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TMI Blog2021 (10) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... Khanna, Dipin Tamang, Akshay Joshi, K.C. Kaushik, Ms. Bhuvneshwari Pathak, Ms. Shilpi Satyapriya Satyam, Pankaj Singh, Ms. Ranjana Singh, Rupesh Kumar, Ms. Neelam Sharma, Ms. Pankhuri Shrivastava, Nidad Laud, Sahil Tagotra, Alekshendra Sharma, Kaushik Mishra, Kiran Patel, Ms. Viapsha Singh, R. Gowrishankar, Gourav Agrawal, Chritarth Palli, Rajeev Sharma, Pravesh Bahuguna, P.B. Suresh and Sai Kaushal N., Advocates, for the appearing Parties. JUDGMENT [Judgment per : L. Nageswara Rao, J.]. - The Madras Bar Association has filed this Writ Petition seeking a declaration that Sections 12 and 13 of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 and Sections 184 and 186(2) of the Finance Act, 2017 as amended by the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 as ultra vires Articles 14, 21 and 50 of the Constitution of India inasmuch as these are violative of the principles of separation of powers and independence of judiciary, apart from being contrary to the principles laid down by this Court in Union of India v. R. Gandhi, President, Madras Bar Association [(2010) 11 SCC 1 = 2010 (261) E.L.T. 3 (S.C.)], Madras Bar Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correctness of the judgment of this Court in S.P. Sampath Kumar (supra) was considered by a Larger Bench of this Court in L. Chandra Kumar v. Union of India & Ors. [(1997) 3 SCC 261 = 1997 (92) E.L.T. 318 (S.C.)] which found the exclusion of the jurisdiction of the High Courts and the Supreme Court in Articles 323A and 323B to be unconstitutional. This Court declared that Tribunals shall continue to act like Courts of first instance in respect of areas of law for which they have been constituted. 5. A High-Level Committee on law relating to insolvency of companies was constituted by the Union of India under the Chairmanship of Justice V. Balakrishna Eradi, retired Judge of this Court who made certain recommendations for setting up the National Company Law Tribunal (hereinafter referred to as NCLT) combining the powers of the Company Law Board under the Companies Act, 1956 (hereinafter referred to as the 1956 Act), BIFR and AAIFR under the Sick Industrial Companies (Special Provisions) Act, 1985 and the jurisdiction and powers relating to winding up vested in the High Courts. The Government accepted the recommendations and passed the Companies (Second Amendment) Act, 2002. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the financial proposals for the financial year 2017-18. Sections 183 to 189 thereof dealt with conditions of service of Chairperson and Members of Tribunals, Appellate Tribunals and other authorities. According to Section 183, provisions of Section 184 applied to the Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal and other specified authorities, notwithstanding anything to the contrary contained in the provisions of the statutes listed in Column (3) of the Eighth Schedule. The Central Government was empowered by Section 184 to make rules to provide for qualifications, appointment, term of office, salaries and allowances, resignation, removal and other terms and conditions of service of the Chairperson and Vice-Chairperson (and commensurate positions bearing different nomenclature) and other Members. As per the first proviso, the Chairperson, Vice-Chairperson (and commensurate positions bearing different nomenclature) or Member of the Tribunal shall hold office for such term as may be specified by the rules made by the Central Government, not exceeding five years from the date on w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 62 = 2020 (374) E.L.T. 817 (S.C.)] (hereinafter referred to as MBA-III) disposed of the writ petition by issuing the following directions : "53. The upshot of the above discussion leads this Court to issue the following directions : (i) The Union of India shall constitute a National Tribunals Commission which shall act as an independent body to supervise the appointments and functioning of Tribunals, as well as to conduct disciplinary proceedings against members of Tribunals and to take care of administrative and infrastructural needs of the Tribunals, in an appropriate manner. Till the National Tribunals Commission is constituted, a separate wing in the Ministry of Finance, Government of India shall be established to cater to the requirements of the Tribunals. (ii) Instead of the four-member Search-cum- Selection Committees provided for in Column (4) of the Schedule to the 2020 Rules with the Chief Justice of India or his nominee, outgoing or sitting Chairman or Chairperson or President of the Tribunal and two Secretaries to the Government of India, the Search-cum-Selection Committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Vice-Chairperson, Vice President of the Tribunals an amount of Rs. 1,50,000/- per month as house rent allowance and Rs. 1,25,000/- per month for other members of the Tribunals. This direction shall be effective from 1-1-2021. (vi) The 2020 Rules shall be amended to make advocates with an experience of at least 10 years eligible for appointment as judicial members in the Tribunals. While considering advocates for appointment as judicial members in the Tribunals, the Search-cum-Selection Committee shall take into account the experience of the Advocate at the bar and their specialization in the relevant branches of law. They shall be entitled for reappointment for at least one term by giving preference to the service rendered by them for the Tribunals. (vii) The members of the Indian Legal Service shall be eligible for appointment as judicial members in the Tribunals, provided that they fulfil the criteria applicable to advocates subject to suitability to be assessed by the Search-cum-Selection Committee on the basis of their experience and knowledge in the specialized branch of law. (viii) Rule 8 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; The Chairpersons, Vice Chairpersons and members of the Tribunals appointed prior to 12-2-2020 shall be governed by the parent statutes and Rules as per which they were appointed. The 2020 Rules shall be applicable with the modifications directed in the preceding paragraphs to those who were appointed after 12-2-2020. While reserving the matter for judgment on 9-10-2020, we extended the term of the Chairpersons, Vice-Chairpersons and members of the Tribunals till 31-12-2020. In view of the final judgment on the 2020 Rules, the retirements of the Chairpersons, Vice-Chairpersons and the members of the Tribunals shall be in accordance with the applicable Rules as mentioned above." 9. The Tribunal Reforms (Rationalisation and Conditions of Service) Bill, 2021 was introduced in the Lok Sabha on 13-2-2021 but could not be taken up for consideration. According to the Statement of objects and reasons, the said Bill was proposed with a view to streamline Tribunals and sought to abolish certain Tribunals and other authorities, which "only add to another additional layer of litigation" and were not "beneficial for the public at large". Thereafter, the Tribunal Reforms (R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f separation of powers which forms part of the basic structure of the Constitution. The Ordinance is liable to be struck down as being violative of another basic feature of the Constitution, i.e., independence of the judiciary. (ii) Reversal of judgments which are not in accord with the Government's views undermines the judiciary, violating the supremacy of the Constitution. (iii) Stipulation of a minimum age limit of 50 years for appointment is contrary to the directions given in the judgments of this Court in MBA-I, Rojer Mathew (supra) and MBA-III. (iv) The provisos to Section 184(1) fixing the allowances and benefits payable to the Members to the extent as admissible to Central Government officers holding a post carrying the same pay is unsustainable and requires to be set aside. (v) Section 184(7) is liable to be declared invalid as the direction issued by this Court in MBA-III to make appointments within three months from the date of recommendation of the Selection Committee is sought to be annulled. (vi) &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt to permit the Members, CESTAT and other Tribunals to continue till 62 years as directed by this Court in its judgment in Kudrat Sandhu v. Union of India [W.P. No. 279 of 2017] [2018 (359) E.L.T. 625 (S.C.)]. Mr. Krishnan Venugopal, Learned Senior Counsel appearing for Advocates' Association, Bengaluru, which was interested in appointments being made to the posts of Judicial and Accountant Members of the ITAT, submitted that pursuant to the advertisement issued on 6-7-2018 inviting applications to 37 posts of Members (Judicial)/(Accountant) in the ITAT, 650 applications were filed. The candidates between the age of 35 years and 50 years were eligible according to the advertisement. Interviews were held between May-September, 2019. Appointments to the post of Accountant Members were made but the Judicial Members were not appointed. He submitted that there are few persons who are below 50 years and would not be considered for appointment in view of the Ordinance. He argued that Section 184(11) alone is given retrospective effect and the amendments to Section 184(1) to (10) would be prospective and cannot be made applicable to the recruitment and selection conducted prior to 4-4-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that at least two names should be recommended by the Selection Committee for each post. The Government is also interested in filling up the vacant posts in the Tribunals and the stipulation of taking a decision preferably within three months does not mean that the Government will not act with alacrity. 15. Mr. Balbir Singh, Learned Additional Solicitor General defended the retrospectivity given to Section 184(11) by arguing that the defect pointed out by the judgment of MBA-III has been cured by the Ordinance. It was held in MBA-III that the 2020 Rules came into force on the date of their notification, i.e., 12-2-2020. Further, it was held that subordinate legislation cannot be given retrospective operation unless authorized by the parent legislation. By the Ordinance, the Finance Act has been amended and retrospective effect has been given to Section 184(11). Any judgment or orders passed between 26-5-2017 and 4-4-2021 are overridden by the Ordinance which is in the nature of a curative legislation. The Learned ASG submitted that all appointments that have been made between 26-5-2017 and 4-4-2021 shall be governed by the Ordinance. Separation of Powers 16. Sir Edwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of executing the public resolutions, and of trying the causes of individuals. 