# MADRAS BAR ASSOCIATION v. UNION OF INDIA AND ANR

- **Citation:** [2021] 5 S.C.R. 791
- **Court:** Supreme Court of India
- **Decided:** 2021-07-14
- **Bench:** L. Nageswara Rao, Hemant Gupta, S. Ravindra Bhat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/madras-bar-association-v-union-of-india-and-anr-35010
- **Pages:** 136

## Headnote

Tribunals - Finance Act, 2017 - ss.184 and 186(2) [as
amended by the Tribunal Reforms (Rationalisation and Conditions
of Service) Ordinance, 2021] - Tribunal Reforms (Rationalisation
and Conditions of Service) Ordinance, 2021 - ss.12 and 13 -
Appointment as Chairperson / Member of Tribunals - Procedure -
Conditions of service - Age qualification - Principles of separation
of powers - Independence of judiciary - Impermissibility of
legislative override - Challenge to first proviso and second proviso,
read with third proviso to s.184 (1) - Whether first proviso to s.184(1)
which stipulated that a person below the age of 50 years was not
eligible for appointment as Chairperson or Member was in violation
of the doctrine of separation of powers as the Supreme Court
judgment in MBA-III case [Madras Bar Association v. Union of
India & Anr., (2020) SCC Online SC 962] was frustrated by an
impermissible legislative override - Whether the second proviso,
read with the third proviso, which stipulated that allowances and
benefits payable to Chairpersons and Members was to be the same
as a Central Government officer holding a post carrying the same
pay, was an affront to the judgment in MBA-III case - Whether
s.184(7) which stipulated that the Selection Committee shall
recommend a panel of two names for appointment to post of
Chairperson or Member and the Central Government shall take
decision preferably within three months from the date of the
recommendation of the Committee, was also an attempt to override
the law laid down in MBA-III case - Challenge to use of the
expression 'preferably' in s.184(7) - Insertion of s.184(11)
prescribing a term of four years for the Chairpersons and Members
of tribunals by giving retrospective effect to the provision was also
challenged - Held (per L. Nageswara Rao, J.) - The first proviso
and the second proviso, read with the third proviso, to s.184
[2021] 5 S.C.R. 791
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SUPREME COURT REPORTS
[2021] 5 S.C.R.
overriding the Supreme Court judgment in MBA-III case in respect
of fixing 50 years as minimum age for appointment and payment of
HRA, s.184(7) relating to recommendation of two names for each
post by the Search-cum-Selection Committee (SCSC) and further,
requiring the decision to be taken by the Government preferably
within three months are unconstitutional - s.184(11) prescribing
tenure of four years is contrary to principles of separation of powers,
independence of judiciary, rule of law and Art.14 of the Constitution
- Though, there is nothing wrong with the proviso to s.184(11) being
given retrospective effect, the appointments made pursuant to the
interim directions passed by the Court cannot be interfered with -
Held (per S. Ravindra Bhat, J.) (Concurring) - The first proviso and
the second proviso to s.184(1), as well as s.184(7) of the Finance
Act, 2017, are all void and inoperative - s.184(11)(i) and (ii) also
void and unconstitutional - Declaration of Supreme Court in MBAIII case shall prevail and the term of Chairperson of a Tribunal
shall be five years or till she or he attains the age of 70 years,
whichever is earlier and the term of Member of a Tribunal shall be
five years or till she or he attains the age of 67 years, whichever is
earlier - Retrospectivity given to the proviso to s.184(11) upheld;
however, without affecting the appointments made to the post of
Chairperson or members of Tribunals, as a consequence of Supreme
Court's various orders during the interregnum period - Held (Hemant
Gupta, J.) (Partly dissenting) - The first, second and third proviso to
s.184(1), the use of expression 'preferably' in s.184(7) and the
proviso to s.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 Supreme Court on the above aspects as
there were no such corresponding provisions in the 2020 Rules,
which were part of judicial review process - It is open to the
legislature to f

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MADRAS BAR ASSOCIATION
v.
UNION OF INDIA AND ANR.
