Jairam Ramesh Case: Tribunals Issue Reaches The Supreme Court, Again
Since 2013, the issue of qualification, procedure for appointment of tribunal chairpersons and members has gone back and forth between the judiciary and the legislature.
In the latest round, former Union Minister Jairam Ramesh has moved the Supreme Court challenging the Tribunals Reforms Act, 2021 which received Presidential assent this month. The Act contains several provisions which, in their ordinance form, were set aside by the top court in July this year.
The court had held that:
The minimum age of 50 for appointment as members and chairperson is arbitrary.
Tenure of tribunal members and chairpersons has to be a minimum of five years.
Search-cum-selection committee set up to recommend names should send only one name for each post.
In the light of concerns expressed by the Supreme Court over a large number of vacancies at the tribunals, the stage seems to be set for another round of litigation between the government and the judiciary.
Tribunals Reforms Act, 2021: What's Next?
Parliament can try to overcome a court judgment by seeking to amend or reenact a law which has been struck down.
In any such effort it must be ensured that the basis of the judgment which struck down the earlier law or any of its provisions is removed, Senior Advocate Chander Uday Singh said about the process in general while declining to comment on this specific situation.
While the legislature can amend a struck-down law to validate it by removing the cause of invalidity, or re-enact a law to effectively get around a judgment by removing the underlying basis on which the judgment proceeded, it cannot by a bare declaration overrule a judgment. Nor can it reenact or pass a validating law which retains the infirmities which led to the judgment.Senior Advocate Chander Uday Singh
That's precisely what Jairam Ramesh has argued in his petition.
The Act is a deliberate attempt to legislatively override the 2021 judgment of the court which set aside identical provisions, says Ramesh’s petition.
It points out that certain sections of the Tribunals Reforms Act violate the constitutionally guaranteed right to equality and right to life and liberty. It also violates Article 50 which declares the separation of judiciary from the executive.
The petition says:
Setting the minimum age of 50 for appointment as tribunal member was specifically set aside by the Supreme Court.
Similarly, mandating the selection committee to send two names for appointments was also set aside.
The Act allows the government to preferably decide upon in three months the recommendations by the search-cum-selection committee. The apex court judgment had made this direction mandatory in nature.
Fixing the tenure of the chairperson and members as four years adversely impacts judicial independence. The top court had directed the government to fix their tenure for at least five years.
The impugned provisions, and the repeated failure of the respondents to comply with the directions of this Hon’ble Court, undermine the rule of law, the equal protection of law, the independence of the judiciary, and the principle of separation of powers that are fundamental guarantees under Articles 14, 21 and 50 of the Constitution.Jairam Ramesh's Petition
Have Given Due Application Of Mind, Government Says
Finance Minister Nirmala Sitharaman defended the new law in the Rajya Sabha on grounds that the court had not struck down the provisions on "constitutionality" and that it had only raised certain questions on certain points.
To have better, efficient management of the tribunals, we want members to be there only for four years and not five years. Is there a constitutional question in that? We have given due application of mind, the Attorney General has been consulted.Finance Minister Nirmala Sitharaman in Rajya Sabha
The primacy of legislature in making laws is important, Sitharaman said in response to points raised by opposition members. "It is as important as the independence of the judiciary."
Judiciary Not Convinced
Earlier, in a different hearing relating to vacancies at tribunals, a bench led by the Chief Justice of India made some observations on the Tribunals Reforms Act, 2021.
While clarifying it was not commenting on Parliamentary proceedings, the bench observed that it did not see any discussion in Parliament when passing the new law.
“We have not seen any discussion in Parliament. Of course, Parliament has the prerogative to make laws," the bench led by Chief Justice of India NV Ramana told Solicitor General Tushar Mehta.
At least we must know why the government has introduced the Bill despite being struck down by this court... I have not come across any debate, which took place in Parliament (on the Bill). Please show us the debate — the reasons and all thatChief Justice of India’s observations as reported by The Tribune