19. The Federalist Papers were written by Alexander Hamilton, James Madison, and John Jay under the collective pseudonym "Publius" to promote the ratification of the United States Constitution. James Madison dealt with the particular structure of the new government and the distribution of powers among its different parts in Federalist No. 47 and separation of the departments not having constitutional control over each other in Federalist No. 48. The structure of the Government furnishing proper checks and balances between different departments was the subject matter of Federalist No. 51. 20. All powers of Government - legislative, executive and judicial - result in the legislative body. The concentration of these powers in the same hands is precisely the definition of despotic Government. It will be no alleviation that these powers will be exercised by a plurality of hands and not by a single person. One hundred and seventy-three despots would surely be as oppressive as one. [See : Jefferson : Works : 3, 223] 21. The American Constitution provides for a rigid separation of governmental p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Article 14 of the Constitution. A legislation can be declared as unconstitutional if it is in violation of the principle of separation of powers. Independence of the Judiciary 23. Alexander Hamilton wrote in The Federalist No. 78 as follows : "The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice in no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing." 24. Basic Principles on the Independence of the Judiciary were adopted by the 7th United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26-8-1985 to 6-9-1985 and endorsed by the General Assembly resolutions on 29-11-1985 and 13-12-1985. The relevant basic princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provides that the State shall take steps to separate the judiciary from the executive in the public services of the State. The concept of separation of judiciary from executive cannot be confined only to the subordinate judiciary, totally discarding the higher judiciary. If such a narrow and pedantic or syllogistic approach is made and a constricted construction is given, it would lead to an anomalous position that the Constitution does not emphasise the separation of higher judiciary from the executive [Supreme Court Advocates-on-Record Association & Ors. v. Union of India - (1993) 4 SCC 441]. Article 50, occurring in a chapter described by Granville Austin as "the conscience of the Constitution" in his work titled 'The Indian Constitution : Cornerstone of a Nation', underlines the importance given by the Constitution-makers to immunize the judiciary from any form of executive control or interference [Union of India v. Sankalchand Himatlal Sheth & Anr. - (1977) 4 SCC 193]. 27. The independence of the judiciary is a fighting faith of our Constitution. It is the cardinal principle of the Constitution that an independent judiciary is the most essential characteristic of a free ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate, that is, functional independence are the broad concepts of the principle of independence of the judiciary/Tribunal [Supreme Court Advocates-on-Record Association & Anr. v. Union of India (2016) 5 SCC 1]. 30. Individual independence has various facets which include security of tenure, procedure for renewal, terms and conditions of service like salary, allowances, etc. which should be fair and just and which should be protected and not varied to his/her disadvantage after appointment. Independence of the institution refers to sufficient degree of separation from other branches of the Government, especially when the branch is a litigant or one of the parties before the Tribunal. Functional independence would include method of selection and qualifications prescribed, as independence begins with appointment of persons of calibre, ability and integrity. Protection from interference and independence from the executive pressure, fearlessness from other power centres - economic and political, and freedom from prejudices acquired and nurtured by the class to which the adjudicator belongs, are important attributes of institutional independence [Rojer Mathew (supra)]. 31. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislature cannot declare that they are not bound by the judgment mentioned above. The Board of Little Rock's Central High School suspended its plan to do away with desegregation in public schools. The said action of the school was rejected by the District Court which was affirmed by the Court of Appeal. There was an amendment to the Arkansas Constitution pursuant to which a law was made relieving school children from compulsory attendance at racially mixed schools. The school filed a petition in the District Court seeking postponement of the programme of desegregation. The District Court allowed the writ petition. The Court of Appeal reversed the decision of the District Court which was affirmed by the United States Supreme Court in Cooper v. Aaron [358 U.S. 1 (1958)]. It was held therein that the constitutional rights of children not to be discriminated against in school admissions on grounds of race or color as declared by the United States Supreme Court in the Brown case can neither be nullified openly and directly by State legislators or state executives or judicial officers, nor nullified indirectly by them through evasive schemes for segregation. The Supreme Court declared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dickerson, the justice department informed the Supreme Court that it was not invoking § 3501 and that it could not use the confession only if the Court found that Miranda warnings were not properly administered. In spite of the submission made by the justice department, the Fourth Circuit ruled on the admissibility of the confession on the basis of § 3501. Chemerinsky argues in his article that the judiciary exceeded its jurisdiction in considering § 3501 when none of the parties raised the issue. 36. Justice Scalia speaking for the majority in Plaut v. Spendthrift Farm, Inc. [514 U.S. 211 (1995)] referred to earlier judgments of the United States Supreme Court which held that a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and the Congress may not declare by retrospective action that the law applicable to that very case or a whole class of cases was something other than what the courts said it was. Justice Scalia held that depriving judicial judgments of the conclusive effect that they had when they were announced would be in violation of separation of powers. 37. In his article, "The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Venkata Reddy & Ors. v. State of Andhra Pradesh - (1985) 3 SCC 198; Krishna Kumar Singh & Anr. v. State of Bihar & Ors. - (2017) 3 SCC 1]. 39. The controversy that arises for the consideration of this Court relates to the legislative response to the judgment of this Court in MBA-III. The power to strike down primary legislation enacted by the Union of India or the State legislatures is on limited grounds. The Courts can strike down legislation either on the basis that it falls foul of federal distribution of powers or that it contravenes fundamental rights or other constitutional rights/provisions of the Constitution of India [Binoy Vishwam v. Union of India & Ors. (2017) 7 SCC 59]. Where there is challenge to the constitutional validity of a law enacted by the legislature, the Court must keep in view that there is always a presumption of constitutionality of an enactment and a clear transgression of constitutional principles must be shown. In State of Madhya Pradesh v. Rakesh Kohli & Anr. [(2012) 6 SCC 312], this Court held that sans flagrant violation of the constitutional provisions, the law made by Parliament or a State legislature is not declared bad and legislative en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject-matter; whether by validation, the said legislature has removed the defect which the Court had found in the previous laws; and whether the validating law is consistent with the provisions of Part III of the Constitution [I.N. Saksena v. State of Madhya Pradesh - (1976) 4 SCC 750; Indian Aluminium Co. & Ors. v. State of Kerala & Ors. - (1996) 7 SCC 637; Bakhtawar Trust & Ors. v. M.D. Narayan & Ors. - (2003) 5 SCC 298]. In State of Tamil Nadu v. State of Kerala & Anr. (supra), this Court held that any law enacted by the legislature may be invalidated if it is an attempt to interfere with judicial process by being in breach of the doctrine of separation of powers. 