Only retired judges or lawyers can be judicial members of tribunals: Madras HC

CHENNAI, (PTI): In a significant ruling, the Madras High Court has held that only retired judges or members of the Bar can be appointed as judicial members of the various Tribunals established in the country.

The first bench of Chief Justice M N Bhandari and Justice D Bharatha Chakravarthy gave the ruling, while allowing a public interest writ petition from V Vasanthakumar, recently.

It directed the Union government to frame the provision keeping in mind the directions of the Apex Court in the case of Union of India vs Gandhi case and amend the provision, immediately.

The petitioner, appearing in person, sought to declare Sec. 32(2)(a) of the Prohibition of Benami Property Transactions Act, 1988 (Act 45 of 1988 as amended by the Benami Transactions (Prohibition) Amendment Act, 2016) as unconstitutional as it ran counter to the doctrine of Separation of Powers, which was the basic structure of the Constitution.

According to the petitioner, this section was now hit by the judgment of the Supreme Court in the case of Union of India vs R Gandhi, president of the Madras Bar Association case (2010). It was precisely for the reason that for the post of judicial member of the Appellate Tribunal, under the Act of 1988, a member of the Indian Legal Service, who had held the post of additional secretary or equivalent post has been made eligible, while as per the judgment of the Apex Court, the post should 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.

In view of the above, the provision of Sec. 32(2)(a) of the Act of 1988 was hit by the said judgment and, thus challenge to it has been made, petitioner contended and prayed the Centre to suitably amend the provision so as to make a person who had served as a judge or an advocate eligible to be appointed as judicial member of the Appellate Tribunal.

Contrarily, Additional Solicitor General R Sankaranarayaranan submitted that the provision under challenge did not offend any constitutional provision and that the government was empowered to legislate on the subject matter.

The challenge to the provision of the 1988 Act has been made without raising the issue of the nature required for such a challenge.

A mere reference of the judgment of the High Court and the Supreme Court for that purpose would not be sufficient to hold a provision to be unconstitutional, he argued.

Allowing the petition, the bench said that the matter was examined by a division bench of this court in the Shamnad Basheer vs Union of India and others case. Considering the issue that the proceedings before the Tribunal would be judicial in nature, the necessity for appointment of a member from the judiciary or the bar was realized. It was for this reason that prior to the constitution of the Tribunal, the adjudication of the issue was done by the courts. Therefore, with the constitution of the tribunals, they would be discharging the work earlier discharged by the courts and adopting the `Westminister’ policy which prescribes the qualification akin to that of the judicial officer who has been dealing with such matters prior to the constitution of the tribunal. The necessity and importance of a judicial member and that too, a person who served as a judge or a member of the Bar was felt and accordingly, the division bench of this Court had held certain provisions of the Trademarks Act, 1999 and the Patents Act, 1970 to be unconstitutional, the bench pointed out.

Moreover, the Supreme Court, while upholding the creation of the National Company Law Tribunal as well as the Appellate Tribunal, had held Chapters 1B and 1C of the Companies Act as unconstitutional. The principle laid down in the case of Union of India vs R Gandhi, has application to all the Tribunals and was not rendered on that factual situation alone.

It is for that reason a specific direction was given that administrative support for all the Tribunals should be from the Ministry of Law and Justice. 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.

”It is true 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.

The judicial restraint is, therefore, being hailed as a virtue. However, in a case where a direction has been given by the Apex Court to have judicial independence, it is required to be followed by the High Courts as well as the Executive,” the bench observed and held Sec. 32(2)(a) of the 1988 Act as unconstitutional. (PTI)