2009 (4) TMI 13 - HC - Customs

Arbitrariness legality and constitutional validity of Section 129 of the Customs Act 1962 - petitioner was prevented from appearing for his client before CESTAT s.s. (6) inserted to S. 129 which debar member/president/vice-president of the CESTAT to appear act and/or plead on their demitting office before the very same Tribunal held that challenge to the provisions of Section 129(6) of the Customs Act cannot sustained on any of the ground petition dismissed

Issues Involved:
1. Constitutionality of Section 129(6) of the Customs Act, 1962.
2. Applicability of Section 129(6) to petitioners who demitted office before its enactment.
3. Alleged violation of Articles 14, 19(1)(g), and 21 of the Constitution of India.
4. Impact of the prohibition on the right to practice as an advocate or authorized representative.

Detailed Analysis:

Constitutionality of Section 129(6) of the Customs Act, 1962:
The petitioners challenged Section 129(6) of the Customs Act, which bars former members, vice-presidents, and presidents of the Customs Excise Service Tax Appellate Tribunal (CESTAT) from appearing, acting, or pleading before the Tribunal. They argued that the provision is ultravires Articles 14, 19(1)(g), and 21 of the Constitution of India. The court noted that the legislative intent behind the provision was to prevent potential bias and maintain public confidence in the administration of justice. The court upheld the constitutionality of the provision, emphasizing that it was a reasonable restriction aimed at ensuring impartiality and integrity in the judicial process.

Applicability of Section 129(6) to Petitioners:
The petitioners contended that Section 129(6) should not apply to them as it was not in effect when they were appointed or when they demitted office. They relied on the judgment in Sukumar Mukherjee vs State of West Bengal & Anr., arguing that they could not be bound by a conditionality of which they had no notice. The court rejected this argument, stating that the prohibition applies to the right to practice and not a condition of service. The court clarified that the provision is prospective in nature and applies to anyone who has ceased to hold office, regardless of when they demitted office.

Alleged Violation of Articles 14, 19(1)(g), and 21:
The petitioners argued that Section 129(6) violates Article 14 (equality before the law) by discriminating against members of CESTAT while members of other tribunals, such as the Income Tax Appellate Tribunal, are not similarly barred. They also contended that it infringes their right to practice their profession under Article 19(1)(g) and their right to livelihood under Article 21. The court found these arguments untenable. It held that the provision is not discriminatory but reformatory, aimed at enhancing the administration of justice. The court also noted that the restriction is reasonable and does not completely prohibit the petitioners from practicing their profession, as they can still appear before higher forums like the High Courts and the Supreme Court.

Impact on Right to Practice:
The petitioners claimed that the prohibition unduly restricts their right to practice as advocates or authorized representatives. The court observed that the right to practice is not absolute and can be regulated. It cited precedents where similar restrictions were upheld to maintain the integrity and impartiality of judicial and quasi-judicial bodies. The court emphasized that the prohibition is limited to CESTAT and does not prevent the petitioners from practicing in other forums. It also highlighted that the petitioners' expertise could be utilized in higher courts, thereby fostering new talent at the tribunal level.

Conclusion:
The court dismissed all four writ petitions, upholding the validity and applicability of Section 129(6) of the Customs Act. It concluded that the provision is a reasonable restriction aimed at ensuring impartiality and public confidence in the administration of justice, and does not violate the petitioners' constitutional rights.

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