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Tribunal appointments: Central government defers from SC

Invoking “breach of judicial independence”, the Centre warned the Supreme Court on Thursday against putting down the policy choice fixing eligibility, selection course, and tenure for tribunal chairpersons and members, which has been enacted as the Tribunal Reforms Act.

The news: The Centre said it was distressing that the apex court feels that “judicial independence” could be jeopardised if Parliament accepted the federal government’s policy choice to reduce tribunal chairpersons and members’ tenure to four years from the SC-urged five years.

  • The Centre informed that “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 mentioned.
  • Neither the executive nor the legislature can be stripped of their ability to make policy-making laws, because judicial pronouncements would otherwise violate the constitutional requirement of separation of powers.
  • This is why Parliament has no choice but to assert its constitutional right to govern under the rule of law, because otherwise the line between governance and judicial adjudication or decision-making would be obliterated.
  • This is the perplexing situation in which Parliament would be forced to relinquish its constitutional right to make laws for the country by deciding on policy based on the will of the 534 elected representatives of the people, which actually reflects the people’s will.
  • The authorities questioned the SC’s judgement in sticking to 10-year experience eligibility standards for advocates seeking appointment as tribunal members, and explained why these standards would not apply to other technical consultants seeking appointment as members. It also inquired as to whether the SC collegium had ever appointed an advocate with ten years of experience as an HC choose.
  • “Setting a minimum age for appointment of 50 years for all members, including advocates and chairpersons, would be applicable across the board.”
  • “This 50-year requirement ran counter to the direction that advocates only need 10 years of experience to be eligible for appointment to the Supreme Court, as the Constitution allows advocates with 10 years of experience to be appointed as high court judges. In the last 75 years, there has never been a single appointment of an advocate with 10 years of experience to an HC,” it stated.
  • “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.
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