Exclusion Of Advocates For Consideration As Judicial Members In Tribunals Contrary To SC Judgments: Supreme Court

  It is most refreshing, most rejuvenating and most rejoicing to see that while underscoring the invaluable importance of lawyers in imparting justice, the three Judge Bench of the Apex Court comprising of Justices L Nageswara Rao, Hemant Gupta and S Ravindra Bhat in  a latest, landmark, learned and laudable judgment titled Madras Bar Association vs Union of India & Anr. in Writ Petition (C) No. 804 of 2020 along with others delivered on November 27, 2020  minced just no words that exclusion of advocates in 10 out of 19 tribunals, for consideration as judicial members is contrary to the Supreme Court judgments in Union of India v. Madras Bar Association (2010) and Madras Bar Association v. Union of India (2015). Why should advocates be excluded from it? Why can’t they become part of it?

Needless to say, it is advocates who really constitute the backbone of judicial system? How can the judicial system operate normally if the backbone itself is removed from the body? You tell me! This alone explains why the petitioner which is the Madras Bar Association has been so relentless in pursuing this matter to take it to its logical conclusion! Its fight has certainly not gone in vain as this extremely judgment itself shows!

To start with, this notable judgment authored by Justice L Nageswara Rao for himself, Justice Hemant Gupta and Justice S Ravindra Bhat sets the ball rolling by first and foremost observing in para 1 that, “This Court is once again, within the span of a year, called upon to decide the constitutionality of various provisions concerning the selection, appointment, tenure, conditions of service, and ancillary matters relating to various tribunals, 19 in number, which act in aid of the judicial branch. That the judicial system and this Court in particular has to live these déjà vu moments, time and again (exemplified by no less than four constitution bench judgments) in the last 8 years, speaks profound volumes about the constancy of other branches of governance, in their insistency regarding these issues. At the heart of this, however, are stakes far greater: the guarantee of the rule of law to each citizen of the country, with the concomitant guarantee of equal protection of the law. This judgment is to be read as a sequel, and together with the decision of the Constitution Bench in Rojer Mathew v. South Indian Bank Limited (2020) 6 SCC 1.”

To say the least, it is then mentioned in para 2 that, “The core controversy arising for this Court’s consideration is the constitutional validity of the Tribunal, Appellate Tribunal and other Authorities [Qualification, Experience and Other Conditions of Service of Members] Rules, 2020” (hereinafter referred to as “the 2020 Rules”).”

While elaborating in detail, the Bench then informs in para 3 that, “Before considering the merits of the case, it is necessary to refer to the events preceding the issuance of the 2020 Rules for a better understanding of the dispute. Like many other nations, India recognized the need for Tribunalisation of justice to provide for adjudication by persons with ability to decide disputes in specific fields as well as to provide expedited justice in certain kinds of cases. Part XIV-A was inserted in the Constitution of India by the Constitution (42nd Amendment) Act, 1976. Article 323-A enables the Parliament to constitute administrative tribunals for adjudication of the disputes relating to the recruitment and conditions of service of persons appointed to public posts in connection with the affairs of the Union or of any State or any local or other authority. According to Article 323-B, the appropriate Legislature may constitute Tribunals for adjudication of any dispute, complaints or other offences with respect to all or any of the matters specified in Clause (2) therein. The vires of the Administrative Tribunals Act, 1985 (enacted by Parliament in furtherance of Article 323A, for setting up administrative tribunals for adjudication of service disputes of public servants) was challenged in proceedings under Article 32 of the Constitution of India. Two questions that were posed in the said Writ Petition related to the exclusion of jurisdiction of the High Court under Articles 226 and 227 of the Constitution in service matters, the composition of the administrative Tribunal and the mode of appointment of Chairman, Vice-Chairman and Members. While holding that the bar on jurisdiction of the High Courts’ cannot be a ground of attack, this Court in S.P. Sampath Kumar v. Union of India (1987) 1 SCC 124 held that the Tribunal “should be a real substitute of the High Courts not only in form and de jure but in content and de facto”. The Central Government was directed to make modifications to the Administrative Tribunals Act, 1985 pertaining to the composition of the Tribunal to ensure selection of proper and competent people to the posts of Presiding Officers of the Tribunal.”

