Judicial independence diluted: Madras Bar Assn challenges Modi govt rules for tribunal posts

New Delhi, August 25: The Madras Bar Association has filed a petition in the Supreme Court alleging that the Narendra Modi government’s new rules for appointing members to 19 statutory tribunals do not follow the norms laid down by the top court in November last year. The top court is expected to hear the petition on September 7.

The apex court had asked the central government to maintain judicial dominance over the appointment process.

Challenging the Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020, the petitioner has claimed that the appointment rules are in contravention to the principle of power separation and threaten to dilute the judiciary’s independence — both being part of the basic structure of the Constitution, The Print reported.

The new rules, issued on 12 February this year, will have a prejudicial effect on “effective and efficient administration of justice”, the petitioner stated. The rules do not subscribe to judicial views on appointments to tribunals, underlined in various judgments delivered since 2010, the latest being in 2019.

The petitioner also claimed that the rules, in their present form, will allow executive interference in the functioning of the tribunals.

The Constitution allows establishment of tribunals with an intention to reduce pressure and burden on high courts and lower courts. Administrative tribunals have both judicial and administrative features.

According to existing rules, either a former Supreme Court judge or the chief justice of a high court heads a tribunal, which also comprises judicial and technical members. While judicial members are chosen from the legal profession, technical members are retired civil servants.

The top court had, on 13 November 2019, struck down the rules framed in 2017 that laid down the eligibility criteria, process of selection, resignation and removal, salary, tenure and other service conditions for tribunal members.

These rules were notified following The Finance Act, 2017, that made significant changes to the structure of various specialised tribunals and their jurisdiction, besides modifying laws relating to taxation and other fiscal aspects.

Petitions were filed before the top court against these rules and provisions of the Finance Act, which according to the petitioners, was passed improperly as a Money Bill.

A five-judge bench had then (2019) declared the rules unconstitutional, while referring the question regarding the validity of the Finance Act to a larger bench.

The court had quashed the rules mainly for not conforming with the principle of judicial dominance in appointments. One of its directions required the government to frame new rules in accordance with the top court’s guidelines in the 2019 judgment.

It had said that appointment of members to tribunals should be in a similar manner to the appointment of high court judges.

However, according to the Madras Bar Association, the new rules have the same defects as the old ones, and fail to prevent executive interference in the administration of tribunals.