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TMI Blog2019 (11) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... s (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 suffer from various infirmities as observed earlier. These Rules formulated by the Central Government under Section 184 of the Finance Act, 2017 being contrary to the parent enactment and the principles envisaged in the Constitution as interpreted by this Court, are hereby struck down in entirety. (iv) The Central Government is accordingly directed to re-formulate the Rules strictly in conformity and in accordance with the principles delineated by this Court in R.K. Jain (supra), L. Chandra Kumar (supra), Madras Bar Association (supra) and Gujarat Urja Vikas Ltd. (supra) conjointly read with the observations made in the earlier part of this decision. (v) The new set of Rules to be formulated by the Central Government shall ensure non-discriminatory and uniform conditions of service, including assured tenure, keeping in mind the fact that the Chairperson and Members appointed after retirement and those who are appointed from the Bar or from other specialised professions/services, constitute two separate and distinct homogeneous classes. (vi) It would be open to the Central Government to provide in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause (1) of Article 110 and concludes that Part XIV of the Finance Act 2017 could not have been validly enacted as a Money Bill, I am in agreement with the reasons which have been set out by the learned Chief Justice of India to refer the aspect of money bill to a larger Bench and direct accordingly. I am in agreement with the observations of brother Justice Deepak Gupta that the qualifications of members to tribunals constitute an essential legislative function and cannot be delegated. Tribunals have been conceptualized as specialized bodies with domain-specific knowledge expertise. Indispensable to this specialized adjudicatory function is the selection of members trained in their discipline. Keeping this in mind, the prescription of qualifications for members of tribunals is a legislative function in its most essential character. Deepak Gupta, J. I am in total agreement with the Chief Justice in as much as he has held that the decision of the Hon ble Speaker of the House of People under Article 110 (3) of the Constitution is not beyond judicial review. I also agree with his views that keeping in view of the high office of the Speaker, the scope of judicial review in such matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rakash Ranjan Nayak, AOR Mr. Gorang Goyal, Adv. Ms. Shivani Kapoor, Adv. Mr. Sidharth Luthra, Sr. Adv. Mr. Alok Dhir, Adv. Ms. Maneesha Dhir, Adv. Mr. Sachin Gupta, Adv. Mr. Ashu Kansal, Adv. Mr. Karan Batura, Adv. Ms. Anushree Prashit Kapadia, AOR Mr. K. Krishna Kumar, AOR Ms. Archana Pathak Dave, AOR For the Respondent : Mr. K.K. Venugopal, AG Mr. Tushar Mehta, SG Ms. Madhavi Divan, ASG Mr. R. Balasubramanian, Sr. Adv. Mr. Zoheb Hossain, AOR Ms. Shraddha Deshmukh, Adv. Ms. Binu Tamta, Adv. Mr. Piyush Goyal, Adv. Mr. Vivek Gurnani, Adv. Mr. Arvind Kumar Sharma, Adv. Ms. Chinmayee Chandra, Adv. Mr. Rajat Nair, Adv. Mr. Kanu Agrawal, Adv. Mr. Manan Popli, Adv. Mr. Rajeev Ranjan, Adv. Mr. Shantanu Sharma, Adv. Mr. Varun Chugh, Adv. Mr. Buhwan Kapoor, Adv. Mr. Mukesh Kumar Maroria, AOR Mr. Raj Bahadur Yadav, AOR Mr. P. I. Jose, AOR Mr. Harikumar V., Adv. Mr. Ashok Mathur, AOR Mr. Ajay Veer Singh, Adv. Mr. Uday Ram Bokadir, Adv. Mr. Sonal Jain, AOR Mrs. Anil Katiyar, AOR Mr. E. C. Agrawala, AOR M/s. Saharya Co. Ms. Diksha Rai, AOR Mr. Ajay Bansal, Adv. Mr. Gaurav Yadava, Adv. Ms. Veena Bansal, Adv. Mr. K.S. Namdar, Sr. Adv. Mr. hitesh Kumar Sharma, Adv. Mr. S.K. Rajora, Adv. Ms. Anika ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssible, under a single nodal ministry which will be in a position to oversee the working of these tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law. It would be open for the Ministry, in its turn, to appoint an independent supervisory body to oversee the working of the Tribunals. 6. Thereafter on the same day, this Court opined as follows: Tentatively, we are of the view that the said directions ought to have been implemented by the Government of India long back. In the course of hearing today, learned Attorney General for India relying on an affidavit filed on behalf of the Union of India in the year 2013, had pointed out certain difficulties including the need for an amendment of the Government of India (Allocation of Business) Rules, 1961. Learned Attorney General has also pointed out that the Ministry of Law and Justice is overburdened and may not be able to act and function as the nodal agency, which the Court had in mind while issuing directions way back in the year 1997 in L. Chandra Kumar (supra). There cannot by any manner of doubt that to ensure the efficient functioning and to streamline the working of Tribunals, they should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Rojer Mathew claimed that the aforementioned provision violated his rights under Article 300A and Article 14 of the Constitution, besides being in contravention of the Code of Civil Procedure which prohibits mortgagees from participating in auction of immovable property without prior Court permission. 8. During the course of arguments, it was brought to the notice of this Court that appointments to the Debt Recovery Tribunals was not in consonance with the Constitutional spirit of judicial independence. Accordingly, though Rojer Mathew was given an opportunity to approach the High Court for reconsideration of his plea on 16th May, 2018, nevertheless this Court kept his petition pending to allow consideration of broader issues concerning restructuring of Tribunals. Assistance of Shri Arvind P. Datar, Sr. Advocate as Amicus Curiae was also requested by this Court. 9. The third matter to be taken note of is Writ Petition (Civil) No. 279/2017 where the petitioner, Kudrat Sandhu, has filed a Public Interest Litigation challenging the vires of Part XIV of the Finance Act, 2017 by which the provisions of twenty-five different enactments were amended to effect sweeping changes to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hmichand AIR 1963 SC 677, a test was laid down whereunder it is to be examined whether the authority has the trappings of a Court, facets of which include the authority to make determinations, evidentiary and procedural powers and ability to impose sanctions. However, per a five-judge bench in Associated Cement Co. Ltd. v. PN Sharma AIR 1965 SC 1595, Tribunals were vested with a primarily judicial character for it was observed that: 9. .. Special matters and questions are entrusted to them for their decision and in that sense, they share with the courts one common characteristic; both the courts and the tribunals are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions , (vide Durga Shankar Mehta v. Thakur Raghuraj Singh [(1955) 1 SCR 267 at p. 272] ). They are both adjudicating bodies and they deal with and finally determine disputes between parties which are entrusted to their jurisdiction. The procedure followed by the courts is regularly prescribed and in discharging their functions and exercising their powers, the courts have to conform to that procedure. The procedure which the tribunals have to follow may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reduce the burden on Constitutional Courts and ensure faster resolution of specific disputes. Almost all countries in the world have incorporated laws pertaining to the working of Tribunals within their Constitutional framework in some form or the other. In light of our common law traditions and colonial history, it would be imperative to examine the position of law across the world: I. United Kingdom 17. Tribunals are one of the most important institutions in the dispensation of justice in the British Judicial system. Numerous Tribunals have been established to deal with issues involving property rights, employment, immigration, mental health, etc. Their functions are similar to the mainstream judicial bodies and are concerned with disputes between individuals and the State. However, there is a stark distinction between Tribunals and Ordinary Courts in England; for unlike ordinary Courts, the Tribunals comprise of members with special expertise and experience with many of them being appointed from amongst advocates or from persons with technical exposure. 18. Such tribunalisation traces its origins to the early twentieth century. The efficacy of a specialised, quasi-judicial body ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Tribunals are not ordinary courts, but neither are they appendages of Government Departments. Much of the official evidence appeared to reflect the view that tribunals should properly be regarded as part of the machinery of administration, for which the Government must retain a close and continuing responsibility. Thus, for example, tribunals in the social services field would be regarded as adjuncts to the administration of the services themselves. We do not accept this view. We consider that tribunals should properly be regarded as machinery provided by Parliament for adjudication rather than as part of the machinery of administration. The essential point is that in all these cases Parliament has deliberately provided for a decision outside and independent of the Department concerned, either at first instance or on appeal from a decision of a Minister or of an official in a special statutory position Although the relevant statutes do not in all cases expressly enact that tribunals are to consist entirely of persons outside the Government service, the use of the term tribunal in legislation undoubtedly bears this connotation, and the intention of Parliament to provide for the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and are outside the general Court system; their decisions are subject to Judicial Review to ensure adherence to law. In a striking resemblance to our judicial system, the Canadian Constitution also provides inherent power of judicial review of decisions of Tribunals to superior Courts, where either no provision of appeal is provided or is specifically barred by a statute. Appeals from orders of Tribunals in Canada are heard by Federal Court of Canada, the immediate forum below the Supreme Court of Canada. III. Australia 25. The Australian system of Tribunals is an amalgamation of the system prevalent in England and Canada. Tribunals in Australia were established primarily to reduce the burden on Civil Courts and provide an effective, yet cheap means of justice for the public. There prevails a variety of Tribunals to review different types of Government decisions including social security, taxation, etc. The Tribunals serve a multifarious purpose, deciding issues between individuals and individuals State. For instance, in several Australian States, the Tribunals work as Small Claims Courts. The Court of Appeals is a facet of the Supreme Court, enjoying appellate powers over all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outh Africa having similar colonial origins as India, inherited a similar legal system as India. Having multiple functions and discharging a range of judicial, DOMESTIC PERCEPTION: 30. It is interesting to note that establishment of Tribunals in India relate back to as early as the year 1941 when the Income Tax Appellate Tribunal (ITAT) was established to expedite tax disputes. To structuralise the establishment of Tribunals, vide the 42nd Constitutional Amendment, Article 323A and 323B were introduced, delineating powers as well as the composition and formation of Tribunals. Numerous Tribunals thereafter have been established, with the source of power to legislate for establishing such tribunals being referable to Article 323A or Article 323B of the Constitution. The three-tier tribunal system in India finds its resemblance to the system as prevalent in France. The forums of first instance have Original Jurisdiction with High Court as the Appellate Court and the Supreme Court being the final adjudicatory body. Furthermore, it is not out of context to point out the similarity of the Constitution of India with the Canadian Constitution, insofar as it also provides inherent power of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shows that they are best suited to deal with complex subject-matters requiring technical expertise such as service law, tax law, company law or environment law, etc. LEGISLATIVE DEVELOPMENT OF TRIBUNALISATION : 38. In India, the Constitution (42nd Amendment) Act, 1976 paved way for tribunalisation of the justice dispensation system by introduction of Articles 323A and 323B in the Constitution. These provisions are to the following effect: PART XIV-A: TRIBUNALS 323-A. Administrative tribunals. (1) Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government. (2) A law made under clause (1) may (a) provide for the establishment of an administrative tribunal for the Union and a separate administrative tribunal for each State or for two or more States; (b) specify the jurisdiction, powers (including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may, by public notification, declare to be essential goods for the purpose of this article and control of prices of such goods; (h) rent, its regulation and control and tenancy issues including the right, title and interest of landlords and tenants; (i) offences against laws with respect to any of the matters specified in sub-clauses (a) to (h) and fees in respect of any of those matters; (j) any matter incidental to any of the matters specified in sub-clauses (a) to (i). (3) A law made under clause (1) may (a) provide for the establishment of a hierarchy of tribunals; (b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals; (c) provide for the procedure (including provisions as to limitation and rules of evidence) to be followed by the said tribunals; (d) exclude the jurisdiction of all courts except the jurisdiction of the Supreme Court under Article 136 with respect to all or any of the matters falling within the jurisdiction of the said tribunals; (e) provide for the transfer to each such tribunal of any cases pending before any court or any other authority immediately before the estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or offences with respect to the matters specified in Clause (2) of the said Article. The matters specified in Article 323B(2) exhaustively deal with a variety of matters which can be brought within the purview of tribunalisation by both the Parliament and State Legislatures. JUDICIAL DEVELOPMENT OF TRIBUNALISATION : 43. This Court has observed through numerous decisions that the term Tribunal refers to a quasi-judicial authority. A test to determine whether a particular body was merely an administrative organ of the Executive or a Tribunal was evolved by this Court in Jaswant Sugar Mills Ltd., Meerut vs. Lakshmichand AIR 1963 SC 677. It was to be examined whether the body is vested with powers of a Civil Court or not, and it was held that any adjudicatory body vested with powers of taking evidence, summoning of witnesses, etc. must be categorised as a Tribunal. 44. In R.K. Jain vs. Union of India (1993) 4 SCC 119 a three-judge Bench of this Court emphasised the need for a safe and sound justice delivery system adept at satisfying the confidence of litigants. It was further noted that since members of Tribunals discharge quasi-judicial functions, it is imperative that they possess r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India vs. R. Gandhi, President, Madras Bar Association (2010) 11 SCC 1, a Constitution Bench of five judges of this Court reviewed the Constitutional validity of Parts I-B and I-C of The Companies Act, 1956 inserted by the Companies (2nd Amendment) Act, 2002. 48. The bench observed that if Tribunals are established in substitution of Courts, they must also possess independence, security and capacity. Additionally, with transfer of jurisdiction from a traditional Court to a Tribunal, it would be imperative to include members of the judiciary as presiding officers/members of the Tribunal. Technical members could only be in addition to judicial members and that also only when specialised knowledge or know-how is required. Any inclusion of technical members in the absence of any discernible requirement of specialisation would amount to dilution and encroachment upon the independence of the judiciary. 49. This Court also observed that higher administrative experience does not necessarily result in better adjudication and that there had been a gradual encroachment on the independence of the judiciary through inclusion of more administrative/technical members in the Tribunals. It h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of sub-section (3) are not valid. (iv) The first part of clause (f) of sub-section (3) providing that any person having special knowledge or professional experience of 20 years in science, technology, economics, banking, industry could be considered to be persons with expertise in company law, for being appointed as technical members in the Company Law Tribunal, is invalid. (v) Persons having ability, integrity, standing and special knowledge and professional experience of not less than fifteen years in industrial finance, industrial management, industrial reconstruction, investment and accountancy, may however be considered as persons having expertise in rehabilitation/revival of companies and therefore, eligible for being considered for appointment as technical members. (vi) In regard to category of persons referred in clause (g) of sub-section (3) at least five years' experience should be specified. (vii) Only clauses (c), (d), (e), (g), (h), and the latter part of clause (f) in sub-section (3) of Section 10-FD and officers of civil services of the rank of the Secretary or Additional Secretary in the Indian Company Law Service and the Indian Legal Service can be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned. (xiii) Two-member Benches of the Tribunal should always have a judicial member. Whenever any larger or special Benches are constituted, the number of technical members shall not exceed the judicial members. 50. Later, in Madras Bar Association vs. Union of India (2014) 10 SCC 1, whilst striking down the newly-created National Tax Tribunal under the National Tax Tribunals Act, 2005, it was observed that procedure of appointment and conditions of service of members must be akin to judges of the Courts which were sought to be substituted by the Tribunal(s). 51. Only persons with professional legal qualifications coupled with substantial experience in law were held to be competent to handle complex legal issues. It was further held that a litigating party (Govt.) should never be a participant in the appointment process of members of the Tribunal. Similarly, a provision for reappointment or extension of tenure is ipso facto prejudicial to the independence of the members of Tribunal. A difference was also drawn between appointments to Tribunals which substituted Courts of first instance and to those which were not subordinate to High Courts. 52. It was further reiterated that es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Finance Act, 2017 discloses how by virtue of Sections 158 to 182, Parliament has amended twenty-five central enactments which form the foundation for multiple Tribunals. It has been submitted by the learned Attorney General, these amendments seek to rationalise the functioning of Tribunals, in conformity with the principles laid down by this Court in its prior decisions. 