MADRAS BAR ASSOCIATION versus UNION OF INDIA AND ANR.

[2021] 5 S.C.R. 791

MADRAS BAR ASSOCIATION

UNION OF INDIA AND ANR.

(W.P. (C) 502 of 2021)

JULY 14, 2021

[L. NAGESWARA RAO, HEMANT GUPTA ANDS. RAVINDRA BHAT, JJ.]

Tribunals – Finance Act, 2017 – ss.184 and 186(2) [asamended by the Tribunal Reforms (Rationalisation and Conditionsof Service) Ordinance, 2021] – Tribunal Reforms (Rationalisationand Conditions of Service) Ordinance, 2021 – ss.12 and 13 –Appointment as Chairperson / Member of Tribunals – Procedure –Conditions of service – Age qualification – Principles of separationof powers – Independence of judiciary – Impermissibility oflegislative 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 person below the age of 50 years was noteligible for appointment as Chairperson or Member was in violationof the doctrine of separation of powers as the Supreme Courtjudgment in MBA-III case [Madras Bar Association v. Union ofIndia & Anr., (2020) SCC Online SC 962] was frustrated by animpermissible legislative override – Whether the second proviso,read with the third proviso, which stipulated that allowances andbenefits payable to Chairpersons and Members was to be the sameas Central Government officer holding post carrying the samepay, was an affront to the judgment in MBA-III case – Whethers.184(7) which stipulated that the Selection Committee shallrecommend panel of two names for appointment to post ofChairperson or Member and the Central Government shall takedecision preferably within three months from the date of therecommendation of the Committee, was also an attempt to overridethe law laid down in MBA-III case – Challenge to use of theexpression ‘preferably’ in s.184(7) – Insertion of s.184(11)prescribing term of four years for the Chairpersons and Membersof tribunals by giving retrospective effect to the provision was alsochallenged – Held (per L. Nageswara Rao, J.) – The first provisoand the second proviso, read with the third proviso, to s.184

CDEF

Aoverriding the Supreme Court judgment in MBA-III case in respectof fixing 50 years as minimum age for appointment and payment ofHRA, s.184(7) relating to recommendation of two names for eachpost by the Search-cum-Selection Committee (SCSC) and further,requiring the decision to be taken by the Government preferablywithin three months are unconstitutional – s.184(11) prescribingBtenure 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) beinggiven retrospective effect, the appointments made pursuant to theinterim directions passed by the Court cannot be interfered with –CHeld (per S. Ravindra Bhat, J.) (Concurring) – The first proviso andthe second proviso to s.184(1), as well as s.184(7) of the FinanceAct, 2017, are all void and inoperative – s.184(11)(i) and (ii) alsovoid and unconstitutional – Declaration of Supreme Court in MBA-III case shall prevail and the term of Chairperson of Tribunalshall be five years or till she or he attains the age of 70 years,Dwhichever is earlier and the term of Member of Tribunal shall befive years or till she or he attains the age of 67 years, whichever isearlier – Retrospectivity given to the proviso to s.184(11) upheld;however, without affecting the appointments made to the post ofChairperson or members of Tribunals, as consequence of SupremeECourt’s various orders during the interregnum period – Held (HemantGupta, J.) (Partly dissenting) – The first, second and third proviso tos.184(1), the use of expression ‘preferably’ in s.184(7) and theproviso to s.184(11) are legal and valid as such provisions fall withinthe exclusive domain of the legislature – The legislature has notnullified the judgment of Supreme Court on the above aspects asFthere were no such corresponding provisions in the 2020 Rules,which were part of judicial review process – It is open to thelegislature to fix tenure of the Chairperson and the members otherthan four years as the tenure of four years was found to be nottenable in MBA-III case – s.184(7) which contemplates that SelectGCommittee should recommend panel of two names is howevercontrary to directions of Supreme Court in MBA-III case –s.184(11)(i)(ii) and s.184(7) are void as the Ordinance has reiteratedthe provisions in 2020 Rules – Challenge to other provisions notlegally sustainable –Tribunal, Appellate Tribunal and otherAuthorities (Qualifications, Experience and other Conditions ofH

Service of Members) Rules, 2020 – Tribunal, Appellate Tribunaland other Authorities (Qualifications, Experience and otherConditions 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 countryshould 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 nullifiedby legislative act removing the basis of the judgment. Such lawcan be retrospective. Retrospective amendment should bereasonable and not arbitrary and must not be violative of thefundamental rights guaranteed under the Constitution.

b) The test for determining the validity of validatinglegislation is that the judgment pointing out the defect would nothave been passed, if the altered position as sought to be broughtin by the validating statute existed before the Court at the timeof rendering its judgment. In other words, the defect pointedout should have been cured such that the basis of the judgementpointing out the defect is removed.

c) Nullification of mandamus by an enactment would beimpermissible legislative exercise. Even interim directions cannotbe reversed by legislative veto.

d) Transgression of constitutional limitations and intrusioninto the judicial power by the legislature is violative of theprinciple of separation of powers, the rule of law and of Article 14of the Constitution of India.[Para 44][844-C-G]

2. The direction given by this Court in the nature ofmandamus in Madras Bar Association v. Union of India & Anr.,(2020) SCC Online SC 962 (MBA-III) is to the effect thatadvocates are entitled for appointment as Members, providedthey have experience of 10 years. The first proviso to Section

A184 which prescribes minimum age of 50 years is an attempt tocircumvent the direction issued in MBA-III striking down theexperience requirement of 25 years at the bar for advocates tobe eligible. Introduction of the first proviso to Section 184(1) is adirect affront to the judgment of this Court in MBA-III. This Courtin Union of India v. R. Gandhi, President, Madras Bar Association,B(2010) 11 SCC 1 and Roger Mathew underlined the importance ofrecruitment of Members from the bar at young age to ensure alonger tenure. Fixing minimum age for recruitment of Membersas 50 years would act as deterrent for competent advocates toseek appointment. Practically, it would be difficult for an advocateCappointed after attaining the age of 50 years to resume legalpractice after completion of one term, in case he is notreappointed. Security of tenure and conditions of service arerecognised as core components of independence of the judiciary.Independence of the judiciary can be sustained only when theincumbents are assured of fair and reasonable conditions ofDservice, which include adequate renumeration and security oftenure. Therefore, the first proviso to Section 184(1) is inviolation of the doctrine of separation of powers as the judgmentof this Court in MBA-III has been frustrated by an impermissiblelegislative override. Resultantly, the first proviso to Section 184E(1) is declared as unconstitutional as it is violative of Article 14of the Constitution. [Para 49][851-B-F]

3. The second proviso to Section 184(1) deals with theallowances and benefits payable to the Members which are to bethe same as are admissible to Central Government officer

Fholding post carrying the same pay. The second proviso toSection 184(1), read with the third proviso, is an affront to thejudgment of this Court in MBA-III. By no stretch of imaginationcan it be said that the said provisos are result of curativelegislation. The direction issued by this Court in MBA-III for

payment of HRA was to ensure that decent accommodation isGprovided to Tribunal Members. Such direction was issued touphold independence of the judiciary and it cannot be subjectmatter of legislative response. mandamus issued by this Courtcannot be reversed by the legislature as it would amount toimpermissible legislative override. Therefore, the secondH

proviso, read with the third proviso, to Section 184(1) is declaredas unconstitutional. [Para 50][851-G-H; 852-F-G]

4.1. Rule 4(2) of the Tribunal, Appellate Tribunal and otherAuthorities (Qualifications, Experience and other Conditions ofService of Members) Rules, 2020 pertains to the procedure tobe followed by the Search-cum-Selection Committee (SCSC).According to the said Rule, the SCSC should recommend two orthree names for appointment to each post. direction was givenin MBA-III to amend Rule 4(2) of the 2020 Rules to provide thatthe SCSC shall recommend one person for appointment in eachpost in place of panel of two or three persons for appointmentto each post. One more name could be recommended to beincluded in the waiting list. Sufficient reasons were given inMBA-III to hold that executive influence should be avoided inmatters of appointments to tribunals - therefore, the directionthat only one person shall be recommended to each post. Thedecision of this Court in that regard is law laid down under Article141 of the Constitution. The only way the legislature could nullifythe said decision of this Court is by curing the defect in Rule4(2). There is no such attempt made except to repeat theprovision of Rule 4(2) of the 2020 Rules in the Ordinanceamending the Finance Act, 2017. Ergo, Section 184(7) isunsustainable in law as it is an attempt to override the law laiddown by this Court. Repeating the contents of Rule 4(2) of the2020 Rules by placing them in Section 184(7) is an indirect methodof 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 theGovernment shall take decision regarding the recommendationsmade by the SCSC preferably within period of three months.This is in response to the direction given by this Court inMBA-III that the Government shall make appointments totribunals within three months from the completion of the selectionand recommendation by the SCSC. Such direction wasnecessitated in view of the lethargy shown by the Union of Indiain making appointments and filling up the posts of Chairpersonsand Members of tribunals which have been long vacant. Thedirection given by this Court for expediting the process of

Aappointment was in the larger interest of administration of justiceand to uphold the rule of law. Section 184(7) as amended by theOrdinance permitting the Government to take decisionpreferably within three months from the date of recommendationof the SCSC is invalid and unconstitutional, as this amendedprovision simply seeks to negate the directions of this Court.B[Para 54][855-C-E, G; 856-A]

5. The tenure of the Chairperson and Member of tribunalis fixed at four years by Section 184(11), notwithstanding anythingcontained in any judgment, order or decree of any court. Afterperusing the law laid down by this Court in Union of India v. R.CGandhi, President, Madras Bar Association and Rojer Mathew whichheld that short stint is anti-merit, this Court directed themodification of tenure in Rules 9(1) and 9(2) of the 2020 Rules asfive years in respect of Chairpersons and Members of tribunalsin MBA-III. This Court declared that the Chairperson, Vice-DChairperson and the Members of the tribunals shall hold officefor term of five years and shall be eligible for reappointment.The insertion of Section 184(11) prescribing term of four yearsfor the Chairpersons and Members of tribunals by givingretrospective effect to the provision from 26.05.2017 is clearlyan attempt to override the declaration of law by this Court underEArticle 141 in MBA-III. Therefore, clauses (i) and (ii) of Section184(11) are declared as void and unconstitutional. [Para 55][856-A-B, D-F]

6. Insofar as the proviso to Section 184(11) is concerned,the Ordinance sets the maximum tenure at five years even withFrespect to the appointment orders passed between 26.05.2017and 04.04.2021 provide for higher tenure. In the process, interimdirections given by this Court in Kudrat Sandhu are also nullified.Though, there is nothing wrong with the proviso to Section184(11) being given retrospective effect, the appointments madeGpursuant to the interim directions passed by this Court cannotbe interfered with. While making it clear that the appointmentsthat are made to the CESTAT on the basis of interim orders passedby this Court shall be governed by the relevant statute and therules framed thereunder, as they existed prior to the FinanceAct, 2017, the retrospectivity given to the proviso to SectionH

184 (11) is upheld. Further, all appointments after 04.04.2021shall be governed by the Ordinance, as modified by the directionscontained 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 judgmentof this Court in MBA-III in respect of fixing 50 years as minimumage for appointment and payment of HRA, Section 184(7) relatingto recommendation of two names for each post by the SCSC andfurther, requiring the decision to be taken by the Governmentpreferably within three months are declared to be unconstitutional.Section 184(11) prescribing tenure of four years is contrary tothe 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 appointmentsmade to the CESTAT pursuant to the interim orders passed bythis Court shall be governed by the relevant statute and the rulesframed thereunder that existed prior to 26.05.2017. Notice hasbeen already taken of the notification dated 30.06.21 by way ofwhich Rule 15 of the 2020 Rules dealing with HRA has beenamended in conformity with directions in MBA-III. [Para 58][858-F-H; 859-A]

S.R. Bhagwat & Ors. v. State of Mysore (1995) 6 SCC16 : [1995] 3 Suppl. SCR 545; Cauvery Water DisputesTribunal (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 andVirender 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 BarAssociation (2010) 11 SCC 1 : [2010] 6 SCR 857; RojerMathew v. South Indian Bank Limited & Ors. (2020) 6SCC 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

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 SCC261 : [1997] 2 SCR 1186; Madras Bar Association v.Union of India & Anr. (2015) 8 SCC 583 : [2015] 6SCR 638; R.K. Jain v. Union of India (1993) 4 SCC119 : [1993] 3 SCR 802; Gujarat Urja Vikas NigamLtd. v. Essar Power Ltd. (2016) 9 SCC 103 : [2016] 5SCR 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 NehruGandhi 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] 1SCR 706; Supreme Court Advocates-on-RecordAssociation & Ors. v. Union of India (1993) 4 SCC441 : [1993] 2 Suppl. SCR 659; Union of India v.Sankalchand Himatlal Sheth & Anr. (1977) 4 SCC 193: [1978] 1 SCR 423; Supreme Court Advocates-on-Record Association & Anr. v. Union of India (2016) 5SCC 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 KumarSingh & Anr. v. State of Bihar & Ors. (2017) 3 SCC 1 :[2017] 5 SCR 160; State of Madhya Pradesh v. RakeshKohli & 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 MillsLtd. & Anr. v. Broach Borough Municipality & Ors.(1969) 2 SCC 283 : [1970] 1 SCR 388; PatelGordhandas Hargovindas & Ors. v. MunicipalCommissioner, Ahmedabad & Anr. [1964] 2 SCR 608;Janapada Sabha Chhindwara v. Central ProvincesSyndicate Ltd. & Anr. (1970) 1 SCC 509 : [1970] 3SCR 745; I.N. Saksena v. State of Madhya Pradesh(1976) 4 SCC 750 : [1976] 3 SCR 237; IndianAluminium Co. & Ors. v. State of Kerala & Ors. (1996)

7 SCC 637 : [1996] 2 SCR 23; Bakhtawar Trust & Ors.v. M. D. Narayan & Ors. (2003) 5 SCC 298 : [2003] 1Suppl. 1 SCR; Madan Mohan Pathak & Anr. v. Unionof 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] 2SCR 246; Dr. Ashwani Kumar v. Union of India & Anr.(2020) 13 SCC 585 : [2019] 12 SCR 30; Ram PraveshSingh & Ors. v. State of Bihar & Ors. (2006) 8 SCC381 : [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. RafiqMasih (Whitewasher) (2014) 8 SCC 883 : [2014] 8SCR 228 and State v. Kalyan Singh & Ors. (2017) 7SCC 444 : [2017] 6 SCR 946 – referred to.

Marbury v. Madison 5 U.S. 137 (1803); United Statesv. Peters 9 U.S. 115 (1809); Brown v. Board ofEducation of Topeka 347 U.S. 483 (1954); Cooper v.Aaron 384 U.S. 436 (1966); Miranda v. Arizona 384U.S. 436 (1966); Dickerson v. United States 530 U.S.428 (2000) and Plaut v. Spendthrift Farm, Inc. 514U.S. 211 (1995) – referred to.

Erwin Chemerinsky, The Court Should Have RemainedSilent: Why the Court Erred in Deciding Dickerson v.United States, 149 Pennsylvania Law Review 287-308(2001) and Nicholas Stephanopoulos, The Case for theLegislative Override, 10 UCLA Journal of InternationalLaw and Foreign Affairs 250 (2005) – referred to.

Per S. Ravindra Bhat, J. (Concurring)

1. The challenge to the first proviso to Section 184, whichprescribes the age qualification, has to be seen from severalangles. First, the underlying parent statutes which created thetribunals (ITAT, CESTAT, TDSAT, CAT) did not prescribe, as aneligibility criterion for selection of candidates as members, anyminimum age. The prescription of 50 years as minimumeligibility criterion, in the opinion of this court, is without any

Arationale. The ITAT has existed for the last 79 years; no lessthan 33 of its members were appointed as judges of various HighCourts; one of them (Ranganathan, J.) was appointed to this court.The CESTAT too has comprised advocates who have staffed thetribunal efficiently. The absence of any explanation for thepreference given to older persons, in fact leads to an absurdBresult- as was pointed out in MBA-III and as has been reiteratedby L. Nageswara Rao, J. in his opinion. The Constitution of Indiamakes an advocate who has practiced for more than 10 years,eligible for consideration for appointment as judge of the HighCourt and even this Court. An advocate with 7 years’ practiceCwith the Bar can be considered for appointment to the position ofa District Judge. Prescribing 50 years as minimum age limitfor consideration of advocates has the devastating effect of entirelyexcluding successful young advocates, especially those who mightbe trained and competent in the particular subject (such asIndirect Taxation, Anti-Dumping, Income-Tax, InternationalDTaxation and Telecom Regulation). The exclusion of such eligiblecandidates in preference to those who are more than 50 years ofage is inexplicable and therefore entirely arbitrary. As this Courtin its previous judgment (Rojer Mathew) has pointed out in anothercontext, the exclusion of such young and energetic legalEpractitioners could result in not so efficient or competentpractitioners left in field for consideration which would havetelling 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 condition for

Fappointment to these tribunals is arbitrary also because absolutelyno reason is forthcoming about what impelled Parliament to divertfrom the long-established criteria of giving weightage to actualpractice, reputation, integrity and subject expertise, without aminimum age criterion, in the pleadings in this case, nor in any

other cases (R. Gandhi –MBA –I; Madras Bar Association –IIIGand Roger Mathew). Such being the case, it is astonishing that inthe span of year (i.e. after the decision in Roger Mathew) ”newthinking” seems to have prevailed to frame rules excludingadvocates who can otherwise, based on their expertise, beconsidered for appointment to even High Courts. [Para 22][875-HF-H]

3. The consideration of younger advocates in the age groupof 40-45 years would have long term benefits since the domainknowledge and expertise in such areas (Telecom Regulation,Taxation –both Direct and Indirect, GATT Rules, InternationalTaxation etc.) would be useful in adjudication in these tribunalsand lead to body of jurisprudence. Depending on how suchcounsel/advocates fare as members of the Tribunal, having regardto their special knowledge of these laws, at later and appropriatestage, they may even be considered for appointment to HighCourts. [Para 23][876-A-B]4. The age criteria, impugned in this case also leads towholly anomalous and absurd results. For instance, an advocatewith 18- or 20-years’ practice, aged 44 years, with expertise inthe field of indirect taxation, telecom, or other regulatory laws,would be conversant with the subject matter. Despite beingeligible, (as she or he would fulfil the parameters of at least 10years’ practice, in the light of the decision in MBA-III) such acandidate would be excluded. On the other hand, an individualwho might have practiced law for 10 years, and later served as aprivate 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 member of tribunal.Thus, the age criterion would result in filtering out candidateswith more relevant experience and qualifications, in preferenceto those with lesser relevant experience, only on the ground ofage. [Para 24][876-C-E]

5.1. Given that the essential educational qualifications andexperience in the relevant field are fixed for all candidates, for aclassification based on minimum age for appointment (like in thepresent case) to succeed, the Union cannot say that it should beheld to be valid, irrespective of the nature and purposes of theclassification or the quality and extent of the difference inexperience between candidates. As between someone with 18years’ experience but aged 42 or 43 years, and someone withonly 12 years’ experience, if system of weightage for experienceand qualification were to be applied, the one with greaterexperience would in all likelihood be selected. Then, to say thatone with lesser experience, but who is more aged should be

Aselected and appointed, not only eliminating the one with moreexperience, but even disqualifying her or him, would mean thatbetter candidates have to be overlooked and those with lesserexperience would be appointed, solely on the ground that thelatter is over 50 years of age. [Para 27][877-D-G]

B5.2. In the present case, the rule has the effect of excludingdeserving candidates, without subserving any discernible publicpolicy or goal. Thus, the classification is based on no justifiablerationale; nor can it be said that the age criterion has some nexuswith the object sought to be achieved, such as greater efficiencyor experience. [Para 27][878-B]

5.3. The qualification of minimum age of 50 years asessential for appointment, is discriminatory because it is neithershown to have rational nexus with the object sought to beachieved, i.e. appointing the most meritorious candidates; nor isit shown to be based on any empirical study or data that suchDolder candidates fare better, or that younger candidates with morerelevant experience would not be as good, as members oftribunals. It is plain and simple, discrimination based on age. Thecriterion (of minimum 50 years of age) is virtually “picked outfrom hat” and wholly arbitrary. [Para 31][881-G-H; 882-A-B]

6.1. The tribunals which were reorganized by the FinanceAct, 2017 and now, through the impugned ordinance, exercisejudicial functions of the State, interpret and enforce the law, inthe course of adjudication of disputes.The appointment ofmembers (of such tribunals), their conditions of service, mannerFof selection, remuneration and security of tenure are vital to theirefficiency and independent functioning. It is in this backdrop thatthe Union’s contention regarding “equivalence” or “parity” withmembers of the civil services of the Union or holders of civilposts under the Union, as justification for the age criterion,needs to be examined. In addition, it is worthwhile to recollectGthat civil servant’s experience, though varied and diverse –ranging from co-ordination and administration at taluk, districtand state levels, to devising, framing and implementing thegovernment’s policies and programmes, to managing statutorycorporations and even commercial enterprises of the state, doesnot always entail adjudicatory functions. However, legalpractitioners, chartered accountants and one segment of civilservants, i.e. tax administrators and adjudicators are involved inthe day to day interpretation of law, leading to adjudicatoryoutcomes. Such being the case, the equivalence of “status” ofmembers of tribunals cannot be compared in linear or rigidmanner. That according to the Union’s scheme of rules andregulations, members of its services can attain certain rankupon attaining the age of, say, 50 years, therefore, cannot bedeterminative. In any case, the argument of equivalence is notrelevant. This point too, was brought home in the judgment ofthis court, in All India Judges Association II. [Paras 32, 34][882-B-D; 884-A-D]

6.2. There are other points of distinction too between civilservants and members of tribunals. Members of tribunals arenot drawn from any civil service; they are not holders of civilposts. Civil servants, especially members of the All-India Servicesrecruited by the Union, some of whom are deployed to differentStates, are governed by rules and other service conditionsembodied in circulars and orders. These govern their entireuniverse of employment: starting with eligibility conditions, rulesfor 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 orsimilar rules do not apply to members of tribunals not drawn frompublic service. It is only conditions of equivalence such as payscale which they are assured of under the rules, which alsodetermine their status. The manner of selection, conditions ofeligibility, rules for their removal upon proven misbehaviour andso on, are entirely different from public servants. In fact, the lattercategory, i.e. members of tribunals not drawn from public servicesources, are not even holders of civil posts or members of anyencadred civil service. They are not governed by Article 311 ofthe Constitution, nor are their conditions of service laid out inrules framed under the proviso to Article 309 of the Constitution.Such being the position, the argument of parity, in the opinion ofthe Court, is entirely devoid of merit. Nor is the argument of the

AAttorney General that uniform age is necessary, merited. Thereis no material to show that members recruited on the technicalside, such as experts in engineering, scientific or other technicalfields would be suitable only after they cross the age of 50. TheUnion’s argument that 50 years is necessary as it brings aboutparity between the members of the civil services who are eligibleBto be considered in their stream for tribunals or that there is anoverall uniformity, is without merit and accordingly rejected. [Para35][884-F-H; 885-A-C; 886-F]

7. The proviso to Section 184 (1), inserted by the impugnedordinance is declared void. declaration is issued that allCcandidates, otherwise eligible on their merit, based onqualifications and experience in the relevant field, are entitled tobe considered, without reference to the impugned “minimum”age (of 50 years) criteria. [Para 38][888-C]

8. The interim directions of this court, which culminatedDand were subsumed in Roger Mathew, resulted in the appointmentof members of various tribunals, whose term is now sought to beinterdicted by the proviso to Section 184 (11), which has beenintroduced with retrospective effect. While the retrospectivityaccorded to this provision cannot be faulted, nevertheless, theEsaid proviso, to the extent it seeks to interfere with and curtailthe tenure of members appointed under interim orders, who areentitled to enjoy their term of office, in accordance with the pre-amended legislation and rules, is arbitrary and void. [Para 41][890-D-F]F9. The curtailment of tenure to five years, of the fewindividuals appointed as members of tribunals, who were entitledto continue in office in terms of the pre-existing enactments (uptothe age of 62 years etc.) is arbitrary. Apart from the fact that theUnion wishes to curtail their tenure despite the finality ofdirections of this court in Roger Mathew and MBA-III, there is noGconceivable rationale. Nor has any overriding public interest beenespoused as justification for this. The divesting of judicial officeby legislative fiat, in this court’s opinion, directly affects theindependence of the judiciary. It also amounts to nakeddiscrimination, because all other members of the same tribunals

would enjoy longer tenure, in terms of the pre-existing conditionsof service, which prevailed at the time of their appointment. [Para42][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 ishereby declared void and inoperative. Similarly, the secondproviso to Section 184(1) of the Finance Act, 2017, introducedby Section 12 of the Tribunals Reforms (Rationalisation andConditions of Service) Ordinance, 2021 is held to be void andinoperative.

(ii) Section 184(7) of the Finance Act, 2017 introduced bySection 12 of the Tribunals Reforms (Rationalisation andConditions of Service) Ordinance, 2021 is hereby declared voidand inoperative.

(iii) Section 184(11)(i) and (ii) introduced by Section 12 ofthe Tribunals (Reforms Rationalisation and Conditions of Service)Ordinance, 2021 are hereby declared as void and unconstitutional.

(iv) Consequently, the declaration of this Court in para53(iv) of MBA-III shall prevail and the term of Chairperson of aTribunal shall be five years or till she or he attains the age of 70years, whichever is earlier and the term of Member of Tribunalshall 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 Section184(11) – introduced by Section 12 of the Tribunals (ReformsRationalisation and Conditions of Service) Ordinance, 2021 ishereby upheld; however, without in any manner affecting theappointments made to the post of Chairperson or members ofvarious Tribunals, upto 04.04.2021. In other words, theretrospectivity of the provision shall not in any manner affect thetenures of the incumbents appointed as consequence of thisCourt’s various orders during the interregnum period. [Para46][894-F-G; 895-A-E]

State of Gujarat v. Raman Lal Keshav Lal Soni (1983)2 SCC 33 : [1983] 2 SCR 287 – followed.

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] 12SCR 991 and All India Judges’ Assn. (II) v. Union ofIndia (1993) 4 SCC 288 : [1993] 1 Suppl. SCR 749 –relied on.

Union of India v. R. Gandhi, President, Madras BarAssociation (2010) 11 SCC 1 : [2010] 6 SCR 857;Madras Bar Association v. Union of India (2014) 10SCC 1 : [2014] 10 SCR 1; Roger Mathew (2020) 6SCC 1 : [2019] 16 SCR 1; Madras Bar Association vUnion of India (2020) SCC Online (SC) 962 (MBA-III); Dr. D.C. Wadhwa & Ors. v. State of Bihar & Ors.[1987] 1 SCR 198; Krishna Kumar Singh v. State ofBihar (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) 3SCC 261 : [1997] 2 SCR 1186; Ismail Faruqui v. Unionof 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. Unionof India & Ors. (1987) SCC Suppl. 734 : [1987] 3SCR 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] 1SCR 77; Chandramouleshwar Prasad v. Patna HighCourt (1969) 3 SCC 56 : [1970] 2 SCR 666; State ofKerala 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) SCCOnLine 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 Baabv. Wilke No. 18-882, 589 U. S. – referred to.

