Government Defends Tribunals Act Despite Supreme Court Rejection
The central government said it is distressed by the court interfering in policy decisions which don't violate any law.
‘’Nothing in the Constitution has given the Supreme Court a right to decide for the Executive more than to the Executive to decide for them.’’
Quoting Thomas Jefferson in its reply, the government has defended changes it made to the terms and conditions for appointment of members to tribunals despite the top court striking the same down in an earlier judgment.
The issue has seen multiple rounds of litigation. In the latest one, petitions by the Madras Bar Association and former union minister Jairam Ramesh have challenged provisions of the Tribunal Reforms Act, 2021. The law re-introduced some of the provisions which were already struck down by the Supreme Court.
The key provisions of the law currently under challenge include:
The four-year term for members and chairperson appointed to various tribunals. It was held to be a minimum of five years by the apex court.
The Act set the minimum age of appointments for members at 50.
The Act requires the government to preferably decide on recommendations within three months. The top court judgment had said this deadline should be mandatory.
The search and selection panel has to send two names from which the appointment can be made. The apex court had said that the committee will recommend only one person for each post.
'Policy Decisions Cannot Be Negated Citing Independence Of Judiciary'
In an affidavit, the central government has argued that it's a well-settled principle that courts can interfere in a policy decision only in two situations:
When such a decision violates any provision of the Constitution or law.
The decision was taken by an authority which was not competent to take such a call.
The four issues in this case, the affidavit said, are purely policy decisions.
It's distressing that our policy decisions are being struck down citing independence of the judiciary specifically when such laws and rules do not violate any provision of the Constitution, the government said.
The government equally believes that the court striking down these pure matters of policy violates the separation of powers by the judicial wing of the State.Union of India Affidavit
The government has taken the stand that the principle of separation of powers excludes the judiciary from the area of policy making.
Any bill which is to be presented in the parliament goes through deep research and discussion at various levels in the government and the parliament, the affidavit stated.
All this would be set at nought if a bench of the Supreme Court decides that the policy affects the independence of the judiciary and strikes it down, not because the policy violates any fundamental right or constitutional provision or is beyond legislative competence, but because, the court's concept of "independence" is violated.Union of India Affidavit
Parliament Couldn't Remove The Basis Of Earlier Judgment
The parliament has the power to re-enact a legislation which has been struck down by the court. As long as such legislation excludes the basis/provision which the court had struck down in the earlier version.
But, the affidavit points out, it's not clear on what basis the court held conditions such as the four-year term to be violative of independence of judiciary.
This issue will arise only if the conditions of the appointment would permit the government to influence or control their will, the affidavit said.
By applying one's mind to either the provisions relating to tenure of four years, or minimum age of 50 years, or to the panel of two names to be recommended, or for the central government to take a decision on the recommendations preferably within three months, one is confused if one were told that all this relates to independence of the judiciary.Union of India Affidavit
The top court had also struck down the minimum age requirement of 50 years of appointment to tribunals, describing it as arbitrary.
The government's affidavit points to the Supreme Court judgment in Lok Prahari case - in which the top court itself had noted the age for appointment as high court judge should be 45-55 years.
It also defended the dilution of the mandatory three-month deadline for clearing appointments on the ground that this provides flexibility to the administrative machinery.
The names recommended by the search and selection committee are cleared by the appointments committee, which is headed by the Prime Minister of India.
The affidavit emphasises that governance issues and consultations required by the committee may make a fixed three-month period inflexible.
The word "preferably" used in Section 3(7) is a choice of Parliament and for the Court to object to it would not be conducive to good governance.Union of India Affidavit
Finally, the affidavit also questions the court’s direction that the search and selection committee should send only one name which should be cleared by the appointments committee.
The government has taken the stand that it has the right to reject an appointment on valid grounds.
The affidavit says that there have been reports of corruption by recommended persons including a case where the name of the counsel who was a conduit was also mentioned.
Surely, since both the names are found suitable by the SCSC [selection committee], even if government were to exercise a choice between the two, that amount of faith and trust between the three great wings of the State has to exist.Union of India Affidavit
The Tribunal Reforms Bill, 2021 replaced an ordinance and was passed by the two houses of Parliament in August, despite requests from opposition party members to send the bill to a select committee for analysis.
The primacy of legislature in making law is important, said Finance Minister Nirmala Sitharaman in response to the points raised by opposition members. "It is as important as the independence of judiciary."