57. Sections 158 to 182 of Part-XIV are broadly in pari materia except that each Section deals with a separate Tribunal. In order to comprehend the manner in which Parliament has sought to achieve a uniform pattern of qualifications, appointment, term of office, salaries and allowances, resignation, removal and other terms and conditions of service of members and presiding officers of various Tribunals, it would be sufficient to illustratively reproduce Sections 158 and 173 of Part XIV of the Finance Act, 2017. Section 173 reads as follows: I. AMENDMENT TO THE CINEMATOGRAPH ACT, 1952 173. In the Cinematograph Act, 1952, after section 5D, the following section shall be inserted, namely: 5E. Notwithstanding anything contained in this Act, the qualifications, appointment, term of office, salaries and allowances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstante clause and it provides that notwithstanding anything contained in Act the qualifications, appointment, term of office, salaries and allowances, resignation, removal and the other terms and conditions of service of the Chairman and other members of the Appellate Tribunal appointed after the commencement of Part XIV of Chapter VI of the Finance Act, 2017, shall be governed by the provisions of section 184 of that Act . Second, Section 184 of the Finance Act overrides all other provisions in both the Finance Act, 2017 as well as the other twenty-five enactments which stand amended. 60. To critical analyse the intention of the legislature in enacting Section 184, reference must be made to the immediately preceding Section 183 which is to be found in sub-part S of the Act titled Conditions of service of Chairpersons and members of Tribunals, Appellate Tribunals and other Authorities . Since Sections 183 and 184 would need to be read conjointly, both are reproduced below: S. CONDITIONS OF SERVICE OF CHAIRPERSON AND MEMBERS OF TRIBUNALS, APPELLATE TRIBUNALS AND OTHER AUTHORITIES 183. Application of Section 184. Notwithstanding anything to the contrary contained in the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms and conditions of service of Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice- President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authority may be varied to his disadvantage after his appointment. 61. Further, the Central Government in purported exercise of its powers under the aforementioned provisions, has notified the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 [in short the Rules ]. PETITIONERS CASE : 62. The pleadings and arguments in most of the individual cases are similar and overlapping. Hence, for the sake of brevity, it is not necessary to refer to the submissions of each of the counsel individually. Broadly, however, petitioners have questioned the validity of Part XIV read with the 8th and 9th Schedules of the Finance Act 2017, as being ex-facie unconstitutional, arbitrary, in colourable exercise of legislative power, and offensive to the basic structure of the Constitution. 63. The foremost contention on behalf of the petitioners is that Part-XIV could not and ought not to have been made part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries was contended to suffer from the vice of excessive delegation. It was stated that the said provision takes away all judicial safeguards and makes the Tribunals amenable to the whims and fancies of the largest litigant, the State. This was contended as being against the grain of the Constitution, besides affecting administration of justice. In the alternative, counsels also contended that the present formulation of Rules under Section 184 was ultra vires the parent enactment and the binding dictum expressed by this Court in a catena of judgments. 68. Further, during the course of arguments, various other deficiencies and contradictions in the administration of Tribunals and certain anomalous situations like providing direct appeals to this Court were highlighted, which were contended as being against the spirit of the Constitution. Petitioners, in addition to challenging the vires of the Finance Act, 2017 also prayed for a mandamus directing the State to mandatorily conduct Judicial Impact Assessment of legislations. UNION OF INDIA S CASE : 69. Learned Attorney General, on the other hand, passionately drew attention to the existence of over 40 tribunals, statutory commissions, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduced in the Rajya Sabha on 14th February, 2014 but somehow could not be passed. Introducing separate amendments for each of these Tribunals would have been unwieldy and impractical, besides resulting in several inconsistencies. Resultantly, he submits a holistic view was taken and a single enactment was sought to be introduced in order to harmoniously bring uniformity. 72. On behalf of the Union, the petitioners contentions were elaborately refuted. It was submitted that it is a settled principle of Constitutional interpretation that terms of the Constitution, including Clauses (a) to (g) of Article 110(1), must be interpreted in their widest amplitude, with the result that when the principal enactment had the dominant character of a money bill , all matters incidental thereto and inserted therein would also draw the colour and characteristic of a money bill . 73. In the alternative, he took aid of Clause (3) of Article 110 to contend that the Speaker of the Lok Sabha was the final and only Constitutional authority to adjudge the nature of a bill sought to be introduced under Article 109. Such decision was both final and hence not subject to any judicial review by any Court; eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ept the fourth and fifth suggestions reproduced above, and suggested certain modifications as follows: 4. All appointments to be made in pursuance to the selection made by the interim Search-cum-Selection Committee shall abide by the conditions of service as per the old Acts and the Rules. 5. A further direction to the effect that all the selections made by the aforementioned interim selection committee and the consequential appointment of all the selectees as Chairman/Judicial/Administrative members shall be for a period as has been provided in the old Acts and the Rules. 77. This Court agreed to the learned Attorney General s suggestions and accordingly made the following operative directions: In view of the aforesaid, we accept the suggestions and direct that the same shall be made applicable for selection of the Chairpersons and the Judicial/Administrative/ Technical/Expert Members for all tribunals. 78. Since many of the Search-cum-Selection Committees had initiated selection processes and had completed a substantial portion of the exercise prior to the above order dated 9th February, 2018, this Court, on 12th February, 2018 passed the following order: As some Committees had p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y continued until the date of superannuation in the state judicial service, subject to the service rules. It would be manifestly inappropriate to adopt an interpretation as a result of which, upon assuming office as Member (Judicial) in CESTAT the officer will have a tenure which will expire after five years, if it falls prior to attaining the age of 62 years. We, accordingly, are of the view that the clarification issued for the ITAT in the order dated 20 March 2018 needs to be reiterated in the case of the members of the CESTAT, which we do. We clarify that a person selected as Member of the CESTAT will continue until the age of 62 years while a person holding the post of President shall continue until the age of 65 years. AFT: 3. Members of the Armed Forces Tribunal shall hold office until the attainment of the age of 65 years. Chairpersons who have been former Judges of the Supreme Court shall hold office until the attainment of the age of 70 years. CAT: 4. In the case of the Central Administrative Tribunal, we clarify that the old rules/provisions shall continue to apply. CONCEPT NOTE OF LEARNED AMICUS CURIAE : 82. On the request of this Court, learned Senior Advocate Arvind D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adly approve the concept of having an effective and autonomous oversight body for all the Tribunals with such exceptions as may be inevitable. Such body should be responsible for recruitments and oversight of functioning of members of the Tribunals. Regular cadre for Tribunals may be necessary. Learned amicus suggests setting up of all India Tribunal service on the pattern of U.K. The members can be drawn either from the serving officers in Higher Judicial Service or directly recruited with appropriate qualifications by national competition. Their performance and functioning must be reviewed by an independent body in the same was as superintendence by the High Court under Article 235 of the Constitution. Direct appeals must be checked. Members of the Tribunals should not only be eligible for appointment to the High Courts but a mechanism should be considered whereby due consideration is given to them on the same pattern on which it is given to the members of Higher Judicial Service. This may help the High Courts to have requisite talent to deal with issues which arise from decisions of Tribunals. A regular cadre for the Tribunals can be on the pattern of cadres for the judiciary. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to the need to rationalise the administration of Tribunals, especially the conditions of service, mode of appointment, security of tenure and requisite qualifications of members and presiding officers of various Tribunals. They have also highlighted the growing menace of pendency before this Court arising from direct statutory appeals from orders of such Tribunals. 92. In light of these arguments put forth by learned Counsels and the suggestions of by the Amicus Curiae, the following issues arise for our consideration: I. Whether the Finance Act, 2017 insofar as it amends certain other enactments and alters conditions of service of persons manning different Tribunals can be termed as a money bill under Article 110 and consequently is validly enacted? II. If the answer to the above is in the affirmative then Whether Section 184 of the Finance Act, 2017 is unconstitutional on account of Excessive Delegation? III. If Section 184 is valid, Whether Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 are in consonance with the Principal Act and various decisions of this Court on functioning of Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... States. (3) If the House of the People accepts any of the recommendations of the Council of States, the Money Bill shall be deemed to have been passed by both Houses with the amendments recommended by the Council of States and accepted by the House of the People. (4) If the House of the People does not accept any of the recommendations of the Council of States, the Money Bill shall be deemed to have been passed by both Houses in the form in which it was passed by the House of the People without any of the amendments recommended by the Council of States. (5) If a Money Bill passed by the House of the People and transmitted to the Council of States for its recommendations is not returned to the House of the People within the said period of fourteen days, it shall be deemed to have been passed by both Houses at the expiration of the said period in the form in which it was passed by the House of the People. 110. (1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely: (a) the imposition, abolition, remission, alteration or regulation of any tax; (b) the regulation of the borr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Presidential ratification and thereafter it becomes valid law. 96. Such an exceptional provision has its roots in British tradition and is an inheritance of the Westminster form of government. The Parliament Act of 1911 was formulated by the United Kingdom Parliament in response to the Constitutional crisis of 1909 whereby the unelected Upper House (House of Lords) had stalled important budgetary bills passed by the elected Lower House (House of Commons), causing a governmental crisis and forcing the elected government to resign and seek re-election. Through Section 3, the said enactment required the Speaker of the House of Commons to certify that the bill was a money bill and post such certification, the Upper House would forfeit its ability to amend or veto the bill. Further, it also allowed public bills to become law irrespective of refusal by the House of Lords, in case the House of Commons had passed the same draft thrice in a minimum span of two years. It must be noted that the Indian adaptation under Article 109 and 110 do not have exceptions for public bills nor do they explicitly provide that such certification shall not be amenable to judicial review unlike in the Parliam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ket exemption were to be granted, then it would open the floodgates to deviation from any Constitutional provision governing the functioning of Parliament and its legislative procedure. Since the Constitution explicitly provides a self-contained detailed procedure for enactment of legislation, and does not suggest that mere assent of the President to a law, by whatsoever method adopted, would become a valid law, it is necessary that this Court being the highest Constitutional forum for judicial review is provided with enough space for enforcement and protection of the Constitutional scheme. A perusal of the expressions used in Article 122 and a comparison with its British roots make it clear that the proceedings referred to include the power of the Parliament to frame its own rules, set out procedures for debate and discussion and powers to enforce disciple. Section 3 of the Parliament Act, 1911 in the United Kingdom makes the decision of the Speaker of the House of Commons conclusive for all purposes and shall not be questioned in any court of law . The Constitution of India however, under Article 110(3), states that if any question arises whether a Bill is a Money Bill or not, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e President. Reading of the above decisions exposit that finality of decisions under the Constitution has been subject to judicial review by the Courts. However, the jurisdiction exercisable by the Courts in such matters is rather limited and is subject to the satisfaction of specific conditions as discussed. We find no good ground and reason to take a different view with respect to the power of judicial review against certification of a bill as a Money Bill by the Speaker under Article 110(4). Article 110(3) which makes this decision final qua both the Houses of Parliament and Article 122(1) which prohibits review by the courts in matters of irregularity of procedure cannot operate as a bar when a challenge is made on the ground of illegality or unconstitutionality under the Constitutional scheme. 103. Determining whether an impugned action or breach is an exempted irregularity or a justiciable illegality is a matter of judicial interpretation and would undoubtedly fall within the ambit of Courts and cannot be left to the sole authority of the Parliament to decide. Such a position has also been taken in the United Kingdom by the House of Lords in R (Jackson) vs. Attorney General [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of money bill accorded by the Speaker to the Orissa Special Courts Bill noting that it was settled post Mohd. Siddiqui (supra) that any such certification would be an irregularity and not a substantiality . 108. A co-ordinate bench of this Court in Justice Puttaswamy (Retd.) and Anr. v. Union of India (2019) 1 SCC 1, was tasked with a similar question of the certification of money bill accorded to the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 by the Speaker of the Lok Sabha. The majority opinion after noting the important role of the Rajya Sabha in a bicameral legislative setup, observed that Article 110 being an exceptional provision, must be interpreted narrowly. Although the majority opinion did not examine the correctness of the decisions in Md. Siddiqui (supra) and Yogendra Kumar Jaiswal (supra) or conclusively pronounce on the scope of jurisdiction or power of this Court to judicially review certification by the Speaker under Article 110(3), yet, it independently reached a conclusion that the impugned enactment fell within the four-corners of Articles 110(1) and hence was a money bill . The minority view rendered, ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmination of services and payment of compensation to presiding officers and members of certain tribunals that have now become de-funct. 113. Interpretation of Article 110 was made by a coordinate Constitution Bench in K.S. Puttaswamy (Aadhaar-5) and is relied upon by both sides. 114. The majority judgment in K.S. Puttaswamy (Aadhaar-5) under the heading Money Bill , in paragraph 448 and then in paragraphs 452 to 461, had recorded the submissions made by the learned counsel, including the submission made on behalf of the petitioners relying upon the word only appearing in Article 110 which defines a Money Bill . With regard to the interpretation to be given to the meaning of the word only , reliance was placed on Hari Ram v. Babu Gopal Prasad (1991) Supp. 2 SCC 608 and M/s Saru Smelting (P) Ltd. v. Commissioner of Sales Tax, Lucknow (1993) Supp. 3 SCC 97. The majority judgment had thereupon referred to the power of judicial review notwithstanding the use of the word final with reference to the power of the Speaker under Article 110(3) of the Constitution, an aspect which we have already answered earlier, and examined Section 7 of the Aadhaar Act to observe it is also accepted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easing the amount of expenditure) and, therefore, Section 7 of the Aadhaar Act did not have the effect of making the bill a Money Bill as it did not declare the expenditure incurred on services, benefits or subsidies to be a charge on the Consolidated Fund of India. Section 7 mandates Aadhaar for availing services, benefits or subsidies which were already charged to the Consolidated Fund of India. However, this view was not accepted by the majority judgment. 117. In the context of Article 110(1) of the Constitution, use of the word only in relation to sub-clauses (a) to (f) pose an interesting, albeit a difficult question which was not examined and answered by the majority judgment in K.S. Puttaswamy (Aadhaar-5). While it may be easier to decipher a bill relating to imposition, abolition, remission, alteration or regulation of any tax, difficulties would arise in the interpretation of Article 110(1) specifically with reference to sub-clauses (b) to (f) in a bill relating to borrowing of money or giving of any guarantee by the Government of India, or an amendment of law concerning financial obligation. In the book, Practices and Procedures of Parliament by Kaul and Shakdher, it is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10(1) of the Constitution. Further, determination of what constitutes paramount and cardinal purpose of the legislation and the test applicable to determine this compunction and incertitude itself is not free from ambiguity. Difficulties would arise with reference to subclauses (b), (c), (d) and (e) of Article 110(1), when we apply the principles of dominant or the main purpose of an enactment test. Sub-clause (c) to Article 110(1) refers to payment of monies into or withdrawal of monies from the Consolidated Fund of India. Sub-clause (d) refers to appropriation of monies out of the Consolidated Fund of India. Sub-clause (e) refers to declaration of any expenditure charged on the Consolidated Fund of India or increasing of the amount of such expenditure. Sub-clause (f) relates to receipt of money on account of Consolidated Fund of India or Public Account of India or issue of such money or the audit of the accounts of the Union or of State. Even clause (b) in its amplitude includes an amendment of the law in respect of a financial obligation undertaken or to be undertaken by the Government of India. Once we hold that the decision of the Speaker under clause (3) of Article 110 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rroneous, for it only regulated procedure for withdrawal by imposing a requirement for authentication and did not declare any expenditure to be a charge on the Consolidated Fund of India. They had contended that the interpretation of the enactment by the majority judgement was constitutionally inexact and that a similar analysis ought not to be made in the present case. The petitioners, therefore, contend that every impugned provision be individually examined and brought either under Article 110(1)(a) to (f) or be incidental thereto, as permitted by Article 110(g). In case even a single provision did not satisfy either of the aforementioned two categories, then the entire Finance Act, 2017 would be an affront to the prefatory phraseology of Article 110(1) and must be declared as being unconstitutional. 