In totality, the Bench then very rightly sums up in para 53 that, “The upshot of the above discussion leads this Court to issue the following directions:-

(i)    The Union of India shall constitute a National Tribunals Commission which shall act as an independent body to supervise the appointments and functioning of Tribunals, as well as to conduct disciplinary proceedings against members of Tribunals and to take care of administrative and infrastructural needs of the Tribunals, in an appropriate manner. Till the National Tribunals Commission is constituted, a separate wing in the Ministry of Finance, Government of India shall be established to cater to the requirements of the Tribunals.

(ii)   Instead of the four-member Search-cum-Selection Committees provided for in Column (4) of the Schedule to the 2020 Rules with the Chief Justice of India or his nominee, outgoing or sitting Chairman or Chairperson or President of the Tribunal and two Secretaries to the Government of India, the Search-cum-Selection Committees should comprise of the following members:

(a)      The Chief Justice of India or his nominee – Chairperson (with a casting vote).

(b)         The outgoing Chairman or Chairperson or President of the Tribunal in case of appointment of the Chairman or Chairperson or President of the Tribunal (or) the sitting Chairman or Chairperson or President of the Tribunal in case of appointment of other members of the Tribunal (or) a retired Judge of the Supreme Court of India or a retired Chief Justice of a High Court in case the Chairman or Chairperson or President of the Tribunal is seeking re-appointment – member;

(c)           Secretary to the Ministry of Law and Justice, Government of India – member;

(d)         Secretary to the Government of India from a department other than the parent or sponsoring department, nominated by the Cabinet Secretary – member;

(e)          Secretary to the sponsoring or parent Ministry or Department – Member Secretary/Convener (without a vote). Till amendments are carried out, the 2020 Rules shall be read in the manner indicated.

(iii)  Rule 4(2) of the 2020 Rules shall be amended to provide that the Search-cum-Selection Committee shall recommend the name of one person for appointment to each post instead of a panel of two or three persons for appointment to each post. Another name may be recommended to be included in the waiting list.

(iv)    The Chairpersons, Vice-Chairpersons and the members of the Tribunal shall hold office for a term of five years and shall be eligible for reappointment. Rule 9(2) of the 2020 Rules shall be amended to provide that the Vice-Chairman, Vice-Chairperson and other members shall hold office till they attain the age of sixty-seven years.

(v)    The Union of India shall make serious efforts to the Chairman or Chairperson or President and other members of the Tribunals. If providing housing is not possible, the Union of India shall pay the Chairman or Chairperson or President and Vice-Chairman, Vice-Chairperson, Vice President of the Tribunals an amount of Rs. 1,50,000/- per month as house rent allowance and Rs. 1,25,000/- per month for other members of the Tribunals. This direction shall be effective from 01.01.2021.

(vi)     The 2020 Rules shall be amended to make advocates with an experience of at least 10 years eligible for appointment as judicial members in the Tribunals. While considering advocates for appointment as judicial members in the Tribunals, the Search-cum-Selection Committee shall take into account the experience of the Advocate at the bar and their specialization in the relevant branches of law. They shall be entitled for reappointment for at least one term by giving preference to the service rendered by them for the Tribunals.

(vii)    The members of the Indian Legal Service shall be eligible for appointment as judicial members in the Tribunals, provided that they fulfil the criteria applicable to advocates subject to suitability to be assessed by the Search-cum-Selection Committee on the basis of their experience and knowledge in the specialized branch of law.

(viii)        Rule 8 of the 2020 Rules shall be amended to reflect that the recommendations of the Search-cum-Selection Committee in matters of disciplinary actions shall be final and the recommendations of the Search-cum-Selection Committee shall be implemented by the Central Government.

(ix)      The Union of India shall make appointments to Tribunals within three months from the date on which the Search-cum-Selection Committee completes the selection process and makes its recommendations.

(x)    The 2020 Rules shall have prospective effect and will be applicable from 12.02.2020, as per Rule 1(2) of the 2020 Rules.

(xi) Appointments made prior to the 2017 Rules are governed by the parent Acts and Rules which established the concerned Tribunals. In view of the interim orders passed by the Court in Rojer Mathew (supra), appointments made during the pendency of Rojer Mathew (supra) were also governed by the parent Acts and Rules. Any appointments that were made after the 2020 Rules came into force i.e. on or after 12.02.2020 shall be governed by the 2020 rules subject to the modifications directed in the preceding paragraphs of this judgment.”

