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The Supreme Court today by ratio of 2:1 struck down the provisions of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 (“Tribunals Reforms Ordinance, 2021”) which fixed the term of members of various tribunals as four years.

Justice LN Rao and Justice S Ravindra Bhat delivered the judgement striking down the amended provisions whereas Justice Hemant Gupta gave a dissenting judgement.

The Court observed that the term violated the express directions given earlier judgement which had directed to fix the term of members as 5 years. The bench thereafter set aside those provisions.

To this, the Court added that it was concerned over large vacancies in various tribunals and said that serious efforts need to be made by all the concerned authorities to fill up the post to make the tribunals effective in dealing with the cases.

Madras Bar Association had approached the Supreme Court by way of a plea mentioning that the provisions of Tribunals Reforms Ordinance, 2021were not in consonance with the directions laid down by the Apex Court in its judgement in Madras Bar Association v. Union of India of 2020.

Senior Advocate Arvind Datar had appeared for Madras Bar Association and Learned Attorney General Shri KK Venugopal for Union of India.

Senior Advocate Arvind Datar to contend that the Section 12 and Section 13 of the Tribunal Reforms Ordinance, 2021 were in contravention of the principles of separation of power and independence of judiciary both being part of the basic structure of the Constitution submitted that the first proviso of Section 184(1) which provided for minimum age limit of 50 years to be appointed as the Chairperson or Member of the Tribunal was a direct attempt to override the Court’s statement with regards to 10 years of experience sufficient for a Judicial Member of the Tribunal.

On the other hand, Learned Attorney General Shri KK Venugopal opposing Senior Advocate Arvind Datar’s submission contended that the discussions of the judgement of this court on the appointment & age of retirement of the judges of the tribunals are only issues which are to be left to the executive. 

It was also his contention that a series of judgments relating to the members or chairman of the tribunal did not form the basis of the law and that once the courts decided, the Parliament would equally be powerful to pass a law.

Section 184 of the Finance Act, 2017 empowered the Central Government to make rules with respect to the qualifications, appointment, term and conditions of service, salary and allowances, etc., of Chairperson, Vice- Chairperson and Members, etc., of the Tribunal, Appellate Tribunal and other Authorities. As per the first proviso in Section 184(1), the tenure of the Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or other Authority was five years. 

However the Tribunal Reforms Ordinance, 2021 which was notified on April 4, 2021 under section 12 substituted Section 184 of the Finance Act, 2017. Clause 11 of Section 184 which changed the tenure of the Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or other Authority from five years to four years was inserted with retrospective effect from May 26, 2017. 

Further as per the proviso to the newly inserted Section 184(11) of the Finance Act, 2017, where a Chairperson or Member was 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 was greater than that which 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.

[FULL JUDGEMENT TO FOLLOW]

Case Title: Madras Bar Association v Union of India