42. The judgment of this Court in Madan Mohan Pathak & Anr. v. Union of India & Ors. [(1978) 2 SCC 50] requires a close scrutiny as it was adverted to and relied upon by both sides. A writ petition was filed in the High Court of Calcutta for a mandamus directing the Life Insurance Corporation (LIC) to act in accordance with the terms of settlement dated 24-1-1974 read with administrative instructions dated 29-3-1974. The writ petition was allowed by the Learned Single Judge against which a Letters Patent Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e legislation. However, it was observed that taking away of such rights would be impermissible if there is violation of Articles 14, 16 or any other constitutional provision. The appointments already made in implementation of a decision of this Court were protected with the reason that "the law does not permit the legislature to take away what has been granted in implementation of the Court's decision. Such a course is impermissible." This Court in Cauvery Water Disputes Tribunal [1993 Supp. (1) SCC 96 (2)] declared the ordinance which sought to displace an interim order passed by the statutory Tribunal as unconstitutional as it set aside an individual decision inter partes and therefore, amounted to a legislative exercise of judicial power. When a mandamus issued by the Mysore High Court was sought to be annulled by a legislation, this Court quashed the same in S.R. Bhagwat & Ors. v. State of Mysore [(1995) 6 SCC 16] on the ground that it was impermissible legislative exercise. Setting at naught a decision of the Court without removing the defect pointed out in the judgment would sound the death knell of the rule of law. The rule of law would cease to have any meaning, because the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t being overturned by the legislature unreasonably. Responding to the submissions of the Learned Attorney General that deference has to be shown by Courts to the policy decisions of the executive and the legislature, the Learned Amicus Curiae argued that deference has to be shown to the reasons of the policy and not the policy itself. The Learned Attorney General asserted that the law laid down by this Court is not the final word as it is settled that the Parliament can legislate by curing the defects pointed out by the Court. The Learned Attorney General stated that legislation is made after the decision undergoes detailed deliberations at various levels in the Government and the legislature. The collective wisdom of the Parliament cannot be interfered with by the Court. He emphasized that service conditions of Chairperson and Members of Tribunals is a matter of policy over which the Parliament should have the final word. He stressed the need for judicial restraint to be shown by courts in giving directions to legislate. He stated that any interstitial directions given by this Court in the absence of any existing legislation shall be treated as suggestions to the Parliament for co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to Section 184 by the Ordinance is as follows : 184. (1) The Central Government may, by notification, make rules to provide for the qualifications, appointment, salaries and allowances, resignation, removal and the other conditions of service of the Chairperson and Members of the Tribunal as specified in the Eighth Schedule : Provided that a person who has not completed the age of fifty years shall not be eligible for appointment as a Chairperson or Member : Provided further that the allowances and benefits so payable shall be to the extent as are admissible to a Central Government officer holding the post carrying the same pay : Provided also that where the Chairperson or Member takes a house on rent, he may be reimbursed a house rent subject to such limits and conditions as may be provided by rules. (2) The Chairperson and Members of a Tribunal shall be appointed by the Central Government on the recommendation of a Search-cum-Selection Committee (hereinafter referred to as the Committee) constituted under sub-section (3), in such manner as the Central Government may, by rules, provide. (3) The Search-cum-Selection Committee shall consist of - (a)& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Committee shall recommend a panel of two names for appointment to the post of Chairperson or Member, as the case may be, and the Central Government shall take a decision on the recommendations of the Committee preferably within three months from the date on which the Committee makes its recommendations to the Government. (8) No appointment shall be invalid merely by reason of any vacancy or absence in the Committee. (9) The Chairperson and Member of a Tribunal shall be eligible for re-appointment in accordance with the provisions of this section : Provided that in making such reappointment, preference shall be given to the service rendered by such person. (10) The Central Government shall, on the recommendation of the Committee, remove from office, in such manner as may be provided by rules, any Member, who - (a) has been adjudged as an insolvent; or (b) has been convicted of an offence which involves moral turpitude; or (c) has become physically or mentally incapable of acting as such a Member; or (d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... msp;The first proviso of Section 184(1) provides minimum age for appointment as Chairperson or Member as 50 years. One of the issues considered in MBA-III was the correctness of the condition imposed in the 2020 Rules that an advocate is eligible for appointment as a Member only if he has 25 years of experience. It is relevant to state that advocates were ineligible for most of the Tribunals. The Learned Attorney General fairly submitted in his arguments that suitable amendment will be made to make advocates eligible, subject to their having 25 years' experience. The Learned Amicus Curiae contended in MBA-III that in order to attract competent advocates to apply for appointment as Members in Tribunals, it is necessary that they should be made eligible for appointment on the same criteria as applicable for appointment of a High Court Judge. The Learned Amicus Curiae suggested that advocates with a standing of 15 years at the bar should be made eligible for appointment as Members of Tribunals. In MBA-III, exclusion of advocates from being appointed as Members was found to be contrary to the judgment of this Court in MBA-I and MBA-II. While recording the submission of the Learned Atto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service, which include adequate renumeration and security of tenure. Therefore, the first proviso to Section 184(1) is in violation of the doctrine of separation of powers as the judgment of this Court in MBA-III has been frustrated by an impermissible legislative override. Resultantly, the first proviso to Section 184(1) is declared as unconstitutional as it is violative of Article 14 of the Constitution. Selections conducted for appointment of Members, ITAT pursuant to the advertisement issued in 2018 should be finalized and appointments made by considering the candidates between 35 to 50 years as also eligible. 50. The second proviso to Section 184(1) deals with the allowances and benefits payable to the Members which are to be the same as are admissible to a Central Government officer holding a post carrying the same pay. According to Rule 15 of the 2020 Rules, Chairpersons and Members of Tribunals were entitled to House Rent Allowance at the same rate as admissible to officers with the Government of India holding Group 'A' post carrying the same pay. The contention of the Learned Amicus Curiae in MBA-III was that the majority of the Tribunals are situated in Delhi and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een reserved on 3-6-2021, a notification was issued by the Ministry of Finance (Department of Revenue) on 30-6-2021 amending the 2020 Rules. By Rule 6 of the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) (Amendment) Rules, 2021 (hereinafter referred to as the 2021 Amendment Rules), the following rule was substituted for Rule 15 of the 2020 Rules : "15. House rent allowance. - With effect from the 1st January, 2021, the Chairman, Chairperson, President, Vice Chairman, Vice Chairperson or Vice President shall have option to avail of accommodation to be provided by the Central Government as per the rules for the time being in force or entitled to house rent allowance subject to a limit of Rs. one lakh fifty thousand rupees per month and the Presiding Offices and Members shall have option to avail of accommodation to be provided by the Central Government as per the rules for the time being in force or entitled to house rent allowance subject to a limit of Rs. one lakh twenty-five thousand rupees per month." According to the notification dated 30-6-2021, the 2021 Amendment Rules shall come into force on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in MBA-III relating to the number of candidates to be recommended for appointment to each post can only be taken to be a suggestion. The Court, as a wing of the State, by itself is a source of law. The law is what the Court says it is. To clarify the position relating to Article 141 vis-à-vis Article 142, it has been held by this Court in Ram Pravesh Singh & Ors. v. State of Bihar & Ors. [(2006) 8 SCC 381] that directions given under Article 142 is not law laid down by the Supreme Court under Article 141. Any order not preceded by any reason or consideration of any principle is an order under Article 142. Article 136 of the Constitution is a corrective jurisdiction that vests a discretion in the Supreme Court to settle the law clear and as forthrightly forwarded in Union of India & Ors. v. Karnail Singh & Ors. [(1995) 2 SCC 728], it makes the law operational to make it a binding precedent for the future instead of keeping it vague. In short, it declares the law, as under Article 141 of the Constitution. "Declaration of law" as contemplated in Article 141 of the Constitution is the speech express or necessarily implied by the highest Court of the land. The law declared by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Members have been mired in controversy for the past several years, thereby, adversely affecting the basic functioning of Tribunals. This Court is aghast to note that some Tribunals are on the verge of closure due to the absence of Members. The direction given by this Court for expediting the process of appointment was in the larger interest of administration of justice and to uphold the rule of law. Section 184(7) as amended by the Ordinance permitting the Government to take a decision preferably within three months from the date of recommendation of the SCSC is invalid and unconstitutional, as this amended provision simply seeks to negate the directions of this Court. 