts. Civil servants, especially members of the All-India
25
Services recruited by the Union, some of whom are deployed to different States,
are governed by rules and other service conditions embodied in circulars and
orders. These govern their entire universe of employment: starting with eligibility
conditions, rules for recruitment and selection, pay and allowances, seniority,
promotion, discipline and other matters related to misconduct, pension, terminal
benefits etc. On the other hand, such rules or similar rules do not apply to members
of tribunals not drawn from public service. It is only conditions of equivalence
such as pay scale which they are assured of under the rules, which also determine
their status. The manner of selection, conditions of eligibility, rules for their
removal upon proven misbehaviour and so on, are entirely different from public
servants. In fact, the latter category, i.e. members of tribunals not drawn from
public service sources, are not even holders of civil posts or members of any
encadred civil service. This has been clarified in at least two judgments of this
court.42 They are not governed by Article 311 of the Constitution, nor are their
conditions of service laid out in rules framed under the proviso to Article 309 of
the Constitution. Such being the position, the argument of parity, in the opinion of
the Court, is entirely devoid of merit. Nor is the argument of the Attorney General
that a uniform age is necessary, merited. There is no material to show that members
recruited on the technical side, such as experts in engineering, scientific or other
technical fields would be suitable only after they cross the age of 50. In fact, one
42State of Maharastra v Labour Law Practitioners Association1998 (2) SCC 688
“Going by these tests laid down as to what constitutes judicial service under Article 236 of the
Constitution, the Labour Court judges and the judges of the Industrial Court can be held to belong to judicial
service.”
In S.D. Joshi v. High Court of Bombay, (2011) 1 SCC 252 the previous decision in Harinagar Sugar Mills
v Shyam Sunder Jhunjunuwala1962 (3) SCR 339 was quoted:
“Broadly speaking, certain special matters go before tribunals, and the residue goes before the ordinary
courts of civil judicature. Their procedures may differ, but the functions are not essentially different.”
In Union of India v K.B. Khare1994 (3) SCC 502, this court repelled the contention that members of the
Central Administrative Tribunals were government officials, subject to its rules:
“On the contrary, an independent judicial service, the appointment in the CAT is on tenure basis. The
pension relating to such post is clearly governed by Rule 8 of the Rules quoted above and at the risk of repetition,
we may state it exhaustive in nature.”
26
can complete a doctoral thesis and become a holder of a Ph.D at the time that she
or he is 30 years or even below. To be a professor, one has to possess 10 years
teaching experience; there is no minimum age under the relevant regulations
framed by the UGC. Even non-teaching personnel, on the basis of their research,
can be designated professors43. As on date, there are vice-chancellors in some state
and national universities who had not completed 45 years at the time of
appointment. Such being the position, experience in the field either in the
academic, technical or scientific field for a further period of 10 or 12 years or even
15 years would not add up to the minimum threshold of the impugned criteria, i.e.
50 years of age. Purely as empirical data, the ITAT has a sanctioned strength of 126
members, (which includes accountant members, technical members – who are
drawn from the Indian Revenue Service holding the rank of Commissioner of Appeals, for 3 years, and advocates). 66 members presently are in office, appointed
since the year 1999.44 Of these, 10 members were below the age of 40 at the time
of their appointment; 20 members were between the ages of 40-45, and 15 members were between the ages of 46-50- at the time of their respective appointments.
Cumulatively, 44 members out of 66 were appointed below the age of 50. Only 17
members were 50 or above at the time of their appointment. Data is not provided in
respect of 5 members. This data- as indeed similar data from other tribunals, shows
that past appointment to these positions was amongst younger, and and competent
43UGC Regulations on Minimum qualifications for appointment of Teachers and other academic staff in
Universities and Colleges and measures for the Maintenance of Standards in Higher Education,20104.0.0 DIRECT
RECRUITMENT
“4.1.0 PROFESSOR A. (i) An eminent scholar with Ph.D. qualification(s) in the concerned/allied/relevant
discipline and published work of high quality, actively engaged in research with evidence of published work with a
minimum of 10 publications as books and/or research/policy papers. (ii) A minimum of ten years of teaching
experience in university/college, and/or experience in research at the University/National level
institutions/industries, including experience of guiding candidates for research at doctoral level. (iii) Contribution
to educational innovation, design of new curricula and courses, and technology – mediated teaching learning
process. 6 (iv) A minimum score as stipulated in the Academic Performance Indicator (API) based Performance
Based Appraisal System (PBAS), set out in this Regulation in Appendix III. OR
B. An outstanding professional, with established reputation in the relevant field, who has made significant
contributions to the knowledge in the concerned/allied/relevant discipline, to be substantiated by credentials.”
https://www.ugc.ac.in/oldpdf/regulations/revised_finalugcregulationfinal10.pdf visited on 25 June, 2021 @
16:18 hours.