121. However, the learned Attorney General has propounded that constitutionality of the Finance Act, 2017 would be safe if its dominant provisions, which form the core of the enactment, fall within the ambit of Article 110(1)(a) to (f). Other minor provisions, even if not strictly incidental, could take the dominant colour and could be passed along with it as a Money Bill. As per suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urts of their onerous burden. Consequently, adding to their supervisory functions vide Article 227(1) cannot be of assistance in any manner. Thereafter, it was observed that different tribunals constituted under different enactments are administered by the Central and the State Governments, yet there was no uniformity in administration. This Court was of the view that until a wholly independent agency for such tribunals can be set up, it is desirable that all such tribunals should be, as far as possible, under a single nodal Ministry which will be in a position to oversee the working of these tribunals. For a number of reasons, the Court observed that the Ministry of Law would be the appropriate ministry. The Ministry of Law in turn was required to appoint an independent supervisory body to oversee the working of the Tribunals. As noticed above, this has not happened. In these circumstances, it would be appropriate if these aspects and questions are looked into by a Bench of seven Judges. ISSUE II: WHETHER SECTION 184 OF THE FINANCE ACT, 2017 IS UNCONSTITUTIONAL ON ACCOUNT OF EXCESSIVE DELEGATION? 125. The second challenge against Part XIV of the Finance Act, 2017 is predicated on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall not exceed, (a) in the case of Chairperson, Chairman or President, the age of seventy years; (b) in the case of Vice-Chairperson, Vice-Chairman, Vice- President, Presiding Officer or any other Member, the age of sixty-seven years: (2) Neither the salary and allowances nor the other terms and conditions of service of Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authority may be varied to his disadvantage after his appointment. Section 184 has conferred upon the Central Government power to make rules by way of notification to provide for (a) qualifications; (b) appointment; (c) term of office; (d) salaries and allowances; (e) resignation; and (f) removal and other terms and conditions of service of the Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice- President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authorities as specified in column (2) of the Eighth Schedule. The first proviso states that the incumbent officers shall hold office for such terms as may be specified in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions stipulate that without prejudice to any other power to make rules contained elsewhere in the Part XIV of the Finance Act, 2017, the Central Government may, by notification, makes rules generally to carry out the provisions of the said Part. 130. Reading of the said provisions indicates that except for providing the upper age limit and that the person appointed shall not have tenure exceeding five years from the date on which he enters office and shall be eligible for re-appointment, the Finance Act delegates the power to specify the qualifications, method of selection and appointment, terms of office, salaries and allowances, removal including resignation and all other terms and conditions of service to the Central Government which would act as a delegatee of the Parliament. The governing statutory provisions embodied in the existing parent legislation specified in the column (3) of the Schedule and the rules made thereunder are overwritten and authority and power is conferred on the Central Government to decide qualifications for appointment, process for selection, and terms and conditions of service including salaries allowance, resignation and removal through delegated or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . is this. The legislature cannot delegate the power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of Government. 2. The true import of the rule against delegation is this: This rule in a broad sense involves the principle underlying the maxim, delegatus non potest delegate, but it is apt to be misunderstood and has been misunderstood. In my judgment, all that it means is that the legislature cannot abdicate its legislative functions and it cannot efface itself and set up a parallel legislature to discharge the primary duty with which it has been entrusted. This rule has been recognised both in America and in England ...... xx xx xx What constitutes abdication and what class of cases will be covered by that expression will always be a question of fact, and it is by no means easy to lay down any comprehensive formula to define it, but it should be recognised that the rule against abdication does not prohibit the Legislature from employing any subordinate agency of its own choice for doing such subsidiary acts as may be nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to another body or authority. At the same time, in Delhi Laws Act (supra) the judges had agreed that there should be limitations on such delegation. However, on the question as to what is this limitation, there was a lack of consensus. The two judges in Ramesh Birch (supra) relying on the ratio in Delhi Laws Act (supra), had observed: Some thought that there is no abdication or effacement unless it is total i.e. unless Parliament surrenders its powers in favour of a parallel legislature or loses control over the local authority to such an extent as to be unable to revoke the powers given to, or to exercise effective supervision over, the body entrusted therewith. But others were of opinion that such abdication or effacement could not even be partial and it would be bad if full powers to do everything that the legislature can do are conferred on a subordinate authority, although the legislature may retain the power to control the action of such authority by recalling such power or repealing the Acts passed by the subordinate authority. A different way in which the second of the above views has been enunciated--and it is this view which has dominated since--is by saying that the legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gency either in whole or in part is beyond the permissible limits of delegation. It is for a Court to hold on a fair, generous and liberal construction of an impugned statute whether the legislature exceeded such limits. But the said liberal on construction should not be carried by the Courts to the extent of always trying to discover a dormant or latent legislative policy to sustain an arbitrary power conferred on executive authorities. It is the duty of the Court to strike down without any hesitation any arbitrary power conferred on the executive by the legislature. 136. A year later in Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi and Another AIR 1968 SC 1232 this Court, however, upheld Section 113(2) of the Delhi Municipal Act, 1957 which had empowered the corporation to levy certain optional taxes by observing that there were sufficient guidelines, safeguards and checks in the Act which prevented excessive delegation as the Act had provided maximum rate of tax. It was observed that the nature of body to which delegation is made is also a relevant factor to be taken into consideration in determining whether there is sufficient guidance in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , investigation has to be made whether policy of the legislation has not been indicated sufficiently or whether change of policy has been left to the pleasure of the delegate. This aspect is of substantial importance and relevance in the present case. 138. In Avinder Singh v. State of Punjab (1979) 1 SCC 137 this Court had highlighted that the founding document, that is, the Constitution had created three instrumentalities with certain basic powers and it is axiomatic that legislative powers are not abdicated for this would mean betrayal of the Constitution and is intolerable in law. Therefore, legislature cannot self-efface its personality and make over in terms the plenary and essential legislative functions. Nevertheless, the complexities of modern administration are bafflingly intricate and present themselves with urgencies and difficulties and the need for flexibility, which the direct legislation may not provide. Delegation of some part of the legislative powers therefore became inevitable and an administrative necessity. Thus, while essential legislative policy cannot be delegated, however inessentials can be delegated over to relevant agencies. 139. Similar opinion was expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 770 wherein a Division Bench of this Court had observed that in spite of abundance of authority on the subject we are not blessed with certainty, and then observed that in Kunjabmu (supra) this Court had declined to consider whether M.K. Papiah Sons (supra) had beaten the final retreat from the position enunciated in Delhi Laws Act (supra) and had proceeded to examine the theory of policy and guidelines referring to several judgments. The Division Bench then went on to observe that the earlier judgments had not been able to lay down the principle including as to what exactly constitutes essential legislative function , but the following inferences can be drawn: 51.1 The proposition that essential legislative functions cannot be delegated does not appear to be such a clearly settled proposition and requires a further examination which exercise is not undertaken by the counsel appearing in the matter. We leave it open for debate in a more appropriate case on a future date. For the present, we confine to the examination of the question: Whether defining every expression used in an enactment is an essential legislative function or not? 51.2 All the judgments examined above recognize t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative agency, the Legislature must set limits on such agency's power and enjoin on it a certain course of procedure and rules of decision in the performance of its function; and, if the legislature fails to prescribe with reasonable clarity the limits of power delegated to an administrative agency, or if those limits are too broad, its attempt to delegate is a nullity. 142. It is in this context we have to examine whether the plea of excessive delegation would prevail and merits acceptance as Section 184 of the Finance Act does not prescribe the qualifications for appointment, and terms and conditions of service. It will be difficult to hold that Part XIV of the Finance Act suffers from the vice of unguided delegation as it fails to clearly specify the eligibility qualifications for the Members, Chairpersons, Chairman etc. of different Tribunals as such requirements, though important, are not per se functionally undelegatable. 143. The objects of the parent enactments as well as the law laid down by this Court in R.K. Jain (supra), L Chandra Kumar (supra), R. Gandhi (supra), Madras Bar Association (supra) and Gujarat Urja Vikas (supra) undoubtedly bind the delegate and mandator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tipulations are delegated and they are not part of the principal enactment. For example, subsection (1) of Section 252 of the Income Tax Act, 1961 states that the Central Government may constitute the Appellate Tribunal consisting of as many judicial and accountant members as it thinks fit to exercise the powers and discharge the functions prescribed by the Act. Sub-sections (3) and (4) state that the Central Government shall ordinarily appoint a judicial Member as the President and may appoint one or more members as Vice President or Senior Vice President. Subsection (2) prescribes the eligibility requirements for being a judicial member and sub-section (2A) stipulates the eligibility requirements for being an administrative member. The Income Tax Act does not prescribe or stipulate manner or method for selection or terms and conditions of service. This is equally true for the Appellate Tribunal constituted under the Central Excise Act. 146. Wanchoo, CJ. in The Municipal Corporation of Delhi (supra) had observed: 13. The question as to the limits of permissible delegation of legislative power by a legislature to a subordinate authority has come before this Court in a number of cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so far as this Court is concerned the principle is well established that essential legislative function consists of the determination of the legislative policy and its formulation as a binding rule of conduct and cannot be delegated by the legislature. Nor is there any unlimited right of delegation inherent in the legislative power itself. This is not warranted by the provisions of the Constitution. The legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purposes and objects of the Act. Where the legislative policy is enunciated with sufficient clearness or a standard is laid down, the courts should not interfere. What guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on a consideration of the provisions of the particular Act with which the Court has to deal including its preamble. Further it appears to us that the nature of the body to which delegation is made is also a factor to be taken into consideration in determining whether there is sufficient guidance in the matter of delegation. 147. Refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 2017, (hereinafter referred to as the Rules ) under Section 184 of the Finance Act, 2017, it is necessary at this stage to examine whether the Rules conform to the judicial principles inherent in our Constitutional scheme as established by this Court in its earlier dicta. Some salient provisions of the Rules are extracted hereunder: TRIBUNAL, APPELLATE TRIBUNAL AND OTHER AUTHORITIES (QUALIFICATIONS, EXPERIENCE AND OTHER CONDITIONS OF SERVICE OF MEMBERS) RULES, 2017 xxxxxx 3. Qualifications for appointment of Member. The qualification for appointment of the Chairman, Chairperson, President, Vice-Chairman, Vice-Chairperson, Vice- President, Presiding Officer, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member or Member of the Tribunal, Appellate Tribunal or, as the case may be, Authority shall be such as specified in column (3) of the Schedule annexed to these rules. 4. Method of recruitment. (1) The Chairman, Chairperson, President, Vice- Chairman, Vice-Chairperson, Vice-President, Presiding Officer, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incapable of acting as such a Member; or (d) has acquired such financial or other interest as is likely to affect prejudicially his functions as a Member; or (e) has so abused his position as to render his continuance in office prejudicial to the public interest: Provided that where a Member is proposed to be removed on any ground specified in clauses (b) to (e), the Member shall be informed of the charges against him and given an opportunity of being heard in respect of those charges: Provided further that the Chairperson or member of the National Company Appellate Tribunal shall be removed from office in consultation with the Chief Justice of India. 8. Procedure for inquiry of misbehavior or incapacity of the Member. (1) If a written complaint is received by the Central Government, alleging any definite charge of misbehavior or incapacity to perform the functions of the office in respect of a Chairman, Vice-Chairman, Chairperson, Vice-Chairperson, President, Vice- President, Presiding Officer, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member or Member, the Ministry or Department of the Government of India unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inistrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member, or Member of the Tribunal, Appellate Tribunal or, as the case may be, Authority to officiate as Chairperson, Chairman, President or Presiding Officer. (b) the Chairperson of the Debts Recovery Appellate Tribunal, the Central Government shall have power to appoint the Chairperson of another Debts Recovery Appellate Tribunal to officiate as Chairperson and in case of a casual vacancy in the office of the Presiding Officer of the Debts Recovery Tribunal, the Chairperson of the Debts Recovery Appellate Tribunal shall have power to appoint the Presiding Officer of another Debts Recovery Appellate Tribunal to officiate as Presiding Officer. 11. Salary and allowances. (1) The Chairman, Chairperson or President of the Tribunal, Appellate Tribunal or, as the case may be, Authority or the Presiding Officer of the Security Appellate Tribunal shall be paid a salary of ₹ 2,50,000 (fixed) and other allowances and benefits as are admissible to a Central Government officer holding posts carrying the same pay. (2) The Vice-Chairman, Vice-Chairperson, Vice-President, Accountant Member, Administrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Member shall be entitled to thirty days of earned Leave for every year of service. (2) Casual Leave not exceeding eight days may be granted to the Chairman, Chairperson, President, Vice-Chairman, Vice-Chairperson, Vice President, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member or Technical Member, Presiding Officer or a Member in a calendar year. (3) The payment of leave salary during leave shall be governed by rule 40 of the Central Civil Services (Leave) Rules, 1972. (4) The Chairman, Chairperson, President, Vice-Chairman, Vice-Chairperson, Vice President, Presiding Officer, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member or Member shall be entitled to encashment of leave in respect of the earned Leave standing to his credit, subject to the condition that maximum leave encashment, including the amount received at the time of retirement from previous service shall not in any case exceed the prescribed limit under the Central Civil Service (Leave) Rules, 1972. 14. Leave sanctioning authority. (1) Leave sanctioning authority, (a) for the Vice-Chairman, Vice-Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late Tribunal or, as the case may be, Authority shall not, for a period of two years from the date on which they cease to hold office, accept any employment in, or connected with the management or administration of, any person who has been a party to a proceeding before the Tribunal, Appellate Tribunal or, as the case may be, Authority: Provided that nothing contained in this rule shall apply to any employment under the Central Government or a State Government or a local authority or in any statutory authority or any corporation established by or under any Central, State or Provincial Act or a Government company as defined in clause (45) of Section 2 of the Companies Act, 2013 (18 of 2013). xxx 20. Power to relax. Where the Central Government is of the opinion that it is necessary or expedient so to do, it may, by order for reasons to be recorded in writing relax any of the provisions of these rules with respect to any class or category of persons. 21. Interpretation. If any question arises relating to the interpretation of these rules, the decision of the Central Government thereon shall be final. 