55. The tenure of the Chairperson and Member of a Tribunal is fixed at four years by Section 184(11), notwithstanding anything contained in any judgment, order or decree of any Court. It is relevant to mention that sub-section (11) of Section 184 has been given retrospective effect from 26-5-2017. Rule 9 of 2020 Rules had specified the term of appointment of the Chairperson or Member of the Tribunal as four years. The Learned Amicus Curiae while making his submissions in MBA-III had insisted that the Chairpers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iae canvassed a submission that Sections 184(1) to (10) are prospective in operation and Section 184(11) is given retrospective effect from 26-5-2017, thereby leading to an anomalous situation. He submitted that sub-section (11) is made with the object of reversing the interim orders passed by this Court in Kudrat Sandhu v. Union of India (supra). He stated that the terms and conditions of appointments to be made to the Tribunals/Appellate Tribunals shall be in terms of the respective statutes in force, before the enactment of the Finance Bill, 2017, according to para 224 of Rojer Mathew (supra). Mr. Balbir Singh, Learned Additional Solicitor General, submitted that retrospectivity given to sub-section (11) of Section 184 is a permissible legislative override of the judgment of this Court in MBA-III. The 2020 Rules were held to be prospective in MBA-III on two grounds - (a) it was clear from the Notification dated 12-2-2020 that there was no intention on the part of the Government of India to make the 2020 Rules retrospective; (b) subordinate legislation cannot be given prospective effect unless the parent statute specifically provided the same. It is understood that while insertin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs passed by this Court cannot be overruled by a legislative act, as discussed above. While making it clear that the appointments that are made to the CESTAT on the basis of interim orders passed by this Court shall be governed by the relevant statute and the rules framed thereunder, as they existed prior to the Finance Act, 2017, we uphold the retrospectivity given to the proviso to Section 184(11). To clarify further, all appointments after 4-4-2021 shall be governed by the Ordinance, as modified by the directions contained herein. 58. To conclude, the first proviso and the second proviso, read with the third proviso, to Section 184 overriding the judgment of this Court in MBA-III in respect of fixing 50 years as minimum age for appointment and payment of HRA, Section 184(7) relating to recommendation of two names for each post by the SCSC and further, requiring the decision to be taken by the Government preferably within three months are declared to be unconstitutional. Section 184(11) prescribing tenure of four years is contrary to the principles of separation of powers, independence of judiciary, rule of law and Article 14 of the Constitution of India. Though, we have up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 184(11) of the Ordinance is illegal since the issues of constitution of panel and tenure have already been decided in MBA-III and that without removing such defect, the Ordinance could not be enacted. 62. Before I advert to the grounds of challenge, some of well-established and settled principles of the applicability of the principles of interpretation need to be recapitulated. (i) The power of Legislature is to enact law and the power of Judiciary of that of judicial review of the statutory enactments, 63. The three organs of the State i.e., Legislature, Judiciary and Executive have separate and distinct roles and functions as provided in the Constitution. All the institutions must Act within their own jurisdiction and not trespass into the jurisdiction of others. By segregating the powers and functions of the three institutions, the Constitution ensures such a structure where the institutions function as per their own institutional strength. Secondly, it also creates a system of checks and balances as the Constitution provides a degree of latitude for interference by each branch into the functions and tasks performed by another branch [Dr. Ashwani Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eted by this Court on two grounds, first, it amounts to judicial legislation which was not permissible and secondly, it runs counter to the doctrine of binding precedents [Ibid (Para 33)]. 68. The Constitution Bench of this Court [A.K. Roy v. Union of India & Ors., (1982) 1 SCC 271 (Para 51)] held that a writ of mandamus cannot be issued to bring Section 3 of the 44th Constitutional Amendment Act in force. It was held that the Parliament having left to the unfettered judgment of the Central Government, the question as regards the time for bringing the provisions of the 44th Amendment into force, it was not for the Court to compel the Government to do what according to the mandate of the Parliament lies in its discretion to do so when it considered it opportune to do it. Since the Parliament has left the matter to the judgment of the Central Government without prescribing any objective norms, it makes it difficult for the Courts to substitute their own judgment for that of Government on the question whether Section 3 of the 44th Amendment should be brought into force. 69. This Court [Mangalam Organics Limited v. Union of India, (2017) 7 SCC 221 = 2017 (349) E.L.T. 369 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declare that the judgment of a court is invalid or that it stands nullified. If the legislature were permitted to do so, it would travel beyond the boundaries of constitutional entrustment. While the separation of powers prevents the legislature from issuing a mere declaration that a judgment is erroneous or invalid, the law-making body is entitled to enact a law which remedies the defects which have been pointed out by the court. Enactment of a law which takes away the basis of the judgment (as opposed to merely invalidating it) is permissible and does not constitute a violation of the separation doctrine. That indeed is the basis on which validating legislation is permitted." 72. The lack of binding nature of the guidelines on the legislature is also evident from the fact that even though directions that are mandatory in nature may be issued within the ambit of Article 142 of the Constitution, but the same cannot be enforced against the legislature as the legislators have absolute and unfettered freedom in terms of Article 194(2) in respect of State Legislatures, which is pari materia with Article 105(2) relating to Parliament. The seven Judges Bench of this Court [Powers, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tures including the Parliament is normally controlled by the provisions contained in Part III of the Constitution. If the legislatures step beyond the legislative fields assigned to them, or acting within their respective fields, they trespass on the fundamental rights of the citizens in a manner not justified by the relevant articles dealing with the said fundamental rights, their legislative actions are liable to be struck down by courts in India. Therefore, it is necessary to remember that though our legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution." 73. A conspectus of the above judgments, inter alia, among many others, is that the judiciary in exercise of power of judicial review can strike down any legislation which violates fundamental rights or if it is beyond the legislative competence but the Courts cannot direct the legislature to frame or enact a law and in a particular manner. The law declared by the Supreme Court is binding on all Courts in India in terms of Article 141 of the Constitution. The directions issued under Article 142 of the Constitution, are binding on every Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asus omissus need careful consideration. It is well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed, not as theorems of Euclid", Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lenigh Valley Coal Co. v. Yensavage [218 FR 547].) The view was reiterated in Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama [(1990) 1 SCC 277 : AIR 1990 SC 981]. xx xx xx 14. While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent is what it decides and not what logically follows therefrom. The observations in the Three Judges cases [Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441] [S.P. Gupta v. Union of India, 1981 Supp SCC 87] [Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739] are to be read in the context in which they are rendered. Once that is kept in mind, we arrive at a conclusion that the ratio of those judgments cannot be extended to read the expression "Chief Justice", wherever it occurs, to mean the "Collegium" of the senior Judges." 79. This Court [M.C. Mehta v. Kamal Nath & Ors., (2000) 6 SCC 213] observed that the plenary powers of this Court under Article 142 of the Constitution are inherent in the Court and are "complementary" to those powers which are specifically conferred on the Court by various statutes. The powers conferred on the Court by Article 142 are curative in nature, they cannot be construed as powers which authorize the Court to ignore the substantive rights of a litigant. This power cannot be used to "supplant" substantive law applicable to the case or cause under consideration of the Court. Article 142, even with the width of its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxx xxx (iii) Rule 4(2) of the 2020 Rules shall be amended to provide that the Search-cum-Selection Committee shall recommend the name of one person for appointment to each post instead of a panel of two or three persons for appointment to each post. Another name may be recommended to be included in the waiting list. (iv) The Chairpersons, Vice-Chairpersons and the members of the Tribunal shall hold office for a term of five years and shall be eligible for reappointment. Rule 9(2) of the 2020 Rules shall be amended to provide that the Vice-Chairman, Vice-Chairperson and Vice President and other members shall hold office till they attain the age of sixty-seven years. (v) The Union of India shall make serious efforts to provide suitable housing to the Chairman or Chairperson or President and other members of the Tribunals. If providing housing is not possible, the Union of India shall pay the Chairman or Chairperson or President and Vice-Chairman, Vice-Chairperson, Vice President of the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e we could finalize our views, the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) (Amendment) Rules, 2021 stands notified on 30th June, 2021. The Search and Selection Committee as ordered by this Court in MBA-III, the Advocate being eligible for appointment in certain Tribunal and option to pay House Rent Allowance in terms of the directions of this Court in MBA-III stands incorporated in such Rules. The questions raised now have to be examined in the light of amended Rules. 