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SUPREME COURT OF INDIA
L. Nageswara Rao, Hemant Gupta, S. Ravindra Bhat, JJ.
MADRAS BAR ASSOCIATION – Petitioner
Versus
UNION OF INDIA & ANR. – Respondents
Writ Petition (C) No. 804 of 2020, Misc. Application No.1058 of 2020 in Writ Petition (C) No.640 of 2017, Misc. Application No.1152 of 2020 in Writ Petition (C) No. 279 of 2017, Writ Petition (C) No. 867 of 2020, Writ Petition (C) No.1431 of 2019, Transfer Petition (C) Nos. 905-915 of 2020, Civil Appeal Nos.3505-3506 of 2020 (@ SLP (C) Nos. 9587-9588 of 2020), Transfer Petition (C) No. 1356-1360 of 2020 (@ Diary No. 18900 of 2020), Misc. Application No.1481 of 2020 in Writ Petition (C) No.279 of 2017, Writ Petition (C) No.995 of 2020, Writ Petition (C) No.991 of 2020, Misc. Application No.1654 of 2020 In Writ Petition (C) No.279 of 2017, Writ Petition (C) No.1085 of 2020, Misc. Application No.1811 of 2020 in Writ Petition (C) No.279 of 2017 and Civil Appeal No.3598 of 2020 (@ SLP (C) No.11612 of 2020)
Decided on : 27-11-2020
(A) Tribunal, Appellate Tribunal and other Authorities [Qualification, Experience and Other Conditions of Service of Members] Rules, 2020 – Rule 9 – Constitutional validity of – Docket explosion and mounting arrears are serious problems faced by justice system in this country – There is an imperative need to ensure that Tribunals discharge judicial functions without any interference of Executive whether directly or indirectly – Secretaries of sponsoring departments should not be members of Search-cum-Selection Committee – Government of India is duty bound to implement directions issued in earlier judgments and constitute Search-cum-Selection Committees in which Chief Justice of India or his nominee shall be Chairperson along with Chairperson of Tribunal if he is a retired Judge of Supreme Court or a retired Chief Justice of a High Court and two Secretaries to Government of India – In case Tribunal is headed by a Chairperson who is not a judicial member, Search-cum-Selection Committee shall consist of Chief Justice of India or his nominee as Chairperson and a retired Judge of Supreme Court or a retired Chief Justice of a High Court to be nominated by Chief Justice of India and Secretary to Government of India from Ministry of Law and Justice and a Secretary of a department other than parent or sponsoring department to be nominated by Cabinet Secretary – Secretary of parent or sponsoring department shall serve as Member-Secretary or Convener, without a vote. (Paras 15, 16, 29 and 30)
(B) Tribunal, Appellate Tribunal and other Authorities [Qualification, Experience and Other Conditions of Service of Members] Rules, 2020 – Rules 8 and 9 – Constitutionality of various provisions concerning selection, appointment, tenure, conditions of service and ancillary matters relating to various tribunals which act in aid of judicial branch – Any appointment made after the 2020 Rules have come into force shall be in accordance with 2020 Rules subject to modifications as directed in this judgment – Union of India shall constitute a National Tribunals Commission which shall act as an independent body to supervise 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 Tribunals, in an appropriate manner – Till National Tribunals Commission is constituted, a separate wing in Ministry of Finance, Government of India shall be established to cater to requirements of Tribunals – Rule 4(2) of 2020 Rules shall be amended to provide that Search-cum-Selection Committee shall recommend 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 waiting list – Rule 8 of 2020 Rules shall be amended to reflect that recommendations of Search-cum-Selection Committee in matters of disciplinary actions shall be final and recommendations of Search-cum-Selection Committee shall be implemented by Central Government – Union of India shall make appointments to Tribunals within three months from date on which Search-cum-Selection Committee completes selection process and makes its recommendations – 2020 Rules shall have prospective effect and will be applicable from 12.02.2020, as per Rule 1(2) of 2020 Rules – Appointments made prior to 2017 Rules are governed by parent Acts and Rules which established concerned Tribunals – Dispensation of justice by Tribunals can be effective only when they function independent of any executive control – This renders them credible and generates public confidence. (Paras 52, 53 and 55)
Facts of the case:
Core controversy arising for this Court’s consideration is the constitutional validity of Tribunal, Appellate Tribunal and other Authorities [Qualification, Experience and Other Conditions of Service of Members] Rules, 2020. Main issues raised in the Writ Petition are that the 2020 Rules are unconstitutional as: (a) The Search-cum-Selection Committees provided for in the 2020 Rules did not conform to the principles of judicial dominance; (b) Appointment of persons without judicial experience to the posts of Judicial Members/ Presiding Officer/ Chairpersons is in contravention to the earlier judgments of this Court; (c) The term of office of the Members for four years is contrary to the earlier decisions of this Court; (d) Advocates are not being made eligible for appointment to most of the Tribunals; (e) Administrative control of the executive in matters relating to appointments and conditions of service is violative of the principles of separation of powers and independence of judiciary and demonstrates non-application of mind.
Findings of Court:
The 2020 Rules which came into force from the date of their publication in the Official Gazette, i.e. 12.02.2020, cannot be given retrospective effect. The intention of Government of India to make the 2020 Rules prospective is very clear from the notification dated 12.02.2020. In any event, subordinate legislation cannot be given retrospective effect unless the parent statute specifically provides for the same.
Result : Writ Petitions, Transfer Petitions, Civil Appeals and Applications disposed of.
JUDGMENT
L. Nageswara Rao, J.
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 deja 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 insistence 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 vs. South Indian Bank Limited, (2020) 6 SCC 1.
2. 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").
3. 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 vs. 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.
4. The judgment in S.P. Sampath Kumar (supra) was referred to a larger Bench for re-consideration in view of later rulings, notably R.K. Jain vs. Union of India, [1993] 4 SCC 119 which had called for a review with respect to functioning of tribunals. In L. Chandra Kumar vs. Union of India, (1997) 3 SCC 261 this Court held that the power of judicial review vested in the High Courts and this Court under Articles 226 and 227, and 32 is a part of the basic structure of the Constitution. Therefore, the Court held that the Tribunals cannot act as substitutes of the High Courts and this Court, and t
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