44https://itat.gov.in/page/content/members (last accessed on 21.06.2021).
27
persons. The Union has not shown why this past history requires departure, and
why that longstanding basis for appointing younger professionals, now needs to be
departed from, in public interest. Significantly, commissioners of appeals (of income tax) – in the respective service rules, typically are appointed after 18 or so
years of service; if one adds 3 years, an incumbent Commissioner could be well
below 50 years. She or he would be completely familiar with the adjudicatory
process in tax laws. Exclusion of such otherwise qualified and suited personnel,
too, is irrational. Having regard to all these reasons, the Union’s argument that 50
years is necessary as it brings about parity between the members of the civil
services who are eligible to be considered in their stream for tribunals or that there
is an overall uniformity, is without merit and accordingly rejected.
36. A further, but crucial issue. In Madras Bar Association v Union of India45
(MBA-III) this court held as unlawful the exclusion of advocates from
consideration in the following directions:
“53. The upshot of the above discussion leads this court to issue the following directions:
**********
(vi) The 2020 Rules shall be amended to make advocates with an experience of at least 10
years eligible for appointment as judicial members in the Tribunals. While considering
advocates for appointment as judicial members in the Tribunals, the Search-cum-Selection
Committee shall take into account the experience of the Advocate at the bar and their
specialization in the relevant branches of law. They shall be entitled for reappointment for
at least one term by giving preference to the service rendered by them for the Tribunals.
(vii) The members of the Indian Legal Service shall be eligible for appointment as judicial
members in the Tribunals, provided that they fulfil the criteria applicable to advocates
subject to suitability to be assessed by the Search-cum-Selection Committee on the basis of
their experience and knowledge in the specialized branch of law.”
37. The Union of India had not made any move to give effect to the above
directions. The declaration of law in MBA-III recorded in an earlier part of the
decision, that advocates in all tribunals are eligible for consideration for
appointment as members of various tribunals. It is no longer open to exclude such
452020 SCCOnline (SC) 962
28
eligible advocates from consideration. The direction to the following effect is
binding and has become final. It has not been interdicted in any manner, by the
impugned ordinance:
“Exclusion of Advocates in 10 out of 19 tribunals, for consideration as judicial
members, is therefore, contrary to Union of India v. Madras Bar
Association (2010)19 and Madras Bar Association v. Union of India (2015)20
.
However, it is left open to the Search-cum-Selection Committee to take into
account in the experience of the Advocates at the bar and the specialization of the
Advocates in the relevant branch of law while considering them for appointment
as judicial members”.
After hearings were concluded, the directions in MBA-III on the above score, were
accepted, and Advocates have now been made eligible, for appointment to 15
tribunals, after they complete 10 years’ enrolment, and have relevant experience or
in the concerned field of practice.
38. As a result of the above discussion, the proviso to Section 184 (1), inserted
by the impugned ordinance is declared void. A declaration is issued that all
candidates, otherwise eligible on their merit, based on qualifications and
experience in the relevant field, are entitled to be considered, without reference to
the impugned “minimum” age (of 50 years) criteria.
39. I am in agreement with the reasoning and conclusions of L. Nageswara Rao,
J. about the impermissibility of legislative override, even while upholding the
retrospectivity accorded to Section 184 (11). In addition to the detailed reasons
why such a legislative override is impermissible in the circumstances of this case, I
would also rely on the Constitution Bench judgment in State of Gujarat v. Raman
Lal Keshav Lal Soni46
. This Court, in Raman Lal dealt with the issue of retrospective application of a provision of the Gujarat Panchayats Act, 1961. The facts pertained to denial of the benefits of two pay commissions to employees of Panchayat
Institutions who had previously been employed by municipalities. The legislative
provision (Section 102(1)) was given retrospective effect, classifying these em46(1983) 2 SCC 33.