84. The judgment authored by Justice L. Nageswara Rao has held as under : "43. The permissibility of a legislative override in this country should be in accordance with the principles laid down by this Court in the aforementioned as well as other judgments, which have been culled out as under : (a) The effect of the judgments of the Court can be nullified by a legislative act removing the basis of the judgment. Such law can be retrospective. Retrospective amendment should be reasonable and not arbitrary and must not be violative of the fundamental rights guaranteed under the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal on June 25, 1991. The Ordinance makes no secret of the said fact and the written statement filed and the submissions made on behalf of the State of Karnataka show that since according to the State of Karnataka the Tribunal has no power to pass any interim order or grant any interim relief as it has done by the order of June 25, 1991, the order is without jurisdiction and, therefore, void ab initio. This being so, it is not a decision, according to Karnataka, within the meaning of Section 6 and not binding on it and in order to protect itself against the possible effects of the said order, the Ordinance has been issued. The State of Karnataka has thus arrogated to itself the power to decide unilaterally whether the Tribunal has jurisdiction to pass the interim order or not and whether the order is binding on it or not. Secondly, the State has also presumed that till a final order is passed by the Tribunal, the State has the power to appropriate the waters of the river Cauvery to itself unmindful of and unconcerned with the consequences of such action on the lower riparian States.............. To the extent that the Ordinance interferes with the decision of this Court and of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the defect was not even attempted to be cured. The legislative action was to deny financial benefits arising out of a judgment, which had attained finality. In the present case, I am of the opinion that except two aspects that are contained in Rules 4(2) and 9(2) of the 2020 Rules, rest of directions were de hors the legality or illegality of the Rules with an idea of making Tribunals being made functional at the earliest. 88. Therefore, three judgments referred hereinabove have to be read in the context of the facts and the issues raised therein. In fact, none of the judgments was to the effect that whatever are the directions of this Court to enact law, it is binding on the legislature. The three judgments arise out of facts, wherein, the defect was not even attempted to be cured but simpliciter, the judgment was sought to be nullified. 89. In respect of conclusion (d), though transgression of constitutional limitations and intrusion into the judicial power by the legislature is violative of the principle of separation of powers, the rule of law and of Article 14 of the Constitution of India, but it is equally true that judiciary in exercise of power of judicial r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the possibility of being appointed as the Chairperson. This is not to compare the status of a High Court Judge with that of a member of a Tribunal. The members would be appointed on the basis of recommendation of the high-powered Search and Selection Committee having judicial dominance. If a member is discharging his functions legally, there is no need to bear any apprehension about his not being re-appointed. The process of re-appointment is again with the High-Powered Search and Selection Committee with judicial dominance. A provision in the statute cannot be found to be untenable merely for the reason that there is a possibility of not being reappointed. 93. The advocates were not eligible for appointment under 2020 Rules. Therefore, there was no condition of age of eligibility of such candidates. It may be noted that though this Court discussed the age of the candidates eligible for appointment to be "around 45 years" in para 44, but there was no particular direction qua age. 94. The discussions in the judgment are not to be considered as directions. There is background in which the ultimate directions are issued. Since no directions were issued in respect of eligi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term for the Chairman/President/Members. However, the Government proposes to retain the provision for reappointment instead of "renewal", as the reappointments would be considered by a Selection Committee which would be headed by the Chief Justice of India or his nominee. As the Government proposes to have minimum eligibility of 50 years for first appointment as a Member of the Tribunal, a Member will have to undergo the process of reappointment only once or twice." 97. The finding of the High Court that the President or the Chairman was entitled to renewal of term was not accepted. This Court held as under : "120 (ix). The term of office of three years shall be changed to a term of seven or five years subject to eligibility for appointment for one more term. This is because considerable time is required to achieve expertise in the field concerned. A term of three years is very short and by the time the members achieve the required knowledge, expertise and efficiency, one term will be over. Further the said term of three years with the retirement age of 65 years is perceived as having been tailor-made for persons who have retired or shortly to retire and encourages th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. Thus, the fixation of fifty years of age as the eligibility condition cannot be said to be manifestly arbitrary or violative of any of the Fundamental Rights of any of the candidates which may render such condition of age as illegal. The argument is based on apprehension that it would be difficult for an advocate appointed after attaining the age of fifty years to resume legal practice after completion of one term, in case he is not reappointed. A person who is competent and good in his work will not find any difficulty to resume his practice but what would happen to his professional career if his term is not extended is a calculated risk which a candidate shall take at the time of seeking appointment. Such apprehensions as to what will happen in future cannot be a ground to strike down a condition of age in the statute. This Court is not possessed of the expertise to say that it will be difficult for an advocate to resume practice if he is not reappointed. I am unable to agree that the statutory provisions can be struck down on such grounds based on presumed apprehensions. 101. The apprehensions or misuse of a statutory provision is not a ground to declare the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3]. In another judgment [Mehmood Alam Tariq & Ors. v. State of Rajasthan & Ors., (1988) 3 SCC 241], it was held as under : "24. ... It is also necessary to reiterate that a mere possibility of abuse of a provision, does not, by itself, justify its invalidation. The validity of a provision must be tested with reference to its operation and efficiency in the generality of cases and not by the freaks or exceptions that its application might in some rare cases possibly produce. The affairs of government cannot be conducted on principles of distrust. If the selectors had acted mala fide or with oblique motives, there are administrative law remedies to secure reliefs against such abuse of powers. Abuse vitiates any power." (Emphasis supplied) 103. Therefore, I am of the opinion that in case of failing to secure reappointment, the candidate will not be able to resume practice is based upon apprehensions. Whether they are good or valid grounds to refuse reappointment can be subject matter of judicial review although I am of the opinion that the decision of the high-power Search and Selection Committee not to re-appoint a candidate may not warrant interference in exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nals outside Delhi so that concentration of Tribunals in Delhi is minimized which will in turn help the Bar to grow at different places, ensuring affordable administration of justice and resolution of the challenge of scarcity of housing in Delhi. Section 184(7) 107. The direction of this Court in Para 53(ix) was that the Union shall make appointments to Tribunals within three months whereas the Ordinance has used the expression that the Central Government shall take a decision on the recommendations of the Committee "preferably within three months". Both the directions in sub-para (ix) and in sub-section (7) are only directory. It is well-settled that the use of expression 'shall' or 'may' is not determinative of the fact that whether the condition is mandatory or directory. Therefore, there is no reason to set aside the expression 'preferably' used in sub-section (7) of Section 184. Such directions were issued in terms of Article 142 of the Constitution which stop at the four walls of the Parliament. The language to be used falls within the legislative competence and do not violate any fundamental right nor can be said to be manifestly arbitrary. Whether the Ordinance nul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under : "189 ..........The majority judgment came to hold that the impugned Act is violative of Article 31 clause (2) as the effect of the Act was to transfer ownership debts due owing to Class III and Class IV employees in respect of annual cash bonus to the Life Insurance Corporation and there has been no provision for payment of any compensation for the compulsory acquisition of these debts It may be stated that the majority judgment did not consider the question as to whether the legislatures by enacting the Act have usurped the judicial power and have merely declared the judgment of a competent court of law to be invalid. Beg, CJ. in his concurring judgment in para 32 of the judgment, however, has observed that the real object of the Act was to set aside the result of the mandamus issued by the Calcutta High Court, though, it does not mention as such, and therefore, the Learned Judge held that Section 3 of the Act would be invalid for trenching upon the judicial power. 190. Three other Learned Judges, namely, Y.V. Chandrachud, S. Murtaza Fazal Ali and P.N. Shinghal, JJ. agreed with the conclusion of Bhagwati, J. but preferred to rest their decision on the sole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of the declaration of invalidity of the law was sought to be cured." 