Stern Words: SC raps Centre over ‘tribunal reforms’, warns of contempt

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September 07, 2021 4:15 AM

Top court sees ‘pattern’ in govt overturning judicial orders

“We are upset... but we don't want confrontation with the government," the CJI told Mehta, who said that “government doesn't want confrontation either.”“We are upset... but we don't want confrontation with the government," the CJI told Mehta, who said that “government doesn't want confrontation either.”

A simmering tension between the executive and the judiciary over what each perceives as an overreach by the other into its turf escalated on Monday, with the Supreme Court coming down heavily on the government for “not respecting” its views on the Tribunals Reforms Act and being unresponsive to its concerns over long delays in the appointments to the quasi-judicial bodies.

At one point, Chief Justice NV Ramana said the delays in appointments to tribunals have left the court with only three options. “We can either stay the Tribunal Reforms Act or close down the tribunals…ourselves appoint the members or hand over the powers to high courts. And the third is that we initiate contempt proceedings.”

Commenting on the latest version of the Bill to reform tribunals – the Tribunals Reforms Bill – a three-member SC bench said it was “a virtual replica of the provisions struck down” by the court twice earlier. “We strike down one Act and a new one comes…has become a pattern,” Justice DY Chandrachud said.

According to the court, tribunals that had been set up were doing a good job. But now, due to non-appointments, they have virtually collapsed, the CJI said. “(Filling of) vacancies in critical tribunals like NCLT (National Company Law Tribunal) and NCLAT (National Company Law Appellate Tribunal)…are important for the economy. Vacancies also in armed forces and consumer tribunals are leading to delays in resolution of cases,” the apex court said, warning Solicitor General Tushar Mehta it would initiate contempt proceedings if appointments were not done within a week.

The bench comprising LN Rao apart from the CJI and Chandrachud, said: “We feel the government has no respect for this court. You (the government) are testing our patience…You are emasculating the tribunals by not appointing any members.”

In November 2019, the SC had struck down the 2017 rules framed by the government dealing with service conditions and qualifications of the members of tribunals. Also, provisions of an Ordinance seeking tribunal reforms were struck down by the apex court as ‘unconstitutional’ in July 2021.

“We are upset… but we don’t want confrontation with the government,” the CJI told Mehta, who said that “government doesn’t want confrontation either.”

“Parliament can take away the basis of a judgment through a new law, but cannot enact a law that is directly contrary to the SC judgment. This (the Tribunal Reforms Bill, 2021) is not a validating legislation,” the judges said.

The provisions of the Bill, which was passed by the Lok Sabha and the Rajya Sabhia on August 3 and August 9, respectively, are similar to certain provisions of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance 2021 that was declared unconstitutional in July by the top court.

When the Solicitor General read out a communication from the finance ministry that a decision on appointments would be taken in two months, Justice Rao said: “But there are vacancies pending for two years. Why have you not made appointments yet? You are weakening the tribunals by not making appointments.”

When Mehta said that the government will first process those names that were cleared by the search-cum-selection committee, an unimpressed CJI said: “After seeing your letter. I think the government is bent upon not respecting judgments or orders passed by this court,” he said.

Speaking from their experiences as the heads of some search-cum-selection panels, Justice Rao told Mehta the panels had made recommendations more than one-and-a half-years ago, following the then existing law, for which “the government could not have any objection at all, with respect to the panel prepared and service condition”. “Still, why were no appointments were made?” the judge wondered, adding that there are some tribunals like TDSAT functioning with just one member.

As the head of the panel that chose members for the National Consumer Disputes Redressal Commission, Justice Chandrachud said “notwithstanding that the names cleared were those on which the Intelligence Bureau (IB) had no objections, the government has either deleted them or is sitting on them. There is no clarity on why it is done. Also, the panel has two senior bureaucrats as its members. Is it that the government does not have faith in judges of this court?” he asked while adding that “the entire exercise of selection was such a waste of energy.”

The SC, issuing notice to the government on various petitions including the one filed by Congress leader Jairam Ramesh against the Tribunals Reforms Bill, 2021, gave a week to the government to make the appointments. It also posted the matter for further hearing on Monday (September 13). The other petitions have sought to constitute the GST Tribunal, the appointment of members in the Real Estate Regulatory Authority and the Securities Appellate Tribunal.

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