CITATION – 2020 (13) SCALE 443
1. Justices L Nageswara Rao,
2. S Ravindra Bhat, and
3. Hemant Gupta
The President of India on 4th April 2021 promulgated an Ordinance, on the recommendations of the Central Government, while exercising its powers under Article 123 of the Indian Constitution because, even though the bill was tabled in the Lok Sabha in Budget Session, 2021, no debate and discussion could follow the same and hence the said law was introduced as an ordinance. Moreover, it amended the provisions of the Finance Act, 2017 in order to make the Central Government responsible for making rules regarding the appointments, salaries, tenures of the members of tribunals, and their appointment shall be made by a Search-Selection Committee headed by the Chief Justice of India or any Supreme Court Judge nominated by him. Sections 184 and 186 of the Finance Act were amended by Sections 12 and 13 of the Ordinance, respectively, limiting the maximum age of appointment of a chairman or a member of any tribunal to 50 years, i.e., no person over the age of 50 years is eligible for appointment to the tribunals for any position. It also fixed the members’ term at four years or the attainment of 70 years for theChairperson and 67 years for any other member, whichever is earlier, and limiting their salaries. Hence, the Madras Bar Association approached the Supreme Court in order to declare the Sections 12 and 13 of the Ordinance ultra vires Articles 14, 21, 50 of the Indian Constitution and the Principles of Judicial Independence and Separation of Powers, which happen to be integral to the basic structures of the Indian Constitution.
A three-judge bench of the Supreme Court, comprising of Justices L Nageswara Rao, S Ravindra Bhat, and Hemant Gupta, on 14th July 2021 struck certain provisions of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 unconstitutional, which fixed the term of the members of the Tribunals to 4 years, by a 2:1 majority. Justices L Nageswara Rao and S Ravindra Bhat, in their majority judgment, opined that this specific clause in the Ordinance violated the past directions of the Supreme Court wherein the terms of all such chairmen and members of Tribunals was fixed to be five years. In his dissenting judgment, Justice Hemant Gupta was of the opinion that laws could not be struck down merely because they are not in accordance with the precedents of the Apex Court. With regard to the appointments made by the Search-Selection Committee, the Apex Court issued a direction mandating that all such appointments must be made within three months of receiving the recommendation, instead of the earlier discretionary provision, with only one name to be suggested for every post, instead of two.
It is a well-established fact that the Doctrine of Separation of Powers, which is essential to the functioning of the three organs of the State- i.e., the Legislature, the Judiciary, and the Executive, rightly form the basis for ensuring the independent functioning of the country’s judicial system. In the said case, a clash between the legislature and the judiciary is apparent wherein there seems to be an override between the Legislature’s attempt to override judicial pronouncements through legislations, which at times fails to withstand the test of constitutional correctness.
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