The infamous ‘Tribunals, Appellate Tribunals and Other Authorities (Qualifications, Experience And Other Conditions of Service of Members) Rules, 2017‘ is under attack from several fronts. The Supreme Court will now examine whether the Rules, which seek to appoint the Members of the Tribunal for a limited period, and which make the appointment and removal of the Members the sole prerogative of the Government, is valid in law
Representations by Bar Associations
It may be recalled that the ITAT Bar Association has filed a detailed representation in which it has pointed out that the procedure relating to the selection, tenure and removal of the Members would adversely affect the judicial independence of the ITAT.
Opposition by legal luminaries
Eminent Jurists including RM Lodha, the former Chief Justice of India, and Arvind Datar, Senior Advocate, have slammed the move of the Government to interfere in the appointment and removal of the Members of the Tribunal.
Dr. K. Shivaram, Senior Advocate, has warned that that the new provisions will be a dampener for any person proposing to throw his hat for career of a Member. The sword of an uncertain career will always hang over his head and the uncertainty of renewal of his tenure would also affect the free working of his judicial mind. It is also emphasized that the fear of consequences of giving a bold decision against the Government would be uppermost in his mind as he may foresee non renewal of his tenure as retaliatory punishment, he said.
Supreme Court issues notice
The latest development is that the Bar Association of the Central Administrative Tribunal (CAT) has filed a Writ Petition in the Supreme Court (Writ Petition (Civil) No. 640 of 2017) challenging the constitutional validity of certain provisions of the Finance Act.
It is claimed in the Petition that the ‘Tribunals, Appellate Tribunals and Other Authorities (qualifications, experience and other conditions of service of members) Rules, 2017’ weakens the functioning of the Tribunals and curtails their powers.
It is also pointed out that the power of the judiciary has been compromised by the provisions of the new law.
Earlier, the Chief Justice of India (CJI) or his nominee had a role in selection of the Members of the Tribunals.
However, under the new rules, the search-cum-selection committee will be headed by a nominee of the central government and the judiciary has no role to play.
“Because of the provisions of the new Act, the power of your Lordships have been taken away as the final authority in deciding the members of the tribunals which used to rest with the CJI,” CA Sundaram, senior advocate, argued before the Supreme Court.
The Bench comprising of the Hon’ble Chief Justice and Justice D. Y. Chandrachud, issued notice to the Center to respond to the Petition.
Similar petitions have been filed in the Supreme Court by Congress leader Jairam Ramesh and an NGO named ‘Social Action for Forest and Environment (SAFE)’.
Writ Petitions in the High Courts
Writ Petitions challenging the amendments to the Finance Act and the Tribunal Members’ Rules have also been filed in the Bombay, Delhi and Madras High Courts.
It is likely that these petitions may be transferred to the Supreme Court as that Court is already seized of the matter.
ITAT Bar Association to intervene
The ITAT Bar Association, Mumbai, is examining the feasibility of intervening in the matter and of drawing the attention of the Bench to the perils of the Rules with specific reference to the ITAT.