Judiciary should not act as a ‘super-legislature’, says Centre

Krishnadas Rajagopal New Delhi | Updated on October 19, 2021

Govt unhappy with SC entertaining Jairam Ramesh’s challenge to the Tribunal Reforms Act

A “distressed” government has taken a leaf from former United States President Franklin D Roosevelt’s speech to indicate that the judiciary ought not to act as a “super-legislature” by entertaining a challenge to the Tribunal Reforms Act by Rajya Sabha Member Jairam Ramesh.

The Centre, in an affidavit in the Supreme Court, said it was “confused” why the judiciary thinks that the law made by Parliament and implemented by the Executive is an attack on judicial independence.

Some of the provisions of the Act under challenge include the reduction of the tenure of chairpersons and members of key tribunals from five years to four. The Act mandates their minimum age to be 50 years for appointment. The new law said the Appointments Committee of the Cabinet (ACC) headed by the Prime Minister may “preferably” make the appointment within three months of the recommendation by the Search-cum-Selection Committee (SCSC). It said that the recommendations of SCSC to the ACC should be of only one single name per vacant post with wait list available.

The affidavit said each one of these issues is purely one of policy.

‘Exclusive right’

The government said it was the “exclusive right” of the Parliament and the Executive to frame policy and execute it.

The affidavit said it is significant that the separation of powers entrusts to Parliament and the Executive the exclusive jurisdiction to decide as to what would be the best policy.

Also read: Centre defends law on tribunal reforms in SC

How can duration of tenure of a chairperson or members affect the independence of judiciary, the government asked.

“The question of independence of the chairperson/members or the tribunal itself could arise only if the conditions of appointment of chair or members would permit the government to influence or control his or her will,” the affidavit reasoned.

Any reappointment takes place only on the basis of recommendation of SCSC in which the Judiciary is the dominant voice.

The affidavit takes on a sharp note that ACC is headed by the Prime Minister and it functions through 53 Ministries. Each concern matters of great importance to the country. “ACC has to prioritise the multitude of issues important to the State, thus the need not to have an inflexible three months... Even with pressing internal and external affairs of great importance coming in the way, three months may not be sufficient in some cases,” it justified.

The word ‘preferably’ used in Section 3(7) of the Act was a choice of the Parliament and for the court to object to it would not be conducive to good governance.

“Independence of judiciary cannot be used as ground for testing statutes,” the affidavit said.

Ramesh had approached the Supreme Court to declare unconstitutional provisions of the Tribunal Reforms Act of 2021 which revives an ordinance struck down by the Supreme Court.

Ramesh said the 2021 Act which abolishes nine key tribunals, raises a serious threat to judicial independence by giving the government wide powers regarding appointments, service conditions, salaries, etc, of Members of key tribunals. He said it was passed without parliamentary debate amidst ruckus in the House. The government is the largest litigant in these tribunals.

The Tribunal Reforms Bill was introduced in the Lok Sabha just days after the Supreme Court struck down the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance of 2021. The government brought back through the Bill the same provisions in the ordinance which were struck down by the Supreme Court on July 14. This was done without even removing the basis of the judgement, Ramesh has argued.

He contended that the provisions in the 2021 Act were a “transgression of the constitutional limits of Parliament’s legislative power and undermines the power of judicial review and the Supremacy of the Constitution, which are basic features of the Constitution”.

The parliamentarian said the government had repeatedly brought back the provisions giving government wide powers over the tribunals despite the apex court striking them down since 2017.

Published on October 19, 2021

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