(W.P. (C) 502 of 2021)
JULY 14, 2021
[L. NAGESWARA RAO, HEMANT GUPTA AND
S. RAVINDRA BHAT, JJ.]
Tribunals - Finance Act, 2017 - ss.184 and 186(2) [as
amended by the Tribunal Reforms (Rationalisation and Conditions
of Service) Ordinance, 2021] - Tribunal Reforms (Rationalisation
and Conditions of Service) Ordinance, 2021 - ss.12 and 13 -
Appointment as Chairperson / Member of Tribunals - Procedure -
Conditions of service - Age qualification - Principles of separation
of powers - Independence of judiciary - Impermissibility of
legislative override - Challenge to first proviso and second proviso,
read with third proviso to s.184 (1) - Whether first proviso to s.184(1)
which stipulated that a person below the age of 50 years was not
eligible for appointment as Chairperson or Member was in violation
of the doctrine of separation of powers as the Supreme Court
judgment in MBA-III case [Madras Bar Association v. Union of
India & Anr., (2020) SCC Online SC 962] was frustrated by an
impermissible legislative override - Whether the second proviso,
read with the third proviso, which stipulated that allowances and
benefits payable to Chairpersons and Members was to be the same
as a Central Government officer holding a post carrying the same
pay, was an affront to the judgment in MBA-III case - Whether
s.184(7) which stipulated that the Selection Committee shall
recommend a panel of two names for appointment to post of
Chairperson or Member and the Central Government shall take
decision preferably within three months from the date of the
recommendation of the Committee, was also an attempt to override
the law laid down in MBA-III case - Challenge to use of the
expression 'preferably' in s.184(7) - Insertion of s.184(11)
prescribing a term of four years for the Chairpersons and Members
of tribunals by giving retrospective effect to the provision was also
challenged - Held (per L. Nageswara Rao, J.) - The first proviso
and the second proviso, read with the third proviso, to s.184
[2021] 5 S.C.R. 791
791
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SUPREME COURT REPORTS
[2021] 5 S.C.R.
overriding the Supreme Court judgment in MBA-III case in respect
of fixing 50 years as minimum age for appointment and payment of
HRA, s.184(7) relating to recommendation of two names for each
post by the Search-cum-Selection Committee (SCSC) and further,
requiring the decision to be taken by the Government preferably
within three months are unconstitutional - s.184(11) prescribing
tenure of four years is contrary to principles of separation of powers,
independence of judiciary, rule of law and Art.14 of the Constitution
- Though, there is nothing wrong with the proviso to s.184(11) being
given retrospective effect, the appointments made pursuant to the
interim directions passed by the Court cannot be interfered with -
Held (per S. Ravindra Bhat, J.) (Concurring) - The first proviso and
the second proviso to s.184(1), as well as s.184(7) of the Finance
Act, 2017, are all void and inoperative - s.184(11)(i) and (ii) also
void and unconstitutional - Declaration of Supreme Court in MBAIII case shall prevail and the term of Chairperson of a Tribunal
shall be five years or till she or he attains the age of 70 years,
whichever is earlier and the term of Member of a Tribunal shall be
five years or till she or he attains the age of 67 years, whichever is
earlier - Retrospectivity given to the proviso to s.184(11) upheld;
however, without affecting the appointments made to the post of
Chairperson or members of Tribunals, as a consequence of Supreme
Court's various orders during the interregnum period - Held (Hemant
Gupta, J.) (Partly dissenting) - The first, second and third proviso to
s.184(1), the use of expression 'preferably' in s.184(7) and the
proviso to s.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 Supreme Court on the above aspects as
there were no such corresponding provisions in the 2020 Rules,
which were part of judicial review process - 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 case - s.184(7) which contemplates that Select
Committee should recommend a panel of two names is however
contrary to directions of Supreme Court in MBA-III case -
s.184(11)(i)(ii) and s.184(7) are void as the Ordinance has reiterated
the provisions in 2020 Rules - Challenge to other provisions not
legally sustainable -Tribunal, Appellate Tribunal and other
Authorities (Qualifications, Experience and other Conditions of
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Service of Members) Rules, 2020 - Tribunal, Appellate Tribunal
and other Authorities (Qualifications, Experience and other
Conditions of Service of Members) (Amendment) Rules, 2021 -
Constitution of India - Arts. 14, 21 and 50.
Disposing the writ petition, the Court
HELD:
Per L. Nageswara Rao, J.
