Minimum-age for tribunal membership and short tenures will be a hurdle for tribunals in acquiring the needed talent
The Supreme Court has come down heavily on the Centre for failing to fill vacancies across tribunals in the country, including the NCLT and the NCLAT. It has given the Centre a week to clear key appointments, saying the government is ‘testing the apex court’s patience’ with its approach to tribunals. The observation was made in the context of a writ petition challenging the recently-passed Tribunals Reforms Act. As the bench hearing the matter, comprising CJI NV Ramana and Justices DY Chandrachud and L Nageswara Rao, has remarked, some provisions of the Act are nearly identical to the ones struck down by the apex court in the Madras Bar Association (MBA) cases.
The impugned Act seeks to wind up certain existing tribunals and repose the functions of these tribunals with the judiciary and, in one specific domain, with the Union government. It also lays down a minimum age of 50 years as an eligibility criterion for tribunal members, apart from setting the maximum tenure for a member at four years. In the MBA judgment, the Supreme Court had struck down similar provisions brought through the Finance Act 2017, which had merged tribunals based on domain, and the Tribunal Reforms Ordinance.
The Section 3(7) of the Tribunals Reforms Act, which mandates the recommendation of names by the search-cum-selection committee to the Centre, is identical to Section 184(7) of the Finance Act 2017 that was unanimously set aside by the apex court in the MBA judgment. So, it is hard to understand why the Centre should have reiterated it, unless the intent is to nullify the judgment through legislation. The SC had observed then the “executive influence should be avoided in matters of appointments to tribunals”.
The provision grants discretion to the Centre with regards to deciding on recommendations of the search-cum-selection committee, within three months from the date of the recommendations being made. The government had defended the Act saying that the powers of the legislature can’t be curtailed even as the government had utmost respect for the judiciary; finance minister Nirmala Sitharaman had even pointed out that the mirror-provisions struck down in the MBA judgment had not been struck down on the grounds of unconstitutionality. However, the Supreme Court has observed that ‘the basis of a judgment can be taken away… but you cannot enact a law which is contrary to a judgment’.
It is a fact that a minimum age of 50 years will exclude young specialist-lawyers even as tribunals will need domain experts for several matters, especially sunrise areas where older jurists may not have the due competence. In such a scenario, tribunals will simply find orders being routinely challenged in the higher judiciary, further choking India’s already-clogged justice delivery.
To that end, the government should have adhered to the apex court’s direction, in the MBA judgment, to allow advocates with 10 years of experience to vie for membership of tribunals. Restricting tenure to just four years—as opposed to the SC’s direction of a minimum of five years—is likely to discourage merit as qualified jurists will not see tribunals as an attractive career option; the SC had also noted in the judgment that short tenures allow greater room for interference by the executive, jeopardising judicial independence.
While the efficiency of tribunals is often questioned, the fact is that many important tribunals, including the Armed Forces Tribunal and the National Green Tribunal, are reeling under shortage of members. The government needs to move fast on clearing the appointments and must be careful about not undermining the independence of the judiciary.