Government locks horns with Supreme Court on tribunal appointments | India News – Times of India

NEW DELHI- Asserting the supremacy of popular will, the Centre on Thursday cautioned the Supreme Court against striking down the policy decision fixing eligibility, selection process and tenure for tribunal chairpersons and members, since enacted as Tribunal Reforms Act, by invoking ‘breach of judicial independence’.
In a hard-hitting affidavit criticising the SC’s impermissible forays into policy domain by obstinately insisting on implementation of its judgment that struck down the ordinance, the Centre said it was distressing that the apex court feels that ‘judicial independence’ would be in peril if Parliament approved the government’s policy decision to reduce tenure of tribunal chairpersons and members to four years from the SC-suggested five years.
The Centre said, ‘By applying one’s mind to either the provisions relating to tenure of four years, or minimum age of 50 years, or to the panel of two names to be recommended, or for the government to take a decision on the recommendations ‘preferably’ within three months, one is confused if one were told that all this relates to independence of the judiciary.’
‘It would be mere semantics if, in fact, it has no relationship to independence of the members or the chairperson of the tribunals. Independence would be affected, only if the tenure; or terms and conditions, are such that the executive is able to control the will of the member or the chairperson of the tribunal. With judicial dominance in the search-cum-selection committee (SCSC) which recommends the continuance or re-appointment of members, whether for four years or five years, these fears are unfounded,’ the Centre said.
‘Neither the executive nor Parliament can be deprived of their right to make laws declaring policy, as otherwise the constitutional requirement of separation of powers will stand violated by the judicial pronouncements. This is the very reason why Parliament has no choice other than to assert its constitutional right under the rule of law as otherwise even the dividing line between governance and judicial adjudication or decision-making would stand obliterated. This is the distressing position in which Parliament would be driven to yield the constitutional right to make laws for the country through deciding upon the policy, based on the will of the 534 elected representatives of the people which, in fact, reflects the will of the people.
The SC had struck down the Tribunal Reforms Ordinance in July last year by two to one majority but within a month, the government pushed a BIll in Parliament to enact a law on the lines of the Ordinance, thus annulling the SC verdict to set the stage for a judiciary-executive showdown.
The enactment of the Tribunal Reforms Act immediately after the striking down of the ordinance of a similar nature, was severely criticised by a bench headed by CJI N V Ramana, who had last said, ‘What we saw recently is — an ordinance, which was struck down by court, was made into an Act. I have not come across any debate which has taken place in Parliament. We have absolutely no problem that the legislature has the right and prerogative to make any law. We do not interfere in their rights. But, at least we should know what are the reasons for the government to introduce this Bill again after striking down the ordinance. Nothing is there.’
Amid the regular pulling up of the government for delaying appointments to vacancy-plagued tribunals much to the consternation of attorney general K K Venugopal, who bore the brunt of the SC’s ire, the Centre filed the affidavit mincing no words in reminding the apex court about the contours of the separation of power between the judiciary, executive and legislature.
‘The Government of India is distressed by the fact that both laws and statutory rules made by Parliament and the executive in areas of pure policy are being held to be void by invoking independence of the judiciary, when such laws and rules do not violate fundamental rights or any provision of the Constitution and is wholly within competency. The government equally believes that the court striking down these pure matters of policy violates the separation of powers by the judicial wing of the State,’ the Centre said.
The government questioned the wisdom of the SC in sticking to 10 years’ experience eligibility criteria for advocates for appointment as tribunal members and said why this criteria is not applicable to other technical experts’ appointment as members. It also asked whether the SC collegium had ever appointed an advocate with 10 years’ experience as a judge of the HCs.
‘Fixing a minimum age of 50 years for appointment would be applicable across the board for all members, including advocates, as well as for the chairpersons. This prescription of 50 years was contrary to the direction that advocates need to have only 10 years’ experience for being eligible for appointment because the Constitution provides for advocates with 10 years’ experience being appointed as high court judges. The fact is that no single appointment of an advocate with 10 years of practice has ever been made to a HC in the last 75 years,’ it said.
The Centre said it would demonstrate that the concept of independence of the judiciary has no relevance to the four issues of policy set out earlier in relation to appointments to tribunals. ‘These are the areas where both Parliament and the executive stand perplexed as well settled principles are not being followed since it is only if the policy decision taken by the Parliament violates any fundamental right or any provision of law, would the court set aside such decision,’ the Centre said.