Per Hemant Gupta, J. (Partly dissenting)

1. The views expressed in the detailed judgment authoredby Justice L. Nageswara Rao as also separate but concurringjudgment of Justice Ravindra Bhat, are not agreed with, exceptto the limited extent that part of Section 187(7) of theTribunals Reforms (Rationalisation and Conditions of Service)Ordinance, 2021 that the Search and Selection Committee shallrecommend two names for post and that the tenure of membersincluding Chairperson etc. shall be four years in terms of Clauses(i) and (ii) of Section 184 (11) of the Ordinance is illegal since theissues of constitution of panel and tenure have already beendecided 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 canstrike down any legislation which violates fundamental rights orif it is beyond the legislative competence but the courts cannotdirect the legislature to frame or enact law and in particularmanner. The law declared by the Supreme Court is binding on allCourts in India in terms of Article 141 of the Constitution. Thedirections issued under Article 142 of the Constitution, arebinding on every Court in terms of Article 141 of the Constitution.The legislature cannot be said to be Court within the meaning ofArticle 141 of the Constitution by any stretch of imagination. Thedirections of this Court stop outside the four walls of legislature.The judiciary will step in only after law is enacted to test thelegality of statute on the known principles of judicial review.The Judiciary cannot and should not usurp the powers vestedwith legislature. The Judiciary cannot legislate in the scheme ofthe constitution. The directions of this Court in MBA-III caseare encroaching upon the field reserved for legislature. [Para13][900-E-G; 901-A-C]3. The Court will not direct to the State or Union to enactany particular law, or amend/ issue any notification for amendmentof 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

Apeculiar facts to make the Tribunal functional at the earliest ratherthan mandating legislature to amend the law in particular manner.The legislature has right to enact law, which may not benecessarily in terms of the directions of this Court. Such law whenenacted by Parliament or the State Legislature, even if contraryto the directions or guidelines issued by the Court, cannot beBstruck down for the said reason. Though transgression ofconstitutional limitations and intrusion into the judicial power bythe legislature is violative of the principle of separation of powers,the rule of law and of Article 14 of the Constitution of India, but itis equally true that judiciary in exercise of power of judicial reviewCcannot direct legislature to frame any law in particular manner.[Paras 20, 29][904-A-C; 909-E]

4. It cannot be said that the first proviso to Section 184prescribing minimum age of fifty years is an attempt tocircumvent the direction issued in MBA-III case. The conditionDof eligibility for appointment as Judge of High Court was keptin view while considering the eligibility of advocates as membersof Tribunals. However, the Memorandum of Procedure forappointment as judges of the High Court finalized by this Courtand forwarded to the Central Government in March, 2017 wasthat person shall not be eligible to be considered for appointmentEas Judge of High Court against Bar quota unless he hascompleted forty-five years of age on the date of recommendationby the High Court Collegium. Though, in terms of Article 217 ofthe Constitution, candidate becomes eligible for appointmentafter 10 years of practice as an Advocate. Thus, an Advocate would

Fbe eligible for appointment as judge of the High Court aroundthe age of 35 years. The Memorandum of Procedure adopted bythe Collegium of this Court prescribed forty-five years of age asthe minimum age. The eligibility to seek appointment is not solelydependent upon qualification of candidate but experience andsuitability, likely term which candidate may have are necessaryGconsiderations. [Para 31][909-G-H; 910-A-D]

5. In terms of the Constitution read with the Memorandumof Procedure adopted by this Court, an advocate would havemaximum tenure of 17 years as Judge of the High Court, may

be another three years as Judge of this Court. On the other hand,an advocate appointed as member of Tribunal can have tenureof 17 years, even if 50 is the minimum age for appointment. Thetenure of such member is up to the age of 67 years with thepossibility of being appointed as the Chairperson. This is not tocompare the status of High Court Judge with that of memberof Tribunal. The members would be appointed on the basis ofrecommendation of the high-powered Search and SelectionCommittee having judicial dominance. If member is discharginghis functions legally, there is no need to bear any apprehensionabout his not being re-appointed. The process of re-appointmentis again with the High-Powered Search and Selection Committeewith judicial dominance. provision in the statute cannot be foundto be untenable merely for the reason that there is possibilityof not being re-appointed. [Para 32][910-E-G]6. The advocates were not eligible for appointment under2020 Rules. Therefore, there was no condition of age of eligibilityof such candidates. The discussions in the judgment are not tobe considered as directions. There is background in which theultimate directions are issued. Since no directions were issuedin respect of eligibility conditions particularly relating to age, thus,fixing of eligible age as fifty years cannot be treated to be incontradiction to the directions issued in MBA-III case. Even if itis contravening to any such direction, the legislature is within itsjurisdiction to determine the minimum eligibility age for thepurpose of appointment. [Paras 33, 34][910-H; 911-A-C]

7. The age of 50 years as the eligibility condition is not offthe hat but is based upon previous legislation in respect ofmembers of the National Company Law Tribunal. Thus, thefixation of fifty years of age as the eligibility condition cannot besaid to be manifestly arbitrary or violative of any of theFundamental Rights of any of the candidates which may rendersuch condition of age as illegal. The argument is based onapprehension that it would be difficult for an advocate appointedafter attaining the age of fifty years to resume legal practice aftercompletion of one term, in case he is not reappointed. person

Awho is competent and good in his work will not find any difficultyto resume his practice but what would happen to his professionalcareer if his term is not extended is calculated risk which acandidate shall take at the time of seeking appointment. Suchapprehensions as to what will happen in future cannot be groundto strike down condition of age in the statute. This Court is notBpossessed of the expertise to say that it will be difficult for anadvocate to resume practice if he is not reappointed. The statutoryprovisions cannot be struck down on such grounds based onpresumed apprehensions. [Para 40][913-E-H; 914-A]

8. The apprehensions or misuse of statutory provision isCnot ground to declare the provisions of statute as void. Incase of failing to secure reappointment, the candidate will not beable to resume practice is based upon apprehensions. Whetherthey are good or valid grounds to refuse reappointment can besubject matter of judicial review although the decision of the high-Dpower Search and Selection Committee not to re-appoint acandidate may not warrant interference in exercise of judicialreview. [Paras 41, 43][914-A-B; 915-D-E]

9. The second proviso is to the effect that allowances andbenefits shall be to the extent as are admissible to CentralEGovernment officer holding the post carrying the same pay. Thethird proviso to Section 184(1) is that where Chairperson orMembers take house on rent, he may be reimbursed houserent subject to such limits and conditions as may be prescribed.In terms of third proviso, the Tribunal, Appellate Tribunal andother Authorities (Qualifications, Experience and otherFConditions of Service of Members) (Amendment) Rules, 2021have been published. As per the Rules now notified, theChairman, Chairperson, President, Vice Chairman, ViceChairperson or Vice President shall have option to avail ofaccommodation to be provided by the Central Government asGper the rules for the time being in force or entitled to house rentallowance subject to limit of Rs. one lakh fifty thousand rupeesper month and the Members shall have option to avail ofaccommodation to be provided by the Central Government asper the rules for the time being in force or entitled to house rent

allowance subject to limit of Rs.one lakh twenty-five thousandrupees per month with effect from the 1st January, 2021.Therefore, the directions issued stands complied with. [Para45][916-A-D]

10. The direction of this Court was that the Union shallmake appointments to Tribunals within three months whereasthe Ordinance has used the expression that the CentralGovernment shall take decision on the recommendations ofthe Committee “preferably within three months”. Both thedirections are only directory. It is well-settled that the use ofexpression ‘shall’ or ‘may’ is not determinative of the fact thatwhether the condition is mandatory or directory. Therefore, thereis no reason to set aside the expression ‘preferably’ used in sub-section (7) of Section 184. Such directions were issued in termsof Article 142 of the Constitution which stop at the four walls ofthe Parliament. The language to be used falls within the legislativecompetence and do not violate any fundamental right nor can besaid to be manifestly arbitrary. [Para 47][916-G-H; 917-A-B]

11. The inserted proviso to Section 184(11) by theOrdinance deals with two situations. One is in respect of thecandidates appointed from 26.5.2017 till the notified date that is4.4.2021 in terms of sub-Section (11) of Section 184. Second is inrespect of the candidates who have not been appointed fallingwithin proviso to sub-Section (1) of Section 184, which providesthat person who has not completed the age of fifty years shallnot be eligible for appointment as Chairperson or Member.There is no doubt that this is prospective provision as nocandidate who has not completed 50 years of age is eligible toseek appointment. There is no merit in the argument that aselected candidate has right to seek appointment and that toowithin three months of the order of this Court. Firstly, selectedcandidate has no right to seek appointment. The successfulcandidates do not acquire an indefeasible right to be appointedwhich cannot be legitimately denied. The fact that the legislationhas intervened to prescribe particular age which is at variancewith the condition in the advertisement is good reason not toappoint the candidates. The legality of Sections 174, 175 and 184

ABC

Aof the Finance Act, 2017 has been upheld in the matter of RojerMathew. Therefore, after such an amendment, appointments canbe made only in terms of the Rules famed under Section 184 ofthe Finance Act. Now, some of the Rules stand substituted bythe Ordinance. Therefore, candidates who have not beenappointed will have to seek appointment only in terms of theBsubstituted Section 184 of the Finance Act. The candidates whowere selected cannot seek appointment on the basis of their oldselection and being in merit. [Paras 54, 55, 56][921-G-H; 922-A-C; F-H]

12.1. Some of the Chairpersons and Members of theCTribunals were appointed between 26.5.2017 to 4.4.2021 in termsof the interim orders passed by this Court. The interim orderwhich permitted the appointments now stands subsumed in theOrdinance which has defined the tenure and the terms andconditions of appointment. The Ordinance is in fact in terms of

Dthe liberty granted to Union to seek modification. Mere fact thatan application for modification is pending will not bar thelegislature to enact statute by way of an Ordinance. Theappointments made after 26.5.2017 by virtue of Section 184(11)will be governed not by the parent statute but by the terms andconditions as enumerated in the Ordinance. The consent of theEAttorney General will not act as an estoppel against the statutei.e. the Ordinance. [Paras 57, 58][923-A, D-E]

12.2. The candidates in question were appointed during thependency of lis. These appointments were not concludedappointments but were subject to the provisions of the parentFAct which has been amended by the Finance Act, 2017. Theycannot claim any right to continue on the post till the age ofretirement under the parent Act in terms of proviso to sub-section(11) of Section 184 of the Finance Act as substituted. Theprovisions of the parent Act cease to be in existence with theGorder passed in Rojer Mathew and subsequent legislativeenactments introduced by way of the Ordinance. [Para 62][925-D-F]

13.1. The first, second 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 withinthe exclusive domain of the legislature. The legislature has notnullified the judgment of this Court on the above aspects as therewere no such corresponding provisions in the 2020 Rules, whichwere part of judicial review process. [Para 63][925-F-G]

13.2. It is open to the legislature to fix tenure of theChairperson and the members other than four years as the tenureof four years was found to be not tenable in MBA-III. Section184(7) which contemplates that Select Committee shouldrecommend panel of two names is contrary to the directions ofthis Court in MBA-III. Thus, Section 184(11)(i)(ii) and Section184(7) is declared to be void as the Ordinance has reiterated theprovisions which were in 2020 Rules. The challenge to otherprovisions is not legally sustainable. [Para 64][925-G-H; 926-A]

S.R. Bhagwat & Ors. v. State of Mysore (1995) 6 SCC16 : [1995] 3 Suppl. SCR 545; Cauvery Water DisputesTribunal (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 andVirender Singh Hooda & Ors. v. State of Haryana &Anr. (2004) 12 SCC 588 : [2004] 5 Suppl. SCR 720 –distinguished.

P. Ramachandra Rao v. State of Karnataka (2002) 4SCC 578; A.K. Roy v. Union of India & Ors., (1982) 1SCC 271 : [1982] 2 SCR 272; Kalpana Mehta & Ors,v. Union of India & Ors. (2018) 7 SCC 1 : [2018] 4SCR 1; Powers, Privileges and Immunities of StateLegislatures, AIR 1965 SC 745; Padma Sundara Rao(Dead) & Ors. v. State of T.N. & Ors., (2002) 3 SCC533 : [2002] 2 SCR 383 and Natural ResourcesAllocation, in Re, Special Reference No. 1 of 2012 –followed.

Dr. Ashwani Kumar v. Union of India & Anr. (2020) 13SCC 585 : [2019] 12 SCR 30; Mangalam OrganicsLimited v. Union of India, (2017) 7 SCC 221 : [2017] 5

SCR 406; State of Orissa & Ors. v. Md. Illiyas (2006)1 SCC 275 : [2005] 5 Suppl. SCR 395; Union of Indiav. Amrit Lal Manchanda & Anr., (2004) 3 SCC 75 :[2004] 2 SCR 422; Som Mittal v. Government ofKarnataka, (2008) 3 SCC 574 : [2008] 3 SCR 130;Arasmeta Captive Power Company Private Limited &Anr. v. Lafarge India Private Limited, (2013) 15 SCC414 : [2013] 17 SCR 496; Shanti Bhushan v. SupremeCourt of India & Anr., (2018) 8 SCC 396 : [2018] 12SCR 972 and M.C. Mehta v. Kamal Nath & Ors., (2000)6 SCC 213 : [2000] 1 Suppl. SCR 389 – relied on.Union of India v. R. Gandhi, President, Madras BarAssociation (2010) 11 SCC 1 : [2010] 6 SCR 857; RojerMathew v. South Indian Bank Limited & Ors. (2020) 6SCC 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. (2015)8 SCC 583 : [2015] 6 SCR 638; Collector of Customs,Madras & Anr. v. Nathella Sampathu Chetty & Anr. AIR1962 SC 316 : [1962] 3 SCR 786; Government ofAndhra Pradesh & Anr. v. G. Jaya Prasad Rao & Ors.,(2007) 11 SCC 528 : [2007] 4 SCR 256; People’s Unionfor Civil Liberties & Anr. v. Union of India (2004) 9SCC 580 : [2003] 6 Suppl. SCR 860; Charan Lal Sahuv. Union of India, (1990) 1 SCC 613 : [1989] 2 Suppl. SCR 597; Mehmood Alam Tariq & Ors. v. State ofRajasthan & Ors. (1988) 3 SCC 241 : [1988] 1 Suppl.SCR 379; Shri Prithvi Cotton Mills Ltd. & Anr. v. BroachBorough Municipality & Ors. (1969) 2 SCC 283 :[1970] 1 SCR 388; Madan Mohan Pathak & Anr. v.Union of India & Ors., (1978) 2 SCC 50 : [1978] 3SCR 334; S.S. Bola & Ors. v. B.D. Sardana & Ors.(1997) 8 SCC 522 : [1997] 2 Suppl. SCR 507; B.K.Pavitra v. Union of India (2019) 16 SCC 129 : [2019]7 SCR 1086; State of Tamil Nadu v. State of Kerala(2014) 12 SCC 696 : [2014] 12 SCR 875; MullaperiyarEnvironmental Protection Forum v. Union of India,(2006) 3 SCC 643 : [2006] 2 SCR 740 and Shankarsan

Dash v. Union of India (1991) 3 SCC 47 : [1991] 2SCR 567 – referred to.

Case Law Reference

816SUPREME COURT REPORTS

[2021] 5 S.C.R.

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.D502 of 2021.

Under Article 32 of The Constitution of India

KK Venugopal, AG., Balbir Singh, ASG., R. Balasubramanium,Arvind P Datar, Siddharth Luthra, Aruneshwar Gupta, S Vaidyanathan,Krishnan Venugopal, Shashikiran Shetty, Ranjit Kumar, Mukul Rohtagi,EGourab Benerjee, Paramjit Singh Patwalia, Sr. Advs., Zoheb Hossain,Ms. Shradha Deshmukh, Ms. Chinmayee Chandra, Shyam Gopal, AnkurTalwar, Ms. Suhasini Sen, Gurmeet Singh Makker, Mrs. Anil Katiyar,Rahul Unnikrishnan, TVS Raghavendra Sreyas, Naveen Hegde,Siddharth Vasudev, Navdeep Singh, Ms. Gayatri Gulati, Ms. SakshiFKakkar, Nalin Talwar, Sameer Abhyankar, Amish Tandon, Ayush Beotra,Dipin Tamang, Uddhav Khanna, Akshay Joshi, K. C. Kaushik, RahulKaushik, Ms. Bhuvneshwari Pathak, Ms. Shilpi Satyapriya Satyam,Pankaj Singh, Ms. Ranjana Singh, Mahesh Thakur, Kaushik Mishra, KiranPatel, Ms. Viapsha Singh, R. Gowrishankar, S. Rajappa, Gourav Agrawal,Chritarth Palli, Sahil Tagotra, Rupesh Kumar, Rajeev Sharma,GMs. Neelam Sharma, Ms. Pankhuri Shrivastava, Alekshendra Sharma,Pravesh Bahuguna, Ninad Loud, Shubro Mukherjee, Ivo D’ Costa, RajeevSingh, P. B. Suresh, Krishna Dev Jagarlamudi, Sai Kaushal N., Advs.for the appearing parties.

The Judgment of the Court was delivered by

L. NAGESWARA RAO, J.

1. The Madras Bar Association has filed this Writ Petition seekinga declaration that Sections 12 and 13 of the Tribunal Reforms(Rationalisation and Conditions of Service) Ordinance, 2021 and Sections184 and 186 (2) of the Finance Act, 2017 as amended by the TribunalReforms (Rationalisation and Conditions of Service) Ordinance, 2021as ultra vires Articles 14, 21 and 50 of the Constitution of India inasmuchas these are violative of the principles of separation of powers andindependence of judiciary, apart from being contrary to the principleslaid down by this Court in Union of India v. R. Gandhi, President,Madras Bar Association[1], Madras Bar Association v. Union of India& Anr.[2], Rojer Mathew v. South Indian Bank Limited & Ors.[3] andMadras Bar Association v. Union of India & Anr.[4]. The Petitionerseeks further direction to Respondent No.2 for establishment of aseparate wing to cater to the requirements of tribunals in India.2. brief reference to the historical background of tribunalisationin this country is necessary for better appreciation of the dispute thatfalls for adjudication in this Writ Petition. The Statement of objects andreasons for insertion of Articles 323-A and 323-B in the Constitution ofIndia by the Forty-Second Amendment is as follows:

“To reduce the mounting arrears in High Courts and to securethe speedy disposal of service matters, revenue matters andcertain matters of special importance in the context of thesocio-economic development and progress, it is consideredexpedient to provide for administrative and other tribunalsfor dealing with such matters while preserving the jurisdictionof the Supreme Court in regard to such matters under Articles136 of the Constitution. It is also necessary to make certainmodifications in the Writ Jurisdiction of the High Courts underArticle 226.”

3. The vires of the Administrative Tribunals Act, 1985, enactedunder Article 323-A (1), was challenged in S.P. Sampath Kumar v.

1 (2010) 11 SCC 12 (2014) 10 SCC 13 (2020) 6 SCC 14 (2020) SCC Online SC 962

AUnion of India & Ors.[5]before this Court. The main ground taken inthe writ petition was that the jurisdiction of the High Court under Article226 and Article 227 cannot be barred. It was held by this Court in S.P.Sampath Kumar (supra) that in place of High Court, the Parliamentcan set up an effective alternative institutional mechanism with the powerof judicial review vested in it, by placing reliance on the observationBmade in Minerva Mills Ltd. & Ors. v. Union of India & Ors.[6].However, this Court was of the firm opinion that the tribunals should bea real substitute to High Courts. While scrutinizing Chapter II of the Actwhich dealt with the establishment of tribunals, this Court expressed itsview that short tenure of Members of tribunals would be deterrentCfor competent persons to seek appointment as Members.

4. The correctness of the judgment of this Court in S.P. SampathKumar (supra) was considered by larger bench of this Court inL. Chandra Kumar v. Union of India & Ors.[7]which found the exclusionof the jurisdiction of the High Courts and the Supreme Court in ArticlesD323-A and 323-B to be unconstitutional. This Court declared that tribunalsshall continue to act like courts of first instance in respect of areas oflaw for which they have been constituted.

5. High-Level Committee on law relating to insolvency ofcompanies was constituted by the Union of India under the ChairmanshipEof Justice V. Balakrishna Eradi, retired Judge of this Court who madecertain recommendations for setting up the National Company LawTribunal (hereinafter referred to as NCLT) combining the powers ofthe Company Law Board under the Companies Act, 1956 (hereinafterreferred to as the 1956 Act), BIFR and AAIFR under the Sick IndustrialCompanies (Special Provisions) Act, 1985 and the jurisdiction and powersFrelating to winding up vested in the High Courts. The Governmentaccepted the recommendations and passed the Companies (SecondAmendment) Act, 2002. The reason for the said amendment was toavoid multiplicity of litigation before various fora and to reduce pendencyof cases. The Madras Bar Association filed writ petition in the MadrasGHigh Court challenging the constitutional validity of the said amendmentto the 1956 Act on the ground of legislative incompetence and violationof the doctrines of separation of powers and independence of the judiciary.

5 (1987) 1 SCC 1246 (1980) 3 SCC 625H7 (1997) 3 SCC 261

The High Court upheld the validity of the Amendment Act of 2002 butpointed out certain defects in the provisions of the Act. The High Courtdeclared that the NCLT and the National Company Law AppellateTribunal (hereinafter referred to as NCLAT) cannot be constitutedwithout removing the defects pointed out in the judgment. The judgmentof the High Court was upheld by this Court in Union of India v.R. Gandhi, President, Madras Bar Association[8] (hereinafter referredto as MBA-I). Parts I-B and I-C of the 1956 Act were directed to bemodified in accordance with the observations made in the judgment.

6. The Companies Act, 2013 (hereinafter referred to as the 2013Act), which replaced the 1956 Act, contained provisions for establishmentof the NCLT and the NCLAT. Madras Bar Association filed writpetition under Article 32 of the Constitution challenging the formation ofNCLT under Section 408 of the 2013 Act. Several other provisionspertaining to constitution of the NCLT and the NCLAT, qualificationsfor appointment of Members and Chairperson / President and constitutionof the Selection Committee were also assailed in the said writ petition.This Court in Madras Bar Association v. Union of India & Anr.[9](hereinafter referred to as MBA-II) upheld the validity of Section 408by which the NCLT was constituted. However, clauses (a) and (e) ofSection 409(3) relating to the appointment of Technical Members wereheld to be invalid. Section 411(3), which provided qualifications ofTechnical Members, and Section 412(2), which dealt with the constitutionof the Selection Committee, were also held to be invalid. direction wasgiven to the Union of India to scrupulously follow the judgment inMBA-I and set right the defects that were pointed out therein by bringingthe provisions in accord with the MBA-I judgment.

7. The Finance Act, 2017 was brought into force from 31.03.2017to give effect to the financial proposals for the financial year 2017-18.Sections 183 to 189 thereof dealt with conditions of service of Chairpersonand Members of Tribunals, Appellate Tribunals and other authorities.According to Section 183, provisions of Section 184 applied tothe Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President,Vice-President, Presiding Officer or Member of the Tribunal, AppellateTribunal and other specified authorities, notwithstanding anything to thecontrary contained in the provisions of the statutes listed in Column (3)

8 (2010) 11 SCC 1

9 (2015) 8 SCC 583

Aof the Eighth Schedule. The Central Government was empowered bySection 184 to make rules to provide for qualifications, appointment,term of office, salaries and allowances, resignation, removal and otherterms and conditions of service of the Chairperson and Vice-Chairperson(and commensurate positions bearing different nomenclature) and otherMembers. As per the first proviso, the Chairperson, Vice-ChairpersonB(and commensurate positions bearing different nomenclature) or Memberof the Tribunal shall hold office for such term as may be specified by therules made by the Central Government, not exceeding five years fromthe date on which such person enters office. The Chairperson, Chairmanor President can hold office till they reach the age of 70 years and theCVice-Chairperson, Vice-Chairman, Vice-President, Presiding Officer orany other Member can continue till the age of 67 years, as per the secondproviso to Section 184.8. Notification was issued by the Central Government on01.06.2017 by which the Tribunal, Appellate Tribunal and other AuthoritiesD(Qualifications, Experience and other Conditions of Service of Members)Rules, 2017 (hereinafter referred to as the 2017 Rules) were made.The validity of Part XIV of the Finance Act, 2017 and the 2017 Rulesframed thereunder was questioned in Rojer Mathew (supra). Thepetitioners contended that para XIV of the Finance Act, 2017 cannot beclassified as money bill. The question of money bill was referred to aElarger bench. The validity of Section 184 of the Finance Act, 2017 wasupheld. The 2017 Rules were held to be contrary to the parent amendmentand therefore, struck down. The Central Government was directed toreformulate the rules strictly in accordance with the principles delineatedby this Court in R.K. Jain v. Union of India[10], L. Chandra Kumar

F(supra), Madras Bar Association v. Union of India & Anr.[11]andGujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd.[12] The CentralGovernment was directed to formulate new set of rules which wouldensure non-discriminatory and uniform conditions of service, includingassured tenure. As an interim order, this Court in Rojer Mathew (supra)

directed that the appointments to the Tribunals/ Appellate Tribunals andGthe service conditions shall be in terms of the respective statutes beforethe enactment of the Finance Bill, 2017. Union of India was given libertyto seek modification of the orders after framing fresh rules. On

10 (1993) 4 SCC 11911 (2014) 10 SCC 1H12 (2016) 9 SCC 103

12.02.2020, notification was issued by the Central Government bywhich the Tribunal, Appellate Tribunal and other Authorities(Qualifications, Experience and other Conditions of Service of Members)Rules, 2020 (hereinafter referred to as the 2020 Rules) were framed.The validity of the 2020 Rules was challenged by Madras Bar Association.After detailed deliberations on the issues involved, this Court by itsjudgment in Madras Bar Association v. Union of India & Anr.[13](hereinafter referred to as MBA-III) disposed of the writ petition byissuing the following directions:

“53. The upshot of the above discussion leads this Court toissue the following directions:

(i) The Union of India shall constitute National TribunalsCommission which shall act as an independent body tosupervise the appointments and functioning of Tribunals, aswell as to conduct disciplinary proceedings against membersof Tribunals and to take care of administrative andinfrastructural needs of the Tribunals, in an appropriatemanner. Till the National Tribunals Commission is constituted,a separate wing in the Ministry of Finance, Government ofIndia shall be established to cater to the requirements of theTribunals.

(ii) Instead of the four-member Search-cum-SelectionCommittees provided for in Column (4) of the Schedule to the2020 Rules with the Chief Justice of India or his nominee,outgoing or sitting Chairman or Chairperson or President ofthe Tribunal and two Secretaries to the Government of India,the Search-cum-Selection Committees should comprise of thefollowing members:

(a) The Chief Justice of India or his nominee—Chairperson(with casting vote).

(b) The outgoing Chairman or Chairperson or President ofthe Tribunal in case of appointment of the Chairman orChairperson or President of the Tribunal (or) the sittingChairman or Chairperson or President of the Tribunal in caseof appointment of other members of the Tribunal (or) retiredJudge of the Supreme Court of India or retired Chief Justice

of High Court in case the Chairman or Chairperson orPresident of the Tribunal is not Judicial member or if theChairman or Chairperson or President of the Tribunal isseeking re-appointment—member;

(c) Secretary to the Ministry of Law and Justice, Governmentof India—member;

(d) Secretary to the Government of India from departmentother than the parent or sponsoring department, nominatedby the Cabinet Secretary—member;

(e) Secretary to the sponsoring or parent Ministry orDepartment—Member Secretary/Convener (without vote).Till amendments are carried out, the 2020 Rules shall be readin the manner indicated.

(iii) Rule 4(2) of the 2020 Rules shall be amended to providethat the Search-cum-Selection Committee shall recommend thename of one person for appointment to each post instead ofa panel of two or three persons for appointment to each post.Another name may be recommended to be included in thewaiting list.

(iv) The Chairpersons, Vice-Chairpersons and the membersof the Tribunal shall hold office for term of five years andshall be eligible for reappointment. Rule 9(2) of the 2020Rules shall be amended to provide that the Vice-Chairman,Vice-Chairperson and Vice President and other members shallhold office till they attain the age of sixty-seven years.

F(v) The Union of India shall make serious efforts to providesuitable housing to the Chairman or Chairperson or Presidentand other members of the Tribunals. If providing housing isnot possible, the Union of India shall pay the Chairman orChairperson or President and Vice-Chairman, Vice-Chairperson, Vice President of the Tribunals an amount ofGRs. 1,50,000/- per month as house rent allowance and Rs.1,25,000/- per month for other members of the Tribunals. Thisdirection shall be effective from 01.01.2021.

(vi) The 2020 Rules shall be amended to make advocates withan experience of at least 10 years eligible for appointment as

judicial members in the Tribunals. While consideringadvocates for appointment as judicial members in theTribunals, the Search-cum-Selection Committee shall take intoaccount the experience of the Advocate at the bar and theirspecialization in the relevant branches of law. They shall beentitled for reappointment for at least one term by givingpreference to the service rendered by them for the Tribunals.

(vii) The members of the Indian Legal Service shall be eligiblefor appointment as judicial members in the Tribunals, providedthat they fulfil the criteria applicable to advocates subject tosuitability to be assessed by the Search-cum-SelectionCommittee on the basis of their experience and knowledge inthe specialized branch of law.

(viii) Rule 8 of the 2020 Rules shall be amended to reflectthat the recommendations of the Search-cum-SelectionCommittee in matters of disciplinary actions shall be finaland the recommendations of the Search-cum-SelectionCommittee shall be implemented by the Central Government.

(ix) The Union of India shall make appointments to Tribunalswithin three months from the date on which the Search-cum-Selection Committee completes the selection process and makesits recommendations.

(x) The 2020 Rules shall have prospective effect and will beapplicable from 12.02.2020, as per Rule 1(2) of the 2020Rules.

(xi) Appointments made prior to the 2017 Rules are governedby the parent Acts and Rules which established the concernedTribunals. In view of the interim orders passed by the Courtin Rojer Mathew (supra), appointments made during thependency of Rojer Mathew (supra) were also governed bythe parent Acts and Rules. Any appointments that were madeafter the 2020 Rules came into force i.e. on or after 12.02.2020shall be governed by the 2020 Rules subject to themodifications directed in the preceding paragraphs of thisjudgment.

(xii) Appointments made under the 2020 Rules till the date ofthis judgment, shall not be considered invalid, insofar as they

Aconformed to the recommendations of the Search-cum-Selection Committees in terms of the 2020 Rules. Suchappointments are upheld, and shall not be called into questionon the ground that the Search-cum-Selection Committees whichrecommended the appointment of Chairman, Chairperson,President or other members were in terms of the 2020 Rules,Bas they stood before the modifications directed in thisjudgment. They are, in other words, saved.

(xiii) In case the Search-cum-Selection Committees have maderecommendations after conducting selections in accordancewith the 2020 Rules, appointments shall be made within threeCmonths from today and shall not be subject matter ofchallenge on the ground that they are not in accord with thisjudgment.

(xiv) The terms and conditions relating to salary, benefits,allowances, house rent allowance etc. shall be in accordanceDwith the terms indicated in, and directed by this judgment.

(xv) The Chairpersons, Vice Chairpersons and members ofthe Tribunals appointed prior to 12.02.2020 shall be governedby the parent statutes and Rules as per which they wereappointed. The 2020 Rules shall be applicable with theEmodifications directed in the preceding paragraphs to thosewho were appointed after 12.02.2020. While reserving thematter for judgment on 09.10.2020, we extended the term ofthe Chairpersons, Vice-Chairpersons and members of theTribunals till 31.12.2020. In view of the final judgment onFthe 2020 Rules, the retirements of the Chairpersons, Vice-Chairpersons and the members of the Tribunals shall be inaccordance with the applicable Rules as mentioned above.”

9. The Tribunal Reforms (Rationalisation and Conditions ofService) Bill, 2021 was introduced in the Lok Sabha on 13.02.2021 butGcould not be taken up for consideration. According to the Statement ofobjects and reasons, the said Bill was proposed with view to streamlinetribunals and sought to abolish certain tribunals and other authorities,which “only add to another additional layer of litigation” and werenot “beneficial for the public at large”. Thereafter, the TribunalReforms (Rationalisation and Conditions of Service) Ordinance, 2021H

(hereinafter referred to as the Ordinance) was promulgated on04.04.2021. Chapter II thereof makes amendments to the Finance Act,2017. The dispute raised in this Writ Petition relates to the first provisoto Section 184(1) according to which person below the age of 50 yearsshall not be eligible for appointment as Chairperson or Member and alsothe second proviso, read with the third proviso, which stipulates that theallowances and benefits payable to Chairpersons and Members shall bethe same as Central Government officer holding post carrying thesame pay as that of the Chairpersons and Members. Section 184(7)stipulates that the Selection Committee shall recommend panel of twonames for appointment to the post of Chairperson or Member and theCentral Government shall take decision preferably within three monthsfrom the date of the recommendation of the Committee, notwithstandingany judgment, order or decree of any Court. The said provision is alsoassailed in this Writ Petition. Section 184 (11) which shall be deemed tohave been inserted with effect from 26.05.2017 provides that the termof office of the Chairperson and Member of tribunal shall be fouryears. The age of retirement of the Chairperson and Members is specifiedas 70 years and 67 years, respectively. If the term of office or the age ofretirement specified in the order of appointment issued by the CentralGovernment for those who have been appointed between 26.05.2017and 04.04.2021 is greater than that specified in Section 184(11), theterm of office or the age of retirement shall be as set out in the order ofappointment, subject to maximum term of office of five years. Thevalidity of Section 184(11) is also challenged in the Writ Petition.10. We have heard Mr. Arvind P. Datar, learned Amicus Curiae,Mr. K.K. Venugopal, learned Attorney General for India, Mr. BalbirSingh, learned Additional Solicitor General, Mr. Mukul Rohatgi, learnedSenior Counsel, Mr. Sidharth Luthra, learned Senior Counsel, Mr. GaurabBanerjee, learned Senior Counsel, Mr. Aruneshwar Gupta, learned SeniorCounsel and Mr. Krishnan Venugopal, learned Senior Counsel.

11. Mr. Arvind P. Datar, learned Amicus Curiae, made the followingsubmissions:

i) The Ordinance is violative of the rule of separation of powerswhich forms part of the basic structure of the Constitution. TheOrdinance is liable to be struck down as being violative of anotherbasic feature of the Constitution, i.e., independence of the judiciary.

Aii) Reversal of judgments which are not in accord with theGovernment’s views undermines the judiciary, violating thesupremacy of the Constitution.

iii) Stipulation of minimum age limit of 50 years for appointmentis contrary to the directions given in the judgments of this Court inBMBA-I, Rojer Mathew (supra) and MBA-III.

iv) The provisos to Section 184(1) fixing the allowances andbenefits payable to the Members to the extent as admissible toCentral Government officers holding post carrying the samepay is unsustainable and requires to be set aside.

v) Section 184(7) is liable to be declared invalid as the directionissued by this Court in MBA-III to make appointments withinthree months from the date of recommendation of the SelectionCommittee is sought to be annulled.

