The Tribunal Reforms Act, 2021 proposing changes in the constitution processes of a tribunal has become a subject of controversy since it was passed on August 13, 2021. The Supreme Court (SC) took cognisance at the behest of a PIL filed by Jairam Ramesh that alleged that the enactment was ultra vires the government’s constitutional prerogatives.

It further inquired the reasons for re-enacting the very provisions of Finance Act, 2017 that were struck down in Madras Bar Association (MBA)-III Vs Union of India (2020) and MBA-IV Vs Union of India (2021) on the basis of excessive interference with independence of judiciary, arbitrary power conferred upon the executive by the legislature and constitutionality.

The Act in question dissolves eight tribunals, conferring their jurisdiction on high courts and civil courts. The intent and object behind the legislation is to tackle the problem of insufficiency of staff, infrastructure in tribunals and lagged dispute resolution which puts a heaving financial burden on the exchequer.

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Secondly, the Act proposes changes in the procedure of constitution of tribunals, conferring the power of appointment and removal, thereof, upon the Search-cum-Selection Committee (SCSC).

‘Excessive intervention’

In the present instance, some questions arise. First, whether such SCSC is at par with the National Judicial Appointments Commission (NJAC) that was struck down on grounds of excessive intervention in judicial independence. Second, whether the legislature can override a judicial pronouncement by a subsequent legislation.

Section 3 of the Act provides for the constitution of the SCSCs. Headed by Chief Justice of India (CJI) or his nominee SC Justice as the chairperson, the Act provides for mandatory recommendation of a panel of two names to the Centre who shall take a decision within three months of such recommendation.

It also seeks to fix the tenure of chairperson and the members in the tribunal up to four years and bars appointment of persons to the tribunal below fifty years of age. The policies relating to judicial authority vis-a-vis executive dominance backed by legislative supremacy in matters like constituting the bench or appointment of members continues, have been interpreted, evolved and shaped over three distinct eras.

While declaring the provision preventing courts from accessing grounds of detention under Preventive Detention Act (1950) as unconstitutional in the AK Gopalan case, the judiciary asserted itself as the upholder of justice. This skirmish aggravated over the litigation in agrarian and land reforms until it hit the ceiling in the celebrated Keshavanand Bharati case.

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It was in the First Judges case (1981) that bolstered the executive opinion in judicial appointments. In the late 1980s, the tide started turning with coalition governments at the Centre and the SC reclaimed judicial control over appointments in the Second Judges Case (1993) replacing the National Judicial Commission with the collegium system. Elucidating further, it conferred primacy to CJI in the event of conflict of opinion with the President of India in matters concerning judicial appointments.

However, it was the Three Judges case (1998) that unanimously set down the modalities. It laid down that CJI in consultation with senior most judges shall form the collegium for appointment of justices.

However, this two-decade-old collegium system was scrapped in 2014 and was replaced with the NJAC – which was struck down by the SC in 2015 on premise of constitutionality and validity in violation of separation of powers.

The nature of SCSCs is identical to the NJAC, which was struck down. The principles of separation of powers and the rule of law have to be interpreted in line with the conscience of the constitution.

(The authors are lawyers)