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| DATE: | April 17, 2009 (Date of publication) |
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| Click here to download the judgement (jain_ex_member_cestat.pdf) |
Disqualification of Ex-Members practicing before CESTAT is constitutional
Where s. 129 (6) of the Customs Act inserted by the FA 2007 w.e.f 11.05.2007 provided that the President, VP and Member of the Customs Excise Service Tax Appellate Tribunal (CESTAT) were not permitted to appear before that Tribunal after demitting office and the question arose whether the said provision was violative of Articles 14, 19(1)(g) and 21 of the Constitution, HELD, dismissing the Petition that:
(a) The provision is salutary and in public interest. Its rationale is to strengthen the administration of justice;
(b) The contention that Article 14 is violated is not tenable. The fact that the evil or mischief which is sought to be remedied by insertion of the impugned provision is not identified with empirical data is not acceptable because the common law principle is that justice must not only be done but must be seen to be done and disqualification is incurred even when there is only a suspicion or likelihood of bias. It is a question of public perception and confidence. The provision seeks to remove perceived bias;
(c) The contention that there is discrimination on the basis that Members of the ITAT and ATFE are not subject to the same disability is also not tenable because s. 129 (6) is reformative and marks a beginning (of what the law should be);
(d) The contention that Article 19(1)(g) is breached because the right to practice as an advocate is taken away is not acceptable because firstly, an advocate does not have an unbridled or absolute right to practice before all Courts and Tribunals. Secondly, the provision imposes a restriction with regard to a forum and does not completely prohibit them from practicing their profession. The Ex-Members can practice before superior forums;
(e) The provision is in public interest as it helps to develop and foster entry of fresh blood and talent at the level of the tribunals and at the same time makes available much needed expertise of the Ex-Members in the superior forums;
(f) The contention that Article 21 is violated is also untenable because there is no deprivation of right to livelihood and there are several avenues open to the Ex-Members to earn their livelihood;
See Also: Old is Gold! where it was observed:
“When a retired member appears before the authorities lower to the Tribunal, the institution of the Tribunal loses the respect of the people. The High Court judges after retirement never appear before High Court or lower courts, this has enhanced the respect of the judiciary. It is essential that the service rules may be amended or by convention the retired members may not be permitted to appear at the place of retirement or any forum lower to the Tribunal”
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