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15 Sep, 47 tweets, 18 min read
Supreme Court Bench headed by Justice L. Nageswara will shortly hear the a batch of pleas concerning appointments to Tribunals, along with the challenge to the Tribunal Rules, 2020.

#Tribunals #SupremeCourtOfIndia
Sr. Adv. Arvind Datar commences the submissions. He states that they have filed the writ petition challenging the 2020 Rules.

#Tribunals #SupremeCourtOfIndia
Justice Rao asks Attorney-General KK Venugopal (who is in self-isolation after his colleague was found COVID-19 positive) whether he is well.

AG: Yes, yes. I’m fine.

#Tribunals #SupremeCourtOfIndia
Justice Rao: We are not able to find your notes.

Datar: We filed it yesterday. I can refer to the WP.

Justice Rao: Okay, we’ll do that. Is this Mohit P. Ram ?

Datar: No, that’s for the IPAB.
Justice Rao asks Datar if other miscellaneous matters can be cleared up before the instant matter is taken up.

Bench asks the Counsels to wait for an hour before the matter is resumed. It will be taken up at the end of the Board.
The Court takes up the batch of pleas. The Bench asks if the plea challenging the 2020 Rules be taken up first or applications for filling up of vacancies in Tribunals be taken up first.

#Tribunal #SupremeCourtOfIndia
Justice Rao: The decision on your plea may lead to answering the questions raised in the Applications.

Datar, appearing on behalf of Madras Bar Association, concurs and submits that the Applicability of the 2020 Rules will be discussed during the proceeding.
The Bench decides to hear the Madras Bar Association first, before taking up the Applications.

Sr. Adv. Arvind Datar commences the same.
Datar: Amongst the various principles laid, the case of Sampat Kumar is referred to. It also says that members of Indian judiciary cannot qualify for legal officers.

#SupremeCourtOfIndia #Tribunals
Datar: Selection Committee was struck down in the 2010 judgement. Then in 2017 Finance Bill did not have any provisions for tribunals. But, when it was passed, there was a complete chapter on Tribunals.
Datar: This was an unfortunate development as the entire functioning of tribunals was taken away from the Acts and was given to the Executive. Now, this was taken up in Rojer Mathew.
Datar: Supreme Court upheld Section 184. They concluded that the 2017 Rules are unconstitutional and the new Rules must be constituted in conformity with our observations here and must be placed before us.
Datar: All the defects in the Rules which were held to be unconstitutional have been reiterated in these 2020 Rules. That’s why I said that this matter won’t take a lot of time because this was decided by a Constitution Bench.
Datar: In tribunal after tribunal, the members of Indian Legal Service pick up a judicial member as per the new Rules. But, a person who may have nothing to do with banking, can become the Chairman of DRAT !

#SupremeCourtOfIndia #TribunalRules2020
Justice Bhat asks if the member of the ILS is of the level of a Joint Secretary.

Datar answers in affirmative.

#SupremeCourtOfIndia #TribunalRules2020
Justice Rao: Joint Secretary ?

Datar: No, no. In the Company Law Tribunal, the Company Judge would hear the matter. So, the question was where was the person as per the hierarchy if equal to an HC judge. So, we found in the pay scale that it was equal to Addl. Secy or Secy.
Datar points out to a judgment which refers to the qualifications of an individual to be appointed to the Company Law Tribunal.

Further, the qualifications of a technical member are also enumerated.

#SupremeCourtOfIndia #TribunalRules2020
Datar now lists the qualifications for an individual to be appointed as a judicial member of a tribunal.

#SupremeCourtOfIndia #TribunalRules2020
Matter will resume post lunch at 2 PM.

#SupremeCourtOfIndia #TribunalRules2020
Matter has resumed.

Sr. Adv. Arvind Datar continues his submissions.

#TribunalRules2020 #SupremeCourtOfIndia
Datar: We are not only talking about the independence of the judiciary, but the independence of the quasi-judicial authorities as well.

#TribunalRules2020 #SupremeCourtOfIndia
Datar now refers to the qualifications of a judicial/technical members of the CAT.

He submits that the columns fall foul of the 2010 judgment as well as Rojer Mathew as there is no judicial dominance. Therefore, Para 4 of the Rules must be struck off.
Datar: If Para 4 is struck down (regarding Selection Committee), then the entire Rules needs to be declared to be unconstitutional.

#TribunalRules2020 #SupremeCourtOfIndia
Datar now refers to the 2015 Madras Bar Association judgement which had paved the way for establishment of the NCLT.