Dvi) Section 184(11) is unconstitutional insofar as it fixes the tenureof the Chairperson and Members as four years.

vii) Retrospectivity given to Section 184(11) is only to nullify theeffect of interim orders of this Court which are in the nature ofmandamus and is, therefore, prohibited legislative activity.E

viii) The appointments made pursuant to the directions of this Courton 09.02.2018, 16.07.2018 and 21.08.2018 with the consent ofthe learned Attorney General cannot be disturbed. The directionsissued by this Court with the consent of the Union of India cannotbe legislatively overruled.F

12. Mr. P.S. Patwalia, learned Senior Counsel appearing forMr. P. Dinesha, Member, CESTAT, submitted that there are at least fourorders passed by this Court on 09.02.2018, 20.03.2018, 16.07.2018 and21.08.2018 which clarified that the age of retirement would be 62 yearsfor Members of the CESTAT and the ITAT. Relying upon the judgmentGof this Court in Virender Singh Hooda & Ors. v. State of Haryana &Anr.[14], he submitted that even if this Court upholds the Ordinance, theappointments made pursuant to the interim orders of this Court shouldnot be disturbed.

H14 (2004) 12 SCC 588

13. Mr. Rohatgi, learned Senior Counsel, argued that Mr. AjaySharma who was practicing as an AOR in this Court responded to anadvertisement issued on 29.06.2016 for the appointment to the post ofMember (Judicial), CESTAT. He was appointed along with others on11.04.2018 with condition that his tenure will be for five years or till heattains the age of 65 years, whichever is earlier. This Court clarified on21.08.2018 that the retirement age of Member (Judicial), CESTAT shallbe 62 years. Proviso to Section 184(11) which prescribes maximum offive years tenure is result of an impermissible exercise undertaken bythe Union of India. He further submitted that mandamus issued by thisCourt cannot be overruled by the legislature. Mr. Gaurab Banerjee,learned Senior Counsel, submitted that Mr. S.K. Pati was appointedMember (Judicial), CESTAT on 11.04.2018. He submitted that Mr. Patileft his employment as an Additional District Judge and joined as Member(Judicial). Mr. Sidharth Luthra, learned Senior Counsel, submitted thatMrs. Rachna Gupta who is at present working as Member (Judicial) hasresigned as District Judge. He requested this Court to permit theMembers, CESTAT and other tribunals to continue till 62 years as directedby this Court in its judgment in Kudrat Sandhu v. Union of India[15].Mr. Krishnan Venugopal, learned Senior Counsel appearing forAdvocates’ Association, Bengaluru, which was interested in appointmentsbeing made to the posts of Judicial and Accountant Members of theITAT, submitted that pursuant to the advertisement issued on 06.07.2018inviting applications to 37 posts of Members (Judicial)/ (Accountant) inthe ITAT, 650 applications were filed. The candidates between the ageof 35 years and 50 years were eligible according to the advertisement.Interviews were held between May-September, 2019. Appointments tothe post of Accountant Members were made but the Judicial Memberswere not appointed. He submitted that there are few persons who arebelow 50 years and would not be considered for appointment in view ofthe Ordinance. He argued that Section 184(11) alone is givenretrospective effect and the amendments to Section 184(1) to (10) wouldbe prospective and cannot be made applicable to the recruitment andselection conducted prior to 04.04.2021. Therefore, according toMr. Krishnan Venugopal, learned Senior Counsel, the candidates whohave been selected pursuant to the advertisement issued in 2018 shouldnot be held ineligible on the ground that some of the candidates werebelow the age of 50 years on the date of the advertisement.

DEF

A14. The learned Attorney General strongly refuted the contentionsof the learned Amicus Curiae and other Senior Counsel. He stated thata judgment of court can be overridden by the legislature. Serviceconditions of Members of tribunals is policy decision which should beleft to the collective decision of the Parliament. Legislative overruling isa permissible exercise as has been held in number of judgments of thisBCourt. He asserted that there can be no direction issued by this Court tomake law in particular manner. Such directions issued by this Courtare treated as suggestions. Ultimately, the will of the people has to prevail.Even interstitial directions given in the absence of law are subject tofuture legislation. He was of the opinion that the Ordinance cannot beCchallenged on the ground that it is contrary to the judgment of this Courtin MBA-III. The learned Attorney General argued that the minimumage for appointment to tribunals is fixed at 50 years for the purpose ofmaintaining equality. All aspirants from various fields have been put onan even keel. According to him, there is no uniformity in the directionsissued by this Court regarding the tenure of Chairperson and Members.DInitially in S.P. Sampath Kumar (supra), this Court recommended fiveto seven years as tenure. Thereafter, directions were issued to the effectthat tenure should be five years. The learned Attorney General submittedthat tenure of four years instead of five years was fixed after detaileddeliberations by experts which should not be interdicted by this Court.EInsofar as HRA is concerned, the learned Attorney General submittedthat Members of tribunals cannot be permitted to claim allowances higherthan officers in the Government carrying the same pay scale. In respectof two names being sent for each post by the Selection Committee, thelearned Attorney General stated that the recommendations are subjectto inquiry by the Intelligence Bureau (IB) and in case the selectedFcandidate is found to be not suitable, there should be an alternative.Therefore, it was decided that at least two names should be recommendedby the Selection Committee for each post. The Government is alsointerested in filling up the vacant posts in the tribunals and the stipulationof taking decision preferably within three months does not mean thatGthe Government will not act with alacrity.

15. Mr. Balbir Singh, learned Additional Solicitor General defendedthe retrospectivity given to Section 184(11) by arguing that the defectpointed out by the judgment of MBA-III has been cured by theOrdinance. It was held in MBA-III that the 2020 Rules came into forceHon the date of their notification, i.e., 12.02.2020. Further, it was held that

subordinate legislation cannot be given retrospective operation unlessauthorized by the parent legislation. By the Ordinance, the Finance Acthas been amended and retrospective effect has been given to Section184(11). Any judgment or orders passed between 26.05.2017 and04.04.2021 are overridden by the Ordinance which is in the nature of acurative legislation. The learned ASG submitted that all appointmentsthat have been made between 26.05.2017 and 04.04.2021 shall begoverned by the Ordinance.

Separation of Powers

16. Sir Edward Coke on being summoned by King James I toanswer why the King could not himself decide cases which had to gobefore his own Courts of justice, asserted: “... no king after the conquestassumed to himself to give any judgment in any cause whatsoever,which concerned the administration of justice within his realm, butthese were solely determined in the Courts of justice”. When theKing said that “he thought the law was founded on reason, and thathe and others had reason, as well as the Judges”, Coke answered:“True it was, that God had endowed His Majesty with excellentscience, and great endowments of nature; but His Majestywas not learned in the laws of his realm of England, andcauses which concern the life, or inheritance, or goods, orfortunes of his subjects, are not to be decided by naturalreason, but by the artificial reason and judgment of the law,which law is an act which requires long study and experience,before that man can attain to the cognizance of it; and thatthe law was the golden metwand and measure to try the causesof the subjects; and which protected His Majesty in safetyand peace. (“The Higher Law —Background of AmericanConstitutional Law” by Edward S. Corwin, pp. 38-39).”[16]

17. This dictum of Coke, announced in Dr Bohman case [(1610)8 Co Rep 118-A] was soon repudiated in England, but the doctrineannounced in Coke’s dictum found fertile soil in the United States andsprouted into such vigorous growth that it was applied by the UnitedStates Supreme Court in the decision of cases coming before it; and ithas been said that the doctrine of the supremacy of the Supreme Courtis the logical conclusion of Coke’s doctrine of control of the Courts overlegislation (See: Willis on Constitutional Law, 1936 Edn., p. 76).

16 Smt. Indira Nehru Gandhi v. Shri Raj Narain 1975 Supp SCC 1

A18. De l’esprit des lois was published in 1748 byCharles de Secondat, Baron de Montesquieu. According to Montesquieu,there can be no liberty where the legislative and executive powers areunited in the same person or body of Magistrates. He argued that thereis no liberty, if the judicial power is not separated from the legislative andexecutive. He further noted that there would be an end of everything,Bwere the same man or same body, whether of the nobles or of the people,to exercise those three powers, that of enacting laws, that of executingthe 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”Cto promote the ratification of the United States Constitution. JamesMadison dealt with the particular structure of the new government andthe distribution of powers among its different parts in Federalist No.47and separation of the departments not having constitutional control overeach other in Federalist No.48. The structure of the Government furnishingDproper checks and balances between different departments was thesubject matter of Federalist No.51.

20. All powers of Government — legislative, executive and judicial— result in the legislative body. The concentration of these powers inthe same hands is precisely the definition of despotic Government. ItEwill be no alleviation that these powers will be exercised by plurality ofhands and not by single person. One hundred and seventy-three despotswould surely be as oppressive as one. [See: Jefferson : Works : 3, 223]

21. The American Constitution provides for rigid separation ofgovernmental powers into three basic divisions, executive, legislativeFand judiciary. It is an essential principle of that Constitution that powersentrusted to one department should not be exercised by any otherdepartment. The Australian Constitution follows the same pattern of theseparation of powers. Unlike these Constitutions, Indian Constitutiondoes not expressly vest the three kinds of powers in three differentorgans of the State.[17]G

22. The doctrine of separation of powers informs the Indianconstitutional structure and is an essential constituent of rule of law. Inother words, the doctrine of separation of powers, though not expresslyengrafted in the Constitution, its sweep, operation and visibility are

H17 Smt. Indira Nehru Gandhi v. Shri Raj Narain (supra)

apparent from the scheme of the Indian Constitution. The Constitutionhas made demarcation, without drawing formal lines between the threeorgans—legislature, executive and judiciary. Separation of powersbetween three organs—the legislature, executive and judiciary—is alsonothing but consequence of principles of equality enshrined in Article14 of the Constitution of India. Accordingly, breach of separation ofjudicial power may amount to negation of equality under Article 14. Statedthus, legislation can be invalidated on the basis of breach of theseparation of powers since such breach is negation of equality underArticle 14 of the Constitution.[18] Equality, rule of law, judicial review andseparation of powers form parts of the basic structure of the Constitution.Each of these concepts are intimately connected. There can be no ruleof law, if there is no equality before the law. These would be meaninglessif the violation was not subject to the judicial review. All these would beredundant if the legislative, executive and judicial powers are vested inone organ. Therefore, the duty to decide whether the limits have beentransgressed has been placed on the judiciary.[19] Though, there is no rigidseparation of governmental powers between the executive, legislativeand judiciary, it is clear from the above judicial pronouncements andliterature that separation of powers forms part of the basic structure ofthe Constitution. Violation of separation of powers would result ininfringement of Article 14 of the Constitution. legislation can be declaredas unconstitutional if it is in violation of the principle of separation ofpowers.

Independence of the Judiciary

23. Alexander Hamilton wrote in The Federalist No.78 as follows:

“The complete independence of the courts of justice ispeculiarly essential in limited Constitution. By limitedConstitution, I understand one which contains certainspecified exceptions to the legislative authority; such, forinstance, that it shall pass no bills of attainder, no ex postfacto laws, and the like. Limitations of this kind can bepreserved in practice in no other way than through the mediumof courts of justice, whose duty it must be to declare all actscontrary to the manifest tenor of the Constitution void. Without

18 State of Tamil Nadu v. State of Kerala & Anr. (2014) 12 SCC 696

19 I.R. Coelho v. State of T.N. (2007) 2 SCC 1

[2021] 5 S.C.R.

Athis, all the reservations of particular rights or privilegeswould amount to nothing.”

24. Basic Principles on the Independence of the Judiciary wereadopted by the 7[th] United Nations Congress on the Prevention of Crimeand the Treatment of Offenders held at Milan from 26.08.1985 toB06.09.1985 and endorsed by the General Assembly resolutions on29.11.1985 and 13.12.1985. The relevant basic principles are that theindependence of the judiciary shall be guaranteed by the State andenshrined in the Constitution or the law of the country. It is the duty ofthe governmental and other institutions to respect and observe theindependence of the judiciary. The term of office of Judges, theirCindependence, security, adequate renumeration, conditions of service,pensions and the age of retirement shall be adequately secured by law.The United Nations Economic and Social Council authorized the UNSub-Commission on Prevention of Discrimination and Protection ofMinorities to request Dr. L.M. Singhvi to prepare report on theDindependence and impartiality of judiciary. He submitted draftdeclaration on the independence and impartiality of the judiciary, jurors,assessors and the independence of lawyers, which came to be knownas the Singhvi Declaration. The United Nations Commission on HumanRights invited governments to take the Singhvi Declaration into accountin implementing the Basic Principles on the Independence of the Judiciary.EThe Bangalore Principles on Judicial Conduct, the product of severalmeetings and deliberations of Chief Justices and Judges of both commonlaw and civil law systems and adopted by the United Nations Commissionon Human Rights on 29.04.2003, identified core values of the judiciary,one of which is independence. The measures adopted by the JudicialFIntegrity Group at its meeting held in Lusaka, Zambia on 21[st] and 22[nd]January, 2010 for effective implementation of the Bangalore Principlesof Judicial Conduct referred to the responsibilities of States to ensureguarantees, through constitutional or other means, on judicialindependence. One of the guarantees required to be provided by theState to maintain judicial independence is that the legislative or executiveGpowers that may affect Judges in respect of their office, theirrenumeration, conditions of service or other resources, shall not be usedwith the object or consequence of threatening or bringing pressure upona particular Judge or Judges.

25. In his address dated 24.05.1949, Dr. B.R. Ambedkar statedHthat: -

“There can be no difference of opinion in the House that ourjudiciary must be both independent of the executive and mustalso be competent in itself. And the question is how these twoobjects can be secured”.

26. Article 50 of the Constitution of India provides that the Stateshall take steps to separate the judiciary from the executive in the publicservices of the State. The concept of separation of judiciary fromexecutive cannot be confined only to the subordinate judiciary, totallydiscarding the higher judiciary. If such narrow and pedantic or syllogisticapproach is made and constricted construction is given, it would leadto an anomalous position that the Constitution does not emphasise theseparation of higher judiciary from the executive[20]. Article 50, occurringin chapter described by Granville Austin as “the conscience of theConstitution” in his work titled ‘The Indian Constitution: Cornerstone ofa Nation’, underlines the importance given by the Constitution-makersto immunize the judiciary from any form of executive control orinterference.[ 21]27. The independence of the judiciary is fighting faith of ourConstitution. It is the cardinal principle of the Constitution that anindependent judiciary is the most essential characteristic of free societylike ours and the judiciary which is to act as bastion of the rights andfreedom of the people is given certain constitutional guarantees tosafeguard the independence of judiciary. An independent and efficientjudicial system has been recognised as part of the basic structure ofour Constitution.[22]

28. Article 37 of the Constitution declares that the principles laiddown in Part IV of the Constitution are fundamental in the governanceof the country and it should be the duty of the State to apply the principlesin making laws. Undoubtedly, it is true that the provisions of Part IV arenot enforceable by the courts of law. However, this does not absolve theobligation of the State from applying the principles of Part IV in makinglaws. It is necessary to remind ourselves of what Dr. B.R. Ambedkarstated in the Constituent Assembly on 19.11.1948 of Part IV, which is asunder: -

20 Supreme Court Advocates-on-Record Association & Ors. v. Union of India (1993)

4 SCC 441

21 Union of India v. Sankalchand Himatlal Sheth & Anr. (1977) 4 SCC 193

22 Supreme Court Advocates-on-Record Association & Ors. v. Union of India (supra)

A“It is the intention of this Assembly that in future both thelegislature and the executive should not merely pay lip servicesto the principles enacted in this part, but they should be madethe basis of all executive and legislative action that may betaken hereafter in the matter of governance of the country”.

B29. Impartiality, independence, fairness and reasonableness indecision-making are the hallmarks of the judiciary. If “impartiality” isthe soul of the judiciary, “independence” is the lifeblood of the judiciary.Without independence, impartiality cannot thrive. Independence is notthe freedom for Judges to do what they like. It is the independence ofjudicial thought. It is the freedom from interference and pressures whichCprovides the judicial atmosphere where he can work with absolutecommitment to the cause of justice and constitutional values. It is alsothe discipline in life, habits and outlook that enables Judge to be impartial.Its existence depends however not only on philosophical, ethical or moralaspects but also upon several mundane things—security in tenure,Dfreedom from ordinary monetary worries, freedom from influences andpressures within (from others in the judiciary) and without (from theexecutive)[23]. The independence of an individual Judge, that is, decisionalindependence; and independence of the judiciary as an institution or anorgan of the State, that is, functional independence are the broad conceptsof the principle of independence of the judiciary/ tribunal[24].E

30. Individual independence has various facets which includesecurity of tenure, procedure for renewal, terms and conditions of servicelike salary, allowances, etc. which should be fair and just and whichshould be protected and not varied to his/her disadvantage afterappointment. Independence of the institution refers to sufficient degreeFof separation from other branches of the Government, especially whenthe branch is litigant or one of the parties before the tribunal. Functionalindependence would include method of selection and qualificationsprescribed, as independence begins with appointment of persons ofcalibre, ability and integrity. Protection from interference andGindependence from the executive pressure, fearlessness from otherpower centres — economic and political, and freedom from prejudices

23 MBA-I

24 Supreme Court Advocates-on-Record Association & Anr. v. Union of India (2016)H5 SCC 1

acquired and nurtured by the class to which the adjudicator belongs, areimportant attributes of institutional independence[25].

31. The fundamental right to equality before law and equalprotection of laws guaranteed by Article 14 of the Constitution, clearlyincludes right to have the person’s rights adjudicated by forum whichexercises judicial power in an impartial and independent manner.[26]

32. The constitutional mandate is that the legislature should adhereto the principles laid down in Part IV of the Constitution of India whileenacting legislations. No provision shall be made in legislative acts whichwould have the tendency of making inroads into the judicial sphere. Anysuch encroachment by the legislature would amount to violating theprinciples of separation of powers, judicial independence and the rule oflaw. Independence of courts from the executive and the legislature isfundamental to the rule of law and one of the basic tenets of the IndianConstitution. Separation of powers between the three organs, i.e., thelegislature, the executive and the judiciary, is consequence of theprinciples of equality as enshrined in Article 14 of the Constitution[27].Any incursion into the judicial domain by the other two wings of theGovernment would, thus, be unconstitutional.

Judicial decisions and legislative overruling

I. Comparative Jurisdictions

33. It would be profitable to refer to the reaction of courts tolegislative override in comparative jurisdictions. Chief Justice JohnMarshall of the US Supreme Court in Marbury v. Madison[28] referredto the Constitution as the fundamental and paramount law of the nation.He declared that “It is emphatically the province and duty of thejudicial department to say what the law is.” In United States v.Peters[29], Chief Justice Marshall speaking for an unanimous Court saidthat “If the legislatures of the several states may at will annul thejudgments of the Courts of the United States, and destroy rightsacquired under those judgments, the Constitution itself becomes asolemn mockery…”

25 Rojer Mathew (supra)

26 MBA-I

27 State of Tamil Nadu v. State of Kerala & Anr. (supra)

28 5 U.S. 137 (1803)

29 9 U.S. 115 (1809)

A34. In Brown v. Board of Education of Topeka[30], the UnitedStates Supreme Court held that the Fourteenth Amendment forbids statesto use governmental powers to bar children on racial grounds fromattending school where there is states’ participation through anyarrangement, management, funds or property. The Governor or legislaturecannot declare that they are not bound by the judgment mentioned above.BThe Board of Little Rock’s Central High School suspended its plan to doaway with desegregation in public schools. The said action of the schoolwas rejected by the District Court which was affirmed by the Court ofAppeal. There was an amendment to the Arkansas Constitution pursuantto which law was made relieving school children from compulsoryCattendance at racially mixed schools. The school filed petition in theDistrict Court seeking postponement of the programme of desegregation.The District Court allowed the writ petition. The Court of Appeal reversedthe decision of the District Court which was affirmed by the UnitedStates Supreme Court in Cooper v. Aaron[31]. It was held therein that theconstitutional rights of children not to be discriminated against in schoolDadmissions on grounds of race or color as declared by the United StatesSupreme Court in the Brown case can neither be nullified openly anddirectly by state legislators or state executives or judicial officers, nornullified indirectly by them through evasive schemes for segregation.The Supreme Court declared that the principles announced in the decisionEof Brown v. Board of Education (supra) are indispensable for theprotection of the freedoms guaranteed by the fundamental charter.

35. Chief Justice Warren speaking for the majority in Miranda v.Arizona[32], declared that person in custody must, prior to interrogation,be clearly informed that he has the right to remain silent, and that anythingFhe says will be used against him in court. He must be clearly informedthat he has the right to consult with lawyer and have the lawyer withhim during interrogation and, that, if he is indigent, lawyer will beappointed to represent him. The Congress enacted § 3501 which providedthat confession shall be admissible in criminal prosecution brought by

the United States or by the District of Columbia if it is voluntarily given.GCharles Thomas Dickerson charged with robbery and use of firearmmoved the District Court to suppress his statement which he made tothe Federal Bureau of Investigation (FBI) that he has not received30 347 U.S. 483 (1954)31 358 U.S. 1 (1958)H32 384 U.S. 436 (1966)

Miranda warnings. The motion to suppress was quashed by the DistrictCourt which was reversed by the United States Court of Appeal for theFourth Circuit on the basis of the enactment § 3501. The United StatesSupreme Court in Dickerson v. United States[33] authoritativelypronounced that the Congress cannot legislatively supersede decisionof the Supreme Court interpreting and applying the Constitution. AsMiranda amounts to constitutional rule, the Supreme Court concludedthat the Congress cannot supersede the judgment legislatively. Thelearned Attorney General referred to an article written by ErwinChemerinsky titled “The Court should have remained silent: Why theCourt erred in deciding Dickerson v. United States”[34]. The said articleis critical analysis of the judgment of the Supreme Court in Dickersonwherein the author wrote that the desire to rule on the constitutionalityof the law simply does not justify the courts raising it sua sponte. Heopined that the Fourth Circuit and ultimately the Supreme Court violatedthe separation of powers by considering § 3501 over the objection of theexecutive branch. In Dickerson, the justice department informed theSupreme Court that it was not invoking § 3501 and that it could not usethe confession only if the Court found that Miranda warnings were notproperly administered. In spite of the submission made by the justicedepartment, the Fourth Circuit ruled on the admissibility of the confessionon the basis of § 3501. Chemerinsky argues in his article that the judiciaryexceeded its jurisdiction in considering § 3501 when none of the partiesraised the issue.

36. Justice Scalia speaking for the majority in Plaut v. SpendthriftFarm, Inc.[35] referred to earlier judgments of the United States SupremeCourt which held that judicial decision becomes the last word of thejudicial department with regard to particular case or controversy, andthe Congress may not declare by retrospective action that the lawapplicable to that very case or whole class of cases was somethingother than what the courts said it was. Justice Scalia held that deprivingjudicial judgments of the conclusive effect that they had when they wereannounced would be in violation of separation of powers.

33 530 U.S. 428 (2000)

34 Erwin Chemerinsky, The Court Should Have Remained Silent: Why the CourtErred in Deciding Dickerson v. United States, 149 Pennsylvania Law Review 287-308 (2001)

35 514 U.S. 211 (1995)

ABC

DEF

A37. In his article, “The Case for the Legislative Override”[36],Nicholas Stephanopoulos has explored the response of courts to legislativeoverruling in various jurisdictions. Judicial review of legislative action islimited in United Kingdom and New Zealand as the interpretation ofstatutes would be in accordance with the European Convention of HumanRights and the New Zealand Bill of Rights, respectively. The Courts inBUnited Kingdom and New Zealand follow hortatory judicial review bywhich the Court cannot strike down legislation but can declare it to beincompatible with the European Convention or the Bill of Rights. As faras Germany is concerned, statutes would be stricken if they are declaredunconstitutional by the courts, and would be unrescuable by constitutionalCamendment if they are found to violate certain unamendable constitutionalprovisions. If the statutes are invalidated on being found unconstitutionalby the courts in Canada and Israel, the legislature could override thejudgments of the courts leveraging what is termed as the ‘notwithstanding’clause in the Canadian context, i.e., notwithstanding their conflict withthe Charter or Basic Law.D

II. India

(A) Scope of judicial review

38. Shifting focus to legislative override in our country, it isnecessary to first appreciate the scope of judicial review of ordinancesEwhich is the same as that of legislative act. Article 123 of theConstitution empowers the President to promulgate an ordinance duringrecess of the Parliament, which shall have the same force and effect asan act of the Parliament. The validity of an ordinance can be challengedon grounds available for judicial review of legislative act. An ordinanceFpassed either under Article 123 or under Article 213 of the Constitutionstands on the same footing. When the Constitution says that the ordinance-making power is legislative power and an ordinance shall have the sameforce as an act, an ordinance should be clothed with all the attributes ofan act of legislature carrying with it all its incidents, immunities andlimitations under the Constitution. It is settled law that judicial review ofGan ordinance should be akin to that of legislative action.[37]

36 Nicholas Stephanopoulos, The Case for the Legislative Override, 10 UCLAJournal of International Law and Foreign Affairs 250 (2005)

37 R.K. Garg v. Union of India & Ors. (1981) 4 SCC 675; T. Venkata Reddy & Ors. v.State of Andhra Pradesh (1985) 3 SCC 198; Krishna Kumar Singh & Anr. v. State ofHBihar & Ors. (2017) 3 SCC 1.

39. The controversy that arises for the consideration of this Courtrelates to the legislative response to the judgment of this Court inMBA-III. The power to strike down primary legislation enacted by theUnion of India or the State legislatures is on limited grounds. The Courtscan strike down legislation either on the basis that it falls foul of federaldistribution of powers or that it contravenes fundamental rights or otherconstitutional rights/provisions of the Constitution of India.[38] Where thereis challenge to the constitutional validity of law enacted by the legislature,the Court must keep in view that there is always presumption ofconstitutionality of an enactment and clear transgression of constitutionalprinciples must be shown. In State of Madhya Pradesh v. RakeshKohli & Anr.[39], this Court held that sans flagrant violation of theconstitutional provisions, the law made by Parliament or State legislatureis not declared bad and legislative enactment can be struck down onlyon two grounds: (i) that the appropriate legislature does not have thecompetence to make the law, and (ii) that it takes away or abridges anyof the fundamental rights enumerated in Part III of the Constitution orany other constitutional provisions. Subsequently, the Court has alsorecognised “manifest arbitrariness” as ground under Article 14 on thebasis of which legislative enactment can be judicially reviewed.[40]

(B) Permissible legislative overruling

40. The judgment in Shri Prithvi Cotton Mills Ltd. &Anr. v. Broach Borough Municipality & Ors.[41]was relied upon byboth sides. The validity of the rules framed by Municipal Corporationunder Section 73 of the Bombay Municipal Boroughs Act, 1925 for levyinga rate on open lands was the subject matter of challenge in PatelGordhandas Hargovindas & Ors. v. Municipal Commissioner,Ahmedabad & Anr[42]. The relevant rule was declared ultra vires of theAct itself. Later, the State legislature passed validation act seeking tovalidate the imposition of tax, the validity of which was considered inShri Prithvi Cotton Mills Ltd. (supra). This Court held that it is notsufficient to merely declare that the decision of the Court shall not bindas such declaration would amount to the reversal of decision of theCourt which the legislature cannot do. It was further observed that

38 Binoy Vishwam v. Union of India & Ors. (2017) 7 SCC 59

39 (2012) 6 SCC 312

40 K.S. Puttaswamy & Anr. v. Union of India & Anr. (2019) 1 SCC 1

41 (1969) 2 SCC 283

42 (1964) 2 SCR 608

ACourt’s decision must always bind unless the conditions on which it isbased are so fundamentally altered that the decision could not have beengiven in the altered circumstances.

41. It is open to the legislature within certain limits to amend theprovisions of an Act retrospectively and to declare what the law shall beBdeemed to have been, but it is not open to the legislature to say that ajudgment of Court properly constituted and rendered in exercise of itspowers in matter brought before it shall be deemed to be ineffectiveand the interpretation of the law shall be otherwise than as declared bythe Court.[43] The test of judging the validity of the amending and validatingenactment is, whether the legislature enacting the validating statute hasCcompetence over the subject-matter; whether by validation, the saidlegislature has removed the defect which the Court had found in theprevious laws; and whether the validating law is consistent with theprovisions of Part III of the Constitution.[44] In State of Tamil Nadu v.State of Kerala & Anr. (supra), this Court held that any law enacted byDthe legislature may be invalidated if it is an attempt to interfere withjudicial 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.[45] requires close scrutiny as it was advertedto and relied upon by both sides. writ petition was filed in the HighECourt of Calcutta for mandamus directing the Life InsuranceCorporation (LIC) to act in accordance with the terms of settlementdated 24.01.1974 read with administrative instructions dated 29.03.1974.The writ petition was allowed by the learned single Judge against whicha Letters Patent Appeal (LPA) was preferred by the LIC. During thependency of the LPA, the LIC (Modification of Settlement) Act, 1976Fcame into force. The LPA was withdrawn in view of the subsequentlegislation and the decision of the learned single Judge became final.Validity of the said statute was assailed in writ petition filed underArticle 32 by the employees of the LIC. Justice Bhagwati, speaking forthe majority, was of the opinion that the judgment of the Calcutta HighGCourt was not mere declaratory judgment holding an impost or tax as

43 Janapada Sabha Chhindwara v. Central Provinces Syndicate Ltd. & Anr. (1970) 1SCC 509

44 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 298H45 (1978) 2 SCC 50

invalid so that validating statute can remove the defect pointed out inthe judgment. He observed that the judgment of the Calcutta High Courtgave effect to the rights of the petitioners by mandamus, directing theLIC to pay annual cash bonus. As long as the judgment of the learnedsingle Judge is not reversed in appeal, it cannot be disregarded or ignored.The LIC was held to be bound by the writ of mandamus issued by theCalcutta High Court. Justice Beg, in his concurrent opinion, held that therights which accrued to the employees on the basis of the mandamusissued by the High Court cannot be taken away either directly or indirectlyby subsequent legislation. Thereafter, Madan Mohan Pathak (supra)came up for discussion in Sri Ranga Match Industries & Ors. v. Unionof India & Ors.[46]. Justice Jeevan Reddy was of the opinion that theMadan Mohan Pathak case cannot be treated as an authority for theproposition that mandamus cannot be set aside by legislative act. JusticeHansaria was not in agreement with such view. Relying upon the judgmentof this Court in A.V. Nachane & Anr. v. Union of India & Anr.[47],Justice Hansaria held that the legal stand taken by Justice Beg in theMadan Mohan Pathak case had received majority’s endorsement andit was because of this that retrospectivity given to the relevant ruleassailed in A.V. Nachane was held to have nullified the effect of thewrit and was accordingly invalid. In view of the difference of opinion,the matter was referred to larger bench. We are informed by theleaned Amicus Curiae that the difference of opinion could not be resolvedas the case was settled out of court.