29
ployees as servants of Gram/ Nagar Panchayats, notwithstanding judgments of
courts which had declared them to be Government servants, which would have entitled them to the revised pay scale. The court held:
“53. (…) The legislature is undoubtedly competent to legislate with retrospective
effect to take away or impair any vested right acquired under existing laws but
since the laws are made under a written Constitution, and have to conform to the
do's and don'ts of the Constitution neither prospective nor retrospective laws can
be made so as to contravene Fundamental Rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired
rights of the parties today. The law cannot say, twenty years ago the parties had
no rights, therefore, the requirements of the Constitution will be satisfied if the
law is dated back by twenty years. We are concerned with today's rights and not
yesterday's. A legislature cannot legislate today with reference to a situation that
obtained twenty years ago and ignore the march of events and the constitutional
rights accrued in the course of the twenty years. That would be most arbitrary,
unreasonable and a negation of history. It was pointed out by a Constitution
Bench of this Court in B.S. Yadav and Ors. etc. v. State of Haryana and Ors. etc.
[1981] 1 SCR 1024, Chandrachud CJ., speaking for the Court,
"Since the Governor exercises the legislative power under the proviso to Article 309 of the Constitution, it is open to him to give retrospective operation
to the rules made under that provision. But the date from which the rules
are made to operate, must be shown to bear either from the face of the rules
or by extrinsic evidence, reasonable nexus with the provisions contained in
the rules, especially when the retrospective effect extends over a long period
as in this case".
Today's equals cannot be made unequal by saying that they were unequal twenty
years ago and we will restore that position by making a law today and making it
retrospective. Constitutional rights, constitutional obligations and constitutional
consequences cannot be tempered with that way. A law which if made today would
be plainly invalid as offending constitutional provisions in the context of the existing situation cannot become valid by being made retrospective. Past virtue (constitutional) cannot be made to wipe out present vice (constitutional) by making
retrospective laws. We are, therefore, firmly of the view that the Gujarat Panchayats (Third Amendment) Act, 1978 is unconstitutional, as it offends Articles 311
and 14 and is arbitrary and unreasonable.”
40. The impugned provision in the present case reads as follows:
“(11) Notwithstanding anything contained in any judgment, order, or decree of
any court or 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:
30
Provided that where a Chairperson or Member is appointed between the 26th day
of May, 2017 and the notified date and the term of his office or the age of
retirement specified in the order of appointment issued by the Central
Government is greater than that which is specified in this section, then,
notwithstanding anything contained in this section, the term of office or age of
retirement or both, as the case may be, of the Chairperson or Member shall be as
specified in his order of appointment subject to a maximum term of office of five
years.”
41. The interim directions of this court, which culminated and were subsumed in
Roger Mathew (supra), resulted in the appointment of members of various
tribunals, whose term is now sought to be interdicted by the proviso to Section 184
(11), which has been introduced with retrospective effect. I agree with Rao, J. that
while the retrospectivity accorded to this provision cannot be faulted, nevertheless,
the said proviso, to the extent it seeks to interfere with and curtail the tenure of
members appointed under interim orders, who are entitled to enjoy their term of
office, in accordance with the pre-amended legislation and rules, is arbitrary and
void. As held in Raman Lal (supra), “(t)oday's equals cannot be made unequal by
saying that they were unequal twenty years ago and we will restore that position by
making a law today and making it retrospective”. In a manner somewhat reminiscent of the facts of this case, an interim order, enjoining the employer, All India Institute of Medical Sciences (AIIMS) from curtailing the tenure of the then Director,
was sought to be legislatively overridden by Parliament. In P. Venugopal v. Union
of India47
, this court held that enactment to be unlawful, and held that the
curtailment of tenure for one person was arbitrary and based on no reasonable
criteria:
“36. From the aforesaid discussion, the principle of law stipulated by this Court is
that curtailment of the term of five years can only be made for justifiable reasons
and compliance with principles of natural justice for premature termination of the
term of a Director of AIIMS squarely applied also to the case of the writ petitioner
as well and will also apply to any future Director of AIIMS. Thus there was never
any permissibility for any artificial and impermissible classification between the
writ petitioner on the one hand and any future Director of AIIMS on the other when
it relates to the premature termination of the term of office of the Director. Such
47(2008) 5 SCC 1
31
an impermissible overclassification through a one-man legislation clearly falls
foul of Article 14 of the Constitution being an apparent case of “naked
discrimination” in our democratic civilised society governed by the rule of law
and renders the impugned proviso as void ab initio and unconstitutional.
37. Such being our discussion and conclusion, on the constitutionality of the
proviso to Section 11(1-A), we must, therefore, come to this conclusion without
any hesitation in mind, that the instant case is squarely covered by the principles
of law laid down by this Court in the various pronouncements as noted
hereinabove including in D.S. Reddi, Vice-Chancellor, Osmania
University v. Chancellor [D.S. Reddi, Vice-Chancellor, Osmania
University v. Chancellor, AIR 1967 SC 1305 : (1967) 2 SCR 214] .
