|DATE:||(Date of pronouncement)|
|DATE:||March 16, 2012 (Date of publication)|
|Click here to download the judgement (bajpai_cestat_right_practice.pdf)|
S. 129(6) of Customs Act barring ex-Members from practise before CESTAT is valid
The appellant was appointed Member (Technical) of CEGAT on 1.11.1990 and demitted office on 7.3.1993. He enrolled as an advocate with the Bar Council of India on 18.4.1993. S. 129 (6) of the Customs Act, 1962 introduced by FA 2003 debarred ex-Members from appearing, acting or pleading before the CEGAT/ CESTAT. S. 129(6) was challenged before the High Court on the ground that (i) it was ultra vires Article 19(6) of the Constitution of India & (ii) could not apply to persons who had demitted office before the insertion of the provision. The High Court (P.C. Jain vs. UOI) rejected the plea on the ground that the restriction was to remove a perceived bias and was not unreasonable. On appeal to the Supreme Court, HELD dismissing the appeal:
(i) As regards the constitutional challenge, while the right to practice as an advocate is not only a statutory right under the Advocates Act but is also a fundamental right under Article 19(1)(g) of the Constitution, it is subject to reasonable restrictions. The restriction imposed by s. 129(6) of the Customs Act is constitutional because (i) the restriction is partial to the extent of practice before CESTAT and does not bar practice before other judicial bodies & (ii) the restriction is intended to serve a larger public interest and to uplift the professional values and standards of advocacy in the country. It adds to public confidence in the administration of justice by the Tribunal;
(ii) The contention that the restriction is based on an illogical presumption of likelihood of bias is also not acceptable because when one has been a member of a Tribunal over a long period and other members have been his co-members, it is difficult to hold that there would be no possibility of bias or no real danger of bias. Even if this possibility was ruled out, it is still in the interest of the institution that restrictions are enforced. Then alone will the mind of the litigant be free from a lurking doubt of likelihood of bias and this would enhance the image of the Tribunal;
(iii) The contention that s. 129(6) cannot be given effect to retrospectively so as to adversely affect persons who were enrolled as advocates when the provision was not on the statute book is not acceptable because there is a distinction between a law being enforced retrospectively and a law that operates retroactively. The restriction in the present case is one where the right to practice before a limited forum is being taken away in presenti while leaving all other forums open for practice. Though the restriction has the effect of relating back to a date prior to the presenti, the law stricto sensu is not retrospective, but is retroactive. The restriction does not interfere with settled or vested rights.
I wonder why similar restriction is not found in the Excise Act , 1944 and Income tax Act, 1961 viz a viz practice at CESTAT and ITAT. This make such provision all the more unconstitutional.