43. In Virender Singh Hooda (supra), this Court did not acceptthe contention of the petitioners therein that vested rights cannot betaken away by retrospective legislation. However, it was observed thattaking away of such rights would be impermissible if there is violation ofArticles 14, 16 or any other constitutional provision. The appointmentsalready made in implementation of decision of this Court were protectedwith the reason that “the law does not permit the legislature to takeaway what has been granted in implementation of the Court’sdecision. Such course is impermissible.” This Court in CauveryWater Disputes Tribunal[48] declared the ordinance which sought todisplace an interim order passed by the statutory tribunal asunconstitutional as it set side an individual decision inter partes and

46 1994 Supp (2) SCC 726

47 (1982) 1 SCC 205

48 1993 Supp (1) SCC 96 (2)

ABC

Atherefore, amounted to legislative exercise of judicial power. When amandamus issued by the Mysore High Court was sought to be annulledby legislation, this Court quashed the same in S.R. Bhagwat & Ors. v.State of Mysore[49]on the ground that it was impermissible legislativeexercise. Setting at naught decision of the Court without removing thedefect pointed out in the judgment would sound the death knell of theBrule of law. The rule of law would cease to have any meaning, becausethen it would be open to the Government to defy law and yet to getaway with it.[50]

44. The permissibility of legislative override in this country shouldbe in accordance with the principles laid down by this Court in theCaforementioned as well as other judgments, which have been culled outas under:

a) The effect of the judgments of the Court can be nullified by alegislative act removing the basis of the judgment. Such law can beretrospective. Retrospective amendment should be reasonable and notDarbitrary and must not be violative of the fundamental rights guaranteedunder the Constitution.[51]

b) The test for determining the validity of validating legislation isthat the judgment pointing out the defect would not have been passed, ifthe altered position as sought to be brought in by the validating statuteEexisted before the Court at the time of rendering its judgment. In otherwords, the defect pointed out should have been cured such that the basisof the judgement pointing out the defect is removed.

c) Nullification of mandamus by an enactment would beimpermissible legislative exercise [See: S.R. Bhagwat (supra)]. EvenFinterim directions cannot be reversed by legislative veto [See: CauveryWater Disputes Tribunal (supra) and Medical Council of India v.State of Kerala & Ors.[52]].

d) Transgression of constitutional limitations and intrusion into thejudicial power by the legislature is violative of the principle of separationGof powers, the rule of law and of Article 14 of the Constitution of India.

49 (1995) 6 SCC 16

50 P. Sambamurthy & Ors. v. State of Andhra Pradesh & Anr. (1987) 1 SCC 362

51 Lohia Machines Ltd. & Anr. v. Union of India & Ors. (1985) 2 SCC 197

H52 (2019) 13 SCC 185

Validity of the Impugned Ordinance

45. The learned Amicus Curiae submitted that the Ordinanceimpugned in the Writ Petition is unconstitutional as it is violative of theseparation of powers, the rule of law and independence of the judiciary.He argued that the principle of independence of the judiciary can betraced to Article 14 of the Constitution and the Ordinance is liable to bestruck down as being violative of the equality clause. The learned AmicusCuriae relied upon the judgments of this Court to submit that the impugnedOrdinance is classic case of law laid down by this Court beingoverturned by the legislature unreasonably. Responding to the submissionsof the learned Attorney General that deference has to be shown bycourts to the policy decisions of the executive and the legislature, thelearned Amicus Curiae argued that deference has to be shown to thereasons of the policy and not the policy itself. The learned AttorneyGeneral asserted that the law laid down by this Court is not the finalword as it is settled that the Parliament can legislate by curing the defectspointed out by the Court. The learned Attorney General stated thatlegislation is made after the decision undergoes detailed deliberations atvarious levels in the Government and the legislature. The collectivewisdom of the Parliament cannot be interfered with by the Court. Heemphasized that service conditions of Chairperson and Members oftribunals is matter of policy over which the Parliament should have thefinal word. He stressed the need for judicial restraint to be shown bycourts in giving directions to legislate. He stated that any interstitialdirections given by this Court in the absence of any existing legislationshall be treated as suggestions to the Parliament for consideration at thetime of making legislation. He insisted that later legislation cannot bestruck down on the ground that the directions issued by the Court earlierare violated. Judicial review of the Ordinance can be only on those groundsthat are available for review of legislative act. The Ordinance cannotbe declared as unconstitutional as being violative of Article 14, as nofacet of the said Article comes into play in the instant case.

46. The grievance of the Petitioners in this Writ Petition mainlyrelates to the violation of the first proviso and the second proviso, readwith the third proviso, to Section 184 (1), Sections 184(7) and 184(11) ofthe Finance Act, 2017. Section 184(1) of the Finance Act, 2017, prior toamendment, is as follows:

A(1) The Central Government may, by notification, make rulesto provide for qualifications, appointment, term of office,salaries and allowances, resignation, removal and the otherterms and conditions of service of the Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal,BAppellate Tribunal or, as the case may be, other Authoritiesas specified in column (2) of the Eighth Schedule:

Provided that the Chairperson, Vice-Chairperson,Chairman, Vice-Chairman, President, Vice-President,Presiding Officer or Member of the Tribunal, AppellateTribunal or other Authority shall hold office for such term asspecified in the rules made by the Central Government butnot exceeding five years from the date on which he entersupon his office and shall be eligible for reappointment:

Provided further that no Chairperson, Vice-DChairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member shall hold office assuch after he has attained such age as specified in the rulesmade by the Central Government which shall not exceed, —

(a) in the case of Chairperson, Chairman [President or theEPresiding Officer of the Securities Appellate Tribunal],the age of seventy years;

(b) in the case of Vice-Chairperson, Vice-Chairman, Vice-President, Presiding Officer [of the Industrial Tribunalconstituted by the Central Government and the DebtsFRecovery Tribunal] or any other Member, the age of sixty-seven years:

47. The amendment to Section 184 by the Ordinance is as follows:

184. (1) The Central Government may, by notification, makerules to provide for the qualifications, appointment, salariesGand allowances, resignation, removal and the other conditionsof service of the Chairperson and Members of the Tribunalas specified in the Eighth Schedule:

Provided that person who has not completed the ageof fifty years shall not be eligible for appointment as aHChairperson or Member:

Provided further that the allowances and benefits sopayable shall be to the extent as are admissible to CentralGovernment officer holding the post carrying the same pay:

Provided also that where the Chairperson or Membertakes house on rent, he may be reimbursed house rentsubject to such limits and conditions as may be provided byrules.

(2) The Chairperson and Members of Tribunal shall beappointed by the Central Government on the recommendationof Search-cum-Selection Committee (hereinafter referred toas the Committee) constituted under sub-section (3), in suchmanner as the Central Government may, by rules, provide.

(3)The Search-cum-Selection Committee shall consist of—

(a) the Chief Justice of India or Judge of Supreme Courtnominated by him–– Chairperson of the Committee;

(b) two Secretaries nominated by the Government of India ––Members;

(c) one Member, who––

(i) in case of appointment of Chairperson of Tribunal,shall be the outgoing Chairperson of the Tribunal; or

(ii) in case of appointment of Member of Tribunal, shallbe the sitting Chairperson of the Tribunal; or

(iii) in case of the Chairperson of the Tribunal seeking re-appointment, shall be retired Judge of the Supreme Courtor retired Chief Justice of High Court nominated by theChief Justice of India:

Provided that, in the following cases, such Member shallalways be retired Judge of the Supreme Court or retiredChief Justice of High Court nominated by the Chief Justiceof India, namely: ––

(i) Industrial Tribunal constituted by the CentralGovernment under the Industrial Disputes Act, 1947;

(ii) Tribunals and Appellate Tribunals constituted underthe Recovery of Debts Due to Banks and Financial InstitutionsAct, 1993;

(iii) Tribunals where the Chairperson or the outgoingChairperson, as the case may be, of the Tribunal is not aretired Judge of the Supreme Court or retired Chief Justiceor Judge of High Court; and

(iv) such other Tribunals as may be notified by the CentralBGovernment in consultation with the Chairperson of theSearch-cum-Selection Committee of that Tribunal; and

(d) the Secretary to the Government of India in the Ministryor Department under which the Tribunal is constituted orestablished –– Member- Secretary.

C(4) The Chairperson of the Committee shall have the castingvote.

(5) The Member-Secretary of the Committee shall not haveany vote.

D(6) The Committee shall determine its procedure for makingits recommendations.

(7) Notwithstanding anything contained in any judgment, orderor decree of any Court or in any law for the time being inforce, the Committee shall recommend panel of two namesfor appointment to the post of Chairperson or Member, asEthe case may be, and the Central Government shall take adecision on the recommendations of the Committee preferablywithin three months from the date on which the Committeemakes its recommendations to the Government.

(8) No appointment shall be invalid merely by reason of anyFvacancy or absence in the Committee.

(9) The Chairperson and Member of Tribunal shall beeligible for re-appointment in accordance with the provisionsof this section:

GProvided that in making such re-appointment, preferenceshall be given to the service rendered by such person.

(10) The Central Government shall, on the recommendationof the Committee, remove from office, in such manner as maybe provided by rules, any Member, who—

(a) has been adjudged as an insolvent; or

(b) has been convicted of an offence which involves moralturpitude; or

(c) has become physically or mentally incapable of acting assuch Member; or

(d) has acquired such financial or other interest as is likelyto affect prejudicially his functions as Member; or

(e) has so abused his position as to render his continuance inoffice prejudicial to the public interest:

Provided that where Member is proposed to be removedon any ground specified in clauses (b) to (e), he shall beinformed of the charges against him and given an opportunityof being heard in respect of those charges.

Explanation. –– For the purposes of this section, theexpressions ––

(i) “Tribunal” means Tribunal, Appellate Tribunal orAuthority as specified in column (2) of the Eighth Schedule;

(ii) “Chairperson” includes Chairperson, Chairman,President and Presiding Officer of Tribunal;

(iii) “Member” includes Vice-Chairman, Vice-Chairperson,Vice-President, Account Member, Administrative Member,Judicial Member, Expert Member, Law Member, RevenueMember and Technical Member, as the case may be, of aTribunal;

53(11) Notwithstanding anything contained in any judgment,order, or decree of any Court or any law for the time being inforce, ––

(i) the Chairperson of Tribunal shall hold office for termof four years or till he attains the age of seventy years,whichever is earlier;

(ii) the Member of Tribunal shall hold office for term offour years or till he attains the age of sixty-seven years,whichever is earlier:

53 With effect from 26.05.2017.

AProvided that where Chairperson or Member isappointed between the 26th day of May, 2017 and the notifieddate and the term of his office or the age of retirement specifiedin the order of appointment issued by the Central Governmentis greater than that which is specified in this section, then,notwithstanding anything contained in this section, the termBof office or age of retirement or both, as the case may be, ofthe Chairperson or Member shall be as specified in his orderof appointment subject to maximum term of office of fiveyears.

48. The first proviso of Section 184(1) provides minimum age forCappointment as Chairperson or Member as 50 years. One of the issuesconsidered in MBA-III was the correctness of the condition imposed inthe 2020 Rules that an advocate is eligible for appointment as Memberonly if he has 25 years of experience. It is relevant to state that advocateswere ineligible for most of the tribunals. The learned Attorney GeneralDfairly submitted in his arguments that suitable amendment will be madeto make advocates eligible, subject to their having 25 years’ experience.The learned Amicus Curiae contended in MBA-III that in order to attractcompetent advocates to apply for appointment as Members in tribunals,it is necessary that they should be made eligible for appointment on thesame criteria as applicable for appointment of High Court Judge. TheElearned Amicus Curiae suggested that advocates with standing of 15years at the bar should be made eligible for appointment as Members oftribunals. In MBA-III, exclusion of advocates from being appointed asMembers was found to be contrary to the judgment of this Court inMBA-I and MBA-II. While recording the submission of the learned

FAttorney General that Rules shall be amended to make advocates eligiblefor appointment as Members, it was held in MBA-III that experienceat the bar for advocates to be considered for appointment as Membersshould be the same as is applicable for appointment as High Court Judges,i.e., 10 years. In such view of the matter, direction was given inMBA-III to amend the 2020 Rules to make advocates with at least 10Gyears of experience at the bar eligible for appointment as Members intribunals. The experience of advocates at the bar and their specializationin the relevant branch of law was directed to be taken into account bythe Search-cum-Selection Committee (hereinafter referred to as SCSC)while considering their appointment. Advocates were held to be entitledHfor reappointment for at least one term by giving preference to the service

rendered by them in the tribunals. Thereafter, an application was filedby the Union of India for modification of the direction aforementionedby substituting the word, “eligible for reappointment” in the place of“entitled for reappointment”. The said request of the Union of India wasacceded to by this Court.

49. The direction given by this Court in the nature of mandamusin MBA-III is to the effect that advocates are entitled for appointmentas Members, provided they have experience of 10 years. The first provisoto Section 184 which prescribes minimum age of 50 years is an attemptto circumvent the direction issued in MBA-III striking down theexperience requirement of 25 years at the bar for advocates to be eligible.Introduction of the first proviso to Section 184(1) is direct affront tothe judgment of this Court in MBA-III. This Court in MBA-I and RogerMathew (supra) underlined the importance of recruitment of Membersfrom the bar at young age to ensure longer tenure. Fixing minimumage for recruitment of Members as 50 years would act as deterrentfor competent advocates to seek appointment. Practically, it would bedifficult for an advocate appointed after attaining the age of 50 years toresume legal practice after completion of one term, in case he is notreappointed. Security of tenure and conditions of service are recognisedas core components of independence of the judiciary. Independence ofthe judiciary can be sustained only when the incumbents are assured offair and reasonable conditions of service, which include adequaterenumeration and security of tenure. Therefore, the first proviso to Section184(1) is in violation of the doctrine of separation of powers as thejudgment of this Court in MBA-III has been frustrated by animpermissible legislative override. Resultantly, the first proviso to Section184 (1) is declared as unconstitutional as it is violative of Article 14 ofthe Constitution. Selections conducted for appointment of Members, ITATpursuant to the advertisement issued in 2018 should be finalized andappointments made by considering the candidates between 35 to 50 yearsas also eligible.

50. The second proviso to Section 184(1) deals with the allowancesand benefits payable to the Members which are to be the same as areadmissible to Central Government officer holding post carrying thesame pay. According to Rule 15 of the 2020 Rules, Chairpersons andMembers of tribunals were entitled to House Rent Allowance at thesame rate as admissible to officers with the Government of India holding

AGroup ‘A’ post carrying the same pay. The contention of the learnedAmicus Curiae in MBA-III was that the majority of the tribunals aresituated in Delhi and there is scarcity of housing in Delhi. Not manyJudges of the High Court are interested in accepting appointment totribunals in view of the acute problem of housing. An amount of Rs.75,000/- per month which was paid as House Rent Allowance (HRA) was notBsufficient to get decent accommodation in Delhi for Chairpersons andMembers of tribunals. Taking note of the serious problem of housingand the inadequate amount that was being paid as HRA to the Members,this Court in MBA-III directed enhancement of HRA toRs.1,25,000/- per month to the Members and Rs.1,50,000/- per month toCChairperson or Vice-Chairperson or President of tribunals. This directionwas made effective from 01.01.2021. The learned Amicus Curiae arguedthat the Union of India filed an application seeking modification of theHRA directed in the judgment. The clarification sought by the Union ofIndia is to the effect that HRA payable to Tribunal Member should notbe fixed amount and should, instead, be twice the HRA payable to theDholder of subsequent rank in the Government, e.g., Secretary to theGovernment. Miscellaneous Application No. 111 of 2021 filed by theUnion of India is pending as this Court directed the Union of India tofurnish details of the accommodation available for Chairpersons andMembers of tribunals and to submit proposal as to what amount wouldEbe reasonable towards HRA in case accommodation cannot be providedto Members. The learned Amicus Curiae contended that the result ofthe amendment is that Members of tribunals working in Delhi will getRs.60,000/- as HRA. The second proviso to Section 184(1), read withthe 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 aFresult of curative legislation. The direction issued by this Court inMBA-III for payment of HRA was to ensure that decent accommodationis provided to Tribunal Members. Such direction was issued to upholdindependence of the judiciary and it cannot be subject matter of legislativeresponse. mandamus issued by this Court cannot be reversed by theGlegislature as it would amount to impermissible legislative override.Therefore, the second proviso, read with the third proviso, to Section184(1) is declared as unconstitutional.

51. It has come to our notice that after the judgement in this WritPetition had been reserved on 03.06.21, notification was issued by theHMinistry of Finance (Department of Revenue) on 30.06.21 amending

the 2020 Rules. By Rule 6 of the Tribunal, Appellate Tribunal and otherAuthorities (Qualifications, Experience and other Conditions of Serviceof Members) (Amendment) Rules, 2021 (hereinafter referred to as the2021 Amendment Rules), the following rule was substituted for Rule15 of the 2020 Rules:

“15. House rent allowance.- With effect from the 1[st] January,2021, the Chairman, Chairperson, President, Vice Chairman,Vice Chairperson or Vice President shall have option to availof accommodation to be provided by the Central Governmentas per the rules for the time being in force or entitled to houserent allowance subject to limit of Rs. one lakh fifty thousandrupees per month and the Presiding Offices and Membersshall have option to avail of accommodation to be providedby the Central Government as per the rules for the time beingin force or entitled to house rent allowance subject to limitof Rs. one lakh twenty-five thousand rupees per month.”According to the notification dated 30.06.2021, the 2021Amendment Rules shall come into force on the date of their publicationin the official gazette. However, it may be noted that the ExplanatoryMemorandum at the end of the notification states that Rule 6 of the2021 Amendment Rules, amending Rule 15 of the 2020 Rules on HRA,shall be given retrospective operation with effect from 01.01.21, in orderto give effect to the judgement of this Court in MBA-III. Though wehave adjudicated the validity of the second and third provisos to Section184(1) of the Finance Act, 2017, as amended by the Ordinance, we findthat the amendment to Rule 15, made with retrospective effect from01.01.21, is in conformity with the directions of this Court on the subjectof HRA in MBA-III. In view thereof, no further direction is required tobe given with respect to HRA.

52. Rule 4(2) of the 2020 Rules pertains to the procedure to befollowed by the SCSC. According to the said Rule, the SCSC shouldrecommend two or three names for appointment to each post. directionwas given in MBA-III to amend Rule 4(2) of the 2020 Rules to providethat the SCSC shall recommend one person for appointment in eachpost in place of panel of two or three persons for appointment to eachpost. One more name could be recommended to be included in the waitinglist. Relying upon the earlier judgments of this Court in MBA-I, MBA-IIand Rojer Mathew (supra), the learned Amicus Curiae had submitted

Aduring the course of the hearing in MBA-III that the procedure forappointment to the Tribunal should be clearly outside executive control.The learned Attorney General submitted in MBA-III that the number ofcandidates to be recommended by SCSC can be restricted to two insteadof three. To limit the discretion of the executive after the SCSC hasrecommended names of selected candidates, this Court in the interest ofBpreserving independence of the judiciary, directed that Rule 4(2) shouldbe read as empowering SCSC to recommend the name of only oneperson to each post.

53. The learned Attorney General asserted that this Court cannotdirect the legislature to make law. He relied upon the judgment inCDr. Ashwani Kumar v. Union of India & Anr.[54] wherein it was heldthat it is beyond the competence of this Court to direct legislature tomake law. There is no quarrel with the said proposition. The learnedAttorney General further asserted that the direction given by this Courtin MBA-III relating to the number of candidates to be recommendedDfor appointment to each post can only be taken to be suggestion. TheCourt, as wing of the State, by itself is source of law. The law iswhat the Court says it is. To clarify the position relating to Article 141vis-à-vis Article 142, it has been held by this Court in Ram PraveshSingh & Ors. v. State of Bihar & Ors.[55] that directions given underArticle 142 is not law laid down by the Supreme Court under ArticleE141. Any order not preceded by any reason or consideration of anyprinciple is an order under Article 142. Article 136 of the Constitution isa corrective jurisdiction that vests discretion in the Supreme Court tosettle the law clear and as forthrightly forwarded in Union of India &Ors. v. Karnail Singh & Ors.[56], it makes the law operational to makeFit binding precedent for the future instead of keeping it vague. In short,it declares the law, as under Article 141 of the Constitution. “Declarationof law” as contemplated in Article 141 of the Constitution is the speechexpress or necessarily implied by the highest Court of the land. The lawdeclared by the Supreme Court is binding on all courts within the territory

of India under Article 141, whereas, Article 142 empowers the SupremeGCourt to issue directions to do complete justice. Under Article 142, theCourt can go to the extent of relaxing the application of law to the partiesor exempting altogether the parties from the rigours of the law in view54 (2020) 13 SCC 58555 (2006) 8 SCC 381H56 (1995) 2 SCC 728

of the peculiar facts and circumstances of the case.[57] Sufficient reasonswere given in MBA-III to hold that executive influence should be avoidedin matters of appointments to tribunals - therefore, the direction that onlyone person shall be recommended to each post. The decision of thisCourt 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 Courtis by curing the defect in Rule 4(2). There is no such attempt madeexcept to repeat the provision of Rule 4(2) of the 2020 Rules in theOrdinance amending the Finance Act, 2017. Ergo, Section 184(7) isunsustainable in law as it is an attempt to override the law laid down bythis Court. Repeating the contents of Rule 4(2) of the 2020 Rules byplacing them in Section 184(7) is an indirect method of intruding intojudicial sphere which is proscribed.

54. The second part of Section 184(7) provides that the Governmentshall take decision regarding the recommendations made by the SCSCpreferably within period of three months. This is in response to thedirection given by this Court in MBA-III that the Government shall makeappointments to tribunals within three months from the completion ofthe selection and recommendation by the SCSC. Such direction wasnecessitated in view of the lethargy shown by the Union of India inmaking appointments and filling up the posts of Chairpersons andMembers of tribunals which have been long vacant. The tribunals whichare constituted as an alternative mechanism for speedy resolution ofdisputes have become non-functional due to the large number of postswhich are kept unfilled for long period of time. Tribunals have becomeineffective vehicles of administration of justice, resulting in completedenial of access to justice to the litigant public. The conditions of servicefor appointment to the posts of Chairpersons and Members have beenmired in controversy for the past several years, thereby, adverselyaffecting the basic functioning of tribunals. This Court is aghast to notethat some tribunals are on the verge of closure due to the absence ofMembers. The direction given by this Court for expediting the processof appointment was in the larger interest of administration of justice andto uphold the rule of law. Section 184(7) as amended by the Ordinancepermitting the Government to take decision preferably within threemonths from the date of recommendation of the SCSC is invalid and

57 State of Punjab & Ors. v. Rafiq Masih (Whitewasher) (2014) 8 SCC 883; State v.Kalyan Singh & Ors. (2017) 7 SCC 444

Aunconstitutional, as this amended provision simply seeks to negate thedirections of this Court.

55. The tenure of the Chairperson and Member of tribunal isfixed at four years by Section 184(11), notwithstanding anything containedin any judgment, order or decree of any court. It is relevant to mentionBthat sub-section (11) of Section 184 has been given retrospective effectfrom 26.05.2017. Rule 9 of 2020 Rules had specified the term ofappointment of the Chairperson or Member of the Tribunal as four years.The learned Amicus Curiae while making his submissions in MBA-IIIhad insisted that the Chairperson and Members of tribunal should havea minimum term of five years by placing reliance on the judgment of thisCCourt in S.P. Sampath (supra), MBA-I and Rojer Mathew (supra).The stand taken by him was that short tenure would be disincentivefor competent persons to seek appointment as Members of tribunals.The learned Attorney General submitted that the term of four years issubject to reappointment. He contended that advocates who are appointedDat an early age can get more than one extension and continue till theyreach the age of superannuation. After perusing the law laid down bythis Court in MBA-I and Rojer Mathew (supra) which held that shortstint is anti-merit, we directed the modification of tenure in Rules 9(1)and 9(2) as five years in respect of Chairpersons and Members of tribunalsin MBA-III. This Court declared in para 53(iv) that the Chairperson,

EVice-Chairperson and the Members of the tribunals shall hold office fora term of five years and shall be eligible for reappointment. The insertionof Section 184(11) prescribing term of four years for the Chairpersonsand Members of tribunals by giving retrospective effect to the provisionfrom 26.05.2017 is clearly an attempt to override the declaration of lawFby this Court under Article 141 in MBA-III. Therefore, clauses (i) and(ii) of Section 184(11) are declared as void and unconstitutional.

56. The proviso to Section 184(11) refers to appointments thatwere made to the posts of Chairperson or Members between 26.05.2017and the notified date, i.e., 04.04.2021. The proviso lays down that if theGtenure of office or age of retirement specified in the order of appointmentissued by the Government is greater than what is specified in Section184(11), the term of office or the age of retirement of the Chairpersonor Members shall be as specified in the order of appointment subject toa maximum term of office of five years. In other words, the term ofoffice of Chairperson and Members of tribunals who were appointedHbetween 26.05.2017 and 04.04.2021 shall be five years even though theorder of appointment issued by the Government has higher term ofoffice or age of retirement which may involve the term of office beingmore than 5 years in practice. It is necessary at this stage to deal withthe validity of retrospective effect given to sub-section (11) of Section184. The learned Amicus Curiae canvassed submission that Sections184(1) to (10) are prospective in operation and Section 184(11) is givenretrospective effect from 26.05.2017, thereby leading to an anomaloussituation. He submitted that sub-section (11) is made with the object ofreversing the interim orders passed by this Court in Kudrat Sandhu v.Union of India (supra). He stated that the terms and conditions ofappointments to be made to the Tribunals/Appellate Tribunals shall be interms of the respective statutes in force, before the enactment of theFinance Bill, 2017, according to para 224 of Rojer Mathew (supra).Mr. Balbir Singh, learned Additional Solicitor General, submitted thatretrospectivity given to sub-section (11) of Section 184 is permissiblelegislative override of the judgment of this Court in MBA-III. The 2020Rules were held to be prospective in MBA-III on two grounds - a) itwas clear from the Notification dated 12.02.2020 that there was nointention on the part of the Government of India to make the 2020 Rulesretrospective; b) subordinate legislation cannot be given prospective effectunless the parent statute specifically provided the same. It is understoodthat while inserting sub-section (11) in Section 184 in the Finance Act,2017 and giving it retrospective effect from 26.05.2017, the Ordinancehas attempted to cure the defect as was pointed out by this Court interms of retrospective application while considering the 2020 Rules.However, the implications are not relevant for clauses (i) and (ii) ofSection 184(11) which are declared as void and unconstitutional for thereasons mentioned above.

57. Insofar as the proviso to Section 184(11) is concerned, theOrdinance sets the maximum tenure at five years even with respect tothe appointment orders passed between 26.05.2017 and 04.04.2021provide for higher tenure. In the process, interim directions given bythis Court in Kudrat Sandhu (supra) are also nullified. It would berelevant to refer to the directions issued by this Court in Kudrat Sandhu(supra) on 09.02.2018. After taking the consent of the learned AttorneyGeneral and making modifications incorporating his suggestions, this Courtheld that all selections to the post of Chairperson/ Chairman, Judicial/Administrative Members shall be for period as provided in the Act and

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Athe Rules in respect of all tribunals. On 16.07.2018, this Court directedthat persons selected as Members of ITAT can continue till the age of62 years and persons who were holding the post of President till65 years. By an order dated 21.08.2018, this Court clarified that personselected as Member, CESTAT shall continue till the age of 62 yearswhile person holding the post of President can continue till the age ofB65 years. Though, there is nothing wrong with the proviso to Section184(11) being given retrospective effect, the appointments made pursuantto the interim directions passed by this Court cannot be interfered with.This Court in Virender Singh Hooda (supra) upheld the retrospectivityof the legislation which had been challenged but the appointment of theCpetitioners therein pursuant to direction of the Court were saved. Itwas held that the law does not permit the legislature to take back whathas been granted in the implementation of the Court’s decision and sucha course is impermissible. Similarly, in S.R. Bhagwat (supra), it wasdeclared that mandamus against the respondent-State giving financialbenefits to the petitioners therein cannot be nullified by legislation. It isDalso relevant to point out that even interim orders passed by this Courtcannot be overruled by legislative act, as discussed above. While makingit clear that the appointments that are made to the CESTAT on the basisof interim orders passed by this Court shall be governed by the relevantstatute and the rules framed thereunder, as they existed prior to theEFinance Act, 2017, we uphold the retrospectivity given to the proviso toSection 184 (11). To clarify further, all appointments after 04.04.2021shall be governed by the Ordinance, as modified by the directionscontained herein.

58. To conclude, the first proviso and the second proviso, readFwith the third proviso, to Section 184 overriding the judgment of thisCourt in MBA-III in respect of fixing 50 years as minimum age forappointment and payment of HRA, Section 184(7) relating torecommendation 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)Gprescribing tenure of four years is contrary to the principles of separationof powers, independence of judiciary, rule of law and Article 14 of theConstitution of India. Though, we have upheld the proviso to Section184(11), the appointments made to the CESTAT pursuant to the interimorders passed by this Court shall be governed by the relevant statuteHand the rules framed thereunder that existed prior to 26.05.2017. We

have already taken notice of the notification dated 30.06.21 by way ofwhich Rule 15 of the 2020 Rules dealing with HRA has been amendedin conformity with our directions in MBA-III.

Peroration

59. The Petitioner continues its relentless struggle in its endeavourto make tribunals effective avenues of administration of justice. Theendeavour of the Petitioner is to extricate the tribunals from the clutchesof the executive in the interest of independence of judiciary. Security oftenure, adequate remuneration and other conditions of service arenecessary to ensure that Members of tribunals would feel secure duringtheir tenure. The judgment in MBA-III was passed after detaileddialogue with the learned Attorney General. Existence of large numberof vacancies of Members and Chairpersons and the inordinate delaycaused in filling them up has resulted in emasculation of the tribunals.The main reason for tribunalisation, which is to provide speedy justice, isnot achieved as tribunals are wilting under the unbearable weight of theexploding docket. Undoubtedly, the legislature is free to exercise its powerto make laws and the executive is the best judge to decide policy matters.However, it is high time that serious effort is made by all concerned toensure that all the vacancies in the tribunals are filled up without delay.Access to justice and confidence of the litigant public in impartial justicebeing administered by tribunals need to be restored.

60. The Writ Petition is disposed of accordingly.

S. RAVINDRA BHAT, J.

1. One may well ask why there is need for concurrence whenthe judgment with which this author agrees, both as to its reasoning aswell as its conclusions, is as fully and well-reasoned as L. NageswaraRao, J’s judgment is. The reason lies in the importance of the themeswhich have been deliberated- independence of the judiciary and separationof powers, both of which are timeless in their resonance and relevance.This brief prefatory aside at the beginning, outlines the approach thisopinion strives to take, while wholeheartedly supporting the conclusionsrecorded by Rao, J. With great respect to Hemant Gupta, J, I cannotpersuade myself to agree with him, that as regards prescription ofminimum age (for appointment to tribunals, i.e. 50 years) or with respectto conditions of service such as payment of house rent allowance, this

Acourt ought to respect legislative wisdom, and that directions issued inpast judgments cannot bind Parliament, as they fell outside the judicialsphere.

