Supreme Court Holds Minimum Age Of Tribunal Members As 50 To Be Arbitrary, Strikes Down Several Provisions
A gavel sits on a stage. (Photographer: Daniel Acker/Bloomberg)

Supreme Court Holds Minimum Age Of Tribunal Members As 50 To Be Arbitrary, Strikes Down Several Provisions

The Supreme Court has come down heavily on a government ordinance that laid down minimum age for members of a tribunal, reduced their tenure and increased executive interference in matters of their appointment and pay.

Relying on the doctrines of separation of powers and independence of judiciary, in a concurring judgment, Justice L Nageswara Rao and Justice Ravindra Bhat have held these provisions as unconstitutional. Justice Hemant Gupta, however, dissented from the majority decision.

The three-judge bench was hearing a writ petition filed by the Madras Bar Association challenging certain provisions of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021. The ordinance seeks to introduce changes that were struck down by the apex court in 2020, the petitioners had argued.

Minimum Age Of 50 Years Is Arbitrary

The April 2021 ordinance had set minimum age of 50 years as the eligibility criteria for appointment as chairperson or member of a tribunal. The apex court has found this to be unconstitutional on grounds it will act as a deterrent for competent advocates to seek appointment.

Justice Bhat said in his order that the minimum age requirement is discriminatory as it has no rational nexus with the objective of appointing the most meritorious candidates.

"Nor is it 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." - Justice Bhat

It is plain and simple, discrimination based on age. The criterion is virtually 'picked out from a hat' and wholly arbitrary, Justice Bhat wrote in his concurring order.

Also read: Government Introduces Bill To Reduce Tenure Of Tribunal Members, Rationalise Appointments

Members' Tenure Must Be Of Five Years

In its 2020 ruling, the apex court had observed that a short stint for members acts as "anti-merit". Accordingly, it had directed modification of tribunal rules to provide a minimum tenure of five years and the option to seek reappointment.

But the 2021 ordinance laid down a term of four years for chairpersons and members of tribunals, notwithstanding anything contained in any judgment, order or decree of any court.

The Madras Bar Association argued that a shorter tenure would be a disincentive for competent persons to seek appointment as members of tribunals.

Agreeing with the argument, the apex court has held that the 2021 provisions are clearly an attempt to override its earlier directives and are thus unconstitutional.

Allowances Can't Be Made Subject To Legislative Response

In its ruling last year, the apex court had directed enhancement of house rent allowance (HRA) to tribunal chairperson or vice-chairperson to Rs 1.5 lakh per month. For members, it was set at Rs 1.25 lakh. This was done basis Madras bar Association's arguments that majority of the tribunals were situated in Delhi where there is an acute problem of housing. As a result, not many high court judges are interested in accepting appointment to tribunals.

But the 2021 ordinance said allowances and benefits of tribunal members would be the same as available to central government officers carrying the same pay.

This provision restricting the HRA to a lower band has been held to be unconstitutional.

The direction issued by this Court in MBA-III (Madras Bar Association's earlier judgment) for payment of HRA was to ensure that decent accommodation is provided to Tribunal Members. Such direction was issued to uphold independence of the judiciary and it cannot be subject matter of legislative response.
Justice L Nageswara Rao

Selection Committee To Recommend Only One Name For A Particular Post

The 2020 rules envisaged a search-cum-selection committee to provide recommendations for eligible candidates as tribunal members. To limit the discretion of the executive after the committee had recommended names and to ensure independence of judiciary, the apex court had said that the committee will recommend only one person for each post.

The 2021 ordinance again incorporated provisions similar to the 2020 rules without following the court's directive. The corresponding provision has therefore been found violative of the law laid down by the apex court and held as unconstitutional.

Government To Make Appointments Within Three Months Of Receiving Recommendations From The Search-Cum-Selection Committee

In the 2020 judgment, the Supreme Court had mandated the government to make appointments to tribunals within three months of the SCSC's recommendations. This direction "for expediting the process of appointment" was given "in the larger interest of administration of justice and to uphold the rule of law".

However, the 2021 ordinance diluted the mandate by making it "preferable" for government to make appointments within the said three months. This provision has also been held as unconstitutional.

Such direction was necessitated in view of the lethargy shown by the Union of India in making appointments and filling up the posts of chairpersons and members of tribunals which have been long vacant.... This court is aghast to note that some tribunals are on the verge of closure due to the absence of members.
Justice L Nageswara Rao

Also read: The Comeback Of The Indian Legal Service To Tribunals

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