The doctrine of separation of powers finds place in the basic structure of the Constitution of India, 1950 (‘The Constitution’) even though it is not explicitly mentioned in the Constitution.  As per the doctrine, the three crucial powers of sovereign i.e. the rule-making, execution and adjudication of laws, shall be kept distinct in three different bodies to prevent tyranny and misuse of power. However, if one of these three pillars tries to encroach into the domain of the other pillar or disrespects the function performed by the other pillar, it leads to the accumulation of power with one pillar. Consequently, it disequilibrates the entire balance of powers and gives rise to capricious and tyrannical states.

Recently, the Indian Parliament has passed ‘The Tribunals Reforms Act, 2021’ (The Act). It aims to abolish nine tribunals and further, vests various wide powers regarding appointments, tenure, salaries etc. of the members of tribunals with the Central Government.  In this article, we argue that with the enactment of this Act, there has been unjustifiable transgression into the domain of the judiciary by the legislature and the executive.

Legislature versus Judiciary

The Act was introduced in the lower house of the Parliament only a few days after the Supreme Court, in the Madras Bar Association (2021), struck down certain provisions of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, a predecessor to the Act with similar provisions. The present Act has been passed by the legislature as an attempt to reverse the judicial pronouncement by re-enacting the provisions which were struck down by the Supreme Court. To circumvent the restrictions imposed by the Madras Bar Association (2021) case, the legislature added a non-obstante clause under Section 3(1) of the Act, with respect to the condition of service of members of tribunals. It states:

“Notwithstanding anything contained in any judgment, order or decree of any court, or in any law for the time being in force”.

By a single stroke, the Act has nullified the ruling in the Madras Bar Association case. Thereby, divesting the judiciary of its innate power to keep a check on the power of the legislature and diluting the doctrine of separation of powers.

A similar situation has come before the constitutional bench of the Supreme Court in State of Kerala v State of Tamil Nadu. In this case, the Kerala legislature attempted to nullify the Supreme Court judgement which had fixed the level of water at 142 feet in the Mullaperiyar dam. However, the Kerala legislature reduced it to 136 feet. The court invalidated the legislation for being violative of the doctrine of separation of powers and intervening with the judicial process. The court has lucidly stated that the legislature cannot declare a decision of court void or no effect. The legislature, however, can pass the same legislation by rectifying the defect pointed out by the court. The doctrine of separation of powers is an entrenched principle of the Constitution and any legislation which voids the decision of the court would amount to the breach of the doctrine.

The test for determining the validity of legislation that overrides a judicial pronouncement was laid down in Lohia Machines v Union of India. For the validating legislation to be valid, it should remove the basis of the judgment i.e. the defect on which the judgment is based shall be cured with the passing of the Act.  In the Madras Bar Association (2021) case, the Supreme Court has pointed out the defects in the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021. However, the legislature has chosen to ignore them and re-enacted the legislation. Such an act constitutes an arbitrary exercise of power which undermines the separation of powers amongst three pillars.

Executive versus Judiciary

Article 50 of the Constitution provides for the separation of judiciary from executive power. Further, in Rojer Mathew v South Indian Bank Ltd, the Supreme Court held that the above principle is not confined merely to traditional courts, but it also includes Tribunals. This is because they are merely an alternative to courts and perform the same judicial functions. The present Act undermines this principle in many ways and thus, results in encroachment of executive in the judicial domain.

Section 3(3) of the Act provides for the composition of Search-cum-selection Committee which consists of:

1. A Chairperson, with a casting vote, shall either be the Chief Justice of India or his nominee.
2. Two members who are Secretaries to the Central Government
3. One member could be an outgoing Chairperson of the Tribunal, retired Chief Justice of High Court, retired Supreme Court Judge or a nominee appointed by Chief Justice of Supreme Court, depending on the conditions specified.
4. The Secretary of the parent or Sponsoring Department as Member Secretary with no vote.

Such composition is in consonance with the judicial guidelines in Madras Bar Association (2021), and hence maintains judicial dominance in appointments matter. However, Section 3(8) of the Act may render this feature of judicial dominance otiose. It states –

 “No appointment shall be invalid merely by reason of any vacancy or absence of a Member in the Search-cum-Selection Committee”.

It flows from this subsection that the appointments may proceed even in case of the total absence of members from the judiciary. By way of this provision, the executive may exercise primacy over the judiciary in the Committee concerned with judicial appointments. Moreover, the provisions dealing with tenure and age restrictions of members could be viewed as another form of executive control in tribunal appointments.

Further, as opposed to prior judicial rulings, Section 3(7) states that the Search-cum-selection committee shall recommend a panel of two names for each position and the subsequent selection will be at the discretion of the Central Government. Executive interference is very much intelligible through this sub-section. As a result of which it has been directed by the Supreme Court at various instances that the committee shall recommend only one name for each position. While doing so, the court noted that “executive influence should be avoided in matters of appointments to tribunals”. However, due to the operation of the non-obstante clause, the government has chosen to ignore any such directions.

The executive branch has further secured flexibility in the appointment process by qualifying the time limit for such appointments with the term ‘preferably’ under Section 3(7) of the Act.

Conclusion

Recently, Mr. Jairam Ramesh, a member of parliament, had approached the Supreme Court with a petition challenging the Act. On 15^th September, the Supreme Court has asked the government to file counter-affidavits within a week. However, this would be the fourth time in four years that the Supreme Court of India would be adjudicating on the same provisions as held invalid in previous judgments. With repeated litigation and legislative overriding, there is unjustifiable wastage of resources and time of the courts and the litigants. Further, with the pending litigation, the appointment process is stalled, and consequently, no fresh appointments have been made in any tribunal since 2017. At present, around 240 vacancies in 15 major tribunals are pending approval by the Central Government. The Supreme Court has reprimanded the Central Government for delaying the process of appointments and accused them of “cherry-picking” the candidates from the wait-list without exhausting the recommended list.

With the recent petition, the ball is, now, in the court of the judiciary. The court can restore the imbalance in the separation of powers created by the legislature by following the proposition laid down in the State of Kerala v State of Tamil Nadu.

Kirti Meena and Sandli Pawar are 3rd-year students at the National Law School of India University, Bangalore.

Suggested citation: Kirti Meena and Sandli Pawar, The Tribunals Reforms Act: A Challenge to the Separation of Powers, JURIST – Student Commentary, September 23, 2021, https://www.jurist.org/commentary/2021/09/meena-pawar-tribunals-reforms-act/.

This article was prepared for publication by Giri Aravind, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org