#TribunalRules2020 #SupremeCourtOfIndia
Datar: The 2015 judgement had said that 2010 judgment of Union of India v. R. Gandhi, Madras Bar Association had guidelines which had to be scrupulously followed.

#TribunalRules2020 #SupremeCourtOfIndia
Datar adds that even in the case of DRT, the person can be automatically appointed as the Presiding Officer.

#TribunalRules2020 #SupremeCourtOfIndia
Justice Bhat: Does DRT have to be of a judicial input or a lawyer ?

Datar: A person qualified to be a district judge can be a part of it. Now they’re saying that they have to be a district judge.

#TribunalRules2020 #SupremeCourtOfIndia
Justice Rao: Is the WP filed before the Madras HC only for the DRT ?

Justice Bhat asks about the qualifications for DRT appointment.

#TribunalRules2020 #SupremeCourtOfIndia
Justice Bhat: This tribunal has been there for 27 years, yes ? In fact, when this tribunal came up and took away the power of the High Courts, if I remember, the Delhi Bar Association had challenged it.
Datar submits that there is no rationale for excluding Advocates if quasi-judicial authorities must decide the interpretation of the Act.

#SupremeCourtOfIndia #TribunalRules2020
Datar submits that if there is a lawyer of 15 years standing, why should he not be considered ?

“What is the rationale for excluding lawyers? If I can be a member of the ITAT, why can’t I be a part of GST?”

#SupremeCourtOfIndia #TribunalRules2020
Datar: This is not judicial deference to the policy, it’s deference to the rationale behind that policy.

#SupremeCourtOfIndia #TribunalRules2020
Datar: We have to look at the goal for such tribunals. It was to adjudicate issues of a specialised nature in a quicker manner.

#SupremeCourtOfIndia #TribunalRules2020
Datar: I submit that if some Tribunals do not allow a lawyer of long standing to be appointed and others do, then it should be struck down as manifestly arbitrary. This is a dangerous trend.

#SupremeCourtOfIndia #TribunalRules2020
Datar provides a list of judgements in a chronological manner. From Chandra Kumar, RK Jain, first Madras Bar Association judgement and then the second one.

“What is this new allergy to advocates?”
Datar: I'm told that when it comes to NCDRC, a civil servant can be appointed. This is the condition of our Consumer forums. Isn’t this an anomaly ? This needs to be rectified urgently.

#SupremeCourtOfIndia #TribunalRules2020
Datar submits that the Union of India will have to explain the restriction of 25 years of experience for lawyers & CAs to be appointed in ITAT.

Datar states that 5 years of experience leads to talent not being attracted when it comes to appointments.

#SupremeCourtOfIndia
The Bench converses amongst itself regarding the constitution of the Selection Committee under the 2017 Tribunal Rules which had been struck down subsequently.

Datar states that it’s being revived through the 2020 Rules.

#SupremeCourtOfIndia #TribunalRules2020
Attorney-General KK Venugopal points at Rule 7 of the 2017 Rules on the definition of “authority”. He also refers to Rule 8(2) of the 2017 Rules.

Justice Rao: Our doubt is that Rule 8(1) says "authority", but 8(2) says "committee".
Datar now explains to the Bench about the process revolving around the Search-cum-Selection Committee and how the procedure must be governed as per the principles of natural justice.

Justice Bhat asks if a sitting HC judge/district judge can sit and if it’s compatible.
Datar says that it is completely incompatible.

Justice Bhat: What does the Central Government mean ?

Datar: 23 Tribunals come under Finance Ministry. IPAB comes under Science and Technology.
Datar continues reading the recommendations of Justice Goel for the functioning of the tribunals and how they do not form a part of the administration.

“In our case, in every appointment, the Secretary of the department sits for it”.
Datar says that the reports given to the Madras HC also stipulated that tribunals must “appear to be independent” to the public.

#SupremeCourtOfIndia #TribunalRules2020
Datar now refers to Section 7 of the National Tax Tribunal Act. This Act was declared as unconstitutional by a 5-Judge Constitution Bench.

#SupremeCourtOfIndia #TribunalRules2020
Datar: Let me summarise my submissions. My first prayer is that the 2020 Rules should be struck down. Alternatively, they cannot have retrospective effect and must be prospective.

#SupremeCourtOfIndia #TribunalRules2020
Datar informs the Bench that a roadmap must be laid down to ensure the independence of Tribunals.

He seeks for permission to continue his submissions tomorrow.
Hearing concludes.

Matter will now be taken up tomorrow.

#SupremeCourtOfIndia #TribunalRules2020

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