2. Independence of the judiciary is one of the foundational pillarsof every democracy governed by the rule of law, where the constitutionBreigns supreme. Some constitutions may guarantee this in emphatic terms,whereas in others, there may be no single provision manifested in theconstitution, but rather, the idea may emerge as compelling inference -through the kind of assurances articulated by express provisions (tenure,eligibility, age of superannuation, conditions where removal is possibleonly through Parliamentary or legislative process, manner of appointmentCetc). The Attorney General’s assertion that since there is no single provisionwhich expressly articulates independence of the judiciary, and that beingthe case, the court cannot direct the length of tenure or other eligibilityconditions which are in the domain of the executive, (which, as co-equal organ of governance) is exclusively entitled to prescribe criteriaDfor selection of tribunal members, therefore, needs careful scrutiny.3. The original constitution did not expressly – through any entryin the three legislative lists, deal with tribunals. This field of legislation,creating courts, was left to Parliament[1 ]as well as the states[2]. The absenceof an entry pertaining to tribunals meant that the creation of administrativeEand quasi-judicial tribunals, or offices and agencies conferred with quasi-judicial functions - was recognised as part of legislative activity, wherebylaws could create appropriate bodies for their enforcement in exerciseof “incidental” and “ancillary powers” adjunct to the concerned legislativehead. As has been elaborated by L. Nageswara Rao, J., the Constitution(Forty Second) Amendment Act, 1976 introduced Articles 323A[3 ]andF323B[4] which paved the way for the creation of tribunals as substitutes

1 Entries 77,78 and 79, List I, Seventh Schedule to the Constitution of India.

2 Entry 65, List II, Seventh Schedule to the Constitution of India.

3 Which enables setting up of tribunals to adjudicate disputes “with respect to recruitmentand conditions of service of persons appointed to public services and posts in connectionwith the affairs of the Union or of any State or of any local or other authority”G4 Which enables setting up of tribunals to adjudicate disputes relating to:

“a) levy, assessment, collection and enforcement of any tax; (b) foreign exchange,import and export across customs frontiers; (c) industrial and labour disputes; (d) landreforms by way of acquisition by the State of any estate as defined in article 31A or of anyrights therein or the extinguishment or modification of any such rights or by way ofceiling on agricultural land or in any other way; (e) ceiling on urban property; (f)elections to either House of Parliament or the House or either House of the LegislatureH

for courts. Many tribunals[5] which were created by legislation introducedin the 1990s and the decade beginning in 2000 do not conform to theheads or subject matters enumerated in either of those Articles. Yet,they were created under the relevant fields of legislation combined withEntry 11A of the Concurrent List (List III, Seventh Schedule to theConstitution of India).[6]

4. The Union’s position that when legislation or legislativeinstrument (such as an ordinance in this case) is questioned, its validitycan be scrutinized only by considering its impact on some express provisionof the constitution, and not on any concept or notion such as separationof powers and judicial independence, requires examination in the firstinstance.

5. There can be no doubt that any enactment or subordinatelegislation can be questioned as offending constitutional provision.However, does this articulation preclude challenge based on principleswhich are evident in the constitution, but yet, are not clearly spelt out inits plain text through any express provision? In the Constitution Benchjudgment of this court in Madras Bar Association v. Union of India[7](“MBA-I”) the issue was whether High Courts could be divested oftheir statutory appellate jurisdiction in tax disputes, which they hadbeen exercising for over 80 years, to confer this jurisdiction on newtribunal whose membership was to be different from judges of HighCourts. This court then examined the applicability of the basic structuredoctrine, of which independence of the judiciary and separation of powershave been held to be part, and observed as follows:of State, but excluding the matters referred to in article 329 and article 329A; (g)production, procurement, supply and distribution of food-stuffs (including edible oilseedsand oils) and such other goods as the President may, by public notification, declare to beessential goods for the purpose of this article and control of prices of such goods; (h)rent, its regulation and control and tenancy issues including the right, title and interestof landlords and tenants; (i) offences against laws with respect to any of the mattersspecified in sub-clauses (a) to (h) and fees in respect of any of those matters; (j) anymatter incidental to any of the matters specified in sub-clauses (a) to (i).”

5 The Telecom Disputes Settlement Commission, the Appellate Tribunal for Electricity;the Securities Appellate Tribunal; Consumer forums and the National ConsumerDisputes Redressal Commission;

6 Entry 11A pertains to ‘Administration of justice, constitution and organisation of allcourts, except the Supreme Court and High Courts’.

7 (2014) 10 SCC 1.

“113.2. We have given our thoughtful consideration to thesubmission advanced at the hands of the learned counsel forthe petitioners insofar as the first perspective is concerned.We find substance in the submission advanced at the handsof the learned counsel for the petitioners, but not exactly inthe format suggested by the learned counsel. closerexamination of the judgments relied upon lead us to theconclusion, that in every new Constitution, which makesseparate provisions for the legislature, the executive and thejudiciary, it is taken as acknowledged/conceded that the basicprinciple of “separation of powers” would apply. And that,the three wings of governance would operate in their assigneddomain/province. The power of discharging judicial functionswhich was exercised by members of the higher judiciary atthe time when the Constitution came into force shouldordinarily remain with the court, which exercised the saidjurisdiction at the time of promulgation of the newConstitution. But the judicial power could be allowed to beexercised by an analogous/similar court/tribunal with adifferent name. However, by virtue of the constitutionalconvention while constituting the analogous court/tribunal itwill have to be ensured that the appointment and security oftenure of Judges of that court would be the same as of thecourt sought to be substituted. This was the express conclusiondrawn in Hinds case [Hinds v. R., 1977 AC 195 : (1976) 2WLR 366 : (1976) 1 All ER 353 (PC)]. In Hinds case[Hinds v. R., 1977 AC 195 : (1976) 2 WLR 366 : (1976) 1 AllER 353 (PC)], it was acknowledged that Parliament was notprecluded from establishing court under new name toexercise the jurisdiction that was being exercised by membersof the higher judiciary at the time when the Constitution cameinto force. But when that was done, it was critical to ensurethat the persons appointed to be members of such court/tribunal should be appointed in the same manner and shouldbe entitled to the same security of tenure as the holder of thejudicial office at the time when the Constitution came intoforce. Even in the treatise Constitutional Law of Canada byPeter W. Hogg, it was observed: if province invested atribunal with jurisdiction of kind, which ought to properlybelong to Superior, District or County Court, then that court/tribunal (created in its place), whatever is its official name,for constitutional purposes has to, while replacing Superior,District or County Court, satisfy the requirements andstandards of the substituted court. This would mean that thenewly constituted court/tribunal will be deemed to be invalidlyconstituted, till its members are appointed in the same manner,and till its members are entitled to the same conditions ofservice as were available to the Judges of the court sought tobe substituted. In the judgments under reference it has alsobeen concluded that breach of the above constitutionalconvention could not be excused by good intention (by whichthe legislative power had been exercised to enact givenlaw). We are satisfied, that the aforesaid exposition of law isin consonance with the position expressed by this Court whiledealing with the concepts of “separation of powers”, the “ruleof law” and “judicial review”. In this behalf, reference maybe made to the judgments in L. Chandra Kumar case [L.Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997SCC (L&S) 577], as also, in Union of India v. Madras BarAssn. [Union of India v. Madras Bar Assn., (2010) 11 SCC 1]Therein, this Court has recognised that transfer of jurisdictionis permissible but in effecting such transfer, the court to whichthe power of adjudication is transferred must be endured withsalient characteristics, which were possessed by the court fromwhich the adjudicatory power has been transferred. Inrecording our conclusions on the submission advanced asthe first perspective, we may only state that our conclusion isexactly the same as was drawn by us while examining thepetitioners’ previous submission, namely, that it is not possiblefor us to accept that under recognised constitutionalconventions, judicial power vested in superior courts cannotbe transferred to coordinate courts/tribunals. The answer is,that such transfer is permissible. But whenever there is suchtransfer, all conventions/customs/practices of the court soughtto be replaced have to be incorporated in the court/tribunalcreated. The newly created court/tribunal would have to beestablished in consonance with the salient characteristics andstandards of the court which is sought to be substituted.”

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A6. Likewise, in Dr. D.C. Wadhwa & Ors v. State of Bihar &Ors,[8 ]a constitution bench of this court held that the power to promulgatean ordinance does not enable the executive to re-promulgate it severaltimes, without seeking its enactment by the appropriate legislature. Thereis no provision in the constitution, which precludes the executive fromre-promulgating ordinances; yet this court ruled that to be the case, andBobserved as follows:

“The Executive cannot by taking resort to an emergency powerexercisable by it only when the Legislature is not in Session,take over the law- making function of the Legislature. Thatwould be clearly subverting the democratic process whichClies at the core of our constitutional scheme, for then the peoplewould be governed not the laws made by the Legislature asprovided in the Constitution but by laws made by the Executive.The Government cannot by-pass the Legislature and withoutenacting the provisions of the Ordinance into an Act of theDLegislature, repromulgate the Ordinance as soon as theLegislature is prorogued. Of course, there may be situationwhere it may not be possible for the Government to introduceand push through in the Legislature Bill containing the sameprovisions as in the Ordinance, because the Legislature mayhave too much legislative business in particular Session orEthe time at the disposal of the Legislature in particularSession may be short, and in that event, the Governor maylegitimately find that it is necessary to repromulgate theOrdinance. Where such is the case, re-promulgation of theOrdinance may not be open to attack. But otherwise, it wouldFbe colourable exercise of power on the part of the Executiveto continue an Ordinance with substantially the sameprovisions beyond the period limited by the Constitution, byadopting the methodology of repromulgation.”

7. The above decision was endorsed in Krishna Kumar Singh v.GState of Bihar[9 ]which also held that re-promulgation “represents aneffort to overreach the legislative body which is primary sourceof law-making authority in parliamentary democracy.” The courtpointed out that:

8 1987 (1) SCR 198.H9 (2017) 3 SCC 1.

“The danger of repromulgation lies in the threat which it posesto the sovereignty of Parliament and the State Legislatureswhich have been constituted as primary law-givers under theConstitution. Open legislative debate and discussion providessunshine which separates secrecy of Ordinance-making fromtransparent and accountable governance through law-making.”

8. In decision of the Privy Council (which has been cited andapproved by decisions of this court, including in Kesavananda Bharativ. State of Kerala[10]) viz, Liyanage v. The Queen[11] the compulsive,though inarticulate premise of these principles was elaborated in thefollowing manner:

“What, however, is implicit in the very structure of aConstitution on the Westminster model is that judicial power,however it be distributed from time to time between variouscourts, is to continue to be vested in persons appointed tohold judicial office in the manner and on the terms laid downin the Chapter dealing with the judicature, even though thisis not expressly stated in the Constitution.”

9. In L. Chandra Kumar v Union of India[12 ]this court invalidatedSection 28 of the Administrative Tribunals Act on the ground that itexcluded jurisdiction under Articles 226 and 227, and was thus in conflictwith the basic structure of the constitution, as judicial review was part ofthe basic structure:

“100. In view of the reasoning adopted by us, we hold thatClause 2(d) of Article 323A and Clause 3(d) of Article 323B,to the extent they exclude the jurisdiction of the High Courtsand the Supreme Court under Articles 226/227 and 32 of theConstitution, are unconstitutional. Section 28 of the Act andthe “exclusion of jurisdiction” clauses in all other legislationsenacted under the aegis of Articles 323A and 323B would, tothe same extent, be unconstitutional. The jurisdiction conferredupon the High Courts under Articles 226/227 and upon theSupreme Court under Article 32 of the Constitution is part ofthe inviolable basic structure of our Constitution.”

10 1973 Supp. SCR 1.

11 [1967] 1 AC 259, 287–288.

12 1997 (3) SCC 261

AIn Ismail Faruqui v Union of India[13]provisions of Centralenactment[14] [Section 4 (3)] which abated all pending legal proceedingswas held to be unconstitutional because: it amounted to “an extinctionof the judicial remedy for resolution of the dispute amounting tonegation of rule of law. Sub-section (3) of Section 4 of the Act is,therefore, unconstitutional and invalid.”It is therefore, too late in theBday to contend that infringement by statute, of the concept ofindependence of the judiciary - basic or essential feature of theconstitution, which is manifested in its diverse provisions, cannot beattacked, as it is not evident in specific Article of the Constitution.

10. The challenges to executive or legislative measures based onCviolation of the twin concepts of separation of powers and independenceof the judiciary have to be seen in terms of their impacts, not at one pointin time, but cumulatively, over time continuum. This idea was expressedin Pareena Swarup v. Union of India[15] where the court observed that:

“9. It is necessary that the court may draw line which theDexecutive may not cross in their misguided desire to take overbit by bit and (sic) judicial functions and powers of the Stateexercised by the duly constituted courts. While creating newavenue of judicial forums, it is the duty of the Government tosee that they are not in breach of basic constitutional schemeEof separation of powers and independence of the judicialfunction. We agree with the apprehension of the petitionerthat the provisions of the Prevention of Money-LaunderingAct are so provided that there may not be independent judiciaryto decide the cases under the Act but the members and theChairperson to be selected by the Selection Committee headedFby Revenue Secretary.

10. It is to be noted that this Court in L. ChandraKumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC(L&S) 577] has laid down that the power of judicial reviewover legislative action vested in the High Courts under ArticleG226 as well as in this Court under Article 32 of the Constitutionis an integral and essential feature of the Constitutionconstituting part of its (sic basic) structure. The Constitution

13 (1994) 6 SCC 360,

14 the Acquisition of Certain Area at Ayodhya Act, 1993 (No. 33 of 1993)H15 (2008) 14 SCC 107

guarantees free and independent judiciary and theconstitutional scheme of separation of powers can be easilyand seriously undermined, if the legislatures were to divestthe regular courts of their jurisdiction in all matters, andentrust the same to the newly created Tribunals which are notentitled to protection similar to the constitutional protectionafforded to the regular courts. The independence andimpartiality which are to be secured not only for the court butalso for Tribunals and their members, though they do notbelong to the “judicial service” but are entrusted with judicialpowers. The safeguards which ensure independence andimpartiality are not for promoting personal prestige of thefunctionary but for preserving and protecting the rights ofthe citizens and other persons who are subject to thejurisdiction of the Tribunal and for ensuring that suchTribunal will be able to command the confidence of the public.Freedom from control and potential domination of theexecutive are necessary preconditions for the independenceand impartiality of Judges. To make it clear that judiciaryfree from control by the executive and legislature is essentialif there is right to have claims decided by Judges who arefree from potential domination by other branches ofGovernment. With this background, let us consider the defectspointed out by the petitioner and amended/proposedprovisions of the Act and the Rules.”

11. The decision in S.P. Sampath Kumar v. Union of India &Ors.[16] upheld the validity of the Administrative Tribunals Act, 1985 andthe exclusion of High Courts’ jurisdiction under Article 226 of theConstitution (based on an enabling clause in Article 323A); yet, thereasoning in the judgments delivered are clear indicator that this courtwould always be careful in considering the efficacy of the body and itsability to administer justice in fair and impartial manner, having regardto the qualifications and experience of its personnel as well as thesafeguards of tenure, salary etc. L. Chandra Kumar v. Union of India& Ors[17],a seven-judge decision, decisively overruled Sampath Kumar(supra) with respect to the preclusion of jurisdiction of Article 226 ofthe Constitution; this Court also declared that judicial review is part of

16 1987 SCC Supp. 734

17 (1997) 3 SCC 261

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Athe basic structure of the Constitution. In the next phase, whereamendments were proposed to the Companies Act, 1956 to set up aNational Company Law Tribunal, this Court, by the Constitution Benchdecision in Union of India v. R. Gandhi[18] again found several provisionsof enacted Parliamentary law to be objectionable – they are related totenure, manner of appointment, qualifications of members etc. Likewise,Bin Madras Bar Association v Union of India (MBA-I) (supra), thecomplete divesting of High Courts’ jurisdiction under tax enactments(income tax, customs, central excise and service tax etc) andparliamentary setting up of National Tax Court was held to beunconstitutional. Here again, the court highlighted the quality of justiceCexpected from such bodies and underlined that the divestment of suchjurisdiction was prohibited by the Constitution. Madras BarAssociation[19](“MBA-II”) considered the amended provisions of theCompanies Act and proceeded to pronounce that many of them couldnot pass muster of the Constitution. Once again, as in R. Gandhi(supra), this court was concerned with the likely impact on the natureDof the justice delivery mechanism envisioned by the new law. The methodof appointment, qualifications, eligibility conditions and tenure of allthese fell within the undoubted domain of parliamentary concern. Yet,this court held that many of these policy decisions enacted into law werecontrary to the principle of an independent judiciary which could guaranteeEeffective and impartial justice. Roger Mathew[20]held that the rules framedunder the Finance Act, 2017 (“the 2017 Rules”) were not sustainabledue to defects in the constitution of selection cum appointment committeesand tenure of members of tribunals, among other aspects. Madras BarAssociation v. Union of India[21 ](“MBA-III”) held that rules framed in2020 were invalid as regards the tenure of members of tribunals,Fconstitution of the mechanism for their selection, lack of any substantiverules for their re-appointment, etc.

12. In all these decisions, this court’s scrutiny was based upon itsrole as the guardian of the constitution and, more specifically,independence of the judiciary. If one were asked to pinpoint any specificGprovision of the constitution that this court relied upon while holding theenacted provisions to be falling afoul of, there would be none. It is too

18 (2010) 11 SCC 119 (2015) 8 SCC 583.20 (2020) 6 SCC 1.H21 2020 SCC OnLine SC 962.

late now to contend that independence of the judiciary and separation ofpowers are vague concepts based on which Parliamentary re-enactment cannot be invalidated.

13. The role of this court in considering whether or not provisionsof law or executive policies are in consonance with the Constitutionis well recognized and cannot be overemphasized. The AttorneyGeneral’s assertion that the executive or indeed the Parliament acts withinits rights in interpreting the Constitution, and therefore this court shouldadopt deferential standard in matters of policy are therefore insubstantial,and also disquieting. As conceded by the Union, if law (passed validlyin exercise of its exclusive power by the Parliament on its interpretationof the Constitution) violates any express provision or principle that lies atthe core of any express provision or provisions, this Court’s voice isdecisive and final.

14. Pertinently, in matters of independence of the judiciaryor arrangement of courts or tribunals, when these provisions come upfor interpretation, this court would apply searching scrutiny standardin its judicial review to ensure that the new body, court, tribunal,commission or authority created to adjudicate (between citizens andgovernment agencies or departments, citizens and citizens, or citizensand corporate entities) are efficient, efficacious and inspire publicconfidence. The role of courts in considering provision of law settingup adjudicatory bodies, was recognized in R.K. Jain v. Union of India[22]in the following terms:“The faith of the people is the bed-rock on which the edificeof judicial review and efficacy of the adjudication arefounded. The alternative arrangement must, therefore, beeffective and efficient. For inspiring confidence and trust inthe litigant public they must have an assurance that the persondeciding their causes is totally and completely free from theinfluence or pressure from the Govt. To maintain independenceand impartiality it, is necessary that the personnel should haveat least modicum of legal training, learning and experience.Selection of competent and proper people instil people’s faithand trust in the office and help to build up reputation andacceptability. Judicial independence which is essential and

Aimperative is secured and independent and impartialadministration of justice is assured. Absence thereof only mayget both law and procedure wronged and wrongheaded viewsof the facts and may likely to give rise to nursing grievanceof injustice. Therefore, functional fitness, experience at theliar and aptitudinal approach are fundamental for efficientBjudicial adjudication. Then only as repository of theconfidence. as its duty, the tribunal would properly andefficiently interpret the law and apply the law to the given setof facts. Absence thereof would be repugnant or derogatoryto the constitution. The daily practice in the courts not onlyCgives training to Advocates to interpret the rules but also adoptthe conventions of courts. In built experience would play vitalrole in the administration of justice and strengthen anddevelop the qualities, of intellect and character, forbearanceand patience, temper and resilience which are very importantin the practice of law. Practising Advocates from the BarDgenerally do endow with those qualities to discharge judicialfunctions. Specialised nature of work gives them addedadvantage and gives benefit to broaden the perspectives.“Judges’’ by David Pannick (1987 Edition), at page 50, statedthat, “we would not allow man to perform surgicalEoperation without thorough training and certification offitness. Why not require as much of trial judge who dailyoperates on the lives and fortunes of others”.

15. It would be useful to notice that whenever Parliament createstribunals with exclusive jurisdiction, the parent enactment or lawFinvariably bars the jurisdiction of ordinary civil courts.[23] This in my opinionis the clearest indicator of the fact that but for such provisions and thecreation of such exclusive bodies, civil courts would of necessity haveenjoyed jurisdiction to adjudicate disputes arising out of such new

23 Section 293, Income Tax Act; Section 20A of the Securities and Exchange Board ofGIndia Act, 1992; Section 18, the Recovery of Debts and Bankruptcy Act, 1993; Section34 of the Securitisation and Reconstruction of Financial Assets and Enforcement ofSecurity Interest Act, 2002;Section 268, Companies Act, 2013; Section 231 of theInsolvency and Bankruptcy Code, 2016; Section 56, Petroleum and Natural GasRegulatory Board Act, 2006; Section 154, Electricity Act, 2003; Section 27 of theTelecom Regulatory Authority of India Act, 1997; Section 61 of the Competition Act,H2002.

legislation[24]. This underscores the fact that the appropriate legislaturewishes those disputes arising from such new legislation not to beadjudicated by civil courts: which otherwise would have possessedjurisdiction over them. Such disputes may include issues such as refundof excess amounts claimed as tax, private disputes between two licenseesunder statutory regime such as telecom or electricity laws etc.,consumer disputes, liability to banks and financial institutions, and so on.

16. Parliament has, over the years, created several tribunals andcommissions which exercise judicial functions that would ordinarily fallwithin the jurisdiction of courts; they would also have been subjected tothe supervisory jurisdiction of High Courts under Article 227. This gradual“hiving off” of jurisdiction from the courts, therefore, calls for carefuland searching scrutiny to ensure that those who approach these bodiesare assured of the same kind and quality of justice, infused with whatcitizens expect from courts, i.e., independence, fairness, impartiality,professionalism and public confidence. These considerations are relevant,given that “policy” choices adopted by the executive or legislature inthe past, when it concerned dispensation of justice through courts, werethe subject matter of scrutiny under judicial review by courts.

17. In the exercise of such judicial review, in the past, this courthas ruled that High Courts have decisive say in matters of recruitment,promotion and conditions of services of judges of District and other courts,although the Constitution only requires the Governor to consult thatinstitution (High Courts). In Chandra Mohan v. State of U.P[25], thiscourt unanimously held:

“The exercise of the power of appointment by the Governoris conditioned by his consultation with the High Court, that isto say, he can only appoint person to the post of DistrictJudge in consultation with the High Court. The object ofconsultation is apparent. The High Court is expected to knowbetter than the Governor in regard to the suitability orotherwise of person, belonging either to the “JudicialService” or to the Bar, to be appointed as District Judge.Therefore, duty is enjoined on the Governor to make theappointment in consultation with body which is theappropriate authority to give advice to him.... These provisions

24 Section 9 of the Civil Procedure Code25 1967 (1) SCR 77

Aindicate that the duty to consult is so integrated with theexercise of the power that the power can be exercised only inconsultation with the person or persons designated therein.”

To the same effect are the decisions in ChandramouleshwarPrasad v. Patna High Court[26 ]and many other judgments.[27] In State ofBBihar v Bal Mukund Sah[28]it was held that:

“the framers of the Constitution separately dealt with JudicialServices of the State and made exclusive provisions regardingrecruitment to the posts of District Judges and other civiljudicial posts inferior to the posts of the District Judge. ThusCthese provisions found entirely in different part of theConstitution stand on their own and quite independent of partXIV dealing with Services in general under the State. Therefore,Article 309, which, on its express terms, is made subject toother provisions of the Constitution, does get circumscribedto the extent to which from its general field of operation isDcarved out separate and exclusive field for operation bythe relevant provisions of Articles dealing with SubordinateJudiciary as found in Chapter VI of Part VI of theConstitution.”18. This court, therefore, as the ultimate guardian of theEConstitution, and the rule of law, which it is sworn to uphold, has beenasserting its role in regard to matters of appointment, and other conditionsof service of judges of district and other courts. Since tribunals functionwithin the larger ecosystem of administration of justice, and essentiallydischarge judicial functions, this court is equally concerned with theFqualifications, eligibility for appointment, procedure for selection andappointment, conditions of service, etc of their members. This court’sconcern, therefore, is unlike any other subject matter of judicial review.It cannot be gainsaid that if tenures of tribunals’ members are short: saytwo years, or if their salaries are pegged at unrealistically low levels, orif their presiding members are given no administrative control or powers,G26 (1969) 3 SCC 56

27 State of Kerala v. A. Lakshmikutty and Ors. 1987 (1) SCR136 where the courtemphasized that the Constitution required the Governor to have “real, full andeffective consultation” with the High Court in the matter of appointment of Districtjudges; M.M. Gupta and Ors. v. State of Jammu and Kashmir & Ors (1982) 3 SCC 412.H28 (2004) 4 SCC 640.

the objective of efficient, fair, and impartial justice delivery would bedefeated. It cannot then be argued that each of these are “policy” mattersbeyond the court’s domain.

19. Ordinarily in pure “policy” matters falling within Parliamentaryor executive domain, such as economic, commercial, financial policies,or other areas such as energy, natural resources etc, this court’s standardof judicial review is deferential. In almost all subject matters over whichlegislative bodies enact law, the wisdom of the policy is rarely questioned;it is too well recognised that in such matters, judicial review extends toissues concerning liberties of citizens, and further, whether the particularsubject matter falls within the legislative field of the concerned legislativebody. In matters where the executive implements those laws, the scrutinyextends to further seeing the legality and constitutionality of such action.Where there is no law, the court considers whether executivecompetence to act is traceable to the particular legislative field underthe Constitution, and whether the executive action sans law, abridgespeople’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 wherealternative adjudicatory forums are created, the court’s concern is greater.This is because the Constitution does not and cannot be read so as toprovide two kinds of justice: one through courts, and one through otherbodies. The quality and efficacy of these justice delivery mechanismshave to be the same, i.e., the same as that provided by courts, asincreasingly, tribunals adjudicate disputes not only between state agenciesand citizens, but also between citizens and citizens as well as citizensand powerful corporate entities. Therefore, it is the “equal protection”of laws[29], guaranteed to all persons, through institutions that assure thesame competence of its personnel, the same fair procedure, and thesame independence of adjudicators as is available in existing courts, thatstands directly implicated. Consequently, when this court scrutinizes anylaw or measure dealing with new adjudicatory mechanism, it is throughthe equal protection of law clause under Article 14 of the Constitution.

20. With these observations, I proceed to deal with the minimumage requirement (hereafter called “age qualification”) which precludesotherwise qualified candidates possessing the requisite experience fromappointment to all tribunals, unless they are 50 years of age or older.

29 Under Article 14 of the Constitution of India

AThis age qualification is that candidates, to be appointed, should not beless than 50 years, and has been introduced by the first proviso toSection 184 (1) of the Finance Act. What is immediately noticeable isthat this age qualification (more by way of an age bar or minimum agerequirement) did not find place in any parent enactment[30], which set outthe eligibility conditions for appointments to various tribunals, with theBexception of appointment as members to the National Company LawTribunal, for which, candidates should have completed 50 years to beeligible for appointment, apart from the prescribed eligibility and conditioncriteria. Such age criteria was not enacted under the provisions of theFinance Act, 2017; nor was it introduced in the 2017 Rules (which wereCinvalidated by Rojer Mathew). An indirect age barrier, for the first timewas introduced in the 2020 Rules framed under the Finance Act, 2017,in the form of the requirement of otherwise qualified advocates andchartered accountant candidates having to possess 25 years of practice.This court held that requirement to be untenable, and directed it to besuitably amended. In response, as it were, for the first time, the 50-yearDminimum age requirement has been enacted in the parent enactment(Finance Act, 2017) through amendment by the impugned Ordinance.The justification given for this age requirement or qualification is threefold:

(a) Advocate members, technical members (including charteredaccountants) and those joining the tribunal as departmentalEmembers would have uniform age, which is relatable to theapproximate age by which public servant attains the statusand rank of Additional Secretary, which enables considerationof her or his name for appointment as member of tribunal;

(b) Considerations of equivalence with Additional Secretaries,Fweighed with the Union in enacting the age qualification;

(c) Whether the minimum age of tribunal member ought to be50 years, or less, is within the exclusive domain of theexecutive, and Parliament and cannot be dependent upon theviews of this court, being pure policy issue.G

21. The challenge to the first proviso to Section 184, whichprescribes the age qualification, has to be seen from several angles. First, the underlying parent statutes which created the tribunals (ITAT,

30 Income Tax Act, 1961, Customs Act, 1962, Securities Exchange of India Act, 1992,HElectricity Act, 2003, etc.

CESTAT, TDSAT, CAT) did not prescribe, as an eligibility criterion forselection of candidates as members, any minimum age. The prescriptionof 50 years as minimum eligibility criterion, in the opinion of this court,is without any rationale. The ITAT has existed for the last 79 years; noless than 33 of its members were appointed as judges of various HighCourts; one of them (Ranganathan, J.) was appointed to this court. TheCESTAT too has comprised advocates who have staffed the tribunalefficiently. The absence of any explanation for the preference given toolder persons, in fact leads to an absurd result- as was pointed out inMBA-III and as has been reiterated by L. Nageswara Rao, J. in hisopinion. The Constitution of India makes an advocate who has practicedfor more than 10 years, eligible for consideration for appointment as ajudge of the High Court and even this Court. An advocate with 7 years’practice with the Bar can be considered for appointment to the positionof District Judge. Prescribing 50 years as minimum age limit forconsideration of advocates has the devastating effect of entirely excludingsuccessful young advocates, especially those who might be trained andcompetent 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 aremore than 50 years of age is inexplicable and therefore entirely arbitrary. As this Court in its previous judgment (Rojer Mathew) has pointed outin another context, the exclusion of such young and energetic legalpractitioners could result in not so efficient or competent practitionersleft in field for consideration which would have telling effects on thequality of decisions they are likely to render.

22. Prescribing 50 years’ minimum age as condition forappointment to these tribunals is arbitrary also because absolutely noreason is forthcoming about what impelled Parliament to divert from thelong-established criteria of giving weightage to actual practice, reputation,integrity and subject expertise, without minimum age criterion, in thepleadings in this case, nor in any other cases (R. Gandhi –MBA –I;Madras Bar Association –III and Roger Mathew). Such being thecase, it is astonishing that in the span of year (i.e. after the decisionin Roger Mathew) ”new thinking” seems to have prevailed to framerules excluding advocates who can otherwise, based on their expertise,be considered for appointment to even High Courts.

A23. This Court would also observe that the consideration of suchyounger advocates in the age group of 40-45 years would have longterm 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 thesetribunals and lead to body of jurisprudence. Depending on how suchBcounsel/advocates fare as members of the Tribunal, having regard totheir special knowledge of these laws, at later and appropriate stage,they may even be considered for appointment to High Courts.

24. The age criteria, impugned in this case also leads to whollyanomalous and absurd results. For instance, an advocate with 18- or 20-Cyears’ practice, aged 44 years, with expertise in the field of indirecttaxation, telecom, or other regulatory laws, would be conversant withthe subject matter. Despite being eligible, (as she or he would fulfil theparameters of at least 10 years’ practice, in the light of the decision inMBA-III) such candidate would be excluded. On the other hand, anDindividual who might have practiced law for 10 years, and later servedas private or public sector executive in an entirely unrelated field, butwho might be 50 years of age, would be considered eligible, and canpossibly secure appointment as member of tribunal. Thus, the agecriterion would result in filtering out candidates with more relevantexperience and qualifications, in preference to those with lesser relevantEexperience, only on the ground of age.