1. The permissibility of legislative override in this country
should be in accordance with the principles laid down by this Court,
which are 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 Constitution.
b) The test for determining the validity of a validating
legislation is that the judgment pointing out the defect would not
have been passed, if the altered position as sought to be brought
in by the validating statute existed before the Court at the time
of rendering its judgment. In other words, the defect pointed
out should have been cured such that the basis of the judgement
pointing out the defect is removed.
c) Nullification of mandamus by an enactment would be
impermissible legislative exercise. Even interim directions cannot
be reversed by a legislative veto.
d) 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.[Para 44][844-C-G]
2. The direction given by this Court in the nature of
mandamus in Madras Bar Association v. Union of India & Anr.,
(2020) SCC Online SC 962 (MBA-III) is to the effect that
advocates are entitled for appointment as Members, provided
they have experience of 10 years. The first proviso to Section
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184 which prescribes a minimum age of 50 years is an attempt to
circumvent the direction issued in MBA-III striking down the
experience requirement of 25 years at the bar for advocates to
be eligible. Introduction of the first proviso to Section 184(1) is a
direct affront to the judgment of this Court in MBA-III. This Court
in Union of India v. R. Gandhi, President, Madras Bar Association,
(2010) 11 SCC 1 and Roger Mathew underlined the importance of
recruitment of Members from the bar at a young age to ensure a
longer tenure. Fixing a minimum age for recruitment of Members
as 50 years would act as a deterrent for competent advocates to
seek appointment. Practically, it would be difficult for an advocate
appointed after attaining the age of 50 years to resume legal
practice after completion of one term, in case he is not
reappointed. Security of tenure and conditions of service are
recognised as core components of independence of the judiciary.
Independence of the judiciary can be sustained only when the
incumbents are assured of fair and reasonable conditions of
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. [Para 49][851-B-F]
3. 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. The second proviso to
Section 184(1), read with the third proviso, is an affront to the
judgment of this Court in MBA-III. By no stretch of imagination
can it be said that the said provisos are a result of curative
legislation. The direction issued by this Court in MBA-III for
payment of HRA was to ensure that decent accommodation is
provided to Tribunal Members. Such direction was issued to
uphold independence of the judiciary and it cannot be subject
matter of legislative response. A mandamus issued by this Court
cannot be reversed by the legislature as it would amount to
impermissible legislative override. Therefore, the second
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proviso, read with the third proviso, to Section 184(1) is declared
as unconstitutional. [Para 50][851-G-H; 852-F-G]
4.1. Rule 4(2) of the Tribunal, Appellate Tribunal and other
Authorities (Qualifications, Experience and other Conditions of
Service of Members) Rules, 2020 pertains to the procedure to
be followed by the Search-cum-Selection Committee (SCSC).
According to the said Rule, the SCSC should recommend two or
three names for appointment to each post. A direction was given
in MBA-III to amend Rule 4(2) of the 2020 Rules to provide that
the SCSC shall recommend one person for appointment in each
post in place of a panel of two or three persons for appointment
to each post. One more name could be recommended to be
included in the waiting list. Sufficient reasons were given in
MBA-III to hold that executive influence should be avoided in
matters of appointments to tribunals - therefore, the direction
that only one person shall be recommended to each post. The
decision of this Court in that regard is law laid down under Article
141 of the Constitution. The only way the legislature could nullify
the said decision of this Court is by curing the defect in Rule
4(2). There is no such attempt made except to repeat the
provision of Rule 4(2) of the 2020 Rules in the Ordinance
amending the Finance Act, 2017. Ergo, Section 184(7) is
unsustainable in law as it is an attempt to override the law laid
down by this Court. Repeating the contents of Rule 4(2) of the
2020 Rules by placing them in Section 184(7) is an indirect method
of intruding into judicial sphere which is proscribed. [Paras 52,
53][853-G-H; 855-A-C]
4.2. The second part of Section 184(7) provides that the
Government shall take a decision regarding the recommendations
made by the SCSC preferably within a period of three months.
This is in response to the direction given by this Court in
MBA-III that the Government shall make appointments to
tribunals within three months from the completion of the selection
and recommendation by the SCSC. Such direction was
necessitated in view of the lethargy shown by the Union of India
in making appointments and filling up the posts of Chairpersons
and Members of tribunals which have been long vacant. The
direction given by this Court for expediting the process of
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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.
[Para 54][855-C-E, G; 856-A]
5. 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. After
perusing the law laid down by this Court in Union of India v. R.
Gandhi, President, Madras Bar Association and Rojer Mathew which
held that a short stint is anti-merit, this Court directed the
modification of tenure in Rules 9(1) and 9(2) of the 2020 Rules as
five years in respect of Chairpersons and Members of tribunals
in MBA-III. This Court declared that the Chairperson, ViceChairperson and the Members of the tribunals shall hold office
for a term of five years and shall be eligible for reappointment.