************
39. It was further held in D.S. Reddi [D.S. Reddi, Vice-Chancellor, Osmania
University v. Chancellor, AIR 1967 SC 1305 : (1967) 2 SCR 214] that such a
classification was not founded on an intelligible differentia and was held to be
violative of Article 14 of the Constitution of India. Accordingly, the provision of
Section 13-A was held to be ultra vires and unconstitutional and hit by Article 14
of the Constitution. Similarly in the present case, the impugned proviso to Section
11(1-A) itself states that it is carrying out premature termination of the tenure of
the writ petitioner. It is also admitted that such a premature termination is without
following the safeguards of justifiable reasons and notice. It is thus a case similar
to D.S. Reddi [D.S. Reddi, Vice-Chancellor, Osmania University v. Chancellor,
AIR 1967 SC 1305 : (1967) 2 SCR 214] and other decisions cited above that the
impugned legislation is hit by Article 14 as it creates an unreasonable
classification between the writ petitioner and the future Directors and deprives
the writ petitioner of the principles of natural justice without there being any
intelligible differentia.
42. In my opinion, like in P. Venugopal (supra) the curtailment of tenure to five
years, of these few individuals appointed as members of tribunals, who were
entitled to continue in office in terms of the pre-existing enactments (upto the age
of 62 years etc.) is arbitrary. Apart from the fact that the Union wishes to curtail
their tenure despite the finality of directions of this court in Roger Mathew and
MBA-III, there is no conceivable rationale. Nor has any overriding public interest
been espoused as a justification for this. The divesting of judicial office by
legislative fiat, in this court’s opinion, directly affects the independence of the
judiciary. It also amounts to naked discrimination, because all other members of
the same tribunals would enjoy longer tenure, in terms of the pre-existing
conditions of service, which prevailed at the time of their appointment.
32
43. In MBA III (supra), this Court directed the Union ‘to make appointments to
tribunals within three months from the date on which the Search-cum-Selection
Committee completes the selection process and makes its recommendations.’ The
necessity to take action on this is emphasized by the nuts and bolts of the
adjudicatory functions of tribunals. As many as 21,259 cases were pending before
the National Company Law Tribunal as on 31.12.2020, and 2278 cases were filed
before the tribunal under the Insolvency and Bankruptcy Code, 2016 during the
period of April to December 2020, out of which only 176 have been disposed so
far.48 As on April 2021, the NCLT comprised of its Acting President and a total
number of 38 members, out of which 17 are judicial members and 21 are technical
members - much below than the sanctioned strength of 63 members.49 At the
Armed Forces Tribunal, against a sanctioned strength of 34, only 11 members are
currently in office – 4 judicial members and 6 administrative members, for the
tribunal’s 11 benches. Till 28.02.2021, a total of 18,829 cases were pending for
disposal; the highest pendency was before the principal bench in Delhi, with 5553
cases, followed by Chandigarh with 4512 cases and Jaipur with 3154 cases.50 At
the 18 benches of the Central Administrative Tribunal (CAT), only 36 members are
in office, against a sanctioned strength of 65.51 Over 48,000 cases are pending
disposal at the CAT, with over 28,000 cases pending for 1-5 years.52 As on
01.03.2021, 72,452 cases were pending before various benches of the CESTAT.
Out of a total strength of 26, 18 positions are filled, and 8 vacancies are still open
48 Available at https://economictimes.indiatimes.com/news/economy/policy/over-21250-cases-pending-before-ncltat-end-of-december-2020/articleshow/80754041.cms?from=mdr (last accessed on 20.06.2021).
49 Available at https://www.indialegallive.com/top-news-of-the-day/news/plea-in-sc-seeks-extension-of-tenure-ofnclt-members/ (last accessed on 20.06.2021).
50 Available at https://www.tribuneindia.com/news/nation/23-out-of-34-posts-of-armed-forces-tribunal-vacant-19-
000-cases-pending-mod-tells-parliament-223283 (last accessed on 20.06.2021).
51Available at http://www.cgatnew.gov.in/writereaddata/Delhi/docs/RTI/list.pdf (last accessed on 20.06.2021).
52 Available at https://theprint.in/india/governance/purpose-of-central-administrative-tribunal-far-from-beingachieved-parliamentary-panel/378156/ (last accessed on 20.06.2021).
