SC Probes 'Cherry-Picking' in Tribunal Appointments, Legality of 2021 Reforms Act Under Fire

New Delhi – The Supreme Court of India is once again the battleground for a protracted constitutional struggle over the independence of tribunals, as a bench heard fresh challenges to the Tribunals Reforms Act, 2021. The hearing brought to light serious allegations of the Union government "cherry-picking" candidates from waitlists for tribunal appointments, bypassing meritorious individuals recommended by the Search-cum-Selection Committee (SSC), allegedly based on unverified Intelligence Bureau (IB) reports.

The Bench, comprising Chief Justice of India B.R. Gavai and Justice K. Vinod Chandran, was hearing the long-pending petition filed by the Madras Bar Association, which has been at the forefront of litigation challenging legislative attempts to regulate tribunals. This case represents the latest chapter in a series of landmark judgments where the judiciary has consistently pushed back against executive overreach in the functioning and staffing of these quasi-judicial bodies.

The Core Challenge: A Déjà Vu of Struck-Down Provisions

Senior Advocate Arvind Datar, representing the petitioners, launched a multi-pronged attack on the 2021 Act, arguing that several of its key provisions are a direct contravention of the principles laid down by the Supreme Court in its previous Madras Bar Association judgments. He contended that the Act is a legislative attempt to resurrect provisions that have already been read down or struck down by the Court for undermining judicial independence.

Mr. Datar flagged three specific provisions as particularly egregious:

1. Minimum Age Requirement: The Act mandates a minimum age of 50 years for appointment as a member of a tribunal. Mr. Datar argued this is an arbitrary barrier that excludes a large pool of talented and experienced younger advocates from consideration, a point the Court has previously found unreasonable.
   
   
2. Four-Year Tenure: The legislation fixes the tenure for a chairperson or member at four years. This, according to the petitioners, is insufficient to ensure security of tenure, a cornerstone of judicial independence. A short tenure could make members susceptible to executive influence in hopes of reappointment.
   
   
3. Dual Recommendation for Chairperson: The Act requires the SSC to recommend a panel of two names for each Chairperson vacancy. Mr. Datar vehemently opposed this, arguing it impermissibly grants the executive a choice between two equally qualified candidates, effectively diluting the primacy of the selection committee's merit-based decision.

These arguments echo the core reasoning of the Supreme Court in its 2020 and 2021 judgments, where it emphasized that the terms and conditions of service for tribunal members must be on par with those of High Court judges to ensure their independent functioning.

The 'Cherry-Picking' Controversy: Merit List vs. Waitlist

The hearing took a dramatic turn when the petitioners introduced compelling evidence of a more insidious practice in recent appointments. The court was informed that the government has been systematically bypassing candidates from the main merit list and instead appointing individuals from the waiting list.

Mr. Datar presented data from the 2018 appointments to the Income Tax Appellate Tribunal (ITAT) as a stark example. For 21 judicial member vacancies, the SSC recommended 28 candidates on the main merit list and a further 13 on a waiting list. However, the final appointments saw only 16 from the merit list being selected, while 6 were appointed from the waiting list.

"So in the data, it shows that they have skipped the main list and gone to the waiting list," Mr. Datar asserted, highlighting a clear deviation from established appointment protocols where the waitlist is meant to be a reserve pool, activated only if a merit-list candidate is unable to join.

The Shadow of Unvetted IB Reports

Adding another layer to the controversy, Senior Advocates Gopal Sankarnarayanan and Porus F. Kaka, appearing for intervenors, provided a potential explanation for this "unreasonable cherry-picking." They submitted that meritorious candidates were being dropped from consideration based on negative comments flagged in secret IB reports.

Crucially, it was emphasized that these determinative IB reports are never shared with the SSC. This creates a deeply problematic situation where a candidate, vetted and recommended on merit by a high-powered judicial selection committee, can be vetoed by the executive based on secret intelligence that the selection body itself has no opportunity to review or rebut. This opaque process, the intervenors argued, effectively nullifies the role of the SSC and hands the executive a tool to arbitrarily reject candidates without providing any justiciable reason. The practice allows for candidates with significantly lower merit rankings to be appointed over their more qualified peers, making a mockery of the merit-based selection process.

The Road Ahead: Attorney General's Response Awaited

The detailed submissions from the petitioners have set the stage for a significant constitutional examination. The allegations strike at the heart of the separation of powers and the sanctity of the judicial appointment process, which extends to tribunals that adjudicate on matters of immense legal and financial importance.

The Union government, represented by Attorney General R. Venkataramani, is slated to present its defence on Monday. The government's response will be keenly watched by the legal fraternity. It will have to justify not only the constitutionality of the challenged legislative provisions but also the controversial appointment process that appears to prioritize discretion over merit.

The outcome of this case, Madras Bar Association v. Union of India , will have far-reaching implications for the future of over a dozen key tribunals in the country, including the NCLT, NCLAT, and CAT. It will determine whether the judiciary can successfully defend the independence of these vital institutions against what petitioners frame as a persistent legislative and executive effort to assert control. The Supreme Court's eventual verdict will be a defining moment in the ongoing dialogue between the branches of government on the architecture of India's quasi-judicial system.