25. In the decision reported as State of J&K v. Triloki NathKhosa[31], this court explained that classification for the purpose ofArticle 14 of the Constitution (as the present minimum age criteriaundoubtedly is, in the present case) based on any criteria, must be basedFon distinct characteristic, having rational nexus with the object of thenorm, or the law:

“31. Classification, however, is fraught with the danger thatit may produce artificial inequalities and therefore, the rightto classify is hedged in with salient restraints; or else, theGguarantee of equality will be submerged in class legislationmasquerading as laws meant to govern well marked classescharacterized by different and distinct attainments.Classification, therefore, must be truly founded on substantial

differences which distinguish persons grouped together fromthose left out of the group and such differential attributesmust bear just and rational relation to the object sought tobe achieved.”

26. Similarly, in Mohd. Shujat Ali v. Union of India[32]this Courtcautioned against over-classification, based on artificial distinctionsbetween two categories falling within the same class, in matters of publicemployment:

“To permit discrimination based on educational attainmentsnot obligated by the nature of the duties of the higher post isto stifle the social thrust of the equality clause. rule ofpromotion which, while conceding that non-graduateSupervisors are also fit to be promoted as Assistant Engineers,reserves higher quota of vacancies for promotion forgraduate Supervisors as against non-graduate Supervisors,would clearly be calculated to destroy the guarantee of equalopportunity.”

27. Given that the essential educational qualifications andexperience in the relevant field are fixed for all candidates, for aclassification based on minimum age for appointment (like in the presentcase) 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 qualityand extent of the difference in experience between candidates. Asbetween someone with 18 years’ experience but aged 42 or 43 years,and someone with only 12 years’ experience, if system of weightagefor experience and qualification were to be applied, the one with greaterexperience would in all likelihood be selected. Then, to say that one withlesser experience, but who is more aged should be selected and appointed,not only eliminating the one with more experience, but even disqualifyingher or him, would mean that better candidates have to be overlookedand those with lesser experience would be appointed, solely on the groundthat the latter is over 50 years of age. Prime Minister Jawaharlal Nehru,in the course of the Constituent Assembly debates, (though in the contextof fixing age of retirement of judges) remarked that[33]

33 CAD, Vol. VIII dated 24th May, 1949

878SUPREME COURT REPORTS

A“But the fact is, when you reach certain top grades whereyou require absolutely first-class personnel, then it is adangerous thing to fix limit which might exclude these first-rate men.”

In the present case, the rule has the effect of excluding deservingBcandidates, without subserving any discernible public policy or goal. Thus,the classification is based on no justifiable rationale; nor can it be saidthat the age criterion has some nexus with the object sought to beachieved, such as greater efficiency or experience.

28. In Anuj Garg v. Hotel Assn. of India[34 ]one of the issues wasCthe bar to employment of anyone less than 25 years of age in the hotelindustry. This court held that such age discrimination was unsustainable,and struck it down, observing as follows:

“25. Hotel management has opened up vista for young menand women for employment. large number of them are takingDhotel management graduation courses. They pass theirexaminations at very young age. If prohibition in employmentof women and men below 25 years is to be implemented in itsletter and spirit, large section of young graduates who havespent lot of time, money and energy in obtaining the degreeor diploma in hotel management would be deprived of theirEright of employment. Right to be considered for employmentsubject to just exceptions is recognised by Article 16 of theConstitution. Right of employment itself may not be afundamental right but in terms of both Articles 14 and 16 ofthe Constitution of India, each person similarly situated hasFa fundamental right to be considered therefor.**********

56. Young men who take degree or diploma in hotelmanagement enter into service at the age of 22 years or 23years. It, thus, cannot prohibit employment of men below 25Gyears. Such restriction keeping in view citizen’s right tobe considered for employment, which is facet of the right tolivelihood does not stand judicial scrutiny.”

29. In this court’s decision in Lt. Col. Nitisha & Ors. v. Union ofIndia,[35] reference was made to US statute - the Age Discriminationin Employment Act, 1967 and the US Supreme Court decision inSmith v. City of Jackson[36 ]which dealt with discrimination based onage. The relevant provisions of the said enactment proscribe agediscrimination in regard to matters of employment.[37]A recent USSupreme Court decision Baab v. Wilke[38]explained what is meant byage discrimination, in the following terms:

“The Civil Service Reform Act of 1978, which governs federalemployment, broadly defines “personnel action” to includemost employment-related decisions, such as appointment,promotion, work assignment, compensation, and performancereviews. See 5 U. S. C. §2302(a)(2)(A). That interpretation isconsistent with the term’s meaning in general usage, and weassume 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’sThird New International Dictionary 905 (def. 4(a)(2)) (1976);4 Oxford English Dictionary 521 (def. 12) (1933); see alsoAmerican Heritage Dictionary 524 (def. 5(a)) (1969) (defining“free” “used with from” as “[n]ot affected or restricted by

given condition or circumstance”); Random House Dictionary

35 2021 SCCOnLine SC 261.

36 544 US 228 (2005).

37 The relevant provisions of the Age Discrimination in Employment Act, 1967, Sec623 (Section 4) are as follows:

“(a) Employer practices

It shall be unlawful for an employer-

(1) to fail or refuse to hire or to discharge any individual or otherwisediscriminate against any individual with respect to his compensation, terms, conditions,or privileges of employment, because of such individual’s age;

(2) to limit, segregate, or classify his employees in any way which woulddeprive or tend to deprive any individual of employment opportunities or otherwiseadversely affect his status as an employee, because of such individual’s age; or

(3) to reduce the wage rate of any employee in order to comply with thischapter.

(b) It shall be unlawful for an employment agency to fail or refuse to refer foremployment, or other -wise to discriminate against, any individual because of suchindividual’s age, or to classify or refer for employment any individual on the basis ofsuch individual’s age….”

38 No. 18-882, 589 U. S. ____ (2020)

ABC

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), personnelaction must be made “untainted” by discrimination based onage, and the addition of the term “any” (“free from anydiscrimination based on age”) drives the point home. And asfor “discrimination,” we assume that it carries its “‘normaldefinition,’” which is “‘differential treatment.’” Jackson v.Birmingham Bd. of Ed., 544 U. S. 167, 174 (2005). Under§633a(a), the type of discrimination forbidden is“discrimination based on age,” and “[i]n common talk, thephrase ‘based on’ indicates but-for causal relationship.”Safeco Ins. Co. of America v. Burr, 551 U. S. 47, 63 (2007);cf. Comcast Corp. v. National Assn. of African AmericanOwned Media, ante, at 6. Therefore, §633a(a) requires thatage be but-for cause of the discrimination alleged. Whatremains is the phrase “shall be made.” “[S]hall be made” isa form of the verb “to make,” which means “to bring intoexistence,” “to produce,” “to render,” and “to cause to be orbecome.” Random House Dictionary of the English Language,at 866. Thus, “shall be made” means “shall be produced,”etc. And the imperative mood, denoting duty, see Black’sLaw Dictionary 1233 (5th ed. 1979), emphasizes theimportance of avoiding the taint. So much for the individualterms used in §633a(a). What really matters for presentpurposes is the way these terms relate to each other. Twomatters of syntax are critical. First, “based on age” is anadjectival phrase that modifies the noun “discrimination.” Itdoes not modify “personnel actions.” The statute does notsay that “it is unlawful to take personnel actions that arebased on age”; it says that “personnel actions . . . shall bemade free from any discrimination based on age.” §633a(a).As result, age must be but-for cause of discrimination—that is, of differential treatment—but not necessarily but-for cause of personnel action itself. Second, “free from anydiscrimination” is an adverbial phrase that modifies the verb“made.” Ibid. Thus, “free from any discrimination” describeshow personnel action must be “made,” namely, in waythat is not tainted by differential treatment based on age. If

age discrimination plays any part in the way decision ismade, then the decision is not made in way that is untaintedby such discrimination. This is the straightforward meaningof the terms of §633a(a), and it indicates that the statute doesnot require proof that an employment decision would haveturned out differently if age had not been taken into account.”

(emphasis supplied)

30. The Delhi High Court, in its decision reported as Commissioner,M.C.D. v. Shashi[39] invalidated rule that allowed the public employerto screen candidates based on their age, emphasizing that:

‘‘Subject to constitutionally permissible reservations, everyendeavour must be made by the State to employ or engagethe most qualified or the most meritorious persons. In doingso, the State may fix shortlisting criteria on the basis ofeducational qualifications or experience or marks obtainedin an examination or an interview or any other criterion whichenables the most competent person to be selected.Unfortunately, age has nothing to do either with merit orcompetence. Wisdom may be an attribute of age, but not meritor competence.

13. There is not even an iota of material to suggest, nor indeedhas anything been pointed out by learned Counsel for thePetitioner, that merely because an applicant falls within theage group of 28 to 30 years he is better qualified as teacherthan person falling in the age group of 18 to 27 years. It isnot the case of the Petitioner that persons in the age group of28 to 30 years are either better qualified educationally orhave more experience or are in any manner more meritoriousor competent than the applicants falling within the age groupof 18 to 27 years solely because of their age. It seems to usthat the Petitioner has literally picked the age group of 28 to30 years out of the hat (as it were) without any reference toany logical or empirical basis”

31. In the present case, therefore, the qualification of minimumage of 50 years as essential for appointment, is discriminatory because itis neither shown to have rational nexus with the object sought to be

39 (2009) 165 DLT 17

Aachieved, i.e. appointing the most meritorious candidates; nor is it shownto be based on any empirical study or data that such older candidatesfare better, or that younger candidates with more relevant experiencewould 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 hat”[40] and wholly arbitrary.B

32. As stated earlier, the tribunals which were reorganized by theFinance Act, 2017 and now, through the impugned ordinance, exercisejudicial functions of the State, interpret and enforce the law, in the courseof adjudication of disputes. As repeatedly emphasized by this court inprevious Constitution Bench judgments, appointment of members (ofCsuch tribunals), their conditions of service, manner of selection,remuneration and security of tenure are vital to their efficiency andindependent functioning. It is in this backdrop that the Union’s contentionregarding “equivalence” or “parity” with members of the civil servicesof the Union or holders of civil posts under the Union, as justificationDfor the age criterion, needs to be examined.

33. This Court in All India Judges’ Assn. (II) v. Union of India[41],held that:

“9. So much for the contention of the review petitioners thatthe directions given by this Court would lead to the demandEfrom the members of the other services for similar serviceconditions. It is high time that all concerned appreciated thatfor the reasons pointed out above there cannot be any linkbetween the service conditions of the Judges and those of themembers of the other services. It is true that under ArticleF309 of the Constitution, the recruitment and conditions ofservice of the members of the subordinate judiciary are to beregulated by the Acts of the appropriate legislature andpending such legislation, the President and the Governor ortheir nominees, as the case may be, are empowered to makerules regulating their recruitment and the conditions of service.GIt is also true that after the Council of States makes thenecessary declaration under Article 312, it is the Parliamentwhich is empowered to create an All India Judicial Service40 An expression used in an analogous context, while declaring cut-off date to bearbitrary, in D.R. Nim v Union of India 1967 (2) SCR 325.H41 (1993) 4 SCC 288.

which will include posts not inferior to the post of DistrictJudge as defined under Article 236. However, this does notmean that while determining the service conditions of themembers of the judiciary, distinction should not be madebetween them and the members of the other services or thatthe service conditions of the members of all the services shouldbe the same. As it is, even among the other services, adistinction is drawn in the matter of their service conditions.This Court has in the judgment under review, pointed out thatthe linkage between the service conditions of the judiciaryand that of the administrative executive was an historicalaccident. The erstwhile rulers constituted, only one service,viz., the Indian Civil Service for recruiting candidates for thejudicial as well as the administrative service and it is fromamong the successful candidates in the examination held forsuch recruitment, that some were sent to the administrativeside while others to the judicial side. Initially, there was alsono clear demarcation between the judicial and executiveservices and the same officers used to perform judicial andexecutive functions. Since the then Government had failed tomake the distinction between the two services right from thestage of the recruitment, its logical consequences in terms ofthe service conditions could not be avoided. With theinauguration of the Constitution and the separation of theState power distributed among the three branches, thecontinuation of the linkage has become anachronistic and isinconsistent with the constitutional provisions. As pointed outearlier, the parity in status is no longer between the judiciaryand the administrative executive but between the judiciaryand the political executive. Under the Constitution, thejudiciary is above the administrative executive and anyattempt to place it on par with the administrative executivehas to be discouraged. The failure to grasp this simple truthis responsible for the contention that the service conditionsof the judiciary must be comparable to those of theadministrative executive and any amelioration in the serviceconditions of the former must necessarily lead to thecomparable improvement in the service conditions of thelatter.”

DEF

A34. In addition, it is worthwhile to recollect that civil servant’sexperience, though varied and diverse – ranging from co-ordination andadministration at taluk, district and state levels, to devising, framing andimplementing the government’s policies and programmes, to managingstatutory corporations and even commercial enterprises of the state,does not always entail adjudicatory functions. However, legalBpractitioners, chartered accountants and one segment of civil servants,i.e. tax administrators and adjudicators are involved in the day to dayinterpretation of law, leading to adjudicatory outcomes. Such being thecase, the equivalence of “status” of members of tribunals cannot becompared in linear or rigid manner. That according to the Union’sCscheme of rules and regulations, members of its services can attain acertain rank upon attaining the age of, say, 50 years, therefore, cannotbe determinative. In any case, the argument of equivalence is not relevant.This point too, was brought home in the judgment of this court, in AllIndia Judges Association II (supra):D“Unlike the administrative officer, the judicial officer isobliged to work for long hours at home. When he reserves ajudgment he has usually to prepare the same at his residence.For that purpose, he has to read the records as also thejudicial precedents cited by counsel for the adversaries. Evenotherwise with view to keeping himself up to date about theElegal position he has to read judgments of his own High Court,other High Courts and of the Supreme Court. He has also toread legal journals.”

35. There are other points of distinction too between civil servantsand members of tribunals. Members of tribunals are not drawn fromFany 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 rulesand other service conditions embodied in circulars and orders. Thesegovern their entire universe of employment: starting with eligibilityGconditions, 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 similarrules do not apply to members of tribunals not drawn from public service.It is only conditions of equivalence such as pay scale which they areassured of under the rules, which also determine their status. The mannerH

of selection, conditions of eligibility, rules for their removal upon provenmisbehaviour and so on, are entirely different from public servants. Infact, the latter category, i.e. members of tribunals not drawn from publicservice sources, are not even holders of civil posts or members ofany encadred civil service. This has been clarified in at least twojudgments of this court.[42 ]They are not governed by Article 311 of theConstitution, nor are their conditions of service laid out in rules framedunder 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 ofmerit. Nor is the argument of the Attorney General that uniform age isnecessary, merited. There is no material to show that members recruitedon the technical side, such as experts in engineering, scientific or othertechnical fields would be suitable only after they cross the age of 50. Infact, one can complete doctoral thesis and become holder of Ph.Dat the time that she or he is 30 years or even below. To be professor,one has to possess 10 years teaching experience; there is no minimumage under the relevant regulations framed by the UGC. Even non-teachingpersonnel, on the basis of their research, can be designated professors[43].

42 State of Maharastra v Labour Law Practitioners Association 1998 (2) SCC 688“Going by these tests laid down as to what constitutes judicial service underArticle 236 of the Constitution, the Labour Court judges and the judges of the IndustrialCourt can be held to belong to judicial service.”

In S.D. Joshi v. High Court of Bombay, (2011) 1 SCC 252 the previous decisionin Harinagar Sugar Mills v Shyam Sunder Jhunjunuwala 1962 (3) SCR 339 wasquoted:

“Broadly speaking, certain special matters go before tribunals, and the residuegoes before the ordinary courts of civil judicature. Their procedures may differ, but thefunctions are not essentially different.”

In Union of India v K.B. Khare 1994 (3) SCC 502, this court repelled thecontention that members of the Central Administrative Tribunals were governmentofficials, subject to its rules:

“On the contrary, an independent judicial service, the appointment in the CATis on tenure basis. The pension relating to such post is clearly governed by Rule 8 of theRules quoted above and at the risk of repetition, we may state it exhaustive in nature.”43 UGC Regulations on Minimum qualifications for appointment of Teachers and otheracademic staff in Universities and Colleges and measures for the Maintenance ofStandards in Higher Education,20104.0.0 DIRECT RECRUITMENT

“4.1.0 PROFESSOR A. (i) An eminent scholar with Ph.D. qualification(s) in theconcerned/allied/relevant discipline and published work of high quality, actively engagedin research with evidence of published work with minimum of 10 publications asbooks and/or research/policy papers. (ii) minimum of ten years of teaching experiencein university/college, and/or experience in research at the University/National levelinstitutions/industries, including experience of guiding candidates for research at doctoral

AAs on date, there are vice-chancellors in some state and nationaluniversities who had not completed 45 years at the time of appointment.Such being the position, experience in the field either in the academic,technical or scientific field for further period of 10 or 12 years or even15 years would not add up to the minimum threshold of the impugnedcriteria, i.e. 50 years of age. Purely as empirical data, the ITAT has aBsanctioned strength of 126 members, (which includes accountantmembers, technical members – who are drawn from the Indian RevenueService holding the rank of Commissioner of Appeals, for 3 years, andadvocates). 66 members presently are in office, appointed since theyear 1999.[44] Of these, 10 members were below the age of 40 at the timeCof their appointment; 20 members were between the ages of 40-45, and15 members were between the ages of 46-50- at the time of theirrespective appointments. Cumulatively, 44 members out of 66 wereappointed below the age of 50. Only 17 members were 50 or above atthe time of their appointment. Data is not provided in respect of 5members. This data- as indeed similar data from other tribunals, showsDthat past appointment to these positions was amongst younger, and andcompetent persons. The Union has not shown why this past historyrequires departure, and why that longstanding basis for appointing youngerprofessionals, now needs to be departed from, in public interest.Significantly, commissioners of appeals (of income tax) – in the respectiveEservice rules, typically are appointed after 18 or so years of service; ifone adds 3 years, an incumbent Commissioner could be well below 50years. She or he would be completely familiar with the adjudicatoryprocess in tax laws. Exclusion of such otherwise qualified and suitedpersonnel, too, is irrational. Having regard to all these reasons, the Union’sargument that 50 years is necessary as it brings about parity betweenFthe members of the civil services who are eligible to be considered intheir stream for tribunals or that there is an overall uniformity, is withoutmerit and accordingly rejected.

level. (iii) Contribution to educational innovation, design of new curricula and courses,and technology – mediated teaching learning process. 6 (iv) minimum score asstipulated in the Academic Performance Indicator (API) based Performance BasedGAppraisal System (PBAS), set out in this Regulation in Appendix III. OR

B. An outstanding professional, with established reputation in the relevant field,who has made significant contributions to the knowledge in the concerned/allied/relevantdiscipline, to be substantiated by credentials.”https://www.ugc.ac.in/oldpdf/regulations/revised_finalugcregulationfinal10.pdfvisited on 25 June, 2021 @ 16:18 hours.H44 https://itat.gov.in/page/content/members(last accessed on 21.06.2021).

36. further, but crucial issue. In Madras Bar Association vUnion of India[45] (MBA-III) this court held as unlawful the exclusion ofadvocates from consideration in the following directions:

“53. The upshot of the above discussion leads this court toissue the following directions:

**********

(vi) The 2020 Rules shall be amended to make advocates withan experience of at least 10 years eligible for appointment asjudicial members in the Tribunals. While consideringadvocates for appointment as judicial members in theTribunals, the Search-cum-Selection Committee shall take intoaccount the experience of the Advocate at the bar and theirspecialization in the relevant branches of law. They shall beentitled for reappointment for at least one term by givingpreference to the service rendered by them for the Tribunals.

(vii) The members of the Indian Legal Service shall be eligiblefor appointment as judicial members in the Tribunals, providedthat they fulfil the criteria applicable to advocates subject tosuitability to be assessed by the Search-cum-SelectionCommittee on the basis of their experience and knowledge inthe specialized branch of law.”

37. The Union of India had not made any move to give effect tothe above directions. The declaration of law in MBA-III recorded in anearlier part of the decision, that advocates in all tribunals are eligible forconsideration for appointment as members of various tribunals. It is nolonger open to exclude such eligible advocates from consideration. Thedirection to the following effect is binding and has become final. It hasnot been interdicted in any manner, by the impugned ordinance:

“Exclusion of Advocates in 10 out of 19 tribunals, forconsideration as judicial members, is therefore, contraryto Union of India v. Madras Bar Association (2010)[19] andMadras Bar Association v. Union of India (2015)[20]. However,it is left open to the Search-cum-Selection Committee to takeinto account in the experience of the Advocates at the bar andthe specialization of the Advocates in the relevant branch of

[2021] 5 S.C.R.

Alaw while considering them for appointment as judicialmembers”.

After hearings were concluded, the directions in MBA-III on theabove score, were accepted, and Advocates have now been madeeligible, for appointment to 15 tribunals, after they complete 10 years’Benrolment, and have relevant experience or in the concerned field ofpractice.

38. As result of the above discussion, the proviso to Section 184(1), inserted by the impugned ordinance is declared void. declarationis issued that all candidates, otherwise eligible on their merit, based onCqualifications and experience in the relevant field, are entitled to beconsidered, without reference to the impugned “minimum” age (of 50years) criteria.

39. I am in agreement with the reasoning and conclusions of L.Nageswara Rao, J. about the impermissibility of legislative override, evenDwhile upholding the retrospectivity accorded to Section 184 (11). Inaddition to the detailed reasons why such legislative override isimpermissible in the circumstances of this case, I would also rely on theConstitution Bench judgment in State of Gujarat v. Raman Lal KeshavLal Soni[46]. This Court, in Raman Lal dealt with the issue of retrospectiveapplication of provision of the Gujarat Panchayats Act, 1961. TheEfacts pertained to denial of the benefits of two pay commissions toemployees of Panchayat Institutions who had previously been employedby municipalities. The legislative provision (Section 102(1)) was givenretrospective effect, classifying these employees as servants of Gram/Nagar Panchayats, notwithstanding judgments of courts which hadFdeclared them to be Government servants, which would have entitledthem to the revised pay scale. The court held:

“53. (…) The legislature is undoubtedly competent to legislatewith retrospective effect to take away or impair any vestedright acquired under existing laws but since the laws are madeunder written Constitution, and have to conform to the do’sGand don’ts of the Constitution neither prospective norretrospective laws can be made so as to contraveneFundamental Rights. The law must satisfy the requirements ofthe Constitution today taking into account the accrued or

acquired rights of the parties today. The law cannot say,twenty years ago the parties had no rights, therefore, therequirements of the Constitution will be satisfied if the law isdated back by twenty years. We are concerned with today’srights and not yesterday’s. legislature cannot legislate todaywith reference to situation that obtained twenty years agoand ignore the march of events and the constitutional rightsaccrued in the course of the twenty years. That would be mostarbitrary, unreasonable and negation of history. It waspointed out by Constitution Bench of this Court in B.S. Yadavand Ors. etc. v. State of Haryana and Ors. etc. [1981] 1 SCR1024, Chandrachud CJ., speaking for the Court,

“Since the Governor exercises the legislative power underthe proviso to Article 309 of the Constitution, it is open tohim to give retrospective operation to the rules made underthat provision. But the date from which the rules are madeto operate, must be shown to bear either from the face ofthe rules or by extrinsic evidence, reasonable nexus withthe provisions contained in the rules, especially when theretrospective effect extends over long period as in thiscase”.

Today’s equals cannot be made unequal by saying that theywere unequal twenty years ago and we will restore that positionby making law today and making it retrospective.Constitutional rights, constitutional obligations andconstitutional consequences cannot be tempered with thatway. law which if made today would be plainly invalid asoffending constitutional provisions in the context of theexisting situation cannot become valid by being maderetrospective. Past virtue (constitutional) cannot be made towipe out present vice (constitutional) by making retrospectivelaws. We are, therefore, firmly of the view that the GujaratPanchayats (Third Amendment) Act, 1978 is unconstitutional,as it offends Articles 311 and 14 and is arbitrary andunreasonable.”

40. 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 inforce, ––

(i) the Chairperson of Tribunal shall hold office for termof four years or till he attains the age of seventy years,whichever is earlier;

(ii) the Member of Tribunal shall hold office for term offour years or till he attains the age of sixty-seven years,Bwhichever is earlier:

Provided that where Chairperson or Member is appointedbetween the 26th day of May, 2017 and the notified date andthe term of his office or the age of retirement specified in theorder of appointment issued by the Central Government isCgreater than that which is specified in this section, then,notwithstanding anything contained in this section, the termof office or age of retirement or both, as the case may be, ofthe Chairperson or Member shall be as specified in his orderof appointment subject to maximum term of office of fiveDyears.”

41. The interim directions of this court, which culminated andwere subsumed in Roger Mathew (supra), resulted in the appointmentof members of various tribunals, whose term is now sought to beinterdicted by the proviso to Section 184 (11), which has been introducedEwith retrospective effect. I agree with Rao, J. that while the retrospectivityaccorded to this provision cannot be faulted, nevertheless, the said proviso,to the extent it seeks to interfere with and curtail the tenure of membersappointed under interim orders, who are entitled to enjoy their term ofoffice, in accordance with the pre-amended legislation and rules, isarbitrary and void. As held in Raman Lal (supra), “(t)oday’s equalsFcannot be made unequal by saying that they were unequal twentyyears ago and we will restore that position by making law todayand making it retrospective”. In manner somewhat reminiscent ofthe facts of this case, an interim order, enjoining the employer, All IndiaInstitute of Medical Sciences (AIIMS) from curtailing the tenure of theGthen Director, was sought to be legislatively overridden by Parliament.In P. Venugopal v. Union of India[47], this court held that enactment tobe unlawful, and held that the curtailment of tenure for one person wasarbitrary and based on no reasonable criteria:

“36. From the aforesaid discussion, the principle of lawstipulated by this Court is that curtailment of the term of fiveyears can only be made for justifiable reasons and compliancewith principles of natural justice for premature terminationof the term of Director of AIIMS squarely applied also to thecase of the writ petitioner as well and will also apply to anyfuture Director of AIIMS. Thus there was never anypermissibility for any artificial and impermissible classificationbetween the writ petitioner on the one hand and any futureDirector of AIIMS on the other when it relates to the prematuretermination of the term of office of the Director. Such animpermissible overclassification through one-man legislationclearly falls foul of Article 14 of the Constitution being anapparent case of “naked discrimination” in our democraticcivilised society governed by the rule of law and renders theimpugned proviso as void ab initio and unconstitutional.

37. Such being our discussion and conclusion, on theconstitutionality of the proviso to Section 11(1-A), we must,therefore, come to this conclusion without any hesitation inmind, that the instant case is squarely covered by theprinciples of law laid down by this Court in the variouspronouncements as noted hereinabove including in D.S.Reddi, Vice-Chancellor, Osmania University v. Chancellor[D.S. Reddi, Vice-Chancellor, Osmania University v.Chancellor, AIR 1967 SC 1305 : (1967) 2 SCR 214] .

************

39. It was further held in D.S. Reddi [D.S. Reddi, Vice-Chancellor, Osmania University v. Chancellor, AIR 1967 SC1305 : (1967) 2 SCR 214] that such classification was notfounded on an intelligible differentia and was held to beviolative of Article 14 of the Constitution of India. Accordingly,the provision of Section 13-A was held to be ultra vires andunconstitutional and hit by Article 14 of the Constitution.Similarly in the present case, the impugned proviso to Section11(1-A) itself states that it is carrying out prematuretermination of the tenure of the writ petitioner. It is alsoadmitted that such premature termination is without followingthe safeguards of justifiable reasons and notice. It is thus

Acase similar to D.S. Reddi [D.S. Reddi, Vice-Chancellor,Osmania University v. Chancellor, AIR 1967 SC 1305 : (1967)2 SCR 214] and other decisions cited above that the impugnedlegislation is hit by Article 14 as it creates an unreasonableclassification between the writ petitioner and the futureDirectors and deprives the writ petitioner of the principles ofBnatural justice without there being any intelligible differentia.

42. In my opinion, like in P. Venugopal (supra) the curtailment oftenure to five years, of these few individuals appointed as members oftribunals, who were entitled to continue in office in terms of the pre-existing enactments (upto the age of 62 years etc.) is arbitrary. ApartCfrom the fact that the Union wishes to curtail their tenure despite thefinality of directions of this court in Roger Mathew and MBA-III, thereis no conceivable rationale. Nor has any overriding public interest beenespoused as justification for this. The divesting of judicial office bylegislative fiat, in this court’s opinion, directly affects the independenceDof the judiciary. It also amounts to naked discrimination, because allother members of the same tribunals would enjoy longer tenure, in termsof the pre-existing conditions of service, which prevailed at the time oftheir appointment.

43. In MBA III (supra), this Court directed the Union ‘to makeEappointments to tribunals within three months from the date on whichthe Search-cum-Selection Committee completes the selection processand makes its recommendations.’ The necessity to take action on thisis emphasized by the nuts and bolts of the adjudicatory functions oftribunals. As many as 21,259 cases were pending before the NationalCompany Law Tribunal as on 31.12.2020, and 2278 cases were filedFbefore the tribunal under the Insolvency and Bankruptcy Code, 2016during the period of April to December 2020, out of which only 176 havebeen disposed so far.[48] As on April 2021, the NCLT comprised of itsActing President and total number of 38 members, out of which 17 arejudicial members and 21 are technical members - much below than theGsanctioned strength of 63 members.[49] At the Armed Forces Tribunal,48 Available at https://economictimes.indiatimes.com/news/economy/policy/over-21250-cases-pend in g- before -nclt-at -en d-of-dece mb er-2 020/ar ticl es how/80754041.cms?from=mdr(last accessed on 20.06.2021).

49 Available at https://www.indialegallive.com/top-news-of-the-day/news/plea-in-sc-seeks-extension-of-tenure-of-nclt-members/H (last accessed on 20.06.2021).

against sanctioned strength of 34, only 11 members are currently inoffice – 4 judicial members and 6 administrative members, for thetribunal’s 11 benches. Till 28.02.2021, total of 18,829 cases were pendingfor disposal; the highest pendency was before the principal bench inDelhi, with 5553 cases, followed by Chandigarh with 4512 cases andJaipur with 3154 cases.[50] At the 18 benches of the Central AdministrativeTribunal (CAT), only 36 members are in office, against sanctionedstrength of 65.[51] Over 48,000 cases are pending disposal at the CAT,with over 28,000 cases pending for 1-5 years.[52] As on 01.03.2021, 72,452cases were pending before various benches of the CESTAT. Out of atotal strength of 26, 18 positions are filled, and 8 vacancies are still openin the 9 benches of the CESTAT.[53]At the Income Tax Appellate Tribunal(ITAT), only 66 members are in office, out of sanctioned strength of126[54], and total of about 88,000 appeals are pending. 24,000 are pendingbefore the Delhi bench, followed by about 16,000 before the Mumbaibench.[55] At the National Consumer Disputes Redressal Commission(NCDRC), 138105 cases have been filed since inception (i.e. since 1987)out of which 1,16,572 have been disposed of. 21,443 cases are pending.At state commissions, 124559 cases are still pending, and 401184 arepending before district forums. The total pendency is 547186 cases.[56]Out of the 44 benches of the Debt Recovery Tribunal (DRT) and soleDebt Recovery Appellate Tribunal (DRAT), 11 benches have vacancies.[57]

50 Available at https://www.tribuneindia.com/news/nation/23-out-of-34-posts-of-armed-forces-tribunal-vacant-19-000-cases-pending-mod-tells-parliament-223283(lastaccessed on 20.06.2021).