112. Another judgment [State of Tamil Nadu v. State of Kerala, (2014) 12 SCC 696] which has been relied upon dealt with an inter se water dispute between two states relating to the height of Mullaperiyar Dam. Kerala Irrigation and Water Conservation Act, 2003 [For short, '2003 Act'] was enacted by Kerala legislature, which came into force on 18-9-2003. Such Act was neither referred to nor relied upon by the State of Kerala at the time of hearing by this Court on 27-2-2006. On 18-3-2006, in less than three weeks of the decision of this Court [Mullaperiyar Environmental Protection Forum v. Union of India, (2006) 3 SCC 643], the Kerala State legislature amended the 2003 Act by introducing Kerala Irrigation and Water Conservation (Amendment) Act, 2006 [For short, '2006 (Amendment) Act'], which was the subject matter of judgment in question. The said Act was challenged by the State of Tamil Nadu in an original suit before this Court. An argument was raised that the impugned legislation amounts to usurpation of judicial power inasmuch as Kerala State Legislature has arrogated to itself the role of a judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court on 27-7-2006. The 2006 judgment having become final and binding, the issues decided in the said proceedings definitely operate as res judicata in the suit filed under Article 131 of the Constitution." 113. Ram Pravesh Singh is another case where the State law was under consideration. It was not a case where the legislature had intervened to enact a law contrary to the directions given by the High Court. Similarly, Karnail Singh was a case of interpretation of statute and not dealing with enactment by the legislature or Parliament consequent to the directions issued by this Court. The law declared by this Court is binding on all Courts within the territory of India under Article 141 of the Constitution whereas Article 142 of the Constitution empowers this Court to issue directions to do complete justice. The interpretation of law is binding under Article 141 of the Constitution even if there is a direction under Article 142 but such direction is not all pervasive and binding on the legislature. Such is the consistent line of judgments by this Court ending with three Judge Bench judgment in Dr. Ashwani Kumar. Proviso to Section 184 (11) 114. The inserted proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gality of Sections 174, 175 and 184 of the Finance Act, 2017 has been upheld in the matter of Rojer Mathew. Therefore, after such an amendment, appointments can be made only in terms of the Rules famed under Section 184 of the Finance Act. Now, some of the Rules stand substituted by the Ordinance. Therefore, candidates who have not been appointed will have to seek appointment only in terms of the substituted Section 184 of the Finance Act. The candidates who were selected cannot seek appointment on the basis of their old selection and being in merit. 117. Some of the Chairpersons and Members of the Tribunals were appointed between 26-5-2017 to 4-4-2021 in terms of the interim orders passed by this Court in Kudrat Sandhu. The argument raised is that such interim orders have been nullified though such orders were issued on the basis of concession of the Learned Attorney General and that such orders are couched in the form of mandate, therefore such mandatory orders cannot be nullified. 118. The concession of the Learned Attorney General at the time when interim orders were passed was in view of the prevalent situation to keep the Tribunals functional. The interim orders i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mer is outside the competence of the legislature but the latter is within its permissible limits {M/s. Tirath Ram Rajindra Nath, Lucknow v. State of U.P. & Anr., [(1973) 3 SCC 585]}. The reason for this lies in the concept of separation of powers adopted by our constitutional scheme. The adjudication of the rights of the parties according to law is a judicial function. The legislature has to lay down the law prescribing norms of conduct which will govern parties and transactions and to require the court to give effect to that law [I.N. Saksena's case (supra)]. 48. The legislature can change the basis on which a decision is given by the Court and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter parties and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power by the State and to function as an appellate court or tribunal, which is against the concept of separation of powers. {Re : Cauvery Water Disputes Tribunal [1993 Supp.(1) SCC 96(II)]}. xx xx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd and third proviso to Section 184(1), the use of expression 'preferably' in Section 184(7) and the proviso to Section 184(11) are legal and valid as such provisions fall within the exclusive domain of the legislature. The legislature has not nullified the judgment of this Court on the above aspects as there were no such corresponding provisions in the 2020 Rules, which were part of judicial review process. 124. It is open to the legislature to fix tenure of the Chairperson and the members other than four years as the tenure of four years was found to be not tenable in MBA-III. Section 184(7) which contemplates that Select Committee should recommend a panel of two names is contrary to the directions of this Court in MBA-III. Thus, Section 184(11)(i)(ii) and Section 184(7) is declared to be void as the Ordinance has reiterated the provisions which were in 2020 Rules. The challenge to other provisions is not legally sustainable. The writ petition is thus dismissed except to the extent mentioned above. 125. [per : S. Ravindra Bhat, J.]. - One may well ask why there is need for a concurrence when the judgment with which this author agrees, both as to its reasoning as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red with quasi-judicial functions - was recognised as part of legislative activity, whereby laws could create appropriate bodies for their enforcement in exercise of "incidental" and "ancillary powers" adjunct to the concerned legislative head. As has been elaborated by L. Nageswara Rao, J., the Constitution (Forty Second) Amendment Act, 1976 introduced Articles 323A [Which enables setting up of Tribunals to adjudicate disputes "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"] and 323B which paved the way for the creation of Tribunals as substitutes for Courts. Many Tribunals [The Telecom Disputes Settlement Commission, the Appellate Tribunal for Electricity; the Securities Appellate Tribunal; Consumer forums and the National Consumer Disputes Redressal Commission;] which were created by legislation introduced in the 1990s and the decade beginning in 2000 do not conform to the heads or subject matters enumerated in either of those Articles. Yet, they were created under the relevant fields of legislation combined with Entry 11A of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 : (1976) 2 WLR 366 : (1976) 1 All ER 353 (PC)]. In Hinds case [Hinds v. R., 1977 AC 195 : (1976) 2 WLR 366 : (1976) 1 All ER 353 (PC)], 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 offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court/tribunal created. The newly created court/tribunal would have to be established in consonance with the salient characteristics and standards of the court which is sought to be substituted." 130. Likewise, in Dr. D.C. Wadhwa & Ors. v. State of Bihar & Ors. [1987 (1) SCR 198], a Constitution Bench of this Court held that the power to promulgate an ordinance does not enable the executive to re-promulgate it several times, without seeking its enactment by the appropriate legislature. There is no provision in the constitution, which precludes the executive from re-promulgat-ing ordinances; yet this court ruled that to be the case, and observed as follows : "The Executive cannot by taking resort to an emergency power exercisable by it only when the Legislature is not in Session, take over the law- making function of the Legislature. That would be clearly subverting the democratic process which lies at the core of our constitutional scheme, for then the people would be governed not the laws made by the Legislature as provided in the Constitution but by laws made by the Executive. The Government cannot by-pass the Legislature and without enacting the provisions of the Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (92) E.L.T. 318 (S.C.)] this Court invalidated Section 28 of the Administrative Tribunals Act on the ground that it excluded jurisdiction under Articles 226 and 227, and was thus in conflict with the basic structure of the constitution, as judicial review was part of the basic structure : "100. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Article 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution." In Ismail Faruqui v Union of India [(1994) 6 SCC 360,] provisions of a Central enactment [the Acquisition of Certain Area at Ayodhya Act, 1993 (No. 33 of 1993)] [Section 4(3)] which abated all pending legal proceedings was held to be u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wly created Tribunals which are not entitled to protection similar to the constitutional protection afforded to the regular courts. The independence and impartiality which are to be secured not only for the court but also for Tribunals and their members, though they do not belong to the "judicial service" but are entrusted with judicial powers. The safeguards which ensure independence and impartiality are not for promoting personal prestige of the functionary but for preserving and protecting the rights of the citizens and other persons who are subject to the jurisdiction of the Tribunal and for ensuring that such Tribunal will be able to command the confidence of the public. Freedom from control and potential domination of the executive are necessary preconditions for the independence and impartiality of Judges. To make it clear that a judiciary free from control by the executive and legislature is essential if there is a right to have claims decided by Judges who are free from potential domination by other branches of Government. With this background, let us consider the defects pointed out by the petitioner and amended/proposed provisions of the Act and the Rules." 135. