Form of words:
New Delhi: For the third time in less than three weeks, the Supreme Court on Wednesday slammed the government for the appointment of members to statutory tribunals.
A special bench headed by Chief Justice NV Ramana and Justices DY Chandrachud and LN Rao termed the situation emerging due to large number of vacancies in the tribunals as “pathetic”.
The backlash came even as the government claimed it had Notified 84 appointments in three different tribunals — National Company Law Tribunal (NCLT), Armed Forces Tribunal (AFT) and Income Tax Appellate Tribunal (ITAT) — days ahead of Wednesday’s hearing on September 12.
The Center was also pulled up for these appointments, with the court objecting to the “cherry picking” by the government. The bench asked the government why it chose to appoint only a few from the list finalized by the Search-cum-Selection Committee (SCSC), which, as per the legal requirement, is headed by a sitting SC judge. .
The SCSC also has two senior civil servants – the Law Secretary and the Secretary of the parent ministry of the Tribunal – as its members.
Attorney General KK Venugopal replied that the government has the right to elect. He cited the Tribunal Reforms Act, 2021, an existing law on the functioning of tribunals, to assert the Centre’s dominance over such appointments.
This prompted the bench to remark, “What is the sanctity of the selection process, if the government has the last word? What is the objective?”
The judges called the entire selection process a “waste of time”, adding “a lot of effort” to finalize the selections made on the basis of inputs provided by the government.
He reminded Venugopal that the court had in November 2020 directed the government to set up an independent body, national tribunal commission, but no response yet.
“We are very unhappy with the way things are going and decisions are being taken. There is a problem and everyone is aware of it. We gave the solution, which are appointments and it is for you to implement it. We will be happy if you can do something, without inviting orders from this court,” the CJI told Venugopal.
Venugopal was given two weeks’ time after he assured the bench that the names which had made it to the final list of selections released by the SCSC but were left out would be reconsidered. He also agreed to come back with a response by then regarding appointments to other tribunals.
The court was hearing petitions highlighting the increasing vacancies in tribunals, which have made these quasi-judicial bodies almost inactive. Some petitions have also been filed seeking contempt action against the government for introducing a law to govern the selection and service conditions of the tribunal’s members in contravention of the orders of the apex court.
Till the next hearing, the court said that as far as the contempt petitions are concerned, it will hold its hands. However, it told the AG that it expects some positive developments before the next hearing.
To be sure, there is also the Tribunal Reforms Act under challenge And the top court has already issued notice on a petition challenging it. On Wednesday, the court also issued notice on a separate petition filed by the Madras Bar Association, on the challenge of which the court struck down an ordinance in July this year. Significantly, the Act has been introduced with the same provisions which were declared illegal in the July judgment.
Read also: Decision to give reservation in promotion to SC and ST is not going to be reopened: SC
AG relies on ‘killed provisions’ to justify ‘cherry picking’
At the beginning of the hearing, Venugopal informed the bench about 84 appointments. He said that the government has acted on all the recommendations. But the judges found fault in the same and each objected to the selected appointments.
CJI Raman was the first to speak regarding the appointments made for NCLT as he was the head of SCSC for the same. He said that the SCSC had approved 11 names for judicial and 10 for technical. The waiting list was also prepared to fill the vacancies that may occur in future.
However, defying service law jurisprudence, he said, the government had selected only three names from the judicial list and four from the technical, while five appointed were from the waiting list.
“We don’t know what type of appointment it is. This service is against the law. How can you get on the waiting list without finishing the final list?” asked the CJI
A similar exercise was followed for ITAT appointments as well, he said. To this, senior advocate Arvind Duttar, counsel for the petitioner Madras Bar Association, claimed that the government had appointed only 13 out of the 40 names recommended by the SCSC.
Venugopal defended the government’s move by citing a provision under the new Act. But Justice Chandrachud immediately reminded him that he was relying on a provision that the Supreme Court held unconstitutional in its July judgment.
When Justice Rao emphasized that the government could not pick up people from the list prepared for the purposes of subsequent vacancies, the AG said that the government was within its rights to do so.
The CJI replied, “We are a democratic country, but we also believe in the rule of law.”
Justice Rao spoke about his experience as head of SCSC for TDSAT and informed the AG that more than a year ago, he had recommended names for the tribunal along with two senior civil servants. This was done under the then existing law, but no action was taken on the recommendation.
When Venugopal said that one of the two candidates suggested had been absorbed elsewhere, Justice Rao remarked, “If the government takes that much time, the candidates will clearly join elsewhere.”
‘wastage of time’
On delay, the CJI told the AG that one of the judicial members appointed to the NCLT was recommended two years ago when he was 62 years old. Now, the CJI said, he is 64 years old and will have only one year’s tenure as a judicial member in the NCLT.
“As part of SCSC for NCLT, I interviewed 534 odd candidates for Judicial post and 400 odd candidates for Technical. Out of this, we selected 11 for judicial and 10 for technical. For this we traveled across the country. Despite all this, I have agreed to conduct online interviews for two days for more selections even during Covid. But it seems like it is a waste of time,” the CJI said.
Even Justice Chandrachud pointed out that as the SCSC chief of the National Consumer Disputes Redressal Commission (NCDRC), he had suggested some names. But the final list notified by the government was struck off and no reason was given for excluding others.
Justice Rao further observed that as the chairman of the SCSC he has refused to convene a meeting to recommend the chairman of the TDSAT unless the earlier recommendations are approved.
On the notification of the Central Government allowing transfer of jurisdiction of Debt Recovery Tribunal, the bench expressed surprise. It asked how it is possible for someone in Jabalpur to appear before the DRT bench in Lucknow.
The court also issued notice on a petition questioning this notification and advised the government to allow the existing judicial member of NCLT or ITAT at Jabalpur to hear the DRT cases there.
“The plaintiffs are in trouble. Once a notice is issued under SARFAESI, the next step is possession. If that happens then they (the plaintiffs) will have no recourse.
(Edited by Amit Upadhyay)
Read also: Both Hindu and Muslim accused in Delhi riots case, court ordered two separate trials
subscribe our channel youtube And Wire
Why is the news media in crisis and how can you fix it?
India needs independent, unbiased, non-hyphenated and questionable journalism even more as it is facing many crises.
But the news media itself is in trouble. There have been brutal layoffs and pay-cuts. The best of journalism are shrinking, yielding to raw prime-time spectacle.
ThePrint has the best young journalists, columnists and editors to work for it. Smart and thinking people like you will have to pay a price to maintain this quality of journalism. Whether you live in India or abroad, you can Here.