The insertion of Section 184(11) prescribing a term of four years
for the Chairpersons and Members of tribunals by giving
retrospective effect to the provision from 26.05.2017 is clearly
an attempt to override the declaration of law by this Court under
Article 141 in MBA-III. Therefore, clauses (i) and (ii) of Section
184(11) are declared as void and unconstitutional. [Para 55][856A-B, D-F]
6. Insofar as the proviso to Section 184(11) is concerned,
the Ordinance sets the maximum tenure at five years even with
respect to the appointment orders passed between 26.05.2017
and 04.04.2021 provide for a higher tenure. In the process, interim
directions given by this Court in Kudrat Sandhu are also nullified.
Though, there is nothing wrong with the proviso to Section
184(11) being given retrospective effect, the appointments made
pursuant to the interim directions passed by this Court cannot
be interfered with. 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, the retrospectivity given to the proviso to Section
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184 (11) is upheld. Further, all appointments after 04.04.2021
shall be governed by the Ordinance, as modified by the directions
contained herein. [Para 57][857-F-G; 858-B-C, D-F]
7. 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,
the proviso to Section 184(11) has been upheld, the appointments
made to the CESTAT pursuant to the interim orders passed by
this Court shall be governed by the relevant statute and the rules
framed thereunder that existed prior to 26.05.2017. Notice has
been already taken of the notification dated 30.06.21 by way of
which Rule 15 of the 2020 Rules dealing with HRA has been
amended in conformity with directions in MBA-III. [Para 58][858F-H; 859-A]
S.R. Bhagwat & Ors. v. State of Mysore (1995) 6 SCC
16 : [1995] 3 Suppl. SCR 545; Cauvery Water Disputes
Tribunal (1983) 1 Suppl. SCC 96 : [1991] 2 Suppl.
 SCR 497; Medical Council of India v. State of Kerala
& Ors. (2019) 13 SCC 185 : [2018] 10 SCR 213 and
Virender Singh Hooda & Ors. v. State of Haryana &
Anr. (2004) 12 SCC 588 : [2004] 5 Suppl. SCR 720 -
relied on.
Union of India v. R. Gandhi, President, Madras Bar
Association (2010) 11 SCC 1 : [2010] 6 SCR 857; Rojer
Mathew v. South Indian Bank Limited & Ors. (2020) 6
SCC 1 : [2019] 16 SCR 1; Madras Bar Association v.
Union of India & Anr. (2020) SCC Online SC 962;
Madras Bar Association v. Union of India & Anr. (2014)
10 SCC 1 : [2014] 10 SCR 1; S.P. Sampath Kumar v.
Union of India & Ors. (1987) 1 SCC 124 : [1987] 1
MADRAS BAR ASSOCIATION v. UNION OF INDIA AND ANR.
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SUPREME COURT REPORTS
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SCR 435; Minerva Mills Ltd. & Ors. v. Union of India
& Ors. (1980) 3 SCC 625 : [1981] 1 SCR 206; L.
Chandra Kumar v. Union of India & Ors. (1997) 3 SCC
261 : [1997] 2 SCR 1186; Madras Bar Association v.
Union of India & Anr. (2015) 8 SCC 583 : [2015] 6
SCR 638; R.K. Jain v. Union of India (1993) 4 SCC
119 : [1993] 3 SCR 802; Gujarat Urja Vikas Nigam
Ltd. v. Essar Power Ltd. (2016) 9 SCC 103 : [2016] 5
SCR 101; Madras Bar Association v. Union of India &
Anr. (2020) SCC Online SC 962; Kudrat Sandhu v.
Union of India [2018] 10 SCR 956; Smt. Indira Nehru
Gandhi v. Shri Raj Narain (1975) Suppl. SCC 1 : [1976]
2 SCR 347; State of Tamil Nadu v. State of Kerala &
Anr. (2014) 12 SCC 696 : [2014] 12 SCR 875; I.R.
Coelho v. State of T.N. (2007) 2 SCC 1 : [2007] 1
SCR 706; Supreme Court Advocates-on-Record
Association & Ors. v. Union of India (1993) 4 SCC
441 : [1993] 2 Suppl. SCR 659; Union of India v.