22. Saving. Nothing in these rules shall affect reservations, relaxation of age limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , (Department of Personnel and Training)- member; (d) Secretary to the Government of India, Ministry of Law and Justice -member; (e) one expert, to be nominated by the Government of India - member. 152. Composition of a Search-cum-Selection Committee is contemplated in a manner whereby appointments of Member, Vice-President and President are predominantly made by nominees of the Central Government. A perusal of the Schedule to the Rules shows that save for token representation of the Chief Justice of India or his nominee in some Committees, the role of the judiciary is virtually absent. 153. We are in agreement with the contentions of the Learned Counsel for the petitioner(s), that the lack of judicial dominance in the Search-cum-Selection Committee is in direct contravention of the doctrine of separation of powers and is an encroachment on the judicial domain. The doctrine of separation of powers has been well recognised and re-interpreted by this Court as an important facet of the basic structure of the Constitution, in its dictum in Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, and several other later decisions. The exclusion of the Judiciary from the control and infl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e second volume of the Report, Alternative Modes and Forums for Dispute Resolution , deals with the issue at length. After forwarding its specific recommendations on the feasibility of setting up Gram Nyayalayas , Industrial Tribunals and Educational Tribunals, the Committee has dealt with the issue of Tribunals set up under Articles 323-A and 323-B of the Constitution. The relevant observations in this regard, being of considerable significance to our analysis, are extracted in full as under: Functioning of Tribunals 8.63 Several tribunals are functioning in the country. Not all of them, however, have inspired confidence in the public mind. The reasons are not far to seek. The foremost is the lack of competence, objectivity and judicial approach. The next is their constitution, the power and method of appointment of personnel thereto, the inferior status and the casual method of working. The last is their actual composition; men of calibre are not willing to be appointed as presiding officers in view of the uncertainty of tenure, unsatisfactory conditions of service, executive subordination in matters of administration and political interference in judicial functioning. For these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supplanted by another equally effective and efficacious institutional mechanism is the High Courts and not the judicial review itself. Tribunals are not an end in themselves but a means to an end; even if the laudable objectives of speedy justice, uniformity of approach, predictability of decisions and specialist justice are to be achieved, the framework of the tribunal intended to be set up to attain them must still retain its basic judicial character and inspire public confidence. Any scheme of decentralisation of administration of justice providing for an alternative institutional mechanism in substitution of the High Courts must pass the aforesaid test in order to be constitutionally valid . 157. We are of the view that the Search-cum-Selection Committee as formulated under the Rules is an attempt to keep the judiciary away from the process of selection and appointment of Members, Vice-Chairman and Chairman of Tribunals. This Court has been lucid in its ruling in Supreme Court Advocateson- Record Assn. v. Union of India (2016) 5 SCC 1 (Fourth Judges Case), wherein it was held that primacy of judiciary is imperative in selection and appointment of judicial officers including Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roup 'A') and has held the post of Commissioner of Customs or Central Excise or any equivalent or higher post for at least three years. 160. In addition to this, there has been a blatant dilution of judicial character in appointments whereby candidates without any judicial experience are prescribed to be eligible for adjudicatory posts such as that of the Presiding Officer. Illustratively, the qualifications for Presiding Officer in Industrial Tribunal as specified in the Rules may be noticed below: A person shall not be qualified for appointment as Presiding Officer, unless he, - (a) is, or has been, or is qualified to be, a Judge of a High Court; or (b) he has, for a period of not less than three-years, been a District Judge or an Additional District Judge; or (c) is a person of ability, integrity and standing, and having special knowledge of, and professional experience of not less than twenty years in economics, business, commerce, law, finance, management, industry, public affairs, administration, labour relations, industrial disputes or any other matter which in the opinion of the Central Government is useful to the Industrial Tribunal. 161. The contentions of the Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et it was held that Parliament was competent to amend the Constitution, and substitute in place of the High Court another alternative institutional mechanism or arrangement. This Court, however cautioned that it was imperative to ensure that the alternative arrangement was no less independent and no less judicious than the High Court (which was sought to be replaced) itself. xxx 107. In Union of India v. Madras Bar Assn. [(2010) 11 SCC 1] , all the conclusions/propositions narrated above were reiterated and followed, whereupon the fundamental requirements which need to be kept in mind while transferring adjudicatory functions from courts to tribunals were further crystallised. It came to be unequivocally recorded that tribunals vested with judicial power (hitherto before vested in, or exercised by courts), should possess the same independence, security and capacity, as the courts which the tribunals are mandated to substitute. The members of the tribunals discharging judicial functions could only be drawn from sources possessed of expertise in law and competent to discharge judicial functions. Technical members can be appointed to tribunals where technical expertise is essential fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the higher judiciary at the time when the Constitution came into force should ordinarily remain with the court, which exercised the said jurisdiction at the time of promulgation of the new Constitution. But the judicial power could be allowed to be exercised by an analogous/similar court/tribunal with a different name. However, by virtue of the constitutional convention while constituting the analogous court/tribunal it will have to be ensured that the appointment and security of tenure of Judges of that court would be the same as of the court sought to be substituted. This was the express conclusion drawn in Hinds case [Hinds v. R., 1977 AC 195] . In Hinds case, it was acknowledged that Parliament was not precluded from establishing a court under a new name to exercise the jurisdiction that was being exercised by members of the higher judiciary at the time when the Constitution came into force. But when that was done, it was critical to ensure that the persons appointed to be members of such a court/tribunal should be appointed in the same manner and should be entitled to the same security of tenure as the holder of the judicial office at the time when the Constitution came into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... framed on the above model, namely, that even though the legislature can transfer judicial power from a traditional court to an analogous court/tribunal with a different name, the court/tribunal to which such power is transferred should be possessed of the same salient characteristics, standards and parameters, as the court the power whereof was being transferred. It is not possible for us to accept that Accountant Members and Technical Members have the stature and qualification possessed by the Judges of High Courts. 163. We concur with the above which reiterates the consistent view taken by this Court in a number of cases. It is also a well-established principle followed throughout in various other jurisdictions as well, that wherever Parliament decides to divest the traditional Courts of their jurisdiction and transfer the lis to some other analogous Court/Tribunal, the qualification and acumen of the members in such Tribunal must be commensurate with that of the Court from which the adjudicatory function is transferred. Adjudication of disputes which was originally vested in Judges of Courts, if done by technical or non-judicial member, is clearly a dilution and encroachment on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Madras Bar Association (2010) (supra) that it is a fundamental prerequisite for transferring adjudicatory functions from Courts to Tribunals that the latter must possess the same capacity and independence as the former, and that members as well as the presiding officers of Tribunals must have significant judicial training and legal experience. Further, knowledge, training and experience of members/presiding officers of a Tribunal must mirror, as far as possible, that of the Court which it seeks to substitute. Illustratively, the composition of Appellate Tribunal under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, delineating this incongruity is reproduced below for reference: Appellate Tribunal under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (1) The Chairman of the Appellate Tribunal shall be a person who is or has been or is qualified to be a Judge of a Supreme Court or a Judge of a High Court. (2) The Member of the Appellate Tribunal shall be a person not below the rank of Joint Secretary to the Government of India. 166. It appears to us to be incomprehensible as to how both Supreme Court and High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judiciary in the process. In doing so, it significantly weakens the independence of the Tribunal members. It is well understood across the world and also under our Constitutional framework that allowing judges to be removed by the Executive is palpably unconstitutional and would make them amenable to the whims of the Executive, hampering discharge of judicial functions. 170. In Madras Bar Association (2014) (supra), this Court held that: it was acknowledged that Parliament was not precluded from establishing a court under a new name to exercise the jurisdiction that was being exercised by members of the higher judiciary at the time when the Constitution came into force. But when that was done, it was critical to ensure that the persons appointed to be members of such a court/tribunal should be appointed in the same manner and should be entitled to the same security of tenure as the holder of the judicial office at the time when the Constitution came into force. Even in the treatise Constitutional Law of Canada by Peter W. Hogg, it was observed: if a province invested a tribunal with a jurisdiction of a kind, which ought to properly belong to a Superior, District or Country Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constituent Assembly which aimed to incorporate the experience and knowledge of a High Court Judge when elevated as a Supreme Court judge. Hence, to utilise the experience and knowledge acquired during tenure as a judge of High Court, Supreme Court judges are provided with higher age of superannuation than the judges of High Court. Similarly, the difference between age of superannuation of Chairman/Presiding Officer and Member of a Tribunal is because Chairman/Presiding Officer is not a promotional post and thus cannot be equated with that of the Member. The post of Chairman/Presiding Officer requires judicial and administrative experience of at least that of the judge of a High Court which is evident from the statutes prescribing them. 175. Another oddity which was brought to our notice is that there has been an imposition of a short tenure of three years for the members of the Tribunals as enumerated in the Schedule of Tribunals Rules, 2017. A short tenure, coupled with provision of routine suspensions pending enquiry and lack of immunity thereof increases the influence and control of the Executive over Members of Tribunals, thus adversely affecting the impartiality of the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is also discriminatory to the extent that it attempts to create equality between unequal classes. The tenure of Members, Vice-Chairman, Chairman, etc. must be increased with due consideration to the prior decisions of the Court. (b) The difference in the age of superannuation of the Members, Vice- Chairmen and Chairmen, as formulated in the Rules is contrary to the objectives of the Finance Act, 2017 viz., to attain uniformity in the composition of the Tribunal framework. There should be a uniform age of superannuation for Members, Vice-Chairmen, Chairmen, etc. in all Tribunals. (c) Rule 4(2) of the Rules providing that the Secretary to the Government of India in the Ministry or Department under which the Tribunal is constituted shall be the convener of the Search-cum-Selection Committee, is in direct violation of the doctrine of Separation of Powers and thus contravenes the basic structure of the Constitution. Corollary to the dictum of this Court in the Fourth Judges Case, judicial dominance in appointment of members of judiciary cannot be diluted by the Executive. (d) Rule 7 accords unwarranted discretion to the Central Government insofar as it merely directs and not mandat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribe a uniform code for appointment, qualification, condition of service, manner of allocation of fund, etc. of the Tribunals. This will, the Court suggested, minimise the influence of the parent ministry of the Tribunal, in addition to ensuring uniformity in the entire Tribunal framework. The relevant excerpt may be reproduced below: 96. We are of the view that, until a wholly independent agency for the administration of all such Tribunals can be set up, it is desirable that all such Tribunals should be, as far as possible, under a single nodal ministry which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law. It would be open for the Ministry, in its turn, to appoint an independent supervisory body to oversee the working of the Tribunals. This will ensure that if the President or Chairperson of the Tribunal is for some reason unable to take sufficient interest in the working of the Tribunal, the entire system will not languish and the ultimate consumer of justice will not suffer. The creation of a single umbrella organisation will, in our view, remove many of the ills of the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o day functioning including the expenditure to be incurred on (a) recruitment of staff; (b) creation of infrastructure; (c) modernisation of infrastructure; (d) computerisation; (e) perquisites and other facilities admissible to the Presiding Authority or the Members of such Tribunal. It may not be very crucial as to which Ministry or Department performs the duties of Nodal Agency for a Tribunal, but what is of utmost importance is that the Tribunal should not be expected to look towards such Nodal Agency for its day to day requirements. There must be a direction to allocate adequate and sufficient funds for each Tribunal to make it self-sufficient and selfsustainable authority for all intents and purposes. The expenditure to be incurred on the functioning of each Tribunal has to be necessarily a charge on the Consolidated Fund of India. Therefore, hitherto, the Ministry of Finance shall, in consultation with the Nodal Ministry/Department, shall earmark separate and dedicated funds for the Tribunals. It will not only ensure that the Tribunals are not under the financial control of the Department, who is a litigant before them, but it may also enhance the public faith and trust in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re reproduced as follows: 49. The Committee has also suggested that: Further, there must be judicial impact assessment , as done in the United States, whenever any legislation is introduced either in Parliament or in the State Legislatures. The financial memorandum attached to each Bill must estimate not only the budgetary requirement of other staff but also the budgetary requirement for meeting the expenses of the additional cases that may arise out of the new Bill when it is passed by the legislature. The said budget must mention the number of civil and criminal cases likely to be generated by the new Act, how many courts are necessary, how many judges and staff are necessary and what is the infrastructure necessary. So far in the last fifty years such judicial impact assessment has never been made by any legislature or by Parliament in our country. 50. Having regard to the constitutional obligation to provide fair, quick and speedy justice, we direct the Central Government to examine the aforesaid suggestions and submit a report to this Court within four months. 188. In the present case, we are of the view that the legislature has not conformed to the opinion of this Court with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hief Election Commissioner. Consequently, a demand was made for according rank in the Warrant of Precedence equivalent to that of Supreme Court judges. A five-judge bench of this Court held that mere equality in conditions of service to that of a Supreme Court judge cannot confer equal status to such other functionaries. It was noted that: 34. One of the matters to which we must advert is the question of the status of an individual whose conditions of service are akin to those of the Judges of the Supreme Court. This seems necessary in view of the reliance placed by the CEC on this aspect to support his case. In the instant case some of the service conditions of the CEC are akin to those of the Supreme Court Judges, namely, (i) the provision that he can be removed from office in like manner and on like grounds as a Judge of the Supreme Court and (ii) his conditions of service shall not be varied to his disadvantage after appointment. So far as the first is concerned instead of repeating the provisions of Article 124(4), the draftsman has incorporated the same by reference. The second provision is similar to the proviso to Article 125(2). But does that confer the status of a Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rthermore, that even though manned by retired judges of High Courts and the Supreme Court, such Tribunals established under Article 323-A and 323-B of the Constitution cannot seek equivalence with High Courts or the Supreme Court. Once a judge of a High Court or Supreme Court has retired and he/she no longer enjoys the Constitutional status, the statutory position occupied by him/her cannot be equated with the previous position as a High Court or a Supreme Court judge. The rank, dignity and position of Constitutional judges is hence sui generis and arise not merely by their position in the Warrant of Precedence or the salary and perquisites they draw, but as a result of the Constitutional trust accorded in them. Indiscriminate accordance of status of such Constitutional judges on Tribunal members and presiding officers will do violence to the very Constitutional Scheme Justice VR Krishna Iyer, Why Stultify Judges Status? , (2002) 2 LW (JS) 85 (June, 2000) . 