The Tribunal Reforms Ordinance 2021 Challenged In Supreme Court Of India

BACKGROUND DETAILS

  • A writ petition was filed by the Madras Bar Association against the Tribunal Reforms Ordinance 2021.
  • A 3 judge bench of the Supreme Court of India comprising of Justice L. Nageshwara Rao, Justice Hemant Gupta and Justice S Ravindra Bhat were hearing this writ petition.
  • The petition pointed out that section 184 and 186 of the Finance Act, 2017 has been amended in the Tribunals Reform (Rationalization & Conditions of Service) Ordinance 2021.
  • The 2 sections mentioned above under the Finance Act 2017 gives power to the Central Government with regards to making appointments, terms of service, allowances of the members of the tribunal amongst others.

FURTHER DETAILS

  • The President of India on 5th April proclaimed the Ordinance made by the Central Government I.e. Tribunal Rules of 2017 & Tribunal Rules of 2020.
  • Both these tribunal rules of 2017 and 2020 received grave criticism by the Supreme Court of India.
  • 1st the Tribunal Rules of 2017 were halted by the Supreme Court on the ground that it affected ‘judicial independence’ in the case of Roger Matthew v. South Indian Bank Limited (2019).
  • The Supreme Court had quashed the tribunal rules of 2017, the Central Government again made another tribunal rules in February 2020 but the same was challenged by the Madras Bar Association asserting that the rules framed under the new tribunal rules are inconsistent with the judgement passed in the 2019 case of Roger Matthew and other precedents.
  • The Supreme Court found several deficiencies in the tribunal rules of 2020 and in November 2020 itself issued directions to modify in the case of Madras Bar Association v. Union of India. (2020)
  • But recently a fresh petition was filed in the apex court as informed by Senior Advocate P. Datar which will be heard by the supreme court judges on 23rd April challenging the ordinances.

CONCERNS RELATING TO ORDINANCE

• There were many such points raised in the petition which highlighted that the new ordinance is not in line with the judgement passed by the Supreme Court. The points are mentioned below:-

1. Terms Of Office: In the case of the Chairperson of the Tribunal, the ordinance prescribes a tenure for 4 years to hold office or attains the age of 70 years whichever earlier.

In the case of members of the tribunal again the tenure in the ordinance is fixed for 4 years or attains the age of 67 years, whichever is earlier.

While the directions in the 2020 judgement prescribed that an advocate shall be qualified to become a member of the tribunal if he has a minimum of 10 years of practice. Also, the SC had emphasized the need for young lawyers. And with regards to the chairperson, the tenure fixed by the Supreme Court was 5 years.

2. Voting Rights: It was stated in the directions issued by the Supreme Court that the Secretary should not be given voting rights during the selection committee of tribunals. But rather the ordinance leaves an option for the Secretary from the parent department to exercise his voting rights.

3. Recommendation of Names: It was decided by the Supreme Court with respect to recommending names by the panel, the panel can suggest only 1 name for each post whereas the ordinance stipulates that the committee can suggest 2 names.

4. Period for Appointments: The directions given by the Supreme Court to the Central Government suggest making an appointment as per the recommendations of the committee within 3 months but the ordinance makes it sound optional by stating to be made ‘preferably within 3 months.’

5. National Tribunal Commission: As per the directions given under the judgement of the 2020 case the Supreme Court advised the Central Government to form a National Tribunal Commission that would act as an independent body to supervise the functioning of the tribunal and make appointments. But even after 4 months as stated in the petition the Centre has taken no steps to formulate the same.

6. Abolishment of Tribunals: The ordinance abolishes various tribunals which were set up under the various laws. The list of acts under which tribunals are proposed to be abolished are as follows:-

  • Cinematograph Act
  • Copyright Act, Patents Act, Trademark Act
  • Customs Act, Airport Authority Act
  • Control of National Highway Act, Geographical Indications Act
  • Protection of Plant Variety & Farmers Protection Act.

The abolition of tribunals under these acts has transferred the appellate powers of these tribunals to the high courts. But this point has neither been mentioned in the petition nor been challenged by the petitioner.

CONCLUSION

The petition states the rules laid down in the ordinance as ‘legislative overruling.’ Supreme Court judgements indeed are to be followed and as the directions in the judgement were issued by the apex court to ensure the sovereignty of the tribunals but indeed many rules pointed out in the ordinance shows it goes against the directions of the Supreme Court.

 

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JINALI SHAH Online
on 22 April 2021
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