Sankalchand Himatlal Sheth & Anr. (1977) 4 SCC 193
: [1978] 1 SCR 423; Supreme Court Advocates-onRecord Association & Anr. v. Union of India (2016) 5
SCC 1 : [2015] 13 SCR 1; R.K. Garg v. Union of India
& Ors. (1981) 4 SCC 675 : [1982] 1 SCR 947;
T. Venkata Reddy & Ors. v. State of Andhra Pradesh
(1985) 3 SCC 198 : [1985] 3 SCR 509; Krishna Kumar
Singh & Anr. v. State of Bihar & Ors. (2017) 3 SCC 1 :
[2017] 5 SCR 160; State of Madhya Pradesh v. Rakesh
Kohli & Anr. (2012) 6 SCC 312 : [2012] 6 SCR 661;
K.S. Puttaswamy & Anr. v. Union of India & Anr. (2019)
1 SCC 1 : [2018] 8 SCR 1; Shri Prithvi Cotton Mills
Ltd. & Anr. v. Broach Borough Municipality & Ors.
(1969) 2 SCC 283 : [1970] 1 SCR 388; Patel
Gordhandas Hargovindas & Ors. v. Municipal
Commissioner, Ahmedabad & Anr. [1964] 2 SCR 608;
Janapada Sabha Chhindwara v. Central Provinces
Syndicate Ltd. & Anr. (1970) 1 SCC 509 : [1970] 3
SCR 745; I.N. Saksena v. State of Madhya Pradesh
(1976) 4 SCC 750 : [1976] 3 SCR 237; Indian
Aluminium Co. & Ors. v. State of Kerala & Ors. (1996)
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7 SCC 637 : [1996] 2 SCR 23; Bakhtawar Trust & Ors.
v. M. D. Narayan & Ors. (2003) 5 SCC 298 : [2003] 1
Suppl. 1 SCR; Madan Mohan Pathak & Anr. v. Union
of India & Ors. (1978) 2 SCC 50 : [1978] 3 SCR 334;
Sri Ranga Match Industries & Ors. v. Union of India &
Ors. (1994) 2 Suppl. SCC 726; A.V. Nachane & Anr. v.
Union of India & Anr. (1982) 1 SCC 205 : [1982] 2
SCR 246; Dr. Ashwani Kumar v. Union of India & Anr.
(2020) 13 SCC 585 : [2019] 12 SCR 30; Ram Pravesh
Singh & Ors. v. State of Bihar & Ors. (2006) 8 SCC
381 : [2006] 6 Suppl. SCR 512; Union of India &
Ors. v. Karnail Singh & Ors. (1995) 2 SCC 728 : [1994]
5 Suppl. SCR 584; State of Punjab & Ors. v. Rafiq
Masih (Whitewasher) (2014) 8 SCC 883 : [2014] 8
SCR 228 and State v. Kalyan Singh & Ors. (2017) 7
SCC 444 : [2017] 6 SCR 946 - referred to.
Marbury v. Madison 5 U.S. 137 (1803); United States
v. Peters 9 U.S. 115 (1809); Brown v. Board of
Education of Topeka 347 U.S. 483 (1954); Cooper v.
Aaron 384 U.S. 436 (1966); Miranda v. Arizona 384
U.S. 436 (1966); Dickerson v. United States 530 U.S.
428 (2000) and Plaut v. Spendthrift Farm, Inc. 514
U.S. 211 (1995) - referred to.
Erwin Chemerinsky, The Court Should Have Remained
Silent: Why the Court Erred in Deciding Dickerson v.
United States, 149 Pennsylvania Law Review 287-308
(2001) and Nicholas Stephanopoulos, The Case for the
Legislative Override, 10 UCLA Journal of International
Law and Foreign Affairs 250 (2005) - referred to.
Per S. Ravindra Bhat, J. (Concurring)
1. 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
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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 too has comprised advocates who have staffed the
tribunal efficiently. The absence of any explanation for the
preference given to older persons, in fact leads to an absurd
result- as was pointed out in MBA-III and as has been reiterated
by L. Nageswara Rao, J. in his opinion. The Constitution of India
makes an advocate who has practiced for more than 10 years,
eligible for consideration for appointment as a judge of the High
Court and even this Court. An advocate with 7 years' practice
with the Bar can be considered for appointment to the position of
a District Judge. Prescribing 50 years as a minimum age limit
for consideration of advocates has the devastating effect of entirely
excluding successful young advocates, especially those who might
be trained and competent in the particular subject (such as
Indirect Taxation, Anti-Dumping, Income-Tax, International
Taxation and Telecom Regulation). The exclusion of such eligible
candidates in preference to those who are more than 50 years of
age is inexplicable and therefore entirely arbitrary. As this Court
in its previous judgment (Rojer Mathew) has pointed out in another
context, the exclusion of such young and energetic legal
practitioners could result in not so efficient or competent
practitioners left in a field for consideration which would have
telling effects on the quality of decisions they are likely to render.