195. This Court in L. Chandra Kumar (supra) observed that Tribunals are not substitutes of Superior Courts and are only supplemental to them. Hence, the status of members of such Tribunals cannot be equated with that of the sitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the past few decades in our country. Since establishment of the ITAT during the preindependence era, the number of tribunals has now increased to several dozens. The Constitution of India (42nd Amendment) Act, 1976 provided for setting up of Administrative Tribunals through Article 323A as well as other Tribunals under Article 323B. These aforementioned provisions in the Constitution were construed by the legislature in a manner resulting in the ousting of jurisdiction of all Courts except the Supreme Court under Article 136. Later, in L. Chandrakumar (supra), this court very aptly held that judicial review by High Courts under Article 226 is a part of the basic structure and hence could not be ousted by any legislation or even Constitutional amendment. Moreover, this Court in L. Chandrakumar (supra) and later in Madras Bar Association (2014) (supra) and Gujarat Urja Vikas Ltd. (supra) reiterated the urgent need to do away with increasingly common provisions in statutes providing direct statutory appeal to this Court, which as discussed elaborately below poses significant problems in the administration of justice and is also against the Constitutional scheme. 200. Since the afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her in trial before it or in reversal of an earlier acquittal by the trial court. In addition to this, Article 134(2) is lucid in its wording to provide that in absence of any specific legislation by the Parliament to enlarge the criminal appellate jurisdiction of this Court, no routine appeal lies before the Supreme Court in criminal matters. The extract from Article 134(2) has been reproduced below: (2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law. 203. Article 134(2) is successful in clarifying two things. Firstly, there is no provision analogous to Article 134(2) under Article 133 to expand the jurisdiction of the Supreme Court in non-criminal matters. Secondly, Article 134(2) does not encompass matters other than those arising out of criminal proceedings from the High Courts. 204. Presently, there are more than two dozen statutes which provide direct appeals to the Supreme Court from various Tribunals and High Courts. A nonexhaustive list of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Tribunals, the jurisdiction of High Courts is in effect curtailed to a great extent. Not only does this hamper access to justice, but it also takes away the much needed exposure for High Court judges, earnestly needed in a vibrant and ever-evolving judiciary. Since majority of the judges of the Supreme Court are elevated from the High Courts, their lack of exposure to these specialised areas of law hinders their efficacy in adjudicating the direct statutory appeals from specialised Tribunals. 207. A perusal of the Indian Judiciary: Annual Report 2017-18, published by this Court shows that pendency in the Supreme Court stands at more than 56,000 cases. Each year this Court hears a humungous volume of cases and disposes of approximately 60,000 - 90,000 cases annually, thus amounting to a staggering 4,000 - 6,000 cases per bench. Out of all the cases instituted before this Court, less than 2% is for exercise of writ jurisdiction under Article 32 whereas an overwhelming majority of cases are petitions for special leave to appeal under Article 136. 208. Although the rate of admission of cases peaked at about 20% in 2011 and has fallen since then, it is still far above the marginal rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itutional importance and matters involving substantial question of law of general public importance. Due to overburdening, the Supreme Court is unable to timely address such matters. 210. Resultantly, majority of the matters involving significant Constitutional questions remain untouched for years; consequently the ability of this Court to keep in check the legislative and executive encroachments is significantly compromised. Cases heard by the Constitution Bench comprising of five or more judges have fallen significantly from over 15% in the 1950s to an average of 0.1 - 0.2% during the last two decades. Hence, it is clear that this Court has been, in a way, transformed from a Constitutional-Writ Court to a Court of Appeals whereunder mere increase of the number of judges is no more a solution. Whilst the number of judges has increased slightly more than four times, the number of cases since 1950 has increased more than seventy folds! It is clear that there is a pressing need to realign the exercise of jurisdiction of this Court and ensure that the Constitutional vision is not defeated. This view has been resonated by this Court since it was highlighted by Justice P.N. Bhagwati in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Union only. Except for that, all other cases can only be brought about in appellate jurisdiction. Although not explicitly stated, such an exercise was felt to be necessary to check a burgeoning expansion and overloading of the Court s docket. 214. Providing statutory appeals directly to the Supreme Court dents this to no end. With increasing tribunalisation, statutory appeal provisions are ostensibly being included without undertaking any Judicial Impact Assessment . As of last count there are several hundreds of cases which have been decided by the NCLAT and many other thousands by other tribunals pending in this Court. 215. Note must be taken of the direction this country is heading towards for the same has a lasting impact on the kind of disputes which arise before this court. No system can be made in a vacuum, including our own. With the establishment of more tribunals and with increasing commercialisation in line with India s transformation to an open market liberal economy, the number of these cases is bound to only increase. Unlike routine criminal or civil matters which are tried exclusively before ordinary courts, matters which fall before Tribunals are often complex and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Armed Forces Tribunal and the High Court, cannot challenge both the orders in one joint appeal. The aggrieved person may file leave to appeal under Article 136 of the Constitution against the judgment passed by the High Court but in view of the bar of jurisdiction by clause (2) of Article 136, this Court cannot entertain appeal against the order of the Armed Forces Tribunal. Once, the High Court entertains a petition under Article 226 of the Constitution against the order of the Armed Forces Tribunal and decides the matter, the person who thus approached the High Court, will also be precluded from filing an appeal under Section 30 with leave to appeal under Section 31 of the Act against the order of the Armed Forces Tribunal as he cannot challenge the order passed by the High Court under Article 226 of the Constitution under Section 30 read with Section 31 of the Act. Thereby, there is a chance of anomalous situation. Therefore, it is always desirable for the High Court to act in terms of the law laid down by this Court as referred to above, which is binding on the High Court under Article 141 of the Constitution of India, allowing the aggrieved person to avail the remedy under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l on questions of law to a Division Bench of a High Court within whose territorial jurisdiction the Tribunal falls, be pursued. It appears that no follow-up action has been taken pursuant to the suggestion. Such a measure would have improved matters considerably. Having regard to both the aforestated contentions, we hold that all decisions of Tribunals, whether created pursuant to Article 323-A or Article 323-B of the Constitution, will be subject to the High Court's writ jurisdiction under Articles 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls. 220. It is hence clear post L Chandrakumar (supra) that writ jurisdiction under Article 226 does not limit the powers of High Courts expressly or by implication against military or armed forces disputes. The limited ouster made by Article 227(4) only operates qua administrative supervision by the High Court and not judicial review. Article 136(2) prohibits direct appeals before the Supreme Court from an order of armed forces tribunals, but would not prohibit an appeal to the Supreme Court against the judicial review exercised by the High Court u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vis all other courts and tribunals and they alone can pronounce with authority and finality on what is legal and what is not. All that an inferior tribunal can do is to reach a tentative conclusion which is subject to review under Articles 226 and 136. Therefore, the jurisdiction of the High Courts under Article 226 with that of the Supreme Court above them remains to its fullest extent despite Section 105. 223. It is apparent that the Legislature has not been provided with desired assistance so that it may rectify the anomalies which arise from provisions of direct appeal to the Supreme Court. Considering that such direct appeals have become serious impediments in the discharge of Constitutional functions by this Court and also affects access to justice for citizens, it is high time that the Union of India, in consultation with either the Law Commission or any other expert body, revisit such provisions under various enactments providing for direct appeals to the Supreme Court against orders of Tribunals, and instead provide appeals to Division Benches of High Courts, if at all necessary. Doing so would have myriad benefits. In addition to increasing affordability of justice and mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Law Commission of India in its 272nd Report. Additionally, the Union must ensure that, at the very least, circuit benches of all Tribunals are set up at the seats of all major jurisdictional High Courts. CONCLUSION 228. In light of the above discussions and our analysis, it is held that: (i) The issue and question of Money Bill, as defined under Article 110(1) of the Constitution, and certification accorded by the Speaker of the Lok Sabha in respect of Part-XIV of the Finance Act, 2017 is referred to a larger Bench. (ii) Section 184 of the Finance Act, 2017 does not suffer from excessive delegation of legislative functions as there are adequate principles to guide framing of delegated legislation, which would include the binding dictums of this Court. (iii) The Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 suffer from various infirmities as observed earlier. These Rules formulated by the Central Government under Section 184 of the Finance Act, 2017 being contrary to the parent enactment and the principles envisaged in the Constitution as interpreted by this Court, are hereby struck down in en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Authorities (Qualification, Experience and other Conditions of Service of Members) Rules, 2017 have been struck down and several directions have been issued vide the majority judgment for framing of fresh set of Rules, we, as an interim order, direct that appointments to the Tribunal/Appellate Tribunal and the terms and conditions of appointment shall be in terms of the respective statutes before the enactment of the Finance Bill, 2017. However, liberty is granted to the Union of India to seek modification of this order after they have framed fresh Rules in accordance with the majority judgment. However, in case any additional benefits concerning the salaries and emoluments have been granted under the Finance Act, they shall not be withdrawn and will be continued. These would equally apply to all new members. 230. The present batch of matters is accordingly disposed of. 231. Writ Petition (Civil) No. 267 of 2012 is also disposed of in the above terms as the issues arising are similar. CJI [RANJAN GOGOI] J. [N.V. RAMANA] J. [DR DHANANJAYA Y CHANDRACHUD] J. [DEEPAK GUPTA] NEW DELHI J [SANJIV KHANNA] NOVEMBER 13, 2019 JUDGMENT Dr Dhananjaya Y Chandrachud, J INDEX A Introduction A.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accompanied by legislative enactment, this postulates the exclusivity of entrustment to tribunals. Then again, new tribunals have been constituted to deal with subject areas of a genre quite distinct from, and therefore, unlike the traditional pattern of litigation with which conventional courts were familiar. Tribunals have thus not only taken away subjects which have been carved out of the jurisdiction of courts as a matter of legislative policy, but have also fostered a new culture of adjudication over areas in which a traditional court mechanism had little experience and expertise. In that sense, tribunalisation represents an amalgam of the old and the new: a combination of the role which was traditionally performed by the court together with new functional responsibilities, quite unlike the dispute resolution function which was traditionally performed by courts. Domain specialisation 3 The movement towards setting up tribunals has been hastened in many parts by the need for specialisation. Specialisation acknowledges the pool of knowledge and domain expertise of persons who discharge core adjudicatory functions within tribunals. The assumption which underlies the setting up of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpected to remedy some of the causes which burden the judicial system. 6 Similarly, another object of the growing need for tribunalisation is to unburden the court system. That purpose may be subserved when a chunk of existing cases pending before the conventional court system are transferred for adjudication to the newly created body. Reducing the burden on courts is a partial realisation of the purpose underlying the creation of the tribunal. Equally significant is that the tribunal must possess the ability not to allow, over a period of time, accretions of undisposed cases which had created judicial arrears in the first place. Statistical reduction of pending arrears in the judicial system occasioned by the creation of a tribunal has to be matched by the capacity of the new body to dispose of cases transferred to it from the court as well as new institutions before it. If this is not achieved, the net result is to defeat the very purpose of establishing the tribunal. Impact assessment 7 Our analysis above indicates that the actual impact of the creation of a structure of tribunals needs to be closely monitored to assess the efficacy of a tribunal as a measure of legal reform. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bservient to none and accountable to the need to render justice in the context of specialised adjudication. A2 A brief history of tribunalisation in India 9 Delay and backlog in adjudication of cases was a problem even during the colonial era. Arun K Thiruvengadam, 'Tribunals' in The Oxford Handbook Of The Indian Constitution (Sujit Choudhry et al eds., (Oxford University Press New York, 2016), pp. 412-31 The earliest available effort suggesting reforms to handle arrears was the Justice Rankin Committee report in 1924. Since then, there have been a number of expert body reports, including the Law Commission of India. In India, the establishment of tribunals was done in 1941 by the colonial government. Post- Independence, tribunals were first created in the sphere of tax laws. The original Constitution referred to tribunals only incidentally in Articles 136 and 227, which specify that the Supreme Court and the High Courts respectively shall have power to review decisions of tribunals. The High Court Arrears Committee constituted with Justice J. C. Shah as Chairperson in 1969 recommended the constitution of an independent tribunal to handle service matters pending before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offices of trust and help to build up reputation and acceptability. must be constituted with a sitting judge of the Supreme Court nominated by the Chief Justice of India to ensure the selection of competent adjudicators to the tribunals. Upholding the vires of the 1985 Act, the Court suggested several amendments to cure the defects with respect to the composition of the tribunal and the mode of appointment of the Chairperson, Vice-Chairperson and members which were to be carried out by 31 March, 1987. 12 Decisions subsequent to Sampath Kumar had required a fresh look by a larger Bench of this Court over the issues that had been decided. In L Chandra Kumar v Union of India (1997) 3 SCC 261 (‗Chandra Kumar ), a seven judge Bench of this Court revisited the challenge to the 1985 Act and the power conferred on the Parliament or the state legislatures by Articles 323A(2)(d) and 323B(3)(d), as the case may be, to exclude the jurisdiction of ‗all courts , except that of this Court under Article 136 in respect of disputes referred to in those Articles. Overruling the decision in Sampath Kumar, this Court drew a distinction between the substitutional role and the supplemental r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive Tribunals Act 1985, Information Technology Act 2000, Companies Act 1956 as amended (Chapter 1B) and the qualifications prescribed in them for appointment as judicial and technical members and noted that the ‗speed at which the qualifications for appointment as members is being diluted is, to say the least, a matter of great concern for the independence of the judiciary. The Court cautioned that tribunals cannot become providers of sinecure to members of civil services, by appointing them as technical members. The Court emphasised that ‗impartiality, independence, fairness and reasonableness in decision making are the hallmarks of judiciary and laid down the eligibility criteria for judicial and technical members. Taking note of the recruitment conditions for judicial and technical members, tenure and service conditions, the Court upheld the creation of the NCLT and NCLAT. Several suggestions to amend part 1-B and 1-C were issued, to be carried out as a condition precedent to ensure that the NCLT and the NCLAT may be made operational in accordance with the observations made by this Court. 16 In Madras Bar Association v Union of India (2014) 10 SCC 1 (‗Madras B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointment. The Court noted that since the NTT had been vested with jurisdiction that earlier vested in the High Courts, all matters of appointment and extension of tenure must be shielded from the executive. The Court noted that upon the declaration of numerous provisions as unconstitutional, the remaining provisions were rendered ‗otiose and worthless . Hence, the 2005 Act was struck down in its entirety. 19 Pursuant to the enactment of the Companies Act 2013, a Constitution Bench of this Court in Madras Bar Association v Union of India (2015) 8 SCC 583 dealt with the contention that despite the directions issued in R Gandhi in respect of the provisions concerning the NCLT and the NCLAT, analogous provisions had been inserted in the 2013 Act without complying with those directions. The Court embarked on a comparison of various provisions of the Companies Act 2013 with the directions issued in R Gandhi and observed that many discrepancies persisted which were in contravention of the directions issued by this Court in the earlier round of litigation concerning the qualifications, appointments, eligibility, and composition of the Selection Committees. The Court affirmed the dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticizes the inconsistencies in the appointment process, qualification of members, age of retirement, resources and infrastructure of different tribunals. They can be attributed to tribunals operating under different ministries. The report affirms the observation in the judgment that a single nodal authority or ministry is required for the administration of tribunals in order to improve efficiency. C) Pendency and vacancy in Tribunals The report notes that the high rate of pendency can be attributed to systemic issues. For example, the Debt Recovery Tribunal had 58% failed hearings (i.e. avoidable adjournments that were not penalised) and condonations were often granted due to delays in filing. Such delays accounted for more than half the time taken up by cases. Another significant cause for delays is absenteeism of tribunal members. D) Jurisdiction of the High Courts Provisions allowing direct appeals to the Supreme Court which by-pass the jurisdiction of High Courts have been examined in multiple cases. Despite existing precedents and Law Commission of India recommendations, parent statutes of many tribunals allow for a direct appeal to the Supreme Court. Two issues have been note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays from the date of its receipt of the Bill return the Bill to the House of the People with its recommendations and the House of the People may thereupon either accept or reject all or any of the recommendations of the Council of States. (3) If the House of the People accepts any of the recommendations of the Council of States, the Money Bill shall be deemed to have been passed by both Houses with the amendments recommended by the Council of States and accepted by the House of the People. (4) If the House of the People does not accept any of the recommendations of the Council of States, the Money Bill shall be deemed to have been passed by both Houses in the form in which it was passed by the House of the People without any of the amendments recommended by the Council of States. (5) If a Money Bill passed by the House of the People and transmitted to the Council of States for its recommendations is not returned to the House of the People within the said period of fourteen days, it shall be deemed to have been passed by both Houses at the expiration of the said period in the form in which it was passed by the House of the People. 