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y decisions enacted into law were contrary to the principle of an independent judiciary which could guarantee effective and impartial justice. Roger Mathew [(2020) 6 SCC 1 = 2019 (369) E.L.T. 3 (S.C.)] held that the rules framed under the Finance Act, 2017 ("the 2017 Rules") were not sustainable due to defects in the constitution of selection cum appointment committees and tenure of members of Tribunals, among other aspects. Madras Bar Association v. Union of India [2020 SCC OnLine SC 962 = 2020 (374) E.L.T. 817 (S.C.)] ("MBA-III") held that rules framed in 2020 were invalid as regards the tenure of members of Tribunals, constitution of the mechanism for their selection, lack of any substantive rules for their re-appointment, etc. 136. In all these decisions, this Court's scrutiny was based upon its role as the guardian of the constitution and, more specifically, independence of the judiciary. If one were asked to pinpoint any specific provision of the constitution that this Court relied upon while holding the enacted provisions to be falling afoul of, there would be none. It is too late now to contend that independence of the judiciary and separation of powers are vague conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure wronged and wrongheaded views of the facts and may likely to give rise to nursing grievance of injustice. Therefore, functional fitness, experience at the liar and aptitudinal approach are fundamental for efficient judicial adjudication. Then only as a repository of the confidence. as its duty, the tribunal would properly and efficiently interpret the law and apply the law to the given set of facts. Absence thereof would be repugnant or derogatory to the constitution. The daily practice in the courts not only gives training to Advocates to interpret the rules but also adopt the conventions of courts. In built experience would play vital role in the administration of justice and strengthen and develop the qualities, of intellect and character, forbearance and patience, temper and resilience which are very important in the practice of law. Practising Advocates from the Bar generally do endow with those qualities to discharge judicial functions. Specialised nature of work gives them added advantage and gives benefit to broaden the perspectives. "Judges" by David Pannick (1987 Edition), at page 50, stated that, "we would not allow a man to perform a surgical operation without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise of the power of appointment by the Governor is conditioned by his consultation with the High Court, that is to say, he can only appoint a person to the post of District Judge in consultation with the High Court. The object of consultation is apparent. The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the "Judicial Service" or to the Bar, to be appointed as a District Judge. Therefore, a duty is enjoined on the Governor to make the appointment in consultation with a body which is the appropriate authority to give advice to him..... These provisions indicate that the duty to consult is so integrated with the exercise of the power that the power can be exercised only in consultation with the person or persons designated therein." To the same effect are the decisions in Chandramouleshwar Prasad v. Patna High Court [(1969) 3 SCC 56] and many other judgments. In State of Bihar v. Bal Mukund Sah [(2004) 4 SCC 640] it was held that : "the framers of the Constitution separately dealt with Judicial Services of the State and made exclusive provisions regarding recruitment to the posts of District Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeing the legality and constitutionality of such action. Where there is no law, the Court considers whether executive competence to act is traceable to the particular legislative field under the Constitution, and whether the executive action sans law, abridges people's liberties. Deference to matters executive appears to be highest, when the country faces emergencies and existential threats. However, in matters that concern administration of justice, especially where alternative adjudicatory forums are created, the Court's concern is greater. This is because the Constitution does not and cannot be read so as to provide two kinds of justice : one through Courts, and one through other bodies. The quality and efficacy of these justice delivery mechanisms have to be the same, i.e., the same as that provided by Courts, as increasingly, Tribunals adjudicate disputes not only between state agencies and citizens, but also between citizens and citizens as well as citizens and powerful corporate entities. Therefore, it is the "equal protection" of laws [Under Article 14 of the Constitution of India], guaranteed to all persons, through institutions that assure the same competence of its perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic servant attains the status and rank of Additional Secretary, which enables consideration of her or his name for appointment as member of a Tribunal; (b) Considerations of equivalence with Additional Secretaries, weighed with the Union in enacting the age qualification; (c) Whether the minimum age of a Tribunal member ought to be 50 years, or less, is within the exclusive domain of the executive, and Parliament and cannot be dependent upon the views of this Court, being a pure policy issue. 145. The challenge to the first proviso to Section 184, which prescribes the age qualification, has to be seen from several angles. First, the underlying parent statutes which created the Tribunals (ITAT, CESTAT, TDSAT, CAT) did not prescribe, as an eligibility criterion for selection of candidates as members, any minimum age. The prescription of 50 years as a minimum eligibility criterion, in the opinion of this Court, is without any rationale. The ITAT has existed for the last 79 years; no less than 33 of its members were appointed as judges of various High Courts; one of them (Ranganathan, J.) was appointed to this Court. The CESTAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rect, GATT Rules, International Taxation etc.) would be useful in adjudication in these Tribunals and lead to a body of jurisprudence. Depending on how such Counsel/advocates fare as members of the Tribunal, having regard to their special knowledge of these laws, at a later and appropriate stage, they may even be considered for appointment to High Courts. 148. The age criteria, impugned in this case also leads to wholly anomalous and absurd results. For instance, an advocate with 18 or 20-years' practice, aged 44 years, with expertise in the field of indirect taxation, telecom, or other regulatory laws, would be conversant with the subject matter. Despite being eligible, (as she or he would fulfil the parameters of at least 10 years' practice, in the light of the decision in MBA-III) such a candidate would be excluded. On the other hand, an individual who might have practiced law for 10 years, and later served as a private or public sector executive in an entirely unrelated field, but who might be 50 years of age, would be considered eligible, and can possibly secure appointment as a member of a Tribunal. Thus, the age criterion would result in filtering out candidates with m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only 12 years' experience, if a system of weightage for experience and qualification were to be applied, the one with greater experience would in all likelihood be selected. Then, to say that one with lesser experience, but who is more aged should be selected and appointed, not only eliminating the one with more experience, but even disqualifying her or him, would mean that better candidates have to be overlooked and those with lesser experience would be appointed, solely on the ground that the latter is over 50 years of age. Prime Minister Jawaharlal Nehru, in the course of the Constituent Assembly debates, (though in the context of fixing age of retirement of judges) remarked that [CAD, Vol. VIII dated 24th May, 1949]. "But the fact is, when you reach certain top grades where you require absolutely first-class personnel, then it is a dangerous thing to fix a limit which might exclude these first-rate men." In the present case, the rule has the effect of excluding deserving candidates, without subserving any discernible public policy or goal. Thus, the classification is based on no justifiable rationale; nor can it be said that the age criterion has some nexus with the object s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, such as appointment, promotion, work assignment, compensation, and performance reviews. See 5 U.S.C. §2302(a)(2)(A). That interpretation is consistent with the term's meaning in general usage, and we assume that it has the same meaning under the ADEA. Under §633a(a), personnel actions must be made "free from" discrimination. The phrase "free from" means "[c]lear of (something which is regarded as objectionable)." Webster's Third New International Dictionary 905 (def. 4(a)(2)) (1976); 4 Oxford English Dictionary 521 (def. 12) (1933); see also American Heritage Dictionary 524 (def. 5(a)) (1969) (defining "free" "used with from" as "[n]ot affected or restricted by a given condition or circumstance"); Random House Dictionary of the English Language 565 (def. 12) (1966) (defining "free" as "exempt or released from something specified that controls, restrains, burdens, etc."). Thus, under §633a(a), a personnel action must be made "untainted" by discrimination based on age, and the addition of the term "any" ("free from any discrimination based on age") drives the point home. And as for "discrimination," we assume that it carries its " 'normal definition,' " which is " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a rule that allowed the public employer to screen candidates based on their age, emphasizing that : "Subject to constitutionally permissible reservations, every endeavour must be made by the State to employ or engage the most qualified or the most meritorious persons. In doing so, the State may fix shortlisting criteria on the basis of educational qualifications or experience or marks obtained in an examination or an interview or any other criterion which enables the most competent person to be selected. Unfortunately, age has nothing to do either with merit or competence. Wisdom may be an attribute of age, but not merit or competence. 