[Para 21][874-G-H; 875-A-E]
2. Prescribing 50 years' minimum age as a condition for
appointment to these tribunals is arbitrary also because absolutely
no reason is forthcoming about what impelled Parliament to divert
from the long-established criteria of giving weightage to actual
practice, reputation, integrity and subject expertise, without a
minimum age criterion, in the pleadings in this case, nor in any
other cases (R. Gandhi -MBA -I; Madras Bar Association -III
and Roger Mathew). Such being the case, it is astonishing that in
the span of a year (i.e. after the decision in Roger Mathew) "new
thinking" seems to have prevailed to frame rules excluding
advocates who can otherwise, based on their expertise, be
considered for appointment to even High Courts. [Para 22][875F-H]
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3. The consideration of younger advocates in the age group
of 40-45 years would have long term benefits since the domain
knowledge and expertise in such areas (Telecom Regulation,
Taxation -both Direct and Indirect, 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. [Para 23][876-A-B]
4. 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 more relevant experience and qualifications, in preference
to those with lesser relevant experience, only on the ground of
age. [Para 24][876-C-E]
5.1. Given that the essential educational qualifications and
experience in the relevant field are fixed for all candidates, for a
classification based on minimum age for appointment (like in the
present case) to succeed, the Union cannot say that it should be
held to be valid, irrespective of the nature and purposes of the
classification or the quality and extent of the difference in
experience between candidates. As between someone with 18
years' experience but aged 42 or 43 years, and someone with
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
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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. [Para 27][877-D-G]
5.2. 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 sought to be achieved, such as greater efficiency
or experience. [Para 27][878-B]
5.3. The qualification of a minimum age of 50 years as
essential for appointment, is discriminatory because it is neither
shown to have a rational nexus with the object sought to be
achieved, i.e. appointing the most meritorious candidates; nor is
it shown to be based on any empirical study or data that such
older candidates fare better, or that younger candidates with more
relevant experience would not be as good, as members of
tribunals. It is plain and simple, discrimination based on age. The
criterion (of minimum 50 years of age) is virtually "picked out
from a hat" and wholly arbitrary. [Para 31][881-G-H; 882-A-B]
6.1. The tribunals which were reorganized by the Finance
Act, 2017 and now, through the impugned ordinance, exercise
judicial functions of the State, interpret and enforce the law, in
the course of adjudication of disputes. The appointment of
members (of such tribunals), their conditions of service, manner
of selection, remuneration and security of tenure are vital to their
efficiency and independent functioning. It is in this backdrop that
the Union's contention regarding "equivalence" or "parity" with
members of the civil services of the Union or holders of civil
posts under the Union, as a justification for the age criterion,
needs to be examined. In addition, it is worthwhile to recollect
that a civil servant's experience, though varied and diverse -
ranging from co-ordination and administration at taluk, district
and state levels, to devising, framing and implementing the
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government's policies and programmes, to managing statutory
corporations and even commercial enterprises of the state, does
not always entail adjudicatory functions. However, legal
practitioners, chartered accountants and one segment of civil
servants, i.e. tax administrators and adjudicators are involved in
the day to day interpretation of law, leading to adjudicatory
outcomes. Such being the case, the equivalence of "status" of
members of tribunals cannot be compared in a linear or rigid
manner. That according to the Union's scheme of rules and
regulations, members of its services can attain a certain rank
upon 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. [Paras 32, 34][882B-D; 884-A-D]
6.2. 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
universe of employment: starting with eligibility conditions, rules
for recruitment and selection, pay and allowances, seniority,
promotion, discipline and other matters related to misconduct,
pension, terminal benefits etc. On the other hand, such rules or
similar rules do not apply to members of tribunals not drawn from
public service. It is only conditions of equivalence such as pay
scale which they are assured of under the rules, which also
determine their status. The manner of selection, conditions of
eligibility, rules for their removal upon proven misbehaviour and
so on, are entirely different from public servants. In fact, the latter
category, i.e. members of tribunals not drawn from public service
sources, are not even holders of civil posts or members of any
encadred civil service. They are not governed by Article 311 of
the Constitution, nor are their conditions of service laid out in
rules framed under the proviso to Article 309 of the Constitution.
