Tribunals: India
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Filling the posts of judicial members in tribunals with bureaucrats
From the archives of The Times of India 2007, 2009
Slams packing of tribunals with babus
New Delhi: The SC on Tuesday paved the way for the functioning of the National Company Law Tribunal and its appellate tribunal, but slammed the practice of filling the posts of judicial members in tribunals with bureaucrats.
The upholding of the validity of amendments to the Companies Act for the birth of NCLT and NCLAT would now result in the transfer to these quasi-judicial bodies of all company-related cases pending before the Company Law Board, Board for Industrial and Financial Reconstruction and high courts.
A five-judge constitution Bench comprising Chief Justice K G Balakrishnan and Justices R V Raveendran, D K Jain, P Sathasivam and J M Panchal, however, were quite critical of the practice of filling the tribunals with bureaucrats saying adjudication of these matters needed judicial bent of mind.
Justice Raveendran, writing the judgment for the Bench, said that bureaucrats at best could be made technical members of the tribunals and all appointments to the post of presiding officers had to be made in consultation with a committee headed by CJI or his nominee and comprising a judge of the SC or the HC, secretaries in the ministries of company affairs and law and justice. TNN
The Government of India's powers/ role
Executive's role in appointment of tribunal heads eliminated by SC
The Times of India Jan 05 2016
Dhananjay Mahapatra
CJ Most Appropriate Person To Name Heads: SC
After quashing the National Judicial Appointments Commission (NJAC) to keep intact its dominance in appointment of judges, the Supreme Court on Monday took another step to eliminate the executive's role in the statuteenvisaged consultation process for appointment of heads of judicial tribunals.
The matter, before a bench headed by Chief Justice T S Thakur, concerned appointing the president and judicial member of the Gujarat State Cooperative Tribunal. The earlier practice was that the chief justice of the high court would send a panel of names of retired judicial officers and the state government would pick two from that list and send it back for the CJ's approval.
But, in a recent judgment, the HC said this practice did not reflect the primacy that the CJ deserved in choosing the president and judicial member of a quasi-judicial tribunal. It ordered that henceforth the CJ would send two names for the two posts and the government must appoint them.It also said that if the government finds something amiss in their names, it could approach the CJ for a fresh name.
Attorney general Mukul Rohatgi, who had recently ended up on the losing side in the pitched legal battle to save NJAC in its constitutional validity test, appeared for the state and argued that the judiciary could not alter the consultation process for appointment of heads of judicial tribunals by citing the approach adopted by the apex court for selection of judges to the SC and HCs on the ground of maintaining the independence of judiciary . “Can the HC say that the CJ will send only one name and that is binding on the government? This is trenching upon the power of the state and the CJ. Where is the question of the CJ giving only one name,“ he argued.
Thakur said for the primacy of the judiciary , the CJ was supremely suitable to determine the suitability of a person to head a tribunal with judicial powers. “Why should the government insist on a panel? This is a judicial forum. If you have problem with a name you can always get back to the CJ for a fresh name. If the CJ is suggesting a name, the government must appoint him,“ he said.
The SC entertained the appeal by the state but asked it to make the tribunal functional by appointing the president and judicial member on the basis of names suggested by the CJ of the HC. “We will decide later whether the process was appropriate,“ it said.
The high court had said: “The Supreme Court has strongly deprecated the practice or rather the method of sending panel names asking the state government to select one from them. This is exactly what has been done in the present case.“ “In such circumstances, it would obviously become primacy of the government and would not remain the primacy of the CJ of the HC, which is the requirement under the law. It is the CJ who would be the most appropriate person to judge the suitability of a retired judge for the purpose of appointing him as the president or judicial member of the tribunal.“
SC strikes down Centre’s rules to regulate appointment in tribunals
Nov 14, 2019: The Times of India
The Supreme Court struck down a rule framed by the Centre to regulate appointment of members to tribunals and appellate tribunals, saying the government conferring on itself a dominating and overwhelming voice in appointments is a “negation” of judicial independence.
The court said the searchcum-selection committees, as envisaged in the rules, are against the constitutional scheme as they dilute the involvement of the judiciary in the process of appointment of members of tribunals. This amounts to encroachment by the executive on the judiciary.
The court directed the government to carry out a fresh exercise in accordance with the principles enumerated earlier by the apex court. “The Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 suffer from various infirmities,” it said.
Conduct judicial impact study of all tribunals: SC
A five-judge Constitution bench of Chief Justice Ranjan Gogoi and Justices N V Ramana, D Y Chandrachud, Deepak Gupta and Sanjiv Khanna held that “these Rules formulated by the Central Government under Section 184 of the Finance Act, 2017, being contrary to the parent enactment and the principles envisaged in the Constitution as interpreted by this court, are hereby struck down in entirety”.
The SC asked the Centre to re-formulate the rules according to principles delineated by the apex court and said the new rules shall ensure non-discriminatory and uniform conditions of service, including assured tenure, keeping in mind that the chairperson and members appointed after retirement and those inducted from the Bar or from other specialised professions/services constitute two separate and distinct homogeneous classes.
The bench also said the Centre should conduct a judicial impact assessment of all the tribunals referable to the Finance Act, 2017, so as to analyse ramifications of changes in their framework and asked the ministry of law and justice to carry out such an exercise and submit findings before the competent legislative authority. It also allowed the Centre to carry out an exercise for amalgamation of existing tribunals and thereafter constitute adequate number of benches commensurate with the existing and anticipated volume of work.
The bench noted that the Centre had conferred upon itself a “dominating” voice in deciding appointments as “search-cum-selection committee for all 17 tribunals specified in the schedule is constituted either entirely from personnel within or nominated by the central government or comprises a majority of personnel from the government”. Justice Chandrachud and Gupta wrote separate but concurrent judgments and agreed with the opinion of the CJI.
The court also recommended setting up of an independent statutory body “National Tribunals Commission” to oversee the selection process of members, fixing criteria for appointment, salary, allowances and for removal of chairpersons and members of tribunals.
The government conferring on itself a dominating and overwhelming voice in appointments (of tribunal members) is a negation of judicial independence
– Supreme Court
