In W.P.No.13429 of 2018-MAD HC- Member of Indian Legal Service ineligible for appointment as Judicial Member after Madras HC declares Sec.32(2) of Prohibition of Benami Property Transactions Act unconstitutional Justices Munishwar Nath Bhandari & D.Bharatha Chakravarthy[01-04-2022]

Read Order: V. Vasasthkumar v. Union of India 

LE Correspondent

New Delhi, April 6, 2022: The Madras High Court has struck down section 32(2)(a) of the Prohibition of Benami Property Transactions Act, 1988 which postulated that a Member of the Indian Legal Service, who held the post of the Additional Secretary or equivalent post in that service, is eligible for appointment as a Judicial Member in the Appellate Tribunal. 

The Division Bench of Justice Munishwar Nath Bhandari and Justice D.Bharatha Chakravarthy was of the opinion that the extent of judicial review that can be exercised in a given case is quite limited. Though a constitutional court can declare a provision to be unconstitutional, it should not give any direction to the Legislature to make an amendment in a particular way.

In the present case, a writ petition was instituted to challenge Sections 9 and 32 (2) (a) of Benami Property Transaction Act, 1988, as amended by the Benami Transactions Prohibition Act, 2016. Being apprised of the fact that Section 9 of the Benami Property Transaction Act, 1988 was deleted, hence challenging the constitutional validity of Section 32 (2) (a) remained in the picture. 

The main argument of the petitioner was that the qualification for appointment as a Judicial Member of the Appellate Tribunal given under Section 32 is now hit by the judgment of the Apex Court in Union of India v. R.Gandhi, President, Madras Bar Association.

The premise on which this challenge was based was such that for the post of Judicial Member of the Appellate Tribunal, under the Act of 1988, a Member of Indian Legal Service who has held the post of Additional Secretary or equivalent post has been made eligible, while as per the judgment in R.Gandhi’s Case (Supra), the post of Judicial Member is to be manned only by a person who served as a Judge or a member of the Bar and not by a member of Indian Legal Service.

The petitioner prayed to declare Section 32(2)(a) to be unconstitutional and to suitably amend the provision so as to make a person who had served as a Judge or the member of the Bar to be eligible to be appointed as Judicial Member of the Appellate Tribunal.

The opposite party vehemently contested the same and stated that mere quoting of judgments of the Apex Court and High Courts will not result in declaration of a provision as unconstitutional. 

Referring to the provision under challenge, it was mentioned by the Bench that in view of this section, other than the member of the Indian Legal Service, none else other than given under sub-section (3) to Section 32 of the Act of 1988 would be eligible to be appointed as Judicial Member of the Tribunal.

To determine the ambit of Judicial review the Court emphasized on the aspect of Separation of Powers by referring to the judgment of the Top Court in Indira Nehru Gandhi v. Raj Narain, wherein it was held that our Constitution does not explicitly acknowledge the concept of Separation of Power, however it does take into consideration that every organ of the government is  indirectly interdependent on one another.

The Division Bench mentioned that the independence of the judicial system remains a vital issue and for that emphasis was made that there would be separation of powers, so that independence of judiciary is maintained. It is after referring to the three organs which have been given in the constitution to provide basic structure comprising the Executive, Legislature and the Judiciary. It is through each of these organs that the sovereign will of the people has to operate and manifest itself and not through only one of them.

Noting that the constitution of the Selection Committee and for that even the qualification needs incorporation of such a provision which may keep the judicial independence, the Bench said, “Qua the Technical Member of the Tribunal, appropriate qualification can be provided by the Legislature, but when the qualification for the post of Judicial Member is to be provided, it should be keeping in mind the independence of the judicial system and, accordingly, the Apex Court while delivering the judgment in the case of Union of India v. R.Gandhi, President, Madras Bar Association, supra, held that only Judges and advocates can be considered for appointment as Judicial Member of the Tribunal.“

Discussing this judgment at length, the Court observed that the Apex Court while upholding the creation of the National Company Law Tribunal as well as the Appellate Tribunal held Chapters 1B and 1C of the Companies Act as unconstitutional. 

In R.Gandhi’s Case (Supra), a specific direction was given that administrative support for all the Tribunals should be from the Ministry of Law and Justice as the principle laid down in this case has application to all the Tribunals and was not rendered on the fact situation alone. It was highlighted by the Bench that the principal issue decided qua the basic structure of constitution ensures the separation of powers and independence of the Judiciary from the clutches of the Executive.

Affirming that judicial restraint is being hailed as a virtue, the Court also stated that in a case where a direction has been given by the Apex Court to have the judicial independence, it is required to be followed by the High Courts as well as the Executive.
Thus holding Section 32(2)(a) to be unconstitutional, the High Court directed that provisions be framed keeping in mind the directions of the Apex Court in R.Gandhi’s Case (Supra) and bring in the amended provision immediately.