SC asks Centre how same Tribunals Reforms law enacted after similar provisions were quashed

New Delhi, Nov 10 (PTI) The Supreme Court on Monday asked how the Centre can bring the same Tribunals Reforms law, whose several provisions were quashed by it earlier, with some minor changes and that too without taking away the basis of the judgment.

A bench comprising Chief Justice B R Gavai and Justice K Vinod Chandran was hearing a batch of petitions, including the one filed by the Madras Bar Association, challenging the constitutional validity of the Tribunals Reforms (Rationalisation and Conditions of Service) Act, 2021.

The 2021 Act abolishes certain appellate tribunals, including the Film Certification Appellate Tribunal, and amends various terms related to the appointment and tenure of judicial and other members of various tribunals.

"The issue is how Parliament can enact the same law (which was set aside) with some minor changes here and there. You cannot enact the same law," the CJI observed when Attorney General R Venkataramani urged the bench that Parliament is not precluded from enacting a law based on its experience.

"We are not saying that Parliament cannot enact. But the point is that the same law cannot be enacted again without dealing with the issues raised in the judgment," the bench said.

The petitions have challenged the provisions of the Act on grounds that they violate the principles of judicial independence and the doctrine of separation of powers.

The attorney general defended the legislation, asserting that it was the result of "detailed deliberations" within the government and not "a figment of imagination".

"Parliament has applied its mind to the issues of accountability, trust and efficiency," he said.

Venkataramani said that the 2021 Act represents a balance between judicial independence and administrative efficiency, and that Parliament is within its powers to legislate on the framework governing tribunals.

The top law officer maintained that executive control over appointments, as structured under the Act, was not excessive.

"There is executive participation in appointments, but the veto lies with the chief justice," he noted, underscoring that "there is predominance of judicial members in both the selection and reappointment process".

Addressing concerns over eligibility and reappointment norms, the attorney general said that "experience alone cannot become the sole or rational criterion".

On the issue of short tenure, the law officer said that the Act's provision for a five-year tenure with a single reappointment addressed the Supreme Court's earlier concerns in Roger Mathew (2019), which had criticised short tenures as a deterrent to attracting competent professionals.

"If five years is recognised as a reasonable period and comes with a provision for one reappointment, that would be a good practice to follow," he said.

Venkataramani added that the Act's framework prevents indefinite extensions while still encouraging experienced advocates to join tribunals.

He pointed out that performance, not executive discretion, would determine reappointment.

"There is no question of lack of assurance. Your performance as a judicial member will always tell the story," the attorney general said.

On the broader issue of judicial independence, he said that the law seeks to create a "reasonable balance" between independence and accountability.

"If minimal independence is assured and the executive is observed in a way that is larger than one would visualise, then it is not in non-conformity with judicial independence," Venkataramani said.

He further urged the bench not to "substitute Parliament's understanding with another set of indeterminate criteria".

"Parliament arrives at its understanding on the basis of long experience. To say that these provisions must be replaced without a clear rational basis would not be justified," the top law officer remarked.

The Tribunals Reforms Act, 2021 replaced the earlier Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, which had drawn similar constitutional challenges.

Earlier, the bench expressed strong displeasure over the Centre's request to adjourn the hearing on a batch of pleas. It took strong note of the Centre's application seeking a direction to refer to a five-judge bench the pleas challenging the provisions of the 2021 law, saying that it did not expect this from the government at the fag end of the final hearing.

The top court had struck down the provision of the ordinance that reduced the tenure of tribunal members and chairpersons to four years, noting that a short term of office could encourage executive influence over the judiciary.

It had held that the tenure must be five years to ensure security of service, with a maximum age of 70 for chairpersons and 67 for members.

The bench had also struck down the minimum age of 50 for appointments to tribunals.

It stressed the need to induct younger members to ensure the judiciary remains robust and vibrant, stating that a minimum of 10 years of practice should be a sufficient qualification for judicial members, similar to what is required for high court judges.

The verdict had also rejected the government's power to make appointments from a panel of two names recommended by the Search-cum-Selection Committee.

The ordinance was promulgated in April 2021.

After the apex court verdict, the government in August introduced and passed the Tribunals Reforms Act with provisions almost identical to those that were struck down. PTI SJK SJK KSS KSS