24 The role of the Rajya Sabha in the passage of Mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of India, the payment of moneys into or the withdrawal of moneys from any such Fund; (d) the appropriation of moneys out of the Consolidated Fund of India; (e) the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure; (f) the receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State; or (g) any matter incidental to any of the matters specified in sub-clauses (a) to (f). (2) A Bill shall not be deemed to be a Money Bill by reason only that it provides for the imposition of fines or other pecuniary penalties, or for the demand or payment of fees for licences or fees for services rendered, or by reason that it provides for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes. (3) If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final. (4) There shall be endorsed on every Money Bill when it is transmitted to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und, the National Loans Fund or on money provided by Parliament, or the variation or repeal of any such charges; supply; the appropriation, receipt, custody, issue or audit of accounts of public money; the raising or guarantee of any loan or the repayment thereof; or subordinate matters incidental to those subjects or any of them. In this sub-section the expressions ―taxation , ―public money , and ―loan respectively do not include any taxation, money, or loan raised by local authorities or bodies for local purposes. 27 Two facets of the above definition merit emphasis: the first is the use of the expression ‗means which indicates that the definition is exhaustive; and second, that the content of a Money Bill can have ―only provisions dealing with the subjects enunciated in the provision. Under Section 1(3), a Money Bill sent to the House of Lords and to Her Majesty for assent should be endorsed with the certificate of the Speaker of the House of Commons that it is a Money Bill. Section 3 attributes finality to the decision of the Speaker, rendering it immune from judicial review : ―3. Certificate of Speaker. Any certificate of the Speaker of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... airman has declined to anticipate the Speaker s decision in this matter or to allow the effect of an amendment in this regard to be raised as a point of order. (Emphasis supplied) 28 Section 37 of the Government of India Act 1935 contained a special provision for Financial Bills: ―37. Special provisions as to financial Bills. (1) A Bill or amendment making provision (a) for imposing or increasing any tax; or (b) for regulating the borrowing of money or the giving of any guarantee by the Federal Government, or for amending the law with respect to any financial obligations undertaken or to be undertaken by the Federal Government; or (c) for declaring any expenditure to be expenditure charged on the revenues of the Federation, or for increasing the amount of any such expenditure, shall not be introduced or moved except on the recommendation of the Governor- General, and a Bill making such provision shall not be introduced in the Council of State. As the Bill could not be introduced or moved ―except on the recommendation of the Governor General , Section 38 authorized each House namely the Council of States and the Federal Assembly to make rules for regulating their procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fines or other pecuniary penalties; (ii) Demand or payment of fees for licences or fees for services rendered; or (iii) The imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes. 30 This is a clear indicator of the constitutional position that what makes a Bill a Money Bill for the purposes of Chapter II of Part V of the Constitution is that it deals only with matters falling under the description provided in clauses (a) to (g) of Article 110 (1). Clause (g) of Article 110 (1) covers ―any matter incidental to what is specified in clauses (a) to (f). Clause (g) must not be understood as a residuary provision or a catch-all-phrase encompassing all other matters which are not specified in clauses (a) to (f). If this construction were to be placed on clause (g), the distinction between an Ordinary Bill and a Money Bill would vanish. Hence, to be incidental within the meaning of clause (g), the Bill must cover only those matters which fall within the ambit of clauses (a) to (f). It is only a matter which is incidental to any of the matters specified in clauses (a) to (f) which is contemplated in clause (g). Certific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... President after consultation with the Council of State decides not to accede to the request of Seanad ireann, or if the Committee of Privileges fails to report within the time hereinbefore specified the certificate of the Chairman of D il ireann shall stand confirmed. (Emphasis supplied) The Irish model contained a provision for resolving a dispute on the certification of a Bill as a Money Bill. This part of the dispute resolution procedure was not adopted when our Constitution was framed. Moreover, the clause on finality was adopted in a modified form. Whereas clause (1) of Article 22 of the Irish Constitution uses the expression ―final and conclusive , draft Article 75 provided for the decision of the Speaker of the House of People being final. On 5 December 1947, the Expert Committee on Financial Provisions suggested an amendment to the draft provision, the gist of which is indicated by B Shiva Rao : ―When a Money Bill is sent from the Lower House to the Upper, a certificate of the Speaker of the Lower House saying that it is a Money Bill should be attached to, or endorsed on, the Bill and a provision to that effect should be made in the Constitution on the lines of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o such constituencies, made or purporting to be made under Article 243-K, shall not be called in question in any court. ―243ZG. Bar to interference by courts in electoral matters. Notwithstanding anything in this Constitution (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243-ZA shall not be called in question in any court. (Emphasis supplied) In N P Ponnuswami v Returning Office, Namakkal Constituency, Namakkal, Salem, Dist. 1952 SCR 218 , a six judge Bench of this Court construed Article 329 of the Constitution in the following terms : ―5. A notable difference in the language used in Articles 327 and 328 on the one hand, and Article 329 on the other, is that while the first two articles begin with the words ―subject to the provisions of this Constitution , the last article begins with the words ―notwithstanding anything in this Constitution . It was conceded at the Bar that the effect of this difference in language is that whereas any law made by Parliament under Article 327, or by the State Legislature under Article 328, cannot exclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was coloured by the advice or representation made by the executive or it was founded on no evidence. appreciation of evidence is entirely left to the President and it is not for the Courts to hold that on the evidence placed before the President on which the conclusion is founded, if they were called upon to decide the case they would have reached some other conclusion. 36 In the context of Article 311 (3), a Constitution Bench of this Court in Union of India v Tulsiram Patel (1985) 3 SCC 398 held that the finality attributed to the decision of a disciplinary authority that it is not reasonably practical to hold an inquiry, does not render it immune from judicial review. In Kihoto Hollohan v Zachillhu 1992 Supp. (2) SCC 651, a Constitution Bench of this Court held that the finality attributed to the decision of the Speaker of the Lok Sabha or the Chairman of the Rajya Sabha in paragraph 6 (1) of the Tenth Schedule of the Constitution does not abrogate judicial review : ―111. That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen is valid. But the concept of statutory finality embodied in Para 6(1) does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Constitution provides thus: ―122. Courts not to inquire into proceedings of Parliament. (1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure. (2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers. Article 122 of the Constitution is similar to Section 41 of the Government of India Act 1935 25 . In the Commentary on the Government of India Act 1935 by N Rajagopala Aiyangar N Rajagopala Aiyangar, Government of India Act 1935, Madras Law Journal Office (1937) at page 63 , there is an eloquent distinction made between matters of procedure and those of substance in the context of Section 41 (1): ―This sub-section seeks to cure defects arising from irregularity of procedure in the Legislature. The activities of a chamber may be divided into internal and external, the internal activities being the sphere of procedure, while the external are subject to the law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the conduct of business, or for maintaining order, in the legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers. Article 212(1) seems to make it possible for a citizen to call in question in the appropriate Court of law the validity of any proceedings inside the Legislative Chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinised in a Court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular... (Emphasis supplied) This formulation was applied in the context of Article 122 by the Constitution Bench in Ramdas Athawale v Union of India (2010) 4 SCC 1 (―Ramdas Athawale ): ―36. This Court under Article 143, Constitution of India In re (Special Reference No. 1 of 1964) [Powers, Privileges and Immunities of State Legislatures, In re (Special Reference No. 1 of 1964), AIR 1965 SC 745] (also known as Keshav Singh case) while construing Article 212(1) observed that it may be poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rstood in the context in which it has been mandated under a specific provision of the Constitution. Hence the provisions contained in Article 122 which protect an alleged irregularity of procedure in the proceedings in Parliament being questioned cannot extend to a substantive illegality or a violation of a constitutional mandate. 41. Mr K K Venugopal, learned Attorney General for India relied on three decisions in support of his submission that the certificate issued by the Speaker of the Lok Sabha that a Bill is a Money Bill is immune from judicial review : (I) Mangalore Ganesh Beedi Works v State of Mysore AIR 1963 SC 589 (―Mangalore Beedi ); (II) Mohd. Saeed Siddiqui v State of Uttar Pradesh (2014) 11 SCC 415 (―Mohd. Saeed Siddiqui ); and (III) Yogendra Kumar Jaiswal v State of Bihar (2016) 3 SCC 183 (―Yogendra Kumar ). Mangalore Beedi was a case where a new system of coinage had introduced a naya paisa (one hundred naya paisas being equivalent to a rupee) instead of the erstwhile legal tender of sixteen annas or sixty-four pice, which continued to remain legal tender. The appellant which was subjected to an additional amount as sales tax due to the change in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the issue as to whether a Bill was a Money Bill could only be raised by a Member before the legislative assembly before it was passed. Chief Justice P Sathasivam, speaking for the Bench formulated the following principles: ―(i) the validity of an Act cannot be challenged on the ground that it offends Articles 197 to 199 and the procedure laid down in Article 202; (ii) Article 212 prohibits the validity of any proceedings in a legislature of a State from being called in question on the ground of any alleged irregularity of procedure; and (iii) Article 255 lays down that the requirements as to recommendation and previous sanction are to be regarded as a matter of procedure only. It is further held that the validity of the proceedings inside the legislature of a State cannot be called in question on the allegation that the procedure laid down by the law has not been strictly followed and that no court can go into those questions which are within the special jurisdiction of the legislature itself, which has the power to conduct its own business. The decision adverted to Article 212 (1) (which corresponds to Article 122(1)) and to Article 25534 of the Constitution. Whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince received assent. Thus, where the recommendation required is that of the Governor, the assent of the President or of the Governor and where the recommendation or previous sanction required is that of the President, the assent by the President will protect the legislation being called into question. The subsequent assent to the law cures the absence of a recommendation, or as the case may be, sanction. Article 255 does not deal with the certificate of the Speaker under Article 110 (3) or Article 199 (3), which is neither a recommendation nor a previous sanction within the meaning of Article 255. 46 Mohd Saeed Siddiqui proceeds on an incorrect construction of the decision in Mangalore Beedi and on an erroneous understanding of Article 255. The decision in Pandit MSM Sharma v Dr Shree Krishna Sinha AIR 1960 SC 1186 which was adverted to in Mohd Syed Siddiqui was discussed in the Special Reference to hold that the validity of the proceedings in a legislative chamber can be questioned on the ground of illegality. The decisions in the Special Reference, Ramdas Athawale and Raja Ram Pal clearly hold that the validity of the proceedings before Parliament or a state legislature can be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by both the sides. The above extract clearly indicates that the arguments were considered on the touchstone of the requirement that for a Bill to be a Money Bill, strict adherence to the provisions of Article 110 is necessary. 49 On the issue of justiciability Puttaswamy at para 455 Justice Sikri rejected specifically the submissions urged on behalf of the Union of India that the certification of the Speaker was not subject to judicial review. The majority held: ―464. We would also like to observe at this stage that insofar as submission of the respondents about the justiciability of the decision of the Speaker of the Lok Sabha is concerned, we are unable to subscribe to such a contention. Judicial review would be admissible under certain circumstances having regard to the law laid down by this Court in various judgments which have been cited by Mr P. Chidambaram, learned senior counsel appearing for the petitioners, and taken note of in paragraph 455. The decisions which were adverted to in para 455 referred to in the above extract are: ―455.1.Sub-Committee on Judicial Accountability v. Union of India (1991) 4 SCC 699]. 455.2.S.R. Bommai v. Union of India, (1994) 3 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing terms: ―515.1. We do recognise the importance of Rajya Sabha (Upper House) in a bicameral system of the Parliament. The significance and relevance of the Upper House has been succinctly exemplified by this Court in Kuldip Nayar s case [Kuldip Nayar v. Union of India, (2006) 7 SCC 1]. The Rajya Sabha, therefore, becomes an important institution signifying constitutional federalism. It is precisely for this reason that to enact any statute, the Bill has to be passed by both the Houses, namely, Lok Sabha as well as Rajya Sabha. It is the constitutional mandate. The only exception to the aforesaid Parliamentary norm is Article 110 of the Constitution of India. Having regard to this overall scheme of bicameralism enshrined in our Constitution, strict interpretation has to be accorded to Article 110. Keeping in view these principles, we have considered the arguments advanced by both the sides. 51 On merits, Section 7 was held to be a core provision, satisfying the conditions of Article 110 while the others were held to be incidental in nature. Section 57 had been held to be unconstitutional. Hence the conclusion was in the following terms: ―467 Section 7 is the core ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to its norms. No constitutional institution wields absolute power. No immunity has been attached to the certificate of the Speaker of the Lok Sabha from judicial review, for this reason. The Constitution makers have envisaged a role for the judiciary as the expounder of the Constitution. The provisions relating to the judiciary, particularly those regarding the power of judicial review, were framed, as Granville Austin observed, with ―idealism [Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), at p. 205.] Courts of the country are expected to function as guardians of the Constitution and its values. Constitutional courts have been entrusted with the duty to scrutinise the exercise of power by public functionaries under the Constitution. No individual holding an institutional office created by the Constitution can act contrary to constitutional parameters. Judicial review protects the principles and the spirit of the Constitution. Judicial review is intended as a check against arbitrary conduct of individuals holding constitutional posts. It holds public functionaries accountable to constitutional duties. If our Constitution ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Speaker certifying the Bill as Money Bill is not only a matter of procedure and in event, any illegality has occurred in the decision and the decision is clearly in breach of the constitutional provisions, the decision is subject to Judicial Review. We are, therefore, of the view that the Three Judge Bench judgment of this Court in Mohd. Saeed Siddiqui [Mohd. Saeed Siddiqui v. State of U.P., (2014) 11 SCC 415] and Two Judge Bench judgment of this Court in Yogendra Kumar Jaiswal [Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183 : (2016) 2 SCC (Cri) 1] do not lay down the correct law. We, thus, conclude that the decision of the Speaker certifying the Aadhaar Bill as Money Bill is not immuned from Judicial Review. (Emphasis supplied) Justice Ashok Bhushan then held on merits that the Bill had been correctly passed as a Money Bill. 55 From the above analysis, it is evident that the judgments of both Justice D Y Chandrachud and Justice Ashok Bhushan categorically held that the decision of the Speaker to certify a Bill as a Money Bill is not immune from judicial review. There is a clear distinction between an irregularity of procedure under Article 122(1) and a substantive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll which is pending in the Lok Sabha or upon being passed by the Lok Sabha is pending in the Rajya Sabha, shall lapse on a dissolution of the Lok Sabha, subject to Article 108 46 . The role of the Rajya Sabha in respect of Money Bills has, however, been substantially curtailed. Money Bills can originate only in the Lok Sabha. Moreover, the Rajya Sabha has only a recommendatory power, as noticed earlier, in regard to Money Bills. Bicameralism 59 Bicameralism emerged in 14th century Britain. The House of Lords represented a chamber where a debate took place with feudal lords, while the House of Commons was where citizens were represented. The House of Lords comprised of hereditary peers while the House of Commons in their historical origin comprised of persons possessed of property as required. Across the Atlantic, the Constitution of the United States adopted bicameralism. The Constitutional Convention of 1787 represented a constitutional compromise where the House of Representatives comprised of directly elected legislatures, each voter possessed of an equal vote in the elections and the Senate, where each state could send two members elected indirectly. In the Federalist Papers, J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the position of the Rajya Sabha as a critical ingredient in the federal structure: ―First and foremost, Parliament (the Central Legislature) is dependent upon the States, because one of its Houses, the Council of States, is elected by the Legislative Assemblies of the States. Where the ruling party, or group of parties, in the House of the People has a majority but not an overwhelming majority, the Council of States can have a very important voice in the passage of legislation other than financial Bills. Secondly, a Bill to amend the Constitution requires to be passed by each House of Parliament separately by an absolute majority in that House and by not less than twothirds of those present and voting. Since the Council of States is indirectly elected by the State Legislatures, the State Legislatures have an important say in the amendment of the Constitution because of the requirement of special majorities in each House. Thirdly, the very important matters mentioned in the proviso to Article 368 (Amendment of the Constitution) cannot be amended unless the amendments passed by Parliament are ratified by not less than half the number of Legislatures of the States Fourthly, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of financial emergency (Article 360). Normally, every such Proclamation has to be approved by both Houses of Parliament within a stipulated period. Under certain circumstances, however, Rajya Sabha enjoys special powers in this regard. If a Proclamation is issued at a time when the dissolution of the Lok Sabha takes place within the period allowed for its approval, then the Proclamation can remain effective if a resolution approving it, is passed by Rajya Sabha. 