8th September, 2009.
Respected Shri. Manmohan Singhji
Hon’ble Prime Minister of India
7, Race Course Road,
Sub: Earnest appeal to review the changes proposed in the rules of appointment of Members (ie Judges) of Income Tax Appellate Tribunal
1. Income Tax Appellate Tribunal Bar Association, Mumbai, is one of the oldest and premier Tax Bar Associations of the country. Many noted jurists and legal luminaries have adorned the chair as its President; one of the prominent among them being Late Shri. Nani Palkhivala, who was President of the Association for almost 35 years. The Association has been a frontrunner for the cause of upholding and maintaining judicial independence of the Courts, more particularly, of the Income Tax Appellate Tribunal.
2. We are greatly shocked and concerned to know that the Government has proposed changes in the rules concerning appointment of Members of the Income Tax Appellate Tribunal [‘I.T.A.T.’]. Among others, a proposal is to appoint Members of I.T.A.T. only for a limited tenure of 5 years, at a time, on contract basis. The Association strongly disapproves of such a regressive move since such proposal will severely affect independence of the Members so appointed. The Association strongly opposes such a proposal which affects the independent judicial functioning of the I.T.A.T.
3. The I.T.A.T. was founded in 1941 and is, very appropriately, referred to as the mother of all the Tribunals in India. Late Shri Nani Palkhivala had lauded this Tribunal as one of the finest institutions and Tribunals of India. Over the years, it has served as a role model for other similar institutions throughout India. The Tribunal is, by and large, known for a high level of judicial independence. The Tribunal discharges judicial functions and is regarded, for all practical purposes, as a Court.
4. One of the contributing factors for such an enviable track record is the selection / appointment procedure. The Members are selected by a very high powered Selection Board, which is headed by a Supreme Court judge. It is because of this fine tradition that is being maintained that this institution lures many talented persons. The Members are appointed for the full term till attaining the age of superannuation. It is only because of such security that persons from various walks of life opt to join this august institution, sacrificing and leaving their stable employment / profession / career. It is because of such security that the Members are able to discharge the judicial function impartially and without fear or favour. This is one of the key factors that has helped in maintaining independent and judicial functioning of the Tribunal. This selection procedure has been working well for over 65 years.
5. However, now we are shocked to learn that the above appointment procedure, which has withstood the test of time for over 65 years, is sought to be changed so as to appoint new members of the Tribunal only for a limited tenure of 5 years, on a contract basis. We fail to understand the logic or rationale behind making such a drastic change, that too, without debate and consultation and without calling for views of the concerned persons. This proposed change will cause tremendous harm to one of the finest institutions of India and would irreparably damage one of the main pillars of the judiciary, being judicial independence.
Such change will also act as a barrier for many deserving persons who could otherwise be good Members, because a person having steady employment / good practice would not like to sacrifice his job / practice for an appointment which is only for 5 years on a contract basis, with no guarantee of the future. There will be no incentive for deserving people to join the institution with such a limited and uncertain tenure.
On a more serious note, such appointment for limited period will seriously erode the independent functioning of the Tribunal. The Members so appointed will always be under the mercy of somebody else to let him continue to discharge his judicial function. The persons who accept such limited tenure will have little commitment towards the institution. In either case, this will affect the very foundation of the institution. Moreover, the proposed change can very likely give momentum to unhealthy practices in the discharge of judicial duties and functions in some cases.
6. Sir, we earnestly urge you to kindly peruse the relevant papers so as to appreciate the gravity of the situation. We are prepared to have a dialogue either with your goodself or the concerned authority to explain the severe and damaging effects such change is going to cause. Meanwhile, we request that such rule, if already made effective, should not be implemented, pending further consideration in this regard.
Awaiting your favourable response, we remain.
For ITAT Bar Association
See Also: Judges on Contract!