51 Available at http://www.cgatnew.gov.in/writereaddata/Delhi/docs/RTI/list.pdf(lastaccessed on 20.06.2021).

52 Available at https://theprint.in/india/governance/purpose-of-central-administrative-tribunal-far-from-being-achieved-parliamentary-panel/378156/(last accessed on20.06.2021).

53 Available at https://cestatnew.gov.in/uploads/writereaddata/Delhi/docs/pendency022021.pdf(last accessed on 20.06.2021).

54 See https://itat.gov.in/page/content/members(last accessed on 21.06.2021).

55 Available at https://www.business-standard.com/article/pti-stories/88-000-appeals-pending-before-income-tax-appellate-tribunal-chairman-120022601297_1.html(lastaccessed on 21.06.2021).

56 http://ncdrc.nic.in/stats.html(last accessed on 21.06.2021).

57 -----https://www.businessstandard.com/article/economypolicy/banksflagtardydecision-making-piling-of-cases-at-recovery-tribunals-119032300883_1.html(lastaccessed on 21.06.2021).

AAs of April 2020, the Railway Claims Tribunal had 25,571 pendingcases.[58]

44. The sheer volume of pendency is an indicator of the substantialjudicial functions carried out by tribunals, necessitating that they be mannedby efficient, well qualified judicial and technical members. It is necessaryBthat the Union expedite the process of appointments to tribunals, towardsensuring swifter, and efficacious justice delivery.

45. As postscript, one would only say that this judgment- seventhin the series commencing with R.Gandhi, hopefully should conclude allcontroversies. It would be erroneous on anyone’s part to consider thatCinterdiction by this court amounts to conflict with Parliamentary orexecutive wisdom. Each judgment- when it interprets provisions relatingto setting up of tribunals and other arrangements for tribunals, adds tothe ongoing discourse between the three branches of governance. TheConstitution of India envisions republic, governed by the rule of law,Dand guarantees justice: social, economic and political, as well as equalityof status and of opportunity. Acting within their assigned spheres, thelegislative, executive and judicial departments strive to further thisconstitutional vision. When assured rights or the principle of equalitycannot be secured by the citizen or person guaranteed it, she turns to thejudicial wing. It is to ensure that this wing has the competence, vitalityEand fairness, expected of it, that this court intervenes, to ensure that theadjudicatory mechanisms are robust, independent, and are manned bycompetent and merited personnel.

46. In view of the foregoing discussion, I conclude and hold asfollows:F

(i) The first proviso to Section 184(1) of the Finance Act, 2017,introduced by Section 12 of the Tribunals Reforms (Rationalisation andConditions of Service) Ordinance, 2021 is hereby declared void andinoperative. Similarly, the second proviso to Section 184(1) of the FinanceAct, 2017, introduced by Section 12 of the Tribunals ReformsG(Rationalisation and Conditions of Service) Ordinance, 2021 is held tobe void and inoperative.

58 See https://indianexpress.com/article/india/rct-judges-drag-govt-to-sc-cite-fundamental-rights-to-seek-extension-6380655/(last accessed on 21.06.2021).H

(ii) Section 184(7) of the Finance Act, 2017 introduced by Section12 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 theTribunals (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) ofMBA-III shall prevail and the term of Chairperson of Tribunal shall befive years or till she or he attains the age of 70 years, whichever isearlier and the term of Member of Tribunal shall be five years or tillshe 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 andConditions of Service) Ordinance, 2021 is hereby upheld; however, withoutin any manner affecting the appointments made to the post of Chairpersonor members of various Tribunals, upto 04.04.2021. In other words, theretrospectivity of the provision shall not in any manner affect the tenuresof the incumbents appointed as consequence of this Court’s variousorders during the interregnum period.

(vi) The writ petition is allowed to the above extent.

HEMANT GUPTA, J.

1. I have gone through the detailed judgment authored by JusticeL. Nageswara Rao as also separate but concurring judgment of JusticeRavindra Bhat, but I am unable to persuade myself to agree with theviews expressed therein except to the limited extent that part of Section187(7) of the Tribunals Reforms (Rationalisation and Conditions ofService) Ordinance, 2021[1] that the Search and Selection Committee shallrecommend two names for post and that the tenure of members includingChairperson etc. shall be four years in terms of Clauses (i) and (ii) ofSection 184 (11) of the Ordinance is illegal since the issues of constitutionof panel and tenure have already been decided in MBA-III and thatwithout removing such defect, the Ordinance could not be enacted.

1 For short, the ‘Ordinance’

A2. Before I advert to the grounds of challenge, some of well-established and settled principles of the applicability of the principles ofinterpretation need to be recapitulated.

(i) The power of Legislature is to enact law and the power ofJudiciary of that of judicial review of the statutoryBenactments.

3. The three organs of the State i.e., Legislature, Judiciary andExecutive have separate and distinct roles and functions as provided inthe Constitution. All the institutions must act within their own jurisdictionand not trespass into the jurisdiction of others. By segregating the powersCand functions of the three institutions, the Constitution ensures such astructure where the institutions function as per their own institutionalstrength. Secondly, it also creates system of checks and balances asthe Constitution provides degree of latitude for interference by eachbranch into the functions and tasks performed by another branch[2].

D4. The Constitution does not permit the courts to direct, advise orsermonize other organs of the State in the spheres reserved for them,provided the legislature or executive does not transgress its constitutionallimits or statutory conditions. Independence and adherence toconstitutional accountability and limits while exercising the power ofjudicial review gives constitutional legitimacy to the court decisions. ThisEis the essence of the power and function of judicial review thatstrengthens and promotes the rule of law[3].

5. It is also to be noted that the application of law by the Judges isnot synonymous with the enactment of law by the legislature. Judgeshave the power to spell out how precisely the statute would apply in aFparticular case. In this manner, they complete the law formulated by thelegislature by applying it. This power of interpretation or the power ofjudicial review is exercised post the enactment of law, which is thenmade subject-matter of interpretation or challenge before the courts.[4]

6. This Court has observed that if law is enacted by the ParliamentGor Legislature, even if it is assumably contrary to the directions orguidelines issued by the Court, it cannot be struck down by reason ofsuch directions/guidelines issued by the Court; it can be struck down

2 Dr. Ashwani Kumar v. Union of India & Anr., (2020) 13 SCC 585 (Para 10)3 Ibid (Para 13)H4 Ibid (Para 25)

only if it violates the fundamental rights or the right to equality underArticle 14 of the Constitution[5].

7. seven Judge Bench of this Court[6] held that the primaryfunction of the judiciary is to interpret the law. It may lay down principles,guidelines and exhibit creativity in the field left open and unoccupied bylegislation[7]. The Court while interpreting Articles 32, 21, 141 and 142 ofthe Constitution held that prescribing periods at which criminal trial wouldterminate resulting in acquittal or discharge of the accused or makingsuch directions applicable to all cases in present or in future would amountto judicial law making and cannot be done by judicial directives. TheCourts can declare law, interpret law, remove obvious lacunae andfill up the gaps but they cannot entrench upon in the field oflegislation[8]. The bars of limitation were deleted by this Court on twogrounds, first, it amounts to judicial legislation which was not permissibleand secondly, it runs counter to the doctrine of binding precedents[9].

8. The Constitution Bench of this Court[10] held that writ ofmandamus cannot be issued to bring Section 3 of the 44[th] ConstitutionalAmendment Act in force. It was held that the Parliament having left tothe unfettered judgment of the Central Government, the question asregards the time for bringing the provisions of the 44[th] Amendment intoforce, it was not for the court to compel the Government to do whataccording to the mandate of the Parliament lies in its discretion to do sowhen it considered it opportune to do it. Since the Parliament has left thematter to the judgment of the Central Government without prescribingany objective norms, it makes it difficult for the Courts to substitute theirown judgment for that of Government on the question whether Section 3of the 44[th] Amendment should be brought into force.

9. This Court[11] held that the Court cannot direct the legislature toenact particular law when an executive authority exercises legislativepower by way of subordinate legislation pursuant to the delegatedauthority of legislature, such executive authority cannot be asked to

5 Ibid (Para 29)

6 P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578

7 Ibid (Para 25)

8 Ibid (Para 27)

9 Ibid (Para 33)

10 A.K. Roy v. Union of India & Ors., (1982) 1 SCC 271 (Para 51)

11 Mangalam Organics Limited v. Union of India, (2017) 7 SCC 221 (Para 36)

Aenact the law which it has been empowered to do under the delegatedlegislative authority.

10. In another Constitution Bench judgment of this Court[12], it washeld that the duty of judicial review bestowed upon the judiciary is notunfettered and it comes within the ambit of judicial restraint. TheBParliament and Legislative Assemblies exercise sovereign power to enactlaw and no outside power or authority can issue direction to enact aparticular kind of legislation.

11. In separate but concurring judgment in Kalpana Mehtaauthored by D.Y. Chandrachud, J., the Court held as under:C

“255. Parliament and the State Legislatures legislate. The executiveframes policies and administers the law. The judiciary decidesand adjudicates upon disputes in the course of which facts areproved and the law is applied. The distinction between the legislativefunction and judicial functions is enhanced by the basic structureDdoctrine. The legislature is constitutionally entrusted with the powerto legislate. Courts are not entrusted with the power to enact law.Yet, in constitutional democracy which is founded on thesupremacy of the Constitution, it is an accepted principle ofjurisprudence that the judiciary has the authority to test the validityof legislation. Legislation can be invalidated where the enactingElegislature lacks legislative competence or where there is violationof fundamental rights. law which is constitutionally ultra virescan be declared to be so in the exercise of the power of judicialreview. Judicial review is indeed also part of the basic featuresof the Constitution. Entrustment to the judiciary of the power toFtest the validity of law is an established constitutional principlewhich co-exists with the separation of powers. Where law isheld to be ultra vires there is no breach of parliamentary privilegesfor the simple reason that all institutions created by the Constitutionare subject to constitutional limitations. The legislature, it is wellsettled, cannot simply declare that the judgment of court is invalidGor that it stands nullified. If the legislature were permitted to doso, it would travel beyond the boundaries of constitutionalentrustment. While the separation of powers prevents thelegislature from issuing mere declaration that judgment iserroneous or invalid, the law-making body is entitled to enact

H12 Kalpana Mehta & Ors. v. Union of India & Ors., (2018) 7 SCC 1 (Para 42)

law which remedies the defects which have been pointed out bythe court. Enactment of law which takes away the basis of thejudgment (as opposed to merely invalidating it) is permissible anddoes not constitute violation of the separation doctrine. Thatindeed is the basis on which validating legislation is permitted.”

12. The lack of binding nature of the guidelines on the legislatureis also evident from the fact that even though directions that aremandatory in nature may be issued within the ambit of Article 142 of theConstitution, but the same cannot be enforced against the legislature asthe legislators have absolute and unfettered freedom in terms of Article194(2) in respect of State Legislatures, which is pari materia with Article105(2) relating to Parliament. The seven Judges Bench of this Court[13] inthe celebrated case of controversy between the Uttar Pradesh Assemblyand the High Court held as under:“32. Having conferred freedom of speech on the legislators, clause(2) emphasises the fact that the said freedom is intended to beabsolute and unfettered. Similar freedom is guaranteed to thelegislators in respect of the votes they may give in the legislatureor any committee thereof. In other words, even if legislatorexercises his right of freedom of speech in violation, say, of Article211, he would not be liable for any action in any court. Similarly, ifthe legislator by his speech or vote, is alleged to have violated anyof the fundamental rights guaranteed by Part III of the Constitutionin the Legislative Assembly, he would not be answerable for thesaid contravention in any court. If the impugned speech amountsto libel or becomes actionable or indictable under any otherprovision of the law, immunity has been conferred on him fromany action in any court by this clause. He may be answerable tothe House for such speech and the Speaker may take appropriateaction against him in respect of it; but that is another matter. It isplain that the Constitution-makers attached so much importanceto the necessity of absolute freedom in debates within the legislativechambers that they thought it necessary to confer completeimmunity on the legislators from any action in any court in respectof their speeches in the legislative chambers in the wide termsprescribed by clause (2). Thus, clause (1) confers freedom ofspeech on the legislators within the legislative chamber and clause

13 Powers, Privileges and Immunities of State Legislatures, AIR 1965 SC 745

DEFG

A(2) makes it plain that the freedom is literally absolute andunfettered.

40. Our legislatures have undoubtedly plenary powers, but thesepowers are controlled by the basic concepts of the writtenConstitution itself and can be exercised within the legislative fieldsBallotted to their jurisdiction by the three Lists under the SeventhSchedule; but beyond the Lists, the legislatures cannot travel. Theycan no doubt exercise their plenary legislative authority anddischarge their legislative functions by virtue of the powersconferred on them by the relevant provisions of the Constitution;but the basis of the power is the Constitution itself. Besides, theClegislative supremacy of our legislatures including the Parliamentis normally controlled by the provisions contained in Part III ofthe Constitution. If the legislatures step beyond the legislative fieldsassigned to them, or acting within their respective fields, theytrespass on the fundamental rights of the citizens in manner notDjustified by the relevant articles dealing with the said fundamentalrights, their legislative actions are liable to be struck down bycourts in India. Therefore, it is necessary to remember that thoughour legislatures have plenary powers, they function within the limitsprescribed by the material and relevant provisions of theConstitution.”E

13. conspectus of the above judgments, inter alia, among manyothers, is that the judiciary in exercise of power of judicial review canstrike down any legislation which violates fundamental rights or if it isbeyond the legislative competence but the courts cannot direct thelegislature to frame or enact law and in particular manner. The lawFdeclared by the Supreme Court is binding on all Courts in India in termsof Article 141 of the Constitution. The directions issued under Article142 of the Constitution, are binding on every Court in terms of Article141 of the Constitution. The legislature cannot be said to be Court withinthe meaning of Article 141 of the Constitution by any stretch ofGimagination. Article 144 of the Constitution mandates, civil and judicialauthorities in India shall act in aid of the Supreme Court meaning therebyexecutive and judicial authorities shall act in aid of the Supreme Court.The legislature is neither civil or judicial authority who is mandated bythe Constitution to act in the aid of Court. The legislature is supreme soas to enact law falling within its legislative competence. The directionsHof the court cannot compel the legislature to frame law in that particularmanner only. The legislature while enacting laws can legislate in mannerwhich is not in accordance with the directions issued by the Court to thelegislature, even if the Court has specially chosen to do so. The directionsof this Court stop outside the four walls of legislature. The judiciary willstep in only after law is enacted to test the legality of statue on theknown principles of judicial review. The Judiciary cannot and should notusurp the powers vested with legislature. The Judiciary cannot legislatein the scheme of the constitution as propounded by many judgmentsincluding larger Bench Judgments, which are binding on the smallerstrength benches. The directions of this Court in MBA-III areencroaching upon the field reserved for legislature.

(ii)Whether judgment has to be read in the context inwhich it was given and cannot be read as statute,inter alia, in view of the principles that the Court whileinterpreting provision cannot generally add word toa statute in view of doctrine of Casus Omissus.

14. Constitution Bench[14] of this Court has held that Courts shouldnot place reliance on decisions without discussing as to how the factualsituation of the matter fits in with the factual situation of the decision onwhich reliance is placed. There is always peril in treating the words of aspeech or judgment as though they are words in legislative enactment,and it is to be remembered that judicial utterances are made in the settingof the facts of particular case. This Court further held as under:

“12. The rival pleas regarding rewriting of statute and casus omissusneed careful consideration. It is well-settled principle in law thatthe court cannot read anything into statutory provision which isplain and unambiguous. statute is an edict of the legislature.The language employed in statute is the determinative factor oflegislative intent. The first and primary rule of construction is thatthe intention of the legislation must be found in the words used bythe legislature itself. The question is not what may be supposedand has been intended but what has been said. “Statutes shouldbe construed, not as theorems of Euclid”, Judge Learned Handsaid, “but words must be construed with some imagination of thepurposes which lie behind them”. (See Lenigh Valley Coal

14 Padma Sundara Rao (Dead) & Ors. v. State of T.N. & Ors., (2002) 3 SCC 533 (Para

Co. v. Yensavage [218 FR 547] .) The view was reiteratedin Union of India v. Filip Tiago De Gama of Vedem Vasco DeGama [(1990) 1 SCC 277 : AIR 1990 SC 981] .

14. While interpreting provision the court only interprets the lawBand cannot legislate it. If provision of law is misused andsubjected to the abuse of process of law, it is for the legislature toamend, modify or repeal it, if deemed necessary. (See RishabhAgro Industries Ltd. v. P.N.B. Capital Services Ltd. [(2000) 5SCC 515]) The legislative casus omissus cannot be supplied byCjudicial interpretative process……”

15. This Court[15] held that according to the well-settled theory ofprecedents, every decision contains three basic postulates: (i) findingsof material facts, direct and inferential. An inferential finding of facts isthe inference which the Judge draws from the direct, or perceptibleDfacts; (ii) statements of the principles of law applicable to the legalproblems disclosed by the facts; and (iii) judgment based on the combinedeffect of the above. decision is an authority for what it actually decides.What is of the essence in decision is its ratio and not every observationfound therein, nor what logically flows from the various observationsmade in the judgment. The said view has been relied upon by theEConstitution Bench of this Court[16].16. This Court[17] also held that the observations of courts are neitherto be read as Euclid’s theorems nor as provisions of the statute and thattoo taken out of their context. The observations must be read in thecontext in which they appear to have been stated.

17. This Court[18] has observed that judgments are not to beconstrued as statutes. The words or phrases in judgments are not to beinterpreted like provisions of statute. The words in judgment shouldbe read and understood contextually and not intended to be takenliterally. Such interpretation has been followed by two Judge Bench of

15 State of Orissa & Ors. v. Md. Illiyas, (2006) 1 SCC 275 (Para 12)

16 Natural Resources Allocation, in Re, Special Reference No. 1 of 2012

17 Union of India v. Amrit Lal Manchanda & Anr., (2004) 3 SCC 75 (Para 15)

H18 Som Mittal v. Government of Karnataka, (2008) 3 SCC 574 (Para 9)

this Court[19] wherein it was held that the ratio of any decision must beunderstood in the background of the facts of that case.

18. In another recent judgment[20], it was held that the ratio of ajudgment is what it decides and not what logically follows therefrom.The Court held as under:

“31. It is trite that ratio of judgment is what it decides and notwhat logically follows therefrom. The observations in the ThreeJudges cases [Supreme Court Advocates-on-Record Assn. v.Union of India, (1993) 4 SCC 441] [,] [S.P. Gupta v. Union ofIndia, 1981 Supp SCC 87] [,] [Special Reference No. 1 of 1998,In re, (1998) 7 SCC 739] are to be read in the context in whichthey are rendered. Once that is kept in mind, we arrive at aconclusion that the ratio of those judgments cannot be extendedto read the expression “Chief Justice”, wherever it occurs, tomean the “Collegium” of the senior Judges.”

19. This Court[21] observed that the plenary powers of this Courtunder Article 142 of the Constitution are inherent in the Court and are“complementary” to those powers which are specifically conferred onthe Court by various statutes. The powers conferred on the Court byArticle 142 are curative in nature, they cannot be construed as powerswhich authorize the Court to ignore the substantive rights of litigant.This power cannot be used to “supplant” substantive law applicable tothe case or cause under consideration of the Court. Article 142, evenwith the width of its amplitude, cannot be used to build new edificewhere none existed earlier, by ignoring express statutory provisionsdealing with subject and thereby achieve something indirectly whichcannot be achieved directly. The Court held as under:

“19. …Article 142, even with the width of its amplitude, cannotbe used to build new edifice where none existed earlier, byignoring express statutory provisions dealing with subject andthereby achieve something indirectly which cannot be achieveddirectly.”

19 Arasmeta Captive Power Company Private Limited & Anr. v. Lafarge India PrivateLimited, (2013) 15 SCC 414 (Para 32)

20 Shanti Bhushan v. Supreme Court of India & Anr., (2018) 8 SCC 396

21 M.C. Mehta v. Kamal Nath & Ors., (2000) 6 SCC 213

A20. Thus, the Court will not direct to the State or Union to enactany particular law, or amend/ issue any notification for amendment ofany statutory Rule or even to direct an Act to be enforced, when thelegislature has conferred such power on the executive. The directionsof this Court in MBA-III were issued in the peculiar facts to make theTribunal functional at the earliest rather than mandating legislature toBamend the law in particular manner. The legislature has right toenact law, which may not be necessarily in terms of the directions of thisCourt. Such law when enacted by Parliament or the State Legislature,even if contrary to the directions or guidelines issued by the Court, cannotbe struck down for the said reason. The legislation can be struck downCif the basis of the provision interpreted by the Court is not altered or if itviolates the fundamental rights or the right to equality under Article 14 ofthe Constitution.21. The questions of law raised in MBA-III were in respect ofseparation of powers and independence of judiciary in the matter ofDconstitution of Search and Selection Committee; appointment of personswithout judicial experience as Judicial Members; failure to provide propertechnical specialized expertise; failure to provide for adequate tenure ofmembers; exclusion of advocates for being appointed as members oftribunals; continuing role of the parent department in Search and SelectionCommittee; the preliminary inquiry by the Central Government forEremoval of the members is invalid and the Executive’s continuingadministrative and financial control over the tribunals.

22. The directions of this Court which are at variance with theOrdinance are as follows:F“53. The upshot of the above discussion leads this court to issuethe following directions:

(i) xxxxxx

(iii) Rule 4(2) of the 2020 Rules shall be amended to provide thatthe Search-cum-Selection Committee shall recommend the nameGof one person for appointment to each post instead of panel oftwo or three persons for appointment to each post. Another namemay be recommended to be included in the waiting list.

(iv) The Chairpersons, Vice-Chairpersons and the members of theTribunal shall hold office for term of five years and shall beHeligible for reappointment. 7Rule 9(2) of the 2020 Rules shall be

amended to provide that the Vice-Chairman, Vice-Chairpersonand Vice President and other members shall hold office till theyattain the age of sixty-seven years.

(v) The Union of India shall make serious efforts to provide suitablehousing to the Chairman or Chairperson or President and othermembers of the Tribunals. If providing housing is not possible, theUnion of India shall pay the Chairman or Chairperson or Presidentand Vice-Chairman, Vice-Chairperson, Vice President of theTribunals an amount of Rs. 1,50,000/- per month as house rentallowance and Rs. 1,25,000/- per month for other members of theTribunals. This direction shall be effective from 01.01.2021.

(vi) xxx

xxx

(ix) The Union of India shall make appointments to Tribunals withinthree months from the date on which the Search-cum-SelectionCommittee completes the selection process and makes itsrecommendations.

(x) The 2020 Rules shall have prospective effect and will beapplicable from 12.02.2020, as per Rule 1(2) of the 2020 Rules.

(xi) Appointments made prior to the 2017 Rules are governed bythe parent Acts and Rules which established the concernedTribunals. In view of the interim orders passed by the Courtin Rojer Mathew (supra), appointments made during the pendencyof Rojer Mathew (supra) were also governed by the parent Actsand Rules. Any appointments that were made after the 2020 Rulescame into force i.e. on or after 12.02.2020 shall be governed bythe 2020 Rules subject to the modifications directed in the precedingparagraphs of this judgment.

(xii) xxx

xxx

(xiv) The terms and conditions relating to salary, benefits,allowances, house rent allowance etc. shall be in accordance withthe terms indicated in, and directed by this judgment.

(xv) The Chairpersons, Vice Chairpersons and members of theTribunals appointed prior to 12.02.2020 shall be governed by theparent statutes and Rules as per which they were appointed. The2020 Rules shall be applicable with the modifications directed inthe preceding paragraphs to those who were appointed after

A12.02.2020. While reserving the matter for judgment on09.10.2020, we extended the term of the Chairpersons, Vice-Chairpersons and members of the Tribunals till 31.12.2020. Inview of the final judgment on the 2020 Rules, the retirements ofthe Chairpersons, Vice-Chairpersons and the members of theTribunals shall be in accordance with the applicable Rules asBmentioned above.”

23. The arguments were concluded on 3[rd] June 2021 but beforewe could finalize our views, the Tribunal, Appellate Tribunal and otherAuthorities (Qualifications, Experience and other Conditions of Serviceof Members) (Amendment) Rules, 2021 stands notified on 30[th] JuneC2021. The Search and Selection Committee as ordered by this Court in

MBA-III, the Advocate being eligible for appointment in certain Tribunaland option to pay House Rent Allowance in terms of the directions ofthis Court in MBA-III stands incorporated in such Rules. The questionsraised now have to be examined in the light of amended Rules.

D24. The judgment authored by Justice L. Nageswara Rao hasheld as under:

“43. The permissibility of legislative override in this country shouldbe in accordance with the principles laid down by this Court in theaforementioned as well as other judgments, which have been culledEout as under:

a) The effect of the judgments of the Court can be nullified by alegislative act removing the basis of the judgment. Such law canbe retrospective. Retrospective amendment should be reasonableand not arbitrary and must not be violative of the fundamentalFrights guaranteed under the Constitution. (Lohia Machines Ltd.& Anr. v. Union of India & Ors. ((1985) 2 SCC 1987).

b) The test for determining the validity of validating legislation isthat the judgment pointing out the defect would not have beenpassed, if the altered position as sought to be brought in by theGvalidating statute existed before the Court at the time of renderingits judgment. In other words, the defect pointed out should havebeen cured such that the basis of the judgment pointing out thedefect is removed.

c) Nullification of mandamus by an enactment would beHimpermissible legislative exercise (See: S.R. Bhagwat & Ors. v.

State of Mysore, ((1995) 6 SCC 16). Even interim directions cannotbe reversed by legislative veto (See: Cauvery Water DisputesTribunal, 1993 Supp (1) SCC 96) and Medical Council of India v.State of Kerala & Ors., ((2019) 13 SCC 185).

d) Transgression of constitutional limitations and intrusion into thejudicial power by the legislature is violative of the principle ofseparation of powers, the rule of law and of Article 14 of theConstitution of India.”

25. I have my reservation with respect to the aforementionedconclusions (c) and (d). In Cauvery Water Disputes Tribunal, the Stateof Karnataka promulgated Karnataka Cauvery Basin IrrigationProtection Ordinance, 1991 on 25.7.1991. In pursuance of the orderpassed by this Court in writ petition, the Tribunal by way of an interimorder directed the State of Karnataka to release water from its reservoirsto ensure 205 TMC is available in Tamil Nadu’s Mettur reservoir in ayear from June to May vide its order dated 25.6.1991. It is thereafterthe Ordinance in dispute was promulgated. It is the said interim orderwhich was sought to be nullified by enactment of the Ordinance, latersubstituted by an Act by the State of Karnataka. This Court held asunder:“73. The Ordinance is unconstitutional because it affects thejurisdiction of the Tribunal appointed under the Central Act, viz.,the Inter-State Water Disputes Act which legislation has beenmade under Article 262 of the Constitution. As has been pointedout above, while analysing the provisions of the Ordinance, itsobvious purpose is to nullify the effect of the interim orderpassed by the Tribunal on June 25, 1991. The Ordinance makesno secret of the said fact and the written statement filed and thesubmissions made on behalf of the State of Karnataka show thatsince according to the State of Karnataka the Tribunal has nopower to pass any interim order or grant any interim relief asit has done by the order of June 25, 1991, the order is withoutjurisdiction and, therefore, void ab initio. This being so, it isnot decision, according to Karnataka, within the meaning ofSection 6 and not binding on it and in order to protect itself againstthe possible effects of the said order, the Ordinance has beenissued. The State of Karnataka has thus arrogated to itself thepower to decide unilaterally whether the Tribunal has jurisdiction

[2021] 5 S.C.R.

Ato pass the interim order or not and whether the order is bindingon it or not. Secondly, the State has also presumed that till finalorder is passed by the Tribunal, the State has the power toappropriate the waters of the river Cauvery to itself unmindful ofand unconcerned with the consequences of such action on thelower riparian States……….. To the extent that the OrdinanceBinterferes with the decision of this Court and of the Tribunalappointed under the Central legislation, it is clearly unconstitutionalbeing not only in direct conflict with the provisions of Article 262of the Constitution under which the said enactment is made butbeing also in conflict with the judicial power of the State.”C(Emphasis Supplied)26. The judgment of this Court in Medical Council of India wasagain to nullify the judgment of this Court where this Court had struckdown the admission of 180 students in Kannur Medical College andKaruna Medical College in the State of Kerala. This Court held as under:

D“23. What has been done by the impugned Ordinance by the StateGovernment is clearly entrenching upon the field of judicial reviewand it was obviously misadventure resorted to. In our consideredopinion, it was not at all permissible to the State Government topromulgate the Ordinance/legislate in the matter. Not only theEjudgment of the court is nullified and the arbitrariness committedin admissions was glaring, and the decision of the High Court ofKerala which was affirmed by this Court with respect toapplications to be entertained if they were online applications hasbeen undone. It was clearly an act of nullifying judgment andis violative of judicial powers which vested in the judiciary.FIt was not open for the State Government to nullify thejudgment/orders passed by the Kerala High Court or by thisCourt. It was not case of removal of defect in existing law.Various Constitution Bench decisions of this Court have settledthe principles of law governing the field. It passes comprehensionGhow the State Government has promulgated the Ordinance inquestion”.

(Emphasis Supplied)

27. In S.R. Bhagwat, the petitioners were senior in the finalseniority list but their juniors got promoted on the basis of higher rankingHin the provisional seniority list which was earlier operative. The writ

petitions were allowed wherein the petitioners were directed to beconsidered for promotion. In implementation of the said judgment, theState granted deemed dates of promotions but denied the consequentialmonetary benefits. The petitioners filed contempt petitions before theHigh Court. It was at that stage that an Ordinance was promulgatedwhereby payment of actual financial benefits was sought to be takenaway. The said judgment is clearly not applicable to the facts of presentcase as the defect was not even attempted to be cured. The legislativeaction was to deny financial benefits arising out of judgment, whichhad attained finality. In the present case, I am of the opinion that excepttwo aspects that are contained in Rules 4(2) and 9(2) of the 2020 Rules,rest of directions were dehors the legality or illegality of the Rules withan idea of making Tribunals being made functional at the earliest.

28. Therefore, three judgments referred hereinabove have to beread 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 directionsof this Court to enact law, it is binding on the legislature. The threejudgments arise out of facts, wherein, the defect was not even attemptedto be cured but simpliciter, the judgment was sought to be nullified.

29. In respect of conclusion (d), though transgression ofconstitutional limitations and intrusion into the judicial power by thelegislature is violative of the principle of separation of powers, the ruleof law and of Article 14 of the Constitution of India, but it is equally truethat judiciary in exercise of power of judicial review cannot directlegislature to frame any law in particular manner.