62 In Kuldip Nayar, Chief Justice Y K Sabharwal speaking for the Constitution Bench emphasised the role of the Rajya Sabha in the following observations: ―47. The Rajya Sabha is a forum to which experienced public figures get access without going through the din and bustle of a general election which is inevitable in the case of the Lok Sabha. It acts as a revising chamber over the Lok Sabha. The existence of two debating chambers means that all proposals and programmes of the Government are discussed twice. As a revising chamber, the Rajya Sabha helps in improving Bills passed by the Lok Sabha. The significance of the role of the Rajya Sabha was also emphasised by Justice A K Sikri (writing on behalf of himself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng provision for any of the matters specified in sub-clauses (a) to (f) of Article 110(1) shall not be introduced or moved except on the recommendation of the President of India and the Bill making such provision shall not be introduced in the Council of States. The word ‗only which is employed in Article 110(1) in the definition of Money Bills is absent in Article 117(1). The Legislative Procedure in the Rajya Sabha Legislative Procedure in the Rajya Sabha,: Rajya Sabha Secretariat at p. 17 explains that Financial Bills are comprised in categories I and II respectively: ―b. Financial Bills Category-I A Bill falling under clause (1) of article 117 of the Constitution is called a Financial Bill. It is a Bill which seeks to make provision for any of the matters specified in sub-clauses(a) to (f) of clause (1) of article 110 as also other matters. It is, so to say, a Bill which has characteristics both of a Money Bill firstly, it cannot be introduced in Rajya Sabha, and secondly, it cannot be introduced except on the recommendations of the President. Except these two points of difference, a Financial Bill in all other respects is just like any other ordinary Bill. (c). Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing such office immediately before the commencement of the said Act. ‗Specified Acts were enunciated in the First Schedule to the Bill. The Bill was referred to the Department related Standing Committee which submitted its Seventy Fourth Report on 26 February 2015. The Bill was withdrawn on 11 April 2017. 67 The Finance Bill 2017 was introduced as a Money Bill in the Lok Sabha with a recommendation of the President under clauses (1) and (3) of Article 117 of the Constitution. At the time of the introduction of the Bill on 1 February 2017, the Finance Bill 2017 comprised of 150 clauses together with seven schedules ―to give effect to the financial proposals of the Central Government for the financial year 2017-18 . The Bill contained proposals inter alia to amend, add to and modify legislation dealing with taxation direct, indirect and service taxes and other fiscal aspects. Part VIII of the Finance Bill 2017 sought to expand the jurisdiction of the Securities Appellate Tribunal SAT established under the SEBI Act 1992 SEBI Act 1992 and to make changes in the existing provisions for the appointments to the SAT. The Finance Bill was taken up for discussion on 21 March 2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure of selection; (iii) provisions for resignation and removal; (iv) salaries and emoluments; (v) term and tenure; and (vi) other service conditions such as leave and allowances to members of scheduled tribunals. Part XIV of the Finance Act 2017 is titled: ―Amendments to certain Acts to provide for Merger of Tribunals and Other Authorities and Conditions of Service of Chairpersons, Members etc. 71 Section 158 effects amendments to several Parliamentary enactments: i. The Industrial Disputes Act,1947 ii. The Employees Provident Funds and Miscellaneous Provisions Act 1952 iii. The Copyright Act 1957 iv. The Trade Marks Act 1999 v. The Railway Claims Tribunal Act 1987 vi. The Railways Act 1989 vii. The Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act 1976 viii. The Foreign Exchange Management Act 1999 ix. The Airports Authority of India Act 1994 x. The Control of National Highways (Land and Traffic) Act 2002 xi. The Telecom Regulatory Authority of India Act 1997 xii. The Information Technology Act 2000 xiii. The Airports Economic Regulatory Authority of India Act 2008 xiv. The Competition Act 2002 xv. The Companies Act 2013 xvi. The Cinematograph A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Government but not exceeding five years from the date on which he enters upon his office and shall be eligible for reappointment: Provided further that no Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member shall hold office as such after he has attained such age as specified in the rules made by the Central Government which shall not exceed, (a) in the case of Chairperson, Chairman or President, the age of seventy years; (b) in the case of Vice-Chairperson, Vice-Chairman, Vice- President, Presiding Officer or any other Member, the age of sixty-seven years: (2) Neither the salary and allowances nor the other terms and conditions of service of Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authority may be varied to his disadvantage after his appointment. 73 Section 184 has conferred a rule making power on the Central Government to provide for the (i) qualifications; (ii) appointment; (iii) terms of office; (iv) salaries and allowances; (iv) resignation; (vi) removal; and (viii) other terms and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to these tribunals. By this process, the governing statutory provisions embodied in the parent legislation are overridden and authority is conferred upon the Central Government to formulate other aspects of the process from qualifications for office and the process of appointment to the terms of service, through delegated legislation. 76 This, in our view, completely transgresses the conditions stipulated in Article 110(1) for constituting a Money Bill. Article 110 does not bar the inclusion of nonfiscal proposals in a Money Bill. But while permitting the inclusion of non-fiscal subjects, sub-clause (g) of Article 110(1) embodies the requirement that such a matter must be incidental to any of the matters specified in sub-clauses (a) to (f). In other words, the inclusion of a non-fiscal matter is permissible in a Money Bill only if it is incidental or ancillary to a matter specified in sub-clauses (a) to (f). Part XIV has repealed and replaced substantive provisions contained in the enactments specified in the Eighth and Ninth Schedules which are not referable to sub-clauses (a) to (f) of Article 110(1). Part XIV of the Finance Act 2017 is thus not incidental within the meaning o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the amount of expenditure charged on the Consolidated Fund of India. It was contended that Part XIV of the Finance Act 2017, in so far as it has a bearing on the Consolidated Fund of India, is incidental to the matters referred in sub-clauses (c), (d) and (e) of Article 110(1). 80 Sub-clause (g) stipulates that provisions dealing with any matter incidental to the matters specified in sub-clauses (a) to (f) fall within the purview of Article 110(1). However, this is distinct from contending that where a bill contains provisions not referable to the sub-clauses (a) to (f) stipulated in clause (1) of Article 110 but has an incidental bearing on the Consolidated Fund of India, this by itself would bring such a bill within the purview of sub-clause (g) of Article 110(1). 81 Article 110(1) defines a Money Bill as a bill which contains ―only provisions dealing with all or any of the matters enumerated in sub-clauses (a) to (f). The import of sub-clause (g) of clause (1) of Article 110 is that the proposed bill may also contain provisions which have an incidental bearing on the matters enumerated in sub-clauses (a) to (f). However, sub-clause (g) cannot be read to permit a bill con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal design as well as the independence of adjudicatory tribunals. They are not referable to sub-clauses (c), (d) and (e) of Article 110(1) and do not amount to matters incidental to any of the matters enumerated in sub-clauses (a) to (f) of clause (1) of Article 110. 85 There is undoubtedly a presumption of constitutionality which attaches to legislation. The presumption is founded on the principle that the legislature in a parliamentary democracy understands the needs and conditions of the time and that the executive government which pilots legislation through the competent legislature is accountable to both the legislature and to the people whom the elected arm of government represents. But the presumption of constitutionality is what it is, namely, a presumption. The presumption can be displaced on a clear violation of a constitutional mandate or infraction being established. Where a Bill which contains provisions which are not referable to sub-clauses (a) to (g) of clause (1) of Article 110 is passed as a Money Bill, that constitutes a clear violation of the mandate of Article 110. The presumption of constitutionality stands displaced. 86 The learned Attorney General urged tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions of service, and those regulating the impartiality with which the members of the tribunals discharge their functions and their effectiveness as adjudicatory bodies is dependent on their isolation from the executive. By leaving the rule making power to the uncharted wisdom of the executive, there has been a self-effacement by Parliament. The conferment of the power to frame rules on the executive has a direct impact on the independence of the tribunals. Allowing the executive a controlling authority over diverse facets of the tribunals would be destructive of judicial independence which constitutes a basic feature of the Constitution. F.2 Violation of directions issued by this Court 89 The Rules under Section 184 of the Finance Act 2017, termed the Tribunal, Appellate Tribunal and Other Authorities (Qualifications, Experience and Other Conditions of Service of Members) Rules 2017 were notified on 1 June 2017. Rule 1 (3) provides for the applicability of the rules in the following terms: ―(3) These rules shall apply to the Chairman, Vice-Chairman, Chairperson, Vice- Chairperson, President, Vice- President, Presiding Officer, Accountant Member, Administrative Member, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, the Search-cum-Selection Committee for all other seventeen tribunals specified in the Schedule is constituted either entirely from personnel within or nominated by the Central Government or comprises a majority of personnel from the Central Government. The Search-cum-Selection Committee of the National Company Law Appellate Tribunal consists of an equal number of members from the judiciary as well as from the Central Government with no casting vote to the Chief Justice of India or their nominee: ―(B) Search-cum-Selection Committee for the post of the Judicial Member and Technical Member of the Appellate Tribunal, - (i) Chief Justice of India or his nominee - chairperson; (ii) a senior Judge of the Supreme Court or a Chief Justice of a High Court-member; (iii) Secretary to the Government of India, Ministry of Corporate Affairs- member; (iv) Secretary to the Government of India, Ministry of Law and Justice-member. The procedure for selection is fundamentally destructive of judicial independence. The Union Government has vital status in the disputes before many tribunals. Even otherwise, conferring upon the government such a dominating and overwhelming voice in making appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the majority by Justice J S Khehar (as the learned Judge then was) held: ―131. Section 7 cannot even otherwise be considered to be constitutionally valid, since it includes in the process of selection and appointment of the Chairperson and Members of NTT, Secretaries of Departments of the Central Government. In this behalf, it would also be pertinent to mention that the interests of the Central Government would be represented on one side in every litigation before NTT. It is not possible to accept a party to a litigation can participate in the selection process whereby the Chairperson and Members of the adjudicatory body are selected. This would also be violative of the recognised constitutional convention recorded by Lord Diplock in Hinds case [Hinds v. R., 1977 AC 195 : (1976) 2 WLR 366 : (1976) 1 All ER 353 (PC)] , namely, that it would make a mockery of the Constitution, if the legislature could transfer the jurisdiction previously exercisable by holders of judicial offices to holders of a new court/tribunal (to which some different name was attached) and to provide that persons holding the new judicial offices should not be appointed in the manner and on the terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhi. Inherent in the efficient functioning of tribunals is that appointment to tribunals is made attractive to practicing individuals who are guaranteed a reasonable period of service. 95 Section 184 stipulates that the Chairperson, Vice-Chairperson, Chairman, Vice- Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or other Authority is eligible for reappointment. This is restated in Rule 9. This is in violation of the direction issued by this Court in Madras Bar Association where Section 8 which provided for reappointment was struck down in the following terms: ―132. Insofar as the validity of Section 8 of the NTT Act is concerned, it clearly emerges from a perusal thereof that a Chairperson/Member is appointed to NTT, in the first instance, for a duration of 5 years. Such Chairperson/Member is eligible for reappointment for a further period of 5 years. We have no hesitation to accept the submissions advanced at the hands of the learned counsel for the petitioners, that a provision for reappointment would itself have the effect of undermining the independence of the Chairperson/Members of NTT. Every Chairperson/Member appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the High Courts. The learned Judge referred to the cautionary words of Justice William O Douglas, a distinguished judge of the US Supreme Court: ―52.The need for vigilance in jealously guarding the independence of courts and Tribunals against dilution and encroachment, finds an echo in an advice given by Justice William O. Douglas to young lawyers (The Douglas Letters: Selections from the Private Papers of William Douglas, edited by Melvin L. Urofsky, 1987 Edn., p. 162, Adler and Adler): ― The Constitution and the Bill of Rights were designed to get Government off the backs of people all the people. Those great documents did not give us the welfare State. Instead, they guarantee to us all the rights to personal and spiritual self-fulfilment. But that guarantee is not self-executing. As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air however slight lest we become unwitting victims of the darkness. In Madras Bar Association, Justice Rohinton Nariman, in the course of his concurring judgment, adve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations aforesaid enacts a law which is wholly in excess of its powers, it is entirely void and must be completely ignored. But where the legislation falls in part within the area allotted to it and in part outside it, it is undoubtedly void as to the latter; but does it on that account become necessarily void in its entirety? The answer to this question must depend on whether what is valid could be separated from what is invalid, and that is a question which has to be decided by the court on a consideration of the provisions of the Act. ― Adverting to the decision in State of Bombay v F N Balsara 1951 SCR 682, the Constitution Bench observed: ―This decision is clear authority that the principle of severability is applicable even when the partial invalidity of the Act arises by reason of its contravention of constitutional limitations. 100 In State of Bombay v United Motors (India) Ltd. 1953 SCR 1069, Chief Justice Patanjali Sastri held that the doctrine of severability should be extended in dealing with taxing statutes. After adverting to these decisions in Chamarbaugwalla, Justice Venkatarama Ayyar concluded: ―21 The resulting position may thus be stated: When a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be ascertained on an examination of the Act as a whole and of the setting of the relevant provision therein. 6. If after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation. Vide Sutherland on Statutory Construction, Vol. 2, p. 194. 7. In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it. Vide Sutherland on Statutory Construction, Vol. 2, pp. 177-178. 101 In the present case, applying these principles enunciated above, Part XIV of the Finance Act 2017 is severable. The intent of the legislature is the guiding principle under the first of the above principles. Parliament would, in any event, have enacted the valid parts of the Finance Act 2017 if it had known that Part XIV is invalid. The valid and invalid parts are not so inextricably linked that the invalidity of Part XIV should result in the invalidity of the rest. Nor is Part XIV a part of a composite scheme li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in individual ministries has led to haphazard evolution of the tribunal structure, besides posing serious dangers to the independence of tribunals. 