Such being the position, the argument of parity, in the opinion of
the Court, is entirely devoid of merit. Nor is the argument of the
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Attorney General that a uniform age is necessary, merited. There
is no material to show that members recruited on the technical
side, such as experts in engineering, scientific or other technical
fields would be suitable only after they cross the age of 50. The
Union's argument that 50 years is necessary as it brings about
parity between the members of the civil services who are eligible
to be considered in their stream for tribunals or that there is an
overall uniformity, is without merit and accordingly rejected. [Para
35][884-F-H; 885-A-C; 886-F]
7. 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. [Para 38][888-C]
8. The interim directions of this court, which culminated
and were subsumed in Roger Mathew, resulted in the appointment
of members of various tribunals, whose term is now sought to be
interdicted by the proviso to Section 184 (11), which has been
introduced with retrospective effect. While the retrospectivity
accorded to this provision cannot be faulted, nevertheless, the
said proviso, to the extent it seeks to interfere with and curtail
the tenure of members appointed under interim orders, who are
entitled to enjoy their term of office, in accordance with the preamended legislation and rules, is arbitrary and void. [Para 41][890D-F]
9. The curtailment of tenure to five years, of the few
individuals appointed as members of tribunals, who were entitled
to continue in office in terms of the pre-existing enactments (upto
the age of 62 years etc.) is arbitrary. Apart from the fact that the
Union wishes to curtail their tenure despite the finality of
directions of this court in Roger Mathew and MBA-III, there is no
conceivable rationale. Nor has any overriding public interest been
espoused as a justification for this. The divesting of judicial office
by legislative fiat, in this court's opinion, directly affects the
independence of the judiciary. It also amounts to naked
discrimination, because all other members of the same tribunals
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would enjoy longer tenure, in terms of the pre-existing conditions
of service, which prevailed at the time of their appointment. [Para
42][892-B-E]
10. It is concluded and held as follows:
(i) The first proviso to Section 184(1) of the Finance Act,
2017, introduced by Section 12 of the Tribunals Reforms
(Rationalisation and Conditions of Service) Ordinance, 2021 is
hereby declared void and inoperative. Similarly, the second
proviso to Section 184(1) of the Finance Act, 2017, introduced
by Section 12 of the Tribunals Reforms (Rationalisation and
Conditions of Service) Ordinance, 2021 is held to be void and
inoperative.
(ii) Section 184(7) of the Finance Act, 2017 introduced by
Section 12 of the Tribunals Reforms (Rationalisation and
Conditions of Service) Ordinance, 2021 is hereby declared void
and inoperative.
(iii) Section 184(11)(i) and (ii) introduced by Section 12 of
the Tribunals (Reforms Rationalisation and Conditions of Service)
Ordinance, 2021 are hereby declared as void and unconstitutional.
(iv) Consequently, the declaration of this Court in para
53(iv) of MBA-III shall prevail and the term of Chairperson of a
Tribunal shall be five years or till she or he attains the age of 70
years, whichever is earlier and the term of Member of a Tribunal
shall be five years or till she or he attains the age of 67 years,
whichever is earlier.
(v) The retrospectivity given to the proviso to Section
184(11) - introduced by Section 12 of the Tribunals (Reforms
Rationalisation and Conditions of Service) Ordinance, 2021 is
hereby upheld; however, without in any manner affecting the
appointments made to the post of Chairperson or members of
various Tribunals, upto 04.04.2021. In other words, the
retrospectivity of the provision shall not in any manner affect the
tenures of the incumbents appointed as a consequence of this
Court's various orders during the interregnum period. [Para
46][894-F-G; 895-A-E]
State of Gujarat v. Raman Lal Keshav Lal Soni (1983)
2 SCC 33 : [1983] 2 SCR 287 - followed.
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State of J&K v. Triloki Nath Khosa (1974) 1 SCC 19 :
[1974] 1 SCR 771; Mohd. Shujat Ali v. Union of India
(1975) 3 SCC 76 : [1975] 1 SCR 449; Anuj Garg v.
Hotel Assn. of India (2008) 3 SCC 1 : [2007] 12
SCR 991 and All India Judges' Assn. (II) v. Union of
India (1993) 4 SCC 288 : [1993] 1 Suppl. SCR 749 -
relied on.
Union of India v. R. Gandhi, President, Madras Bar
Association (2010) 11 SCC 1 : [2010] 6 SCR 857;
Madras Bar Association v. Union of India (2014) 10
SCC 1 : [2014] 10 SCR 1; Roger Mathew (2020) 6
SCC 1 : [2019] 16 SCR 1; Madras Bar Association v
Union of India (2020) SCC Online (SC) 962 (MBAIII); Dr. D.C. Wadhwa & Ors. v. State of Bihar & Ors.