Legality and validity of first proviso to Section 184(1) of theOrdinance

30. The said proviso to Section 184(1) of the Ordinance reads asbelow:

“Provided that person who has not completed the age of fiftyyears shall not be eligible for appointment as Chairperson orMember”

31. I am unable to agree to the opinion that the first proviso toSection 184 prescribing minimum age of fifty years is an attempt tocircumvent the direction issued in MBA-III. The condition of eligibilityfor appointment as Judge of High Court was kept in view whileconsidering the eligibility of advocates as members of Tribunals.

AHowever, the Memorandum of Procedure for appointment as judges ofthe High Court finalized by this Court and forwarded to the CentralGovernment in March, 2017 was that person shall not be eligible to beconsidered for appointment as Judge of High Court against Bar quotaunless he has completed forty-five years of age on the date ofrecommendation by the High Court Collegium. Though, in terms of ArticleB217 of the Constitution, candidate becomes eligible for appointmentafter 10 years of practice as an Advocate. Thus, an Advocate would beeligible for appointment as judge of the High Court around the age of 35years. The Memorandum of Procedure adopted by the Collegium of thisCourt prescribed forty-five years of age as the minimum age. I find thatCeligibility to seek appointment is not solely dependent upon qualificationof candidate but experience and suitability, likely term which candidatemay have are necessary considerations. The relevant part from thememorandum of the collegium is reproduced as under:

“17. person shall not be eligible to be considered for appointmentDas Judge of High Court against Bar quota, unless he hascompleted 45 years of age on the date of recommendation by theHigh Court Collegium.”

32. In terms of the Constitution read with the Memorandum ofProcedure adopted by this Court, an advocate would have maximumEtenure of 17 years as Judge of the High Court, may be another threeyears as Judge of this Court. On the other hand, an advocate appointedas member of Tribunal can have tenure of 17 years, even if 50 is theminimum age for appointment. The tenure of such member is up to theage of 67 years with the possibility of being appointed as the Chairperson.This is not to compare the status of High Court Judge with that of aFmember of Tribunal. The members would be appointed on the basis ofrecommendation of the high-powered Search and Selection Committeehaving judicial dominance. If 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 SearchGand Selection Committee with judicial dominance. provision in thestatute cannot be found to be untenable merely for the reason that thereis possibility of not being reappointed.

33. The advocates were not eligible for appointment under 2020Rules. Therefore, there was no condition of age of eligibility of suchHcandidates. It may be noted that though this Court discussed the age of

the candidates eligible for appointment to be “around 45 years” in para44, but there was no particular direction qua age.

34. The discussions in the judgment are not to be considered asdirections. There is background in which the ultimate directions are issued.Since no directions were issued in respect of eligibility conditionsparticularly relating to age, thus, fixing of eligible age as fifty years cannotbe treated to be in contradiction to the directions issued in MBA-III.Even if it is contravening to any such direction, the legislature is withinits jurisdiction to determine the minimum eligibility age for the purpose ofappointment.

35. Mr. R. Gandhi, the President of Madras Bar Associationchallenged the provisions of The Companies Act, 1956 as amended byCentral Act 11 of 2003 when Part 1B and Part 1C were insertedconstituting National Company Law Tribunal and the Appellate Tribunalrespectively before the Madras High Court. The High Court allowedthe writ petition[22] on 30.3.2004. The High Court held that the power ofreappointment was read to be ‘renewal’, apart from rendering manyprovisions of the amending Act as illegal in as much as they were inbreach of basic constitutional scheme of separation of powers andindependence of the judicial function. The Madras High Court held asunder:

“74. Unless the term of office is fixed as at least five years witha provision for renewal, except in cases of incapacity, misconductand the like, and the period for which lien may be retained is fixedat not more than one year, the constitution of the Tribunal cannotbe regarded as satisfying the essential requirements of anindependent and impartial body exercising judicial functions ofthe State.

xxxx

123. In the light of foregoing discussions it is declared that untilthe provisions in parts 1B and 1C of the Companies Act introducedby the Companies (Amendment) Act, 2002, which have been foundto be defective in as much as they are in breach of the basicconstitutional scheme of separation of powers and independenceof the judicial function, are duly amended, by removing the defectsthat have been pointed out, it would be unconstitutional to constitute

Aa Tribunal and Appellate Tribunal to exercise the jurisdiction nowexercised by the High courts or the Company Law Board.”

36. In an appeal against the said order, this Court in MBA-I noticedthe contention of the Union as under:

“11. The Union Government has accepted the finding and agreedBto amend Sections 10-FE and 10-FT of the Act to provide for afive-year term for the Chairman/President/Members. However,the Government proposes to retain the provision for reappointmentinstead of “renewal”, as the reappointments would be consideredby Selection Committee which would be headed by the ChiefCJustice of India or his nominee. As the Government proposes tohave minimum eligibility of 50 years for first appointment as aMember of the Tribunal, Member will have to undergo theprocess of reappointment only once or twice.”

37. The finding of the High Court that the President or the Chairmanwas entitled to renewal of term was not accepted. This Court held asDunder:

“120 (ix). The term of office of three years shall be changed to aterm of seven or five years subject to eligibility for appointmentfor one more term. This is because considerable time is requiredto achieve expertise in the field concerned. term of three yearsEis very short and by the time the members achieve the requiredknowledge, expertise and efficiency, one term will be over. Furtherthe said term of three years with the retirement age of 65 years isperceived as having been tailor-made for persons who have retiredor shortly to retire and encourages these Tribunals to be treatedFas post-retirement havens. If these Tribunals are to functioneffectively and efficiently they should be able to attract youngermembers who will have reasonable period of service.”

38. Subsequently, the Companies Act, 2013 was enacted, repealingthe Companies Act, 1956. The said Act provided for establishment ofGNational Company Law Tribunal and National Company Law AppellateTribunal. The provisions of the new Companies Act, 2013 were upheldby this Court subject to certain modifications as provided in MBA-II.The provisions of the Act which were not challenged or interfered withare contained in Sections 413 and 414 of the Act. Sections 413 prescribesthat person who has not completed fifty years of age shall not beHeligible to be appointed as Member or Chairperson.

39. This Court in MBA-II held the provisions contained underSection 409(3)(a), (c) and Section 411(3) of the Companies Act, 2013 tobe invalid. The appointments of technical members as in the MadrasBar judgment rendered in the year 2010 were to be scrupulously followed.This Court held as under:

“28. Having regard to the aforesaid clear and categorical dicta in2010 judgment [(2010) 11 SCC 1], tinkering therewith wouldevidently have the potential of compromising with standards whichthe 2010 judgment [(2010) 11 SCC 1] sought to achieve, nay, sozealously sought to secure. Thus, we hold that Sections 409(3)(a)and (e) are invalid as these provisions suffer from same vice.Likewise, Section 411(3) as worded, providing for qualificationsof Technical Members, is also held to be invalid. For appointmentof Technical Members to NCLT, directions contained in sub-paras(ii), (iii), (iv), (v) of para 120 of the 2010 judgment [(2010) 11SCC 1] will have to be scrupulously followed and these correctionsare required to be made in Section 409(3) to set right the defectscontained therein. We order accordingly, while disposing of Issue2.”40. In MBA-II, the age for appointment of members of the NationalLaw Company Tribunal was fixed as fifty years. Same was not disputedby the present petitioner in the writ petition before the Madras HighCourt or before this Court. Therefore, the age of 50 years as the eligibilitycondition is not off the hat but is based upon previous legislation in respectof members of the National Company Law Tribunal. Thus, the fixationof fifty years of age as the eligibility condition cannot be said to bemanifestly arbitrary or violative of any of the Fundamental Rights of anyof the candidates which may render such condition of age as illegal. Theargument is based on apprehension that it would be difficult for anadvocate appointed after attaining the age of fifty years to resume legalpractice after completion of one term, in case he is not reappointed. Aperson who is competent and good in his work will not find any difficultyto resume his practice but what would happen to his professional careerif his term is not extended is calculated risk which candidate shalltake at the time of seeking appointment. Such apprehensions as to whatwill happen in future cannot be ground to strike down condition ofage in the statute. This Court is not possessed of the expertise to saythat it will be difficult for an advocate to resume practice if he is not

Areappointed. I am unable to agree that the statutory provisions can bestruck down on such grounds based on presumed apprehensions.

41. The apprehensions or misuse of statutory provision is not aground to declare the provisions of statute as void. five Judges Benchof this Court[23] held as under:B

“33. …This Court has held in numerous rulings, to which it isunnecessary to refer, that the possibility of the abuse of the powersunder the provisions contained in any statute is no ground fordeclaring the provision to be unreasonable or void. Commentingon passage in the judgment of the Court of Appeal of NorthernCIreland which stated:

“If such powers are capable of being exercised reasonably itis impossible to say that they may not also be exercisedunreasonably”

and treating this as ground for holding the statute invalid ViscountDSimonds observed in Belfast Corporation v. O.D. Commission[1960 AC 490 at pp. 520-521] :

“It appears to me that the short answer to this contention (andI hope its shortness will not be regarded as disrespect) is thatthe validity of measure is not to be determined by itsEapplication to particular cases.… If it is not so exercised (i.e.if the powers are abused) it is open to challenge and there isno need for express provision for its challenge in the statute.”

The possibility of abuse of statute otherwise valid does not impartto it any element of invalidity. The converse must also follow thatFa statute which is otherwise invalid as being unreasonable cannotbe saved by its being administered in reasonable manner. Theconstitutional validity of the statute would have to be determinedon the basis of its provisions and on the ambit of its operation asreasonably construed. If so judged it passes the test ofreasonableness, possibility of the powers conferred beingGimproperly used is no ground for pronouncing the law itself invalidand similarly if the law properly interpreted and tested in the lightof the requirements set out in Part III of the Constitution does not

23 Collector of Customs, Madras & Anr. v. Nathella Sampathu Chetty & Anr., AIR 1962HSC 316

pass the test it cannot be pronounced valid merely because it isadministered in manner which might not conflict with theconstitutional requirements.”

42. Similar view was reiterated by this Court in number ofjudgments[24]. In another judgment[25], it was held as under:

24. … It is also necessary to reiterate that mere possibility ofabuse of provision, does not, by itself, justify its invalidation. Thevalidity of provision must be tested with reference to its operationand efficiency in the generality of cases and not by the freaks orexceptions that its application might in some rare cases possiblyproduce. The affairs of government cannot be conducted onprinciples of distrust. If the selectors had acted mala fide orwith oblique motives, there are administrative law remedies tosecure reliefs against such abuse of powers. Abuse vitiates anypower.” (Emphasis supplied)

43. Therefore, I am of the opinion that in case of failing to securereappointment, the candidate will not be able to resume practice is basedupon apprehensions. Whether they are good or valid grounds to refusereappointment can be subject matter of judicial review although I am ofthe opinion that the decision of the high-power Search and SelectionCommittee not to re-appoint candidate may not warrant interferencein exercise of judicial review.

Legality and validity of the Second & Third proviso to Section184(1) of the Ordinance

44. The said proviso reads thus:

“Provided further that the allowances and benefits so payableshall be to the extent as are admissible to Central Governmentofficer holding the post carrying the same pay:

Provided also that where the Chairperson or Member takesa house on rent, he may be reimbursed house rent subject tosuch limits and conditions as may be provided by rules.”

24 Government of Andhra Pradesh & Anr. v. G. Jaya Prasad Rao & Ors., (2007) 11 SCC528; People’s Union for Civil Liberties & Anr. v. Union of India, (2004) 9 SCC 580;Charan Lal Sahu v. Union of India, (1990) 1 SCC 613

25 Mehmood Alam Tariq & Ors. v. State of Rajasthan & Ors., (1988) 3 SCC 241

A45. The second proviso is to the effect that allowances and benefitsshall be to the extent as are admissible to Central Government officerholding the post carrying the same pay. The third proviso to Section184(1) is that where Chairperson or Members take house on rent, hemay be reimbursed house rent subject to such limits and conditions asmay be prescribed. In terms of third proviso, the Tribunal, AppellateBTribunal and other Authorities (Qualifications, Experience and otherConditions of Service of Members) (Amendment) Rules, 2021 have beenpublished. As per the Rules now notified, the Chairman, Chairperson,President, Vice Chairman, Vice Chairperson or Vice President shall haveoption to avail of accommodation to be provided by the CentralCGovernment as per the rules for the time being in force or entitled tohouse rent allowance subject to limit of Rs. one lakh fifty thousandrupees per month and the Members shall have option to avail ofaccommodation to be provided by the Central Government as per therules for the time being in force or entitled to house rent allowancesubject to limit of Rs. one lakh twenty-five thousand rupees per monthDwith effect from the 1st January, 2021. Therefore, the directions issuedstands complied with.

46. As matter of fact, there is common grievance of themembers of the Bar and the litigating parties other than from Delhi thatthere is concentration of Tribunals in Delhi which deprives the advocatesEfrom other parts of the country to deal with the matters entrusted to theTribunals. It is also expensive for the litigants to engage professionalservices in Delhi, which is out of capacity for large section of thesociety. In fact, because of housing scarcity and expensive professionalservices, it will be open to the Government/legislature to shift the principalFbenches of the certain Tribunals outside Delhi so that concentration ofTribunals in Delhi is minimized which will in turn help the Bar to grow atdifferent places, ensuring affordable administration of justice andresolution of the challenge of scarcity of housing in Delhi.

Section 184(7)G

47. The direction of this Court in Para 53(ix) was that the Unionshall make appointments to Tribunals within three months whereas theOrdinance has used the expression that the Central Government shalltake decision on the recommendations of the Committee “preferablywithin three months”. Both the directions in sub-para (ix) and in sub-Hsection (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 conditionis mandatory or directory. Therefore, there is no reason to set aside theexpression ‘preferably’ used in sub-section (7) of Section 184. Suchdirections were issued in terms of Article 142 of the Constitution whichstop at the four walls of the Parliament. The language to be used fallswithin the legislative competence and do not violate any fundamentalright nor can be said to be manifestly arbitrary.

Whether the Ordinance nullifies the judgment of this Court inMBA-III without removing the defect in the 2020 Rules?

48. The Petitioner herein has relied upon certain judicialpronouncements to contend that the effect of the Ordinance is to nullifythe judgment of this Court in MBA-III without removing the defects inthe 2020 Rules. They are produced and analyzed hereinbelow.

49. In judgment[26] relied upon, the levy of the property tax wasfound to be not legal in view of the language of the Statute. The Statelegislature thus altered the basis of levy of property tax. Therefore, thesaid judgment is not appliable to the facts of the present case where thedirections were issued dehors the legality of the 2020 Rules.

50. The reliance on another judgment of this Court[27]is not tenablewherein settlement was arrived at regarding payment of bonus effectivefrom April 1, 1973 to March 31, 1977 with four different associations ofemployees. writ of Mandamus was issued by the Calcutta High Court.The Payment of Bonus (Amendment) Ordinance, 1975 was thereafterpromulgated in September, 1975. The Payment of Bonus Act was notapplicable to the Life Insurance Corporation by virtue of Section 32 ofthe said impugned Act. This Court found that the impugned Act did notset at naught the entire settlement relating to payment of annual cashbonus of Class III and Class IV employees and that too from April, 11975. Since the settlement had attained finality as the same was approvedby the Board of Directors as well as by the Central Government, andthat the Writ of Mandamus was issued by the Calcutta High Court topay annual cash bonus to the employees, it was held that the judgmentcan be remedied by way of an appeal or review, but it cannot bedisregarded or ignored and must be obeyed by Life Insurance Company.

26 Shri Prithvi Cotton Mills Ltd. & Anr. v. Broach Borough Municipality & Ors.,(1969) 2 SCC 283

27 Madan Mohan Pathak & Anr. v. Union of India & Ors., (1978) 2 SCC 50

AIn S.S. Bola & Ors. v. B.D. Sardana & Ors.[28], this Court explainedthe Judgment in Madan Mohan Pathak. It was found that in as muchas six Hon’ble Judges out of seven rested their decision on the groundthat the impugned Act violates Article 31(2) of the Constitution and didnot consider the enactment in question to be an act of usurpation ofjudicial power by the legislature. It was held as under:B

“189………The majority judgment came to hold that the impugnedAct is violative of Article 31 clause (2) as the effect of the Actwas to transfer ownership debts due owing to Class III and ClassIV employees in respect of annual cash bonus to the Life InsuranceCorporation and there has been no provision for payment of anyCcompensation for the compulsory acquisition of these debts. Itmay be stated that the majority judgment did not consider thequestion as to whether the legislatures by enacting the Act haveusurped the judicial power and have merely declared the judgmentof competent court of law to be invalid. Beg, CJ. in his concurringDjudgement in para 32 of the judgment, however, has observed thatthe real object of the Act was to set aside the result of themandamus issued by the Calcutta High Court, though, it does notmention as such, and therefore, the learned Judge held that Section3 of the Act would be invalid for trenching upon the judicial power.

E190. Three other learned Judges, namely, Y.V. Chandrachud, S.Murtaza Fazal Ali and P.N. Shinghal, JJ. agreed with theconclusion of Bhagwati, J. but preferred to rest their decision onthe sole ground that the impugned Act violates the provisions ofArticle 31(2) of the Constitution and in fact they considered itunnecessary to express any opinion on the effect of the judgmentFof the Calcutta High Court in Writ Petition No.371 of 1976. Thusout of seven learned Judges, six learned Judges rested theirdecision on the ground that the impugned Act violates Article 31(2)of the Constitution and did not consider the enactment in questionto be an act of usurpation of judicial power by the legislature.GThe observation of Beg, C.J., in para 32 does not appear to be inconsonance with the several authorities of this Court on the pointto be discussed hereafter…….”

51. In B.K. Pavitra v. Union of India[29], the judgment in MadanMohan Pathak has been considered. It was held that the said case didnot involve situation where law was held to be ultra vires and thebasis of the declaration of invalidity of the law was sought to be cured.It was observed as under:

“83.2. Indian Aluminium Co. [Indian Aluminium Co. v. Stateof Kerala, (1996) 7 SCC 637] , where it was held that : (SCC p.660, para 49)

“49. In Madan Mohan Pathak v. Union of India [MadanMohan Pathak v. Union of India, (1978) 2 SCC 50 : 1978SCC (L&S) 103] … From the observations made by Bhagwati,J. per majority, it is clear that this Court did not intend to laydown that Parliament, under no circumstance, has powerto amend the law removing the vice pointed out by the court.Equally, the observation of Chief Justice Beg is to be understoodin the context that as long as the effect of mandamus issuedby the court is not legally and constitutionally madeineffective, the State is bound to obey the directions. Thusunderstood, it is unexceptionable. But it does not mean that thelearned Chief Justice intended to lay down the law thatmandamus issued by court cannot at all be made ineffectiveby valid law made by the legislature, removing the defectpointed out by the court.”

(emphasis supplied)

84. Madan Mohan Pathak [Madan Mohan Pathak v. Unionof India, (1978) 2 SCC 50 : 1978 SCC (L&S) 103] involved asituation where parliamentary law was enacted to override amandamus which was issued by the High Court for the paymentof bonus under an industrial settlement. The case did not involvea situation where law was held to be ultra vires and the basis ofthe declaration of invalidity of the law was sought to be cured.”

52. Another judgment[30]which has been relied upon dealt with aninter-se water dispute between two states relating to the height ofMullaperiyar Dam. Kerala Irrigation and Water Conservation Act, 2003[31]

29 (2019) 16 SCC 129

30 State of Tamil Nadu v. State of Kerala, (2014) 12 SCC 696

31 For short, ‘2003 Act’

Awas enacted by Kerala legislature, which came into force on 18.09.2003.Such Act was neither referred to nor relied upon by the State of Keralaat the time of hearing by this Court on 27.2.2006. On 18.03.2006, in lessthan three weeks of the decision of this Court[32], the Kerala Statelegislature amended the 2003 Act by introducing Kerala Irrigation andWater Conservation (Amendment) Act, 2006[33], which was the subjectBmatter of judgment in question. The said Act was challenged by theState of Tamil Nadu in an original suit before this Court. An argumentwas raised that the impugned legislation amounts to usurpation of judicialpower inasmuch as Kerala State Legislature has arrogated to itself therole of judicial body and has itself determined the questions regardingCthe dam safety and raising the water level when such questions fallexclusively within the province of the judiciary and have already beendetermined by this Court in its judgment dated 27.02.2006. This Court inan exhaustive judgment held as under:

“126. The decision of this Court on 27.02.2006 in the MullaperiyarDEnvironmental Protection Forum case was the result of judicialinvestigation, founded upon facts ascertained in the course ofhearing. It was strictly judicial question. The claim of the Stateof Kerala was that water level cannot be raised from its presentlevel of 136 ft. On the other hand, Tamil Nadu sought directionfor raising the water level to 142 ft. and, after strengthening, to itsEfull level of 152 ft. The obstruction by Kerala to the water level inthe Mullaperiyar dam being raised to 142 ft. on the ground ofsafety was found untenable, and, in its judgment, this Court sopronounced.

F154. Where dispute between two States has already beenadjudicated upon by this Court, which it is empowered to dealwith, any unilateral law enacted by one of the parties that resultsin overturning the final judgment is bad not because it is affectedby the principles of res judicata but because it infringes the doctrineGof separation of powers and rule of law, as by such law, thelegislature has clearly usurped the judicial power.

xxxx

32 Mullaperiyar Environmental Protection Forum v. Union of India, (2006) 3 SCC 643H33 For short, ‘2006 (Amendment) Act’

164. In light of the above legal position, if the 2006 judgment isseen, it becomes apparent that after considering the contentionsof the parties and examining the reports of Expert Committee,this Court posed the issue for determination about the safety ofthe dam to increase the water level to 142 ft. and came to acategorical finding that the dam was safe for raising the waterlevel to 142 ft. and, accordingly, in the concluding paragraph theCourt disposed of the writ petition and the connected matters bypermitting the water level of Mullaperiyar dam being raised to142 ft. and also permitted further strengthening of the dam as perthe report of the Expert Committee appointed by the CWC. Thereview petition filed against the said decision was dismissed bythis Court on 27.7.2006. The 2006 judgment having become finaland binding, the issues decided in the said proceedings definitelyoperate as res judicata in the suit filed under Article 131 of theConstitution.”53. Ram Pravesh Singh is another case where the State lawwas under consideration. It was not case where the legislature hadintervened to enact law contrary to the directions given by the HighCourt. Similarly, Karnail Singh was case of interpretation of statuteand not dealing with enactment by the legislature or Parliamentconsequent to the directions issued by this Court. The law declared bythis Court is binding on all Courts within the territory of India underArticle 141 of the Constitution whereas Article 142 of the Constitutionempowers this Court to issue directions to do complete justice. Theinterpretation of law is binding under Article 141 of the Constitution evenif there is direction under Article 142 but such direction is not allpervasive and binding on the legislature. Such is the consistent line ofjudgments by this Court ending with three Judge Bench judgment inDr. Ashwani Kumar.

Proviso to Section 184 (11)

54. The inserted proviso to Section 184(11) by the Ordinance dealswith two situations. One is in respect of the candidates appointed from26.5.2017 till the notified date that is 4.4.2021 in terms of sub-Section(11) of Section 184. Second is in respect of the candidates who have notbeen appointed falling within proviso to sub-Section (1) of Section 184,which provides that person who has not completed the age of fiftyyears shall not be eligible for appointment as Chairperson or Member.

ABC

AThere is no doubt that this is prospective provision as no candidatewho has not completed 50 years of age is eligible to seek appointment.

55. I do not find any merit in the argument raised by Mr. KrishnanVenugopal that selected candidate has right to seek appointment andthat too within three months of the order of this Court. Firstly, selectedBcandidate has no right to seek appointment. Constitution Bench of thisCourt[34]had held that the successful candidates do not acquire anindefeasible right to be appointed which cannot be legitimately denied.This Court held as under:

“7. It is not correct to say that if number of vacancies are notifiedCfor appointment and adequate number of candidates are found fit,the successful candidates acquire an indefeasible right to beappointed which cannot be legitimately denied. Ordinarily thenotification merely amounts to an invitation to qualified candidatesto apply for recruitment and on their selection they do not acquireany right to the post. Unless the relevant recruitment rules soDindicate, the State is under no legal duty to fill up all or any of thevacancies. However, it does not mean that the State has the licenceof acting in an arbitrary manner. The decision not to fill up thevacancies has to be taken bona fide for appropriate reasons. Andif the vacancies or any of them are filled up, the State is bound toErespect the comparative merit of the candidates, as reflected atthe recruitment test, and no discrimination can be permitted. Thiscorrect position has been consistently followed by this Court, andwe do not find any discordant note in the decisions in ………”

56. The fact that the legislation has intervened to prescribe aFparticular age which is at variance with the condition in the advertisementis good reason not to appoint the candidates. The legality of Sections174, 175 and 184 of the Finance Act, 2017 has been upheld in the matterof Rojer Mathew. Therefore, after such an amendment, appointmentscan be made only in terms of the Rules famed under Section 184 of theFinance Act. Now, some of the Rules stand substituted by the Ordinance.GTherefore, candidates who have not been appointed will have to seekappointment only in terms of the substituted Section 184 of the FinanceAct. The candidates who were selected cannot seek appointment onthe basis of their old selection and being in merit.

H34 Shankarsan Dash v. Union of India, (1991) 3 SCC 47

57. Some of the Chairpersons and Members of the Tribunals wereappointed between 26.5.2017 to 4.4.2021 in terms of the interim orderspassed by this Court in Kudrat Sandhu. The argument raised is thatsuch interim orders have been nullified though such orders were issuedon the basis of concession of the learned Attorney General and thatsuch orders are couched in the form of mandate, therefore suchmandatory orders cannot be nullified.

58. The concession of the learned Attorney General at the timewhen interim orders were passed was in view of the prevalent situationto keep the Tribunals functional. The interim orders in Rojer Mathewhave merged with the final orders wherein again, this Court directed theappointments to the Tribunals and terms of conditions of appointmentshall be in terms of the respective statute before the enactment of theFinance Bill, 2017. Liberty was granted to the Union to seek modificationof this order. Therefore, the interim order which permitted theappointments now stands subsumed in the Ordinance which has definedthe tenure and the terms and conditions of appointment. The Ordinanceis in fact in terms of the liberty granted to Union to seek modification.Mere fact that an application for modification is pending will not bar thelegislature to enact statute by way of an Ordinance. The appointmentsmade after 26.5.2017 by virtue of Section 184(11) will be governed notby the parent statute but by the terms and conditions as enumerated inthe Ordinance. The consent of the learned Attorney General will not actas an estoppel against the statute i.e. the Ordinance.

59. The interim orders which have been set aside by this Courtsuch as in Cauvery Water Disputes Tribunal, or the Medical Councilof India were the cases where the State Legislature had nullified interimorders simpliciter without even attempting to cure the defects.

60. The judgment in Virender Singh Hooda is quite different.The appellants before this Court were successful in an earlier round oflitigation and were thus appointed. It was thereafter that the Act in questionwas enacted with retrospective effect. The appellants were falling inthe first category out of three category of candidates such as (i) thosewho had been appointed in implementation of decision in Hooda andSandeep Singh’s cases before passing of the impugned Act (ii) those,though not so appointed, who have judgments of High Court passed intheir favour relying upon Hooda and Sandeep Singh’s cases, and claim aright to appointment but would be deprived of it if the validity of the Act

Ais upheld and on that basis the judgments of the High Court upturned and(iii) those, who would be covered by law laid down in Hooda’s case oninterpretation and applicability of the aforenoted two circulars. This Courtheld as under:

“47. There is distinction between encroachment on the judicialBpower and nullification of the effect of judicial decision bychanging the law retrospectively. The former is outside thecompetence of the legislature but the latter is within its permissiblelimits {M/s Tirath Ram Rajindra Nath, Lucknow v. State of U.P.& Anr., [(1973) 3 SCC 585]}. The reason for this lies in the conceptof separation of powers adopted by our constitutional scheme.CThe adjudication of the rights of the parties according to law is ajudicial function. The legislature has to lay down the law prescribingnorms of conduct which will govern parties and transactions andto require the court to give effect to that law [I.N. Saksena’scase (supra)].

48. The legislature can change the basis on which decision isgiven by the Court and thus change the law in general, which willaffect class of persons and events at large. It cannot, however,set aside an individual decision inter parties and affect their rightsand liabilities alone. Such an act on the part of the legislatureEamounts to exercising the judicial power by the State and tofunction as an appellate court or tribunal, which is against theconcept of separation of powers. {Re : Cauvery Water DisputesTribunal [1993 Supp.(1) SCC 96(II)]}.

52. It is not possible to accept the contention that vested rightscannot be taken away by legislature by way of retrospectivelegislation. Taking away of such right would, however, beimpermissible if violative of Articles 14, 16 and any otherconstitutional provision. In State of Tamil Nadu v. Aroorran SugarsGLtd., [(1997) 1 SCC 326], this Court held that whenever anyamendment is brought in force retrospectively or any provision ofthe Act is deleted retrospectively, in this process rights of someare bound to be affected one way or the other. In every case, itcannot be urged that the exercise by the legislature whileintroducing new provision or deleting an existing provision with

retrospective effect per se shall be violative of Article 14 of theConstitution. If that stand is accepted, then the necessary corollaryshall be that legislature had no power to legislate retrospectively,because in that event vested right is affected.”

61. It is thereafter that this Court protected the appointment ofcandidates falling in the first category i.e., those who were appointedprior to the commencement of the Act in question. It was held as under:

“68. Despite the aforesaid conclusion, the Act [proviso to Section4(3)] to the extent it takes away the appointments already made,some of the petitioners had been appointed much beforeenforcement of the Act (ten in number as noticed hereinbefore)in implementation of this Court’s decision, would be unreasonable,harsh, arbitrary and violative of Article 14 of the Constitution.The law does not permit the legislature of take back what hasbeen granted in implementation of the court’s decision. Such acourse is impermissible”.

62. The candidates in question were appointed during the pendencyof lis. These appointments were not concluded appointments but weresubject to the provisions of the parent Act which has been amended bythe Finance Act, 2017. They cannot claim any right to continue on thepost till the age of retirement under the parent Act in terms of proviso tosub-section (11) of Section 184 of the Finance Act as substituted. Theprovisions of the parent Act cease to be in existence with the orderpassed in Rojer Mathew and subsequent legislative enactmentsintroduced by way of the Ordinance.

63. Thus, I find that the first, second and third proviso to Section184(1), the use of expression ‘preferably’ in Section 184(7) and theproviso to Section 184(11) are legal and valid as such provisions fallwithin the exclusive domain of the legislature. The legislature has notnullified the judgment of this Court on the above aspects as there wereno such corresponding provisions in the 2020 Rules, which were part ofjudicial review process.

64. It is open to the legislature to fix tenure of the Chairpersonand the members other than four years as the tenure of four years wasfound to be not tenable in MBA-III. Section 184(7) which contemplatesthat Select Committee should recommend panel of two names iscontrary to the directions of this Court in MBA-III. Thus, Section

A184(11)(i)(ii) and Section 184(7) is declared to be void as the Ordinancehas reiterated the provisions which were in 2020 Rules. The challengeto other provisions is not legally sustainable. The writ petition is thusdismissed except to the extent mentioned above.

Bibhuti Bhushan Bose

Writ Petiton disposed of.