105 It is imperative that an overarching statutory organisation be constituted through legislative intervention to oversee the working of tribunals. We recommend the constitution of an independent statutory body called the ―National Tribunals Commission NTC to oversee the selection process of members, criteria for appointment, salaries and allowances, introduction of common eligibility criteria, for removal of Chairpersons and Members as also for meeting the requirement of infrastructural and financial resources. The legislation should aim at prescribing uniform service conditions for members. The Commission should comprise the following members: (i) Three serving judges of the Supreme Court of India nominated by the Chief Justice of India; (ii) Two serving Chief Justices or judges of the High Court nominated by the Chief Justice of India; (iii) Two members to be nominated by the Central Government from amongst officers holding at least the rank to a Secretary to the Union Government: one of them shall be the Secretary to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... validly enacted as a Money Bill, I am in agreement with the reasons which have been set out by the learned Chief Justice of India to refer the aspect of money bill to a larger Bench and direct accordingly. I am in agreement with the observations of brother Justice Deepak Gupta that the qualifications of members to tribunals constitute an essential legislative function and cannot be delegated. Tribunals have been conceptualized as specialized bodies with domain-specific knowledge expertise. Indispensable to this specialized adjudicatory function is the selection of members trained in their discipline. Keeping this in mind, the prescription of qualifications for members of tribunals is a legislative function in its most essential character. The qualifications for appointment to adjudicatory bodies determine the character of the body. The adjudicatory tribunals are intended to fulfil the objects of legislation enacted by Parliament, be it in the area of consumer protection, environmental adjudication, industrial disputes and in diverse aspects of economic regulation. Defining the qualifications necessary for appointment of members constitutes the core, the very essence of the tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce with the Principal Act and various decisions of this Court on functioning of Tribunals? IV. Whether there should be a Single Nodal Agency for administration of all Tribunals? V. Whether there is a need for conducting a Judicial Impact Assessment of all Tribunals in India? VI. Whether judges of Tribunals set up by Acts of Parliament under Articles 323-A and 323-B of the Constitution can be equated in rank and status with Constitutional functionaries? VII. Whether direct statutory appeals from Tribunals to the Supreme Court ought to be detoured? VIII. Whether there is a need for amalgamation of existing Tribunals and setting up of benches. 6. By and large I am in agreement with the reasoning and conclusions arrived at by the Chief Justice, especially on issues 1 and 3 to 8. I am, however, unable to persuade myself to agree with the Chief Justice that Section 184 of the Finance Act of 2017 does not suffer from the vice of excessive delegation. I am also of the view that though the issue with regard to the Money Bill may be referred to a larger bench of 7 judges, since the correctness of the law laid down in L. Chandrakumar v. Union of India (1997) 3 SCC 261 has not been doubted, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591; L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 , democracy, separation of powers Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 etc. These basic features of the Constitution are an inherent part of our Constitution and polity. 11. Part III of the Constitution which sets out the fundamental rights has often been referred to as the heart and soul of the Constitution. In my view, the essence of the Constitution was beautifully captured by our founding fathers in the Preamble of the Constitution where we promised to ourselves Justice, Liberty, Equality and Fraternity. The first and foremost attribute of the Preamble is Justice. India should be a democratic republic is also a part of the Preamble. The ultimate power under our Constitution resides with the people and not those holding positions of power. 12. The rule of law is the golden thread which runs through our Constitution. This golden thread binds together the various chapters of the Constitution dealing with Citizenship, Fundamental Rights, the Union, the States, the Panchayats, Scheduled and Tribal Areas, Relations between Union and States, Trade, Commerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdictions. The problem was not lack of talent. The problem was not lack of knowledge Union of India v. Madras Bar Association, (2010) 11 SCC 1 . The main problem was extremely low number of judges as compared to the population and a very high vacancy position. Tribunalisation of justice was done not because the courts were incapable of handling the matters but mainly because there were huge delays in settling matters. Now even for complex commercial matters, specialised commercial courts have been set up. However, at the same time, one cannot deny that in the fast-expanding technological world, there is a need to have expert adjudicators. Therefore, there is a need to have specialised tribunals. These tribunals being substitutes for courts must also meet the expectations of our founding fathers and be totally independent and fearless. 16. Unfortunately, the working of some of the tribunals leaves much to be desired. Not all the problems arise because of the persons who run the tribunals. Many difficulties arise because of huge vacancies, few benches, financial crunch and dependence of the tribunals on the departments, which sadly administer the tribunals. Some of the tribunals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposition that delegation of non-essential legislative functions can be done. Even to this there is a caveat. The legislature must have control and functional powers over the delegatee. One of the known methods of exercising such powers is for the delegatee to place the rules/orders passed by it in exercise of powers delegated to it before the legislature. There should always be legislative control over delegated legislation. 22. In Gwalior Rayon Mills v. Assistant Commissioner, Sales Tax AIR 1974 SC 1660, Khanna, J. dealt with this matter in his inimitable style. Paras 24 and 25 of the judgment have been quoted in the opinion of the Chief Justice but I think Para 26 is also very relevant and it reads as follows: 26. We are also unable to subscribe to the view that if the legislature can repeal an enactment, as it normally can, it retains enough control over the authority making the subordinate legislation and, as such, it is not necessary for the legislature to lay down legislative policy, standard or guidelines in the statute. The acceptance of this view would lead to startling results. Supposing the Parliament tomorrow enacts that as the crime situation in the country has dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed especially without laying down any guidelines. 25. Section 184 empowers the Central Government to make rules to provide for qualification, appointment term of office, salaries and allowances etc. of various Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authorities as specified in column (2) of the Eighth Schedule. Section 184 of the Finance Act, 2017 reads as follows :- 184. (1) The Central Government may, by notification, make rules to provide for qualifications, appointment, term of office, salaries and allowances, resignation, removal and the other terms and conditions of service of the Chairperson, Vice-Chairperson, Chairman, Vice- Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authorities as specified in column (2) of the Eighth Schedule: Provided that the Chairperson, Vice- Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or other Authority shall hold office for such term as specifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28. As far as providing the qualifications for appointment are concerned, as discussed above, I am of the view that these qualifications have to be provided in the legislation and could not be delegated. However, as far as the other terms and conditions such as pay and allowances are concerned, these can be delegated. 29. For the sake of argument, even if it was to be said that laying down the qualifications is not an essential function then also, in view of the law laid down by this Court, the guidelines should have been found in the legislation itself. It is paradoxical that there are no guidelines for the essential qualifications, even though there are some guidelines with regard to the terms and conditions of services of Chairpersons/Members of the Tribunals. 30. I am in respectful disagreement with the Chief Justice that the objects of the parent enactments and the law laid down by this Court in R. K. Jain v. Union of India (1993) 4 SCC 119, L. Chandra Kumar (supra), Union of India v. Madras Bar Association (2010) 11 SCC 1, Madras Bar Association v. Union of India (2014) 10 SCC 1, Madras Bar Association v. Union of India (2015) 8 SCC 583, Gujarat Urja Vikas Nigam Ltd. v. Essar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he correctness of the law laid down by 7-Judge Bench in L. Chandra Kumar (supra) that there should be one wholly independent agency for the administration of all the tribunals. There is no need to refer this issue to a Bench of 7 Judges. 35. However, I would like to add a few words because I feel that it is important to highlight the problems being faced and the issues which need to be resolved by the body which will carry out the judicial impact assessment of the tribunals in the form of a Judicial Impact Assessment Committee. I am clearly of the view that as laid down in L. Chandra Kumar (supra), there must be a single independent nodal agency for administering all the tribunals. The 7-Judge Bench of this Court held that all tribunals should as far as possible be under a single nodal agency. Until such a nodal agency is set up it was felt that the Ministry of Law and Justice would be the most appropriate Ministry for this purpose. 36. There are various reasons why there should be one nodal agency. Tribunals are facing many problems like lack of manpower, very few benches, vacancies lying unfilled for long period, financial dependence on the department which may be litigating befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so high as to make the tribunals dysfunctional if not non-functional. The promised benches remain a mirage in the air and the litigants from remote areas of the country have to come to the State capitals or the National Capital for redressal of their grievances. 39. Access to justice is a fundamental right Anita Kushwaha v. Pushap Sudan, (2016) 8 SCC 509 . Denial of access to justice also takes place when a litigant has to spend too much money, time and effort to approach the adjudicating authority to get justice. In India where delays plague the tribunals, a client will not hurriedly approach a tribunal even if he has a genuine grievance. Amongst the many tribunals set up, the tax tribunals have been probably the most successful. In my view, one of the reasons why the tax tribunals have been successful is that the recruitment of members of these tax tribunals is normally done at a younger age and there is scope of career progression not only within the tribunal but also from the tribunals to the High Courts. This can only happen if we recruit younger and competent people rather than retired persons. Another reason for the success of the tax tribunals is that the litigant is eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be added. Sadly, the reverse has taken place. At the present moment, only the Principal Bench is functioning with only one Chairperson and 3 judicial members (as against the sanctioned strength of 20 judicial members), and two expert members (as against the total sanctioned strength of 20 expert members). The situation is extremely grim. Day in and day out we all talk about pollution and the environment but the harsh reality is that as against a Chairperson and 40 members, at present the Chairperson has the assistance of only 5 members. The result is that no hearings are taking place in the Zonal Benches or the Circuit Benches. We have been informed that cases are taken up by video conferencing. Video conferencing can definitely be used as a tool to hold hearings in some cases but initial filing and hearings must as far as possible be done in open Court if the public is to have faith in the institution. Open hearings are essential to build trust and confidence in the community. Members of the public will have faith only in those tribunals and courts which are open to the public. Presently, the situation is such that if someone from Andaman and Nicobar Islands wants to raise s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bench and the bar in smaller district towns and capitals of smaller States which were handling these matters in a competent manner are deprived of handling these types of cases. This also makes access to justice expensive for the litigants. It also leads to a situation where the bench and the bar in these areas would not have any experience of handling matters relating to jurisdictions transferred to tribunals which they used to handle earlier. Therefore, the local bench and bar will never develop and the entire bulk of work will be captured by those practicing in Delhi or in those State capitals where benches of the tribunals are set up. Instead of taking justice to the common man, we are forcing the common man to spend more money, spend more time and travel long distances in his quest for justice, which is his fundamental right. 45. The litigants cannot wait for judicial impact assessment and action by the Government which may or may not take place. Experience has shown that the judgments right from L. Chandra Kumar (supra) to Madras Bar Association, 2010 (supra) have not been complied with by the Union in letter and spirit. Citizens of this country cannot be denied justice which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial impact assessment should also look into the issue as to whether it would be better to have a tribunal service rather than appointing retired judges. If members of the bar or from the administration or from the State judiciary are appointed at the lowest rung of the tribunal and they have a long tenure knowing that they will retire after 15 or 20 years, one would be able to attract better talent and a more committed workforce. A long tenure for members is also essential for maintaining judicial independence. They shall also have aspirations of reaching the higher levels, which would be an inducement for a better work culture. 48. If there are tribunal services and there is provision for appeal within the hierarchy of the tribunals and the High Courts exercise their writ jurisdiction or if in some matters appeals are provided to the High Courts in the first instance, many of the ills which plague the system may be overcome. If the aforesaid system is followed then the question of appointing retired Judges or bureaucrats will not arise. Learned amicus curiae in his note has raised an issue that tribunals should not become a haven for retired persons. In my view, there should no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vacancies is bound to rise. Though we are discussing tribunals, even the independence and functioning of the High Courts is threatened by this humungous vacancy position. 51. I agree with the Chief Justice that an attempt should be made to do away with filing of first appeal as a matter of right to the Supreme Court. At present, at least 2 dozen statues provide for appeals directly to the Supreme Court. The Supreme Court becomes a Court of first appeal which is highly avoidable. If we follow the law laid down in L. Chandra Kumar (supra), the High Courts should have the jurisdiction to entertain writ petitions against the orders of the tribunals. This will reduce the burden on the Supreme Court. Even more importantly, the High Courts, when they entertain these matters, will deal with them within the limited scope of writ jurisdiction. If the jurisdiction of the High Courts is bypassed by providing for appeals directly to the Supreme Court, soon a stage will come when we will have no High Court Judges who would have heard matters in various jurisdictions. It would be virtually impossible for them to handle such matters in the Supreme Court where the tenure of a Judge is on an average ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omprising of competent people is a better solution and, in my view, such commission should comprise of 2 retired Supreme Court Judges with the senior most being the Chairman and one retired Chief Justice of High Court to be appointed by the Chief Justice of India. There must be one member representing the executive to be nominated by the Central Government from amongst officers holding the rank of Secretary to the Government of India or equivalent. This member shall be the ex-officio convener. One expert member can be co-opted by the by full time members. This expert member must have expertise and experience in the field/jurisdiction covered by the tribunal to which appointments are to be made. 57. At the end I would like to quote what Dr. B. R. Ambedkar said while addressing the Constituent Assembly on 25.11.1949. In his words:- Because I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers of both Houses present and voting, it shall be deemed for the purposes of this Constitution to have been passed by both Houses: Provided that at a joint sitting- (a) if the Bill, having been passed by one House, has not been passed by the other House with amendments and returned to the House in which it originated, no amendment shall be proposed to the Bill other than such amendments (if any) as are made necessary by the delay in the passage of the Bill; (b) if the Bill has been so passed and returned, only such amendments as aforesaid shall be proposed to the Bill and such other amendments as are relevant to the matters with respect to which the Houses have not agreed; and the decision of the person presiding as to the amendments which are admissible under this clause shall be final. (5) A joint sitting may be held under this article and a Bill passed thereat, notwithstanding that a dissolution of the House of the People has intervened since the President notified his intention to summon the Houses to meet therein. 16 Article 117 : (1) A Bill or amendment making provision for any of the matters specified in sub-clauses (a) to (f) of clause (1) of article 110 shall not be intr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... territories] shall be in accordance with the provisions in that behalf contained in the Fourth Schedule. (3) The members to be nominated by the President under sub-clause (a) of clause (1) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely:- Literature, science, art and social service. (4) The representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote. (5) The representatives of the [Union territories] in the Council of States shall be chosen in such manner as Parliament may by law prescribe. 45 83. (1) The Council of States shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law. (2) The House of the People, unless sooner dissolved, shall continue for 1[five years] from the date appointed for its first meeting and no longer and the expiration of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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