13. There is not even an iota of material to suggest, nor indeed has anything been pointed out by Learned Counsel for the Petitioner, that merely because an applicant falls within the age group of 28 to 30 years he is better qualified as a teacher than a person falling in the age group of 18 to 27 years. It is not the case of the Petitioner that persons in the age group of 28 to 30 years are either better qualified educationally or have more experience or are in any manner more meritorious or competent than the applicants falling within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subordinate judiciary are to be regulated by the Acts of the appropriate legislature and pending such legislation, the President and the Governor or their nominees, as the case may be, are empowered to make rules regulating their recruitment and the conditions of service. It is also true that after the Council of States makes the necessary declaration under Article 312, it is the Parliament which is empowered to create an All India Judicial Service which will include posts not inferior to the post of District Judge as defined under Article 236. However, this does not mean that while determining the service conditions of the members of the judiciary, a distinction should not be made between them and the members of the other services or that the service conditions of the members of all the services should be the same. As it is, even among the other services, a distinction is drawn in the matter of their service conditions. This Court has in the judgment under review, pointed out that the linkage between the service conditions of the judiciary and that of the administrative executive was an historical accident. The erstwhile rulers constituted, only one service, viz., the Indian Civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n attaining the age of, say, 50 years, therefore, cannot be determinative. In any case, the argument of equivalence is not relevant. This point too, was brought home in the judgment of this Court, in All India Judges Association II (supra) : "Unlike the administrative officer, the judicial officer is obliged to work for long hours at home. When he reserves a judgment he has usually to prepare the same at his residence. For that purpose, he has to read the records as also the judicial precedents cited by counsel for the adversaries. Even otherwise with a view to keeping himself up to date about the legal position he has to read judgments of his own High Court, other High Courts and of the Supreme Court. He has also to read legal journals." 159. There are other points of distinction too between civil servants and members of Tribunals. Members of Tribunals are not drawn from any civil service; they are not holders of civil posts. Civil servants, especially members of the All-India Services recruited by the Union, some of whom are deployed to different States, are governed by rules and other service conditions embodied in circulars and orders. These govern their entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals, for 3 years, and advocates). 66 members presently are in office, appointed since the year 1999 [https://itat.gov.in/page/content/ members (last accessed on 21-6-2021)]. Of these, 10 members were below the age of 40 at the time of their appointment; 20 members were between the ages of 40-45, and 15 members were between the ages of 46-50 - at the time of their respective appointments. Cumulatively, 44 members out of 66 were appointed below the age of 50. Only 17 members were 50 or above at the time of their appointment. Data is not provided in respect of 5 members. This data - as indeed similar data from other Tribunals, shows that past appointment to these positions was amongst younger, and competent persons. The Union has not shown why this past history requires departure, and why that longstanding basis for appointing younger professionals, now needs to be departed from, in public interest. Significantly, commissioners of appeals (of income tax) - in the respective service rules, typically are appointed after 18 or so years of service; if one adds 3 years, an incumbent Commissioner could be well below 50 years. She or he would be completely familiar with the adjudicatory pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India v. Madras Bar Association (2010) and Madras Bar Association v. Union of India (2015). However, it is left open to the Search-cum-Selection Committee to take into account in the experience of the Advocates at the bar and the specialization of the Advocates in the relevant branch of law while considering them for appointment as judicial members". After hearings were concluded, the directions in MBA-III on the above score, were accepted, and Advocates have now been made eligible, for appointment to 15 Tribunals, after they complete 10 years' enrolment, and have relevant experience or in the concerned field of practice. 162. As a result of the above discussion, the proviso to Section 184(1), inserted by the impugned ordinance is declared void. A declaration is issued that all candidates, otherwise eligible on their merit, based on qualifications and experience in the relevant field, are entitled to be considered, without reference to the impugned "minimum" age (of 50 years) criteria. 163. I am in agreement with the reasoning and conclusions of L. Nageswara Rao, J. about the impermissibility of legislative override, even while upholding the retrospectivity ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case". Today's equals cannot be made unequal by saying that they were unequal twenty years ago and we will restore that position by making a law today and making it retrospective. Constitutional rights, constitutional obligations and constitutional consequences cannot be tempered with that way. A law which if made today would be plainly invalid as offending constitutional provisions in the context of the existing situation cannot become valid by being made retrospective. Past virtue (constitutional) cannot be made to wipe out present vice (constitutional) by making retrospective laws. We are, therefore, firmly of the view that the Gujarat Panchayats (Third Amendment) Act, 1978 is unconstitutional, as it offends Articles 311 and 14 and is arbitrary and unreasonable." 164. The impugned provision in the present case reads as follows : "(11) Notwithstanding anything contained in any judgment, order, or decree of any court or any law for the time being in force, - (i) the Chairperson of a Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s can only be made for justifiable reasons and compliance with principles of natural justice for premature termination of the term of a Director of AIIMS squarely applied also to the case of the writ petitioner as well and will also apply to any future Director of AIIMS. Thus there was never any permissibility for any artificial and impermissible classification between the writ petitioner on the one hand and any future Director of AIIMS on the other when it relates to the premature termination of the term of office of the Director. Such an impermissible over classification through a one-man legislation clearly falls foul of Article 14 of the Constitution being an apparent case of "naked discrimination" in our democratic civilised society governed by the rule of law and renders the impugned proviso as void ab initio and unconstitutional. 37. Such being our discussion and conclusion, on the constitutionality of the proviso to Section 11(1A), we must, therefore, come to this conclusion without any hesitation in mind, that the instant case is squarely covered by the principles of law laid down by this Court in the various pronouncements as noted hereinabove including in D.S. Red ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Union 'to make appointments to Tribunals within three months from the date on which the Search-cum-Selection Committee completes the selection process and makes its recommendations.' The necessity to take action on this is emphasized by the nuts and bolts of the adjudicatory functions of Tribunals. As many as 21,259 cases were pending before the National Company Law Tribunal as on 31-12-2020, and 2278 cases were filed before the Tribunal under the Insolvency and Bankruptcy Code, 2016 during the period of April to December, 2020, out of which only 176 have been disposed so far [Available at https://economictimes.indiatimes.com/news/economy/policy/over-21250-cases-pending-before-nclt-at-end-of-december-2020/articleshow/80754041.cms?from=mdr (last accessed on 20-6-2021)]. As on April, 2021, the NCLT comprised of its Acting President and a total number of 38 members, out of which 17 are judicial members and 21 are technical members - much below than the sanctioned strength of 63 members [Available at https://www.indialegallive.com/top-news-of-the-day/news/ plea-in-sc-seeks-extension -of-tenure-of-nclt-members/ (last accessed on 20-6-2021)]. At the Armed Forces Tribunal, against a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (DRAT), 11 Benches have vacancies [https://www. business-standard. com/article/economy-policy/banks-flag-tardy-decision-making-piling-of-cases-at-recove-ry-tribunals-119032-300883 1.html (last accessed on 21-6-2021)]. As of April, 2020, the Railway Claims Tribunal had 25,571 pending cases [See https://indian-express.com/article/india/rct-judges-drag-govt-to-sc-cite-fundamental-righ-ts-to-seek-ex-tension-6380655/(last accessed on 21-6-2021)]. 168. The sheer volume of pendency is an indicator of the substantial judicial functions carried out by Tribunals, necessitating that they be manned by efficient, well qualified judicial and technical members. It is necessary that the Union expedite the process of appointments to Tribunals, towards ensuring swifter, and efficacious justice delivery. 169. As a postscript, one would only say that this judgment-seventh in the series commencing with R. Gandhi, hopefully should conclude all controversies. It would be erroneous on anyone's part to consider that interdiction by this Court amounts to conflict with Parliamentary or executive wisdom. Each judgment - when it interprets provisions relating to setting up of Tribunals and other a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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