(xii) Appointments made under the 2020 Rules till the date of this judgment, shall not be considered invalid, insofar as they conformed to the recommendations of the Search-cum-Selection Committees in terms of the 2020 Rules. Such appointments are upheld, and shall not be called into question on the ground that the Search-cum-Selection Committees which recommended the appointment of Chairman, Chairperson, President or other members were in terms of the 2020 Rules, as they stood before the modifications directed in this judgment. They are, in other words, saved.

(xiii) In case the Search-cum-Selection Committees have made recommendations after conducting selections in accordance with the 2020 Rules, appointments shall be made within three months from today and shall not be subject matter of challenge on the ground that they are not in accord with this judgment.

(xiv) The terms and conditions relating to salary, benefits, allowances, house rent allowance etc. shall be in accordance with the terms indicated in, and directed by this judgment.

(xv) The Chairpersons, Vice Chairpersons and members of the Tribunals appointed prior to 12.02.2020 shall be governed by the parent statutes and Rules as per which they were appointed. The 2020 Rules shall be applicable with the modifications directed in the preceding paragraphs to those who were appointed after 12.02.2020. While reserving the matter for judgment on 09.10.2020, we extended the term of the Chairpersons, Vice Chairpersons and the members of the Tribunals shall be in accordance with the applicable Rules as mentioned above.”


Most significantly, it is worth paying attention that it is then observed in the epilogue that, “Dispensation of justice by the Tribunals can be effective only when they function independent of any executive control: this renders them credible and generates public confidence. We have noticed a disturbing trend of the Government not implementing the directions issued by this Court. To ensure that the Tribunals should not function as another department under the control of the executive, repeated directions have been issued which have gone unheeded forcing the Petitioner to approach this Court time and again. It is high time that we put an end to this practice. Rules are framed which are completely contrary to the directions issued by this Court. Upon the tribunals has devolved the task of marking boundaries of what is legally permissible and feasible (as opposed to what is not lawful and is indefensible) conduct, in a normative sense guiding future behavior of those subject to the jurisdictions of such tribunals. This task is rendered even more crucial, given that appeals against their decisions lie directly to the Supreme Court and public law intervention on the merits of such decisions is all but excluded. Also, these tribunals are expected to be consistent, and therefore, adhere to their precedents, inasmuch as they oversee regulatory behavior in several key areas of the economy. Therefore, it is crucial that these tribunals are run by a robust mix of experts, i.e. those with experience in policy in the relevant field, and those with judicial or legal experience and competence in such fields. The functioning or non-functioning of any of these tribunals due to lack of competence or understanding has a direct adverse impact on those who expect effective and swift justice from them. The resultant fallout is invariably an increased docket load, especially by recourse to Article 226 of the Constitution of India. These aspects are highlighted once again to stress that these tribunals do not function in isolation, but are a part of the larger scheme of justice dispensation envisioned by the Constitution and have to function independently, and effectively, to live up to their mandate. The involvement of this Court, in the series of decisions, rendered by no less than six Constitution Benches, underscores the importance of this aspect. The role of both the courts as upholders of judicial independence, and the executive as the policy making and implementing limb of governance, is to be concordant and collaborative. This Court expects that the present directions are adhere to and implemented, so that future litigation is avoided. The Government is, accordingly, directed to strictly adhere to the directions given above and not force the Petitioner – Madras Bar Association, which has been relentless in its efforts to ensure judicial independence of the Tribunals, to knock the doors of this Court again.”

To summarise, the Centre must pay heed to what the Apex Court has said and comply with accordingly. Advocates should not be excluded from consideration and those advocates who are eligible to become a High Court Judge with an experience of 10 years in the High Court should be rendered eligible for appointment as a judicial member of the Tribunal. However, it is left open to the Search-cum-Selection Committee to take into account in the experience of the Advocates at the Bar and the specialization of the advocates in the relevant branch of law while considering them for appointment as judicial members. The Apex Court also said that it sees no harm in members of the Indian Legal Service being considered as judicial members, provided they satisfy the criteria relating to the standing at the bar and specialization required. The court also added that appointment of competent lawyers and technical members is in furtherance of judicial independence. These Tribunals are expected to be independent, vibrant and efficient in their functioning. So Centre must get down promptly to its job of appointing competent lawyers as laid down by the Apex Court in this latest, landmark, learned and laudable judgment so elegantly, effectively and eloquently!

Sanjeev Sirohi

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