Supreme Court Chides Centre Over 'Tactic' to Refer Tribunals Act Challenge to Larger Bench

New Delhi – In a dramatic hearing marked by sharp judicial admonishment, the Supreme Court of India on Monday expressed strong displeasure with the Union Government's last-minute application to refer the ongoing challenge to the Tribunals Reforms Act, 2021, to a five-judge Constitution Bench. A two-judge bench, comprising Chief Justice of India B.R. Gavai and Justice K. Vinod Chandran, questioned the timing and motive behind the move, suggesting it was a "tactic" to avoid the current bench as the final hearings neared completion.

The bench is hearing a batch of petitions, led by the Madras Bar Association, challenging the constitutional validity of the 2021 Act. The petitioners argue that the legislation undermines judicial independence and violates the doctrine of separation of powers by reintroducing provisions that the Supreme Court had previously struck down in their ordinance form.

The courtroom exchange intensified when Attorney General for India, R. Venkataramani, informed the bench of the Centre's application. The request came after the petitioners, represented by Senior Advocate Arvind Datar, had already concluded their arguments at length in a previous hearing.

A visibly irked CJI Gavai, who is scheduled to demit office on November 23, did not mince words. "We don't expect the Union of India to indulge in such a tactic," he remarked. "After we have heard one party fully, after we have accommodated the learned AG on personal grounds... If we reject this application by you, we will observe that the Union is trying to avoid this bench."

The Attorney General urged the court not to perceive the application as a tactic, stating, "With great respect, please do not call it a tactic." He clarified that the issue of a reference was mentioned in the government's earlier reply and that the matter involved substantial questions of law necessitating a larger bench under Article 145(3) of the Constitution.

However, the bench remained unconvinced by the explanation for the delay. Justice Chandran noted the application came "too late in the day," adding, "At least at some stage you should have raised this issue... that too an application for this? You took an adjournment because you wanted to come and argue."

The CJI asserted that the bench would not be swayed by a "midnight application" and would proceed with the hearing. "If we, on consideration of the arguments, arrive at a conclusion that the matter involves substantial questions of law requiring reference to a 5-judge bench, we will do so," CJI Gavai stated firmly. "But we will not do it at the behest of your application which comes at midnight."

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Background: A Contentious Legislative History

The legal battle over tribunal reforms has been a protracted one, central to the ongoing tension between the judiciary and the executive over control of quasi-judicial bodies. The current dispute stems from the Tribunals Reforms Act, 2021, which was enacted shortly after the Supreme Court's landmark judgment in July 2021.

In that ruling, the Court had quashed several key provisions of the functionally identical Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021. The Court had found that provisions setting a minimum appointment age of 50 years and a fixed four-year tenure for members were detrimental to judicial independence and security of tenure. The judgment mandated a minimum tenure of five years and struck down the 50-year age requirement, stating that a decade of legal practice should suffice, akin to the eligibility for a High Court judge.

Crucially, the Court also invalidated a provision allowing the government to select from a panel of two names recommended by the Search-cum-Selection Committee, viewing it as an encroachment on judicial primacy in appointments.

However, as Senior Advocate Arvind Datar argued for the petitioners, the government subsequently passed the Tribunals Reforms Act, 2021, which "verbatim" retained the very provisions the apex court had declared unconstitutional. This legislative move, Datar contended, is impermissible unless the legislature fundamentally removes the basis of the court's judgment, which it failed to do.

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The Government's Defence and the Court's Skepticism

Proceeding with his arguments, Attorney General Venkataramani defended the 2021 Act, urging the court to allow the new legislative regime to function and gain experience before passing judgment. "Let us allow it to work for some time... Let the law gain some experience a little over time; these are issues which can be worked out, ironed out after some time. To say that for these reasons, strike down the law?” he submitted.

The AG argued that the Act was the product of extensive deliberations and that the "court should not set aside the law" based on a few "errors and wrongs being committed under the Act." He contended that striking down the entire statute would not be justified and that practical issues in the appointment process, such as candidates dropping out, necessitate a flexible system.

However, the CJI questioned how this line of reasoning squared with the simultaneous request to refer the matter to a larger bench. The AG conceded that his submissions on letting the Act function had "no direct bearing on whether the vires (of the Act) are good or not." This exchange appeared to deepen the bench's suspicion that the reference application was a dilatory tactic.

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Focus on Key Provisions and Judicial Experience

The hearing also revisited specific contentious provisions of the Act. On the minimum age requirement of 50 years, CJI Gavai drew from his own experience, remarking that he was appointed as a judge at the age of 42. By the logic of the impugned Act, he noted, he would have been deemed ineligible for a tribunal post at that stage of his career.

In response, the Attorney General argued that appointments to tribunals and High Courts follow distinct frameworks. "Let's not pick up the High Court's appointments, eligibility and Article as the standard. Tribunals require a different kind of experience," he submitted.

The petitioners also highlighted ongoing issues with tribunal appointments, with Datar submitting that merit lists for bodies like the Income Tax Appellate Tribunal (ITAT) and Central Administrative Tribunal (CAT) were often disbanded, and vacancies were improperly filled from waiting lists. The AG countered that selection considers multiple factors and that the Union had "never endorsed filling posts from the waiting list in preference to merit."

The hearing is set to continue, with the Attorney General expected to conclude his arguments on Friday. The Court's final decision—both on the immediate question of a reference and the ultimate validity of the Act—will have profound implications for the independence, efficiency, and structure of India's tribunal system.