[1987] 1 SCR 198; Krishna Kumar Singh v. State of
Bihar (2017) 3 SCC 1 : [2017] 5 SCR 160;
Kesavananda Bharati v. State of Kerala [1973] 1 Suppl.
SCR; L. Chandra Kumar v Union of India (1997) 3
SCC 261 : [1997] 2 SCR 1186; Ismail Faruqui v. Union
of India (1994) 6 SCC 360 : [1994] 5 Suppl. SCR 1;
Pareena Swarup v. Union of India (2008) 14 SCC 107
: [2008] 13 SCR 1217; S.P. Sampath Kumar v. Union
of India & Ors. (1987) SCC Suppl. 734 : [1987] 3
SCR 233; Madras Bar Association (2015) 8 SCC 583
: [2015] 6 SCR 638; R.K. Jain v. Union of India [1993]
3 SCR 802; Chandra Mohan v. State of U.P [1967] 1
SCR 77; Chandramouleshwar Prasad v. Patna High
Court (1969) 3 SCC 56 : [1970] 2 SCR 666; State of
Kerala v. A. Lakshmikutty and Ors. [1987] 1 SCR 136;
State of Bihar v. Bal Mukund Sah (2004) 4 SCC 640;
Lt. Col. Nitisha & Ors. v. Union of India (2021) SCC
OnLine SC 261; Commissioner, M.C.D. v. Shashi (2009)
165 DLT 17 and P. Venugopal v. Union of India (2008)
5 SCC 1 : [2008] 8 SCR 1 - referred to.
Liyanage v. The Queen [1967] 1 AC 259, 287-288;
Smith v. City of Jackson 544 US 228 (2005) and Baab
v. Wilke No. 18-882, 589 U. S. - referred to.
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Per Hemant Gupta, J. (Partly dissenting)
1. The views expressed in the detailed judgment authored
by Justice L. Nageswara Rao as also separate but concurring
judgment of Justice Ravindra Bhat, are not agreed with, except
to the limited extent that part of Section 187(7) of the
Tribunals Reforms (Rationalisation and Conditions of Service)
Ordinance, 2021 that the Search and Selection Committee shall
recommend two names for a post and that the tenure of members
including Chairperson etc. shall be four years in terms of Clauses
(i) and (ii) of Section 184 (11) of the Ordinance is illegal since the
issues of constitution of panel and tenure have already been
decided in MBA-III case and that without removing such defect,
the Ordinance could not be enacted. [Para 1][895-F-H]
2. 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 Court in terms of Article 141 of the Constitution.
The legislature cannot be said to be Court within the meaning of
Article 141 of the Constitution by any stretch of imagination. The
directions of this Court stop outside the four walls of legislature.
The judiciary will step in only after a law is enacted to test the
legality of a statute on the known principles of judicial review.
The Judiciary cannot and should not usurp the powers vested
with legislature. The Judiciary cannot legislate in the scheme of
the constitution. The directions of this Court in MBA-III case
are encroaching upon the field reserved for legislature. [Para
13][900-E-G; 901-A-C]
3. The Court will not direct to the State or Union to enact
any particular law, or amend/ issue any notification for amendment
of any statutory Rule or even to direct an Act to be enforced,
when the legislature has conferred such power on the executive.
The directions of this Court in MBA-III case were issued in the
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peculiar facts to make the Tribunal functional at the earliest rather
than mandating legislature to amend the law in a particular manner.
The legislature has a right to enact law, which may not be
necessarily in terms of the directions of this Court. Such law when
enacted by Parliament or the State Legislature, even if contrary
to the directions or guidelines issued by the Court, cannot be
struck down for the said reason. 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 review
cannot direct legislature to frame any law in a particular manner.
[Paras 20, 29][904-A-C; 909-E]
4. It cannot be said that the first proviso to Section 184
prescribing a minimum age of fifty years is an attempt to
circumvent the direction issued in MBA-III case. The condition
of eligibility for appointment as a Judge of a High Court was kept
in view while considering the eligibility of advocates as members
of Tribunals. However, the Memorandum of Procedure for
appointment as judges of the High Court finalized by this Court
and forwarded to the Central Government in March, 2017 was
that a person shall not be eligible to be considered for appointment
as Judge of a High Court against Bar quota unless he has
completed forty-five years of age on the date of recommendation
by the High Court Collegium. Though, in terms of Article 217 of
the Constitution, a candidate becomes eligible for appointment
after 10 years of practice as an Advocate. Thus, an Advocate would
be eligible for appointment as judge of the High Court around
the age of 35 years.