The Supreme Court has struck down the provisions of Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, which fixed 4 year tenure for members of various tribunals. The Supreme Court upholds its earlier order which fixed 5-year tenure for members of tribunals.
This important ruling came on an appeal filed by Madras Bar Association 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.
In a 2:1 majority verdict, the bench of Justice L Nageswara Rao and Justice S Ravindra Bhat held “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.” Justice Hemant Gupta dissented.
It further stated 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). 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/ tribunal.
Justice Hemant Gupta said nevertheless, dissented, saying that 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. 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 precedents.
The majority verdict said the term of Chairperson of a tribunal shall be five years or till she or he attains the age of 70, whichever is earlier, and the term of a Member of a tribunal shall be five years or till she or he attains the age of 67, whichever is earlier.