Free judiciary can be sustained via fair service conditions: SC

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The Supreme Court on Wednesday said the independence of the judiciary can be sustained when incumbents are assured a fair and reasonable conditions of service, as it declared provisions in the Tribunals Reforms Ordinance 2021, fixing a minimum age of 50 years, and four-year tenure of Chairmen and members of various tribunals, as unconstitutional. It held that these provisions were "contrary to the principles of separation of powers, independence of judiciary, and rule of law".

Three separate judgements were delivered by a bench of Justices L. Nageswarao Rao, Hemant Gupta, and Ravindra Bhat on a plea by the Madras Bar Association, challenging the Sections 12 and 13 of the ordinance by which Sections 184 and 186(2) of the Finance Act, 2017 was amended. In a majority judgment, Justices Rao and Bhat held that four-year tenure violated the express direction given in an earlier judgment that term of tribunal members should be five years. This bench set aside those provisions. However, Justice Gupta delivered a dissenting judgment and dismissed the petition.

Justice Rao said: "Independence of the judiciary can be sustained only when the incumbents are assured of fair and reasonable conditions of service, which include adequate remuneration and security of tenure." He emphasised that tribunals, constituted as an alternative mechanism for speedy resolution of disputes, have become non-functional due to the large number of posts which are kept unfilled for a long period of time. "Tribunals have become ineffective vehicles of administration of justice, resulting in complete denial of access to justice to the litigant public," he added.

Justice Rao noted: "The main reason for tribunalisation, which is to provide speedy justice, is not achieved as tribunals are wilting under the unbearable weight of the exploding docket." He added the conditions of service for appointment to the posts of Chairpersons and members have been mired in controversy for the past several years, thereby, adversely affecting the basic functioning of tribunals. "This Court is aghast to note that some tribunals are on the verge of closure due to the absence of members," he added.

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Justice Bhat said the sheer volume of pendency is an indicator of the substantial judicial functions carried out by tribunals, necessitating that they be manned by efficient, well-qualified judicial and technical members. "It is necessary that the Union expedite the process of appointments to tribunals, towards ensuring swifter, and efficacious justice delivery," he added.

He rejected the Centre's argument that 50 years is necessary as it brings about parity between the members of the civil services who are eligible to be considered in their stream for tribunals or that there is an overall uniformity. He added that prescribing 50 years as a minimum age limit for consideration of advocates has the devastating effect of entirely excluding successful young advocates, especially those who might be trained and competent in the particular subject.

Section 184 empowered the Centre to make rules to provide for qualifications, appointment, term of office, salaries and allowances, resignation, removal and other terms and conditions of service of the Chairperson, the Vice Chairperson, and other members of various tribunals. In the majority judgment, the court said it had already declared that the Chairperson, Vice Chairperson, and the members of the tribunals shall hold office for a term of five years and shall be eligible for reappointment.

Justice Rao said: "The insertion of Section 184(11) prescribing a term of four years for the Chairpersons and members of tribunals by giving retrospective effect to the provision from May 26, 2017 is clearly an attempt to override the declaration of law by this court under Article 141 (in earlier judgement)." The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, issued by the Ministry of Law and Justice, was notified on April 4. The top court clarified that the ordinance's provisions will not apply to appointments made prior to its notification.

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