Through the judgment of the case – Madras Bar Association v. Union of India & Another, delivered on July 14, 2021, a 3-judge bench of the Supreme Court, consisting of Justices L. Nageswara Rao, S. Ravindra Bhat and Hemant Gupta, with 2 : 1 majority view, has held that prescribing 50 years as minimum age for consideration of advocates has “the devastating effect” of entirely excluding successful young advocates from becoming members of various tribunals.
According to the Apex-court, this minimum age of 50 years prescribed under the Tribunals Reforms (Rationalization and Conditions of Service) Ordinance, 2021 for appointment as Members is “arbitrary and discriminatory. In the majority view-point delivered by Justices Nageswara Rao and Ravindra Bhat. it has been pointed out that this minimum age limit violates the earlier direction given by the Court in its decision-Madras Bar Association v. Union of India and Another-(2020) SCC Online SC 962, that advocates with minimum experience of 10 years should be made eligible for appointment as members of tribunals. Justice Hemant Gupta has dissented from the majority view and dismissed the petition.
This minimum age limit was prescribed first through first proviso to section 184(1)of the Finance Act, 2017, which was added through the amendment effected by the Tribunals Reforms Ordinance adopted in 2021.Justice Nageswara Rao has held this provision unconstitutional stating that “ 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 recognized as core components of independence of the judiciary, which can be sustained only when the incumbents are assured of 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 MBA-III 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.
Justice Ravindra Bhat has written a separate, though concurring judgment dealing with as to why the minimum age limit of 50 years for appointment as members in tribunals is arbitrary and irrational, pointing out that as per the Constitution, an advocate with 7 years’ practice with the Bar can be considered for appointment to the position of a District Judge. Hence this provision prescribing 50 years as minimum age for appointment in tribunals was lacking in rationale.
This provision prescribing 50 years as minimum age for judgeship for advocates in tribunals entirely excludes young advocates , especially those who might be trained and competent in the particular subject like indirect taxation, anti-dumping, Income Tax etc. The exclusion of such eligible candidates in preference to those who are more than 50 years of age is inexplicable and therefore, entirely arbitrary.
Justice Bhat has pointed out further, that prescribing 50 years as minimum age by way of 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 weight-age to actual practice, reputation, integrity and subject expertise, without a minimum age criterion, in the pleadings in this case, nor in any other cases.
The Judge Bhat has observed 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 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.
According to the majority view, the age-criteria under challenge in this case also leads to wholly anomalous and absurd results. An advocate with 18 to 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 fulfill parameter 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 ten years, and later served as a private or public sector executive in an entirely unrelated field , but who might be 50 years old, would be considered eligible and can possible 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.
The qualification of 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, that is 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” and wholly arbitrary.
Justice Bhat has observed that legal professionals and members of civil service cannot be equated and has declared that the proviso to section 184(1) inserted by the impugned Ordinance is void. 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-50 years criteria.
The Court’s Majority view has also made it amply clear that the term of Chairperson of a Tribunal shall be five years or till he or she attains the age of 70 years, whichever is earlier. The retrospectivity given to section 184(11) shall not in any manner affect the tenures of the incumbents appointed as a consequence of this Court’s various orders during the intervening period.
In his dissenting judgment, Justice Hemant Gupta has held the first, second and the third proviso to section 184(1) , the use of expression ‘preferably’ in section 184(7) and the proviso to section 184(11) as legal and valid, as such provisions fall within the exclusive domain of the legislature.