33
in the 9 benches of the CESTAT.53At the Income Tax Appellate Tribunal (ITAT),
only 66 members are in office, out of a sanctioned strength of 12654, and a total of
about 88,000 appeals are pending. 24,000 are pending before the Delhi bench,
followed by about 16,000 before the Mumbai bench.55 At the National Consumer
Disputes Redressal Commission (NCDRC), 138105 cases have been filed since
inception (i.e. since 1987) out of which 1,16,572 have been disposed of. 21,443
cases are pending. At state commissions, 124559 cases are still pending, and
401184 are pending before district forums. The total pendency is 547186 cases.56
Out of the 44 benches of the Debt Recovery Tribunal (DRT) and sole Debt
Recovery Appellate Tribunal (DRAT), 11 benches have vacancies.57 As of April
2020, the Railway Claims Tribunal had 25,571 pending cases.58
44. The sheer volume of pendency is an indicator of the substantial judicial
functions carried out by tribunals, necessitating that they be manned by efficient,
well qualified judicial and technical members. It is necessary that the Union
expedite the process of appointments to tribunals, towards ensuring swifter, and
efficacious justice delivery.
45. As a postscript, one would only say that this judgment- seventh in the series
commencing with R.Gandhi, hopefully should conclude all controversies. It would
be erroneous on anyone’s part to consider that interdiction by this court amounts to
conflict with Parliamentary or executive wisdom. Each judgment- when it
interprets provisions relating to setting up of tribunals and other arrangements for
tribunals, adds to the ongoing discourse between the three branches of governance.
53Available at https://cestatnew.gov.in/uploads/writereaddata/Delhi/docs/pendency022021.pdf (last accessed on
20.06.2021).
54See https://itat.gov.in/page/content/members (last accessed on 21.06.2021).
55Available at https://www.business-standard.com/article/pti-stories/88-000-appeals-pending-before-income-taxappellate-tribunal-chairman-120022601297_1.html (last accessed on 21.06.2021).
56http://ncdrc.nic.in/stats.html (last accessed on 21.06.2021).
57https://www.business-standard.com/article/economy-policy/banks-flag-tardy-decision-making-piling-of-cases-atrecovery-tribunals-119032300883_1.html (last accessed on 21.06.2021).
58See https://indianexpress.com/article/india/rct-judges-drag-govt-to-sc-cite-fundamental-rights-to-seek-extension6380655/ (last accessed on 21.06.2021).
34
The Constitution of India envisions a republic, governed by the rule of law, and
guarantees justice: social, economic and political, as well as equality of status and
of opportunity. Acting within their assigned spheres, the legislative, executive and
judicial departments strive to further this constitutional vision. When assured rights
or the principle of equality cannot be secured by the citizen or person guaranteed it,
she turns to the judicial wing. It is to ensure that this wing has the competence,
vitality and fairness, expected of it, that this court intervenes, to ensure that the
adjudicatory mechanisms are robust, independent, and are manned by competent
and merited personnel.
46. In view of the foregoing discussion, I conclude and hold as follows:
(i) The first proviso to Section 184(1) of the Finance Act, 2017, introduced by
Section 12 of the Tribunals Reforms (Rationalisation and Conditions of Service)
Ordinance, 2021 is hereby declared void and inoperative. Similarly, the second
proviso to Section 184(1) of the Finance Act, 2017, introduced by Section 12 of the
Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 is
held to be void and inoperative.
(ii) Section 184(7) of the Finance Act, 2017 introduced by Section 12 of the
Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 is
hereby declared void and inoperative.
(iii) Section 184(11)(i) and (ii) introduced by Section 12 of the Tribunals
(Reforms Rationalisation and Conditions of Service) Ordinance, 2021 are hereby
declared as void and unconstitutional.
35
(iv) Consequently, the declaration of this Court in para 53(iv) of MBA-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.
(v) The retrospectivity given to the proviso to Section 184(11) – introduced by
Section 12 of the Tribunals (Reforms Rationalisation and Conditions of Service)
Ordinance, 2021 is hereby upheld; however, without in any manner affecting the
appointments made to the post of Chairperson or members of various Tribunals,
upto 04.04.2021. In other words, the retrospectivity of the provision shall not in
any manner affect the tenures of the incumbents appointed as a consequence of this
Court’s various orders during the interregnum period.
(vi) The writ petition is allowed to the above extent.
.......................................................J
[S. RAVINDRA BHAT]
New Delhi,
July 14, 2021.
