Supreme Court Begins Hearing Pleas On Tribunals And Their Functioning
A five-judge constitutional bench of the Supreme Court began hearing today a batch of pleas regarding the administration of tribunals across the country. The 18 petitions being heard by the bench headed by Chief Justice of India Justice Ranjan Gogoi include two petitions filed by the Madras Bar Association in 2012 and the Revenue Bar Association in 2017.
The Madras Bar Association had approached the Supreme Court in 2012 seeking that the union government implement previous orders of the court, in the cases of R Gandhi and L Chandra Kumar, that had directed the law ministry take over administration of all tribunals and streamline their functioning. The apex court has in previous orders also laid down criteria for appointment of members to tribunals such as the National Company Law Tribunal and appellate tribunal NCLAT. This in order to uphold the constitutional requirement of judicial independence.
The Madras Bar Association petition also seeks a judicial impact assessment of all tribunals including on the filling on vacancies.
Representing the union, the Attorney General KK Venugopal cited certain hurdles preventing the administration of all tribunals by one nodal ministry/agency. For instance the Government of India (Allocation of Business) Rules,1961 would need amending, he said. Also, the Ministry of Law and Justice was already overburdened making it unfeasible for it to deal with thousands of appointments of tribunal members and ensuring the tribunals have adequate infrastructure.
But the bench was clear that for the efficient functioning of tribunals they should be brought under one agency, as observed by the court in the past. It has granted two weeks time to the union government to respond with their view.
On the issue of pending vacancies in the tribunals, the Attorney General submitted a note on the status of selection of members at various tribunals. On the basis of the note the top court observed that the tribunals in need of immediate attention include;
- Central Administrative Tribunal (20 vacancies)
- Intellectual Property Appellate Board (5 vacancies)
- Armed Forces Tribunal (16 vacancies)
- National Green Tribunal (14 vacancies)
- Income Tax Appellate Tribunal (44 vacancies including the post of President and Vice President)
The court has asked the Government to implement within two weeks recommendations made by the selection committee.
The Finance Act, 2017
On of the other petitions, by the Revenue Bar Association, challenges the Finance Act, 2017. The petitioners contend that it gives the executive powers to prescribe and alter service conditions of members of tribunals, and that undermines judicial independence. The petitioner contend that while earlier service conditions were laid down in the statutes, the Finance Act, 2017 gave the union government the power to decide on them.
“Section 184 has delegated the powers to prescribe service conditions (such eligibility, tenure, appointment process, etc.,) to the central government. Whereas each of the said service conditions were expressly codified under the parent statute of the tribunals. The delegation of critical aspects affecting independence of tribunals is per se arbitrary and an affront to basic features of the Constitution (that is independence of judiciary and separation of powers),’’ the petitioner said.
The Finance Act was passed on March 30, 2017 and received the President’s assent the next day. Its passage as a Money Bill was opposed by political parties such as Trinamool Congress, Biju Janata Dal and others. And subsequently opposed by the petitioners.
Only matters pertaining to expenditure from/receipt by the Consolidated Fund of India, or incidental to them, can be covered by a Money Bill. It can be introduced only in the Lok Sabha and needs approval of a simple majority. It does not need the assent of the Rajya Sabha, though the upper house can make recommendations on it within 14 days. But they are not binding. The Lok Sabha Speaker has the discretion to determine if a bill qualifies as a money bill.
The petitioners argued that provisions in the Finance Act, 2017 dealing with the administration of tribunals do not qualify as purely fiscal nor are provisions incidental to fiscal matters. The inclusion of the tribunal rules in the Finance Act was an attempt to bypass the consent of the Rajya Sabha, the petitioners said.
The hearing will continue tomorrow.