Institute of Legal and Management Studies

The Supreme Court on Monday expressed displeasure over the Union Government filing application seeking reference of the petitions challenging the validity of the Tribunals Reforms Act, 2021, to a five-judge Bench. Questioning the timing of the application, filed after the present two-judge Bench had heard the petitioners at length, the Court asked whether it was a “tactic” to avoid the Bench.

The Bench comprising Chief Justice of India B.R. Gavai and Justice K. Vinod Chandran was hearing the Madras Bar Association case concerning the validity of the Tribunals Reforms Act, 2021.

Yesterday, Attorney General for India R. Venkataramani, appearing for the Union, informed the Bench that the Government had filed an application seeking reference of the present matter to a five-judge Bench instead of the current one.

Expressing displeasure, the CJI remarked, “We don't expect the Union of India to indulge in such a tactic.”

The Attorney General urged, “With great respect, please do not call it a tactic.”

The CJI responded, “It is... after we have heard one party fully, after we have accommodated the learned AG on personal grounds...”

The Bench clarified that it would hear the Union's arguments and conclude the matter, and only if it found merit in referring the case to a larger Bench would such an order be passed.

Senior Advocate Arvind Datar, for the petitioner, then drew the Court's attention to the issue of appointments to tribunals such as the ITAT and CAT, submitting that merit lists were often disbanded and fresh selections held. He also pointed out instances where vacancies were filled from the waiting list instead of the merit list.

The Attorney General clarified that selections for various tribunals were made considering multiple factors. He explained that many times, candidates decline appointments after being included in the merit list, and stated that the Union had never endorsed filling posts from the waiting list in preference to merit. (It may be noted that another bench of the Court had opined that many retired HC Judges were not willing to accept Tribunal appointments since proper amenities are not provided).

“I am not saying that the merit list should be given up, I am not saying that at all, but look at the contingencies, how the whole system works. We have to work in a system where people drop in, drop out. Many candidates apply for several positions in different tribunals. Therefore, to say that we will only have one or two candidates to consider... I am only on that question, I am not on whether the merit list should be sacrificed to the waiting list,” AG said.

The Attorney General submitted that it was crucial to allow the new regime to function for some time before being judged. He said: “Let us allow it to work for some time... Let the system work.”

“Let the law gain some experience a little over time; these are issues which can be worked out, ironed out after some time. To say that for these reasons, strike down the law?” AG submitted.

However, the CJI later questioned how this submission by the Attorney General aligned with his request to refer the matter to a five-judge Bench.

The Attorney General replied, “It has no direct bearing on whether the vires (of the Act) are good or not.”

The CJI then asked, “Are we wrong in creating an impression that the application is filed deliberately in order to avoid the matter?”

The Attorney General clarified that there was no attempt to avoid the matter, and said his contention was merely that since the impugned Act had been enacted after extensive deliberations, it would be unreasonable to “pick holes in the Act on account of a few errors and wrongs being committed under the Act.”

He emphasized that the technical issues flagged by the petitioners would be corrected over time, provided the law was allowed to operate for a reasonable period.

During the hearing, the discussion also turned to the minimum age requirement of 50 years for appointment as Chairperson or Member under the impugned Act.

Referring to his own experience, the CJI remarked that he had been appointed as a judge at the age of 42 years, and that, by the logic of the impugned Act, he would have been considered ineligible.

In response, the Attorney General submitted that the age requirement for tribunal appointments must be viewed differently from that of High Court appointments, which follow a distinct framework.

“Let's not pick up the High Court's appointments, eligibility and Article as the standard. Tribunals require a different kind of experience.”

The hearing of the case will continue on a later date.

On the last hearing, Sr Adv Arvind Datar, appearing for the petitioners, flagged concerns with the ordinances issued by the government with respect to the administration/ conditions of service for various kinds of Tribunal Members, which have been challenged in the batch of petitions as contrary to the decisions of the Supreme Court.

Case Title: MADRAS BAR ASSOCIATION Versus UNION OF INDIA AND ANR., W.P.(C) No. 1018/2021