Thread by @barandbench

CHALLENGE TO TRIBUNAL RULES 2020:

Supreme Court begins hearing the petition filed by Madras Bar Association (MBA) challenging the 2020 Rules.

Senior Advocate Arvind Datar for MBA resumes his arguments.

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Datar reads out the excerpts from the Supreme Court's 2019 judgment where the 2017 Rules were strick down and the SC had directed for the new set of Rules to be framed that would be in line with the SC's guidelines laid down in its precedents.

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Datar points out that the interim relief granted said that appointments to Tribunals in accordance with the parent Act.

Datar: Centre was given the liberty to form new rules in line with the previous judgments or go back to the parent Act.

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Justice Rao: Was there any interim order regarding appointments to be made during the pendency of that matter?

~ Many lawyers on screen nod to indicate yes ~

Justice Rao: Okay I see many lawyers nodding. So there was an interim order.

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Datar: One thing unique about India is our SC has permitted judicial powers to be exercised by the Tribunals.

My argument in relation to National taxation tribunal was that core judicial power cannot be taken away from the Courts system.

Justice Nariman struck down NTT.

Datar: my humble submission is today for better or worse, we have accepted the fact that judicial functions can be exercised by Tribunals. But my prayer is that Centre must then ensure that these Tribunals then are as independent as possible

Datar: Some guidelines must be laid down to ensure that there is independence of these Tribunals that have now the power to exercise judicial functions.

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Datar: SC has repeatedly said that Tribunals should not become havens for retired Judges... The idea that SC has repeatedly said that take young members should be considered.

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Datar concludes his arguments, requests Court to also consider applications for extension of tenure of some members about to demit office.

JUST IN: Supreme Court orders for an extension of tenure of Chairman of IPAB, Justice Manmohan Singh, for a period of three months.

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Datar in his parting submissions requests Court to open up the opportunity for advocates which will also enable lady members of the Bar to be appointed in Tribunals and will help in improving representation aspect.

Datar concludes his arguments.

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Senior Counsel Aryama Sundaram begins his submissions.

His submissions will touch upon
- Opportunity for lawyers to be appointed in Tribunals
- Restrospective vs prospective applicability of the Tribunal Rules

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Sundaram: For the past 35 years lawyers have been eligible... If you want to make a departure from that, there must be some good reason. What is most telling is that even the 2017 Rules which were struck down did not disentitle lawyers.

Sundaram: The exclusion of lawyers has no nexus or connection with what is the purpose of the Tribunals.

To eliminate lawyers in a blanket manner is totally discriminatory especially when these Tribunals exercise the functions of what civil courts would have

Sundaram: The DRAT, NCLAT etc have taken away the jurisdiction from the HC and vested them in the Tribunals.

Your Lordships would look at these being equal to the normal Court system.

Sundaram: Through these enactments, control over judicial bodies has been given to the executive and this would impinge on the doctrine of judicial independence.

Sundaram: Do not just see this from the lens of Article 14. This violates the basic structure of our Constitution.

Justice Bhat: You have an analogy here, but it is an extreme one.

Sundaram: Your Lordships would look at it through the lens and when testing a legislation then look at it through a magnifying glass with regard to the independence of judiciary.

Justice Rao: We have a number of judgements here including Rojer Mathew where this aspect ha ls been considered.

(Sundaram is now taking the Court through a status report filed by Centre on vacancies in CAT)

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(Sundaram now argues on the prospective nature of the Rules of 2020)

Sundaram: The Rules are certainly not retrospective.

Rule 3 does not make it Restrospective either and talks about qualifications and is a rule of eligibility.

Sundaram: The Rules have to be prospective in nature.

They cannot take away the opportunities which had already been given to the candidates by retrospectively making them ineligible.

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Sundaram: If Your Lordships read it as retrospective, it would not hold up to the test of law.

(Sundaram now cites precedents to buttress his point in favour prospective effect of the Rules)

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Sundaram: Therefore, I submit that If your Lordships are to uphold the Rules, they cannot have retrospective effect and cannot make candidates ineligible who were earlier qualified.

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Sundaram reads excerpts from the Madras Bar Association judgement of 2014 on tbe issue of qualification of candidates and for lawyers to be eligible

Sundaram: When the Constitution itself does not make a distinction between a lawyer or a judge being appointed to the superior judiciary then an enactment cannot bring in such a distinction for a lower level of courts/bodies.

Sundaram summarises:

- SC should view the enactment with the lens that it would use for examining any legislation that makes judicial inroads

- Rules are on the face of them prospective.

- Exclusion of Lawyers is arbitrary.

(Sundaram concludes his arguments)

Senior Counsel Siddharth Luthra now making submissions on behalf of a a candidate who had applied for being appointed in the CESAT under 2017 Rules which came to be struck down in 2019.

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Justice Rao: We were discussing this earlier... There was interim order that any appointments that were made after Rojer Mathew judgment were to be regulated by the parent Act.

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Luthra: They are treating my appointment as fresh appointment and this is what I'm agitating against also.

Justice Rao: Your entitlement b to pe sion may not be related.

Luthra: In terms of pension they are treating me as a fresh appointee and that is the problem

Luthra stresses that the Rules cannot be applied retrospectively.

(Luthra cites SC's precedents to support his case that the Rules in place at the time of the issuance of advertisement for vacancy should be applicable)

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Luthra: This is important because despite Your Lordships' judgement, the administration is functioning with impunity.

(Luthra concludes his arguments)

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Senior Counsel Rakesh Khanna begins making his submissions.

Khanna is arguing on the aspect of qualification for members to be appointed to the Tribunals.

Khanna is reading from the SC's prebious judgment in the Madras Bar Association.

Bench rises for lunch.

Hearing to continue at 2 PM.

Hearing resumes.

Senior Advocate Rakesh Khanna continues with his submissions.

Khanna: Removing all the Advocates form the zone of consideration for appointment, in my submission, is not correct.

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Justice Rao: What is your response on the requirement of 25 years experience for appointment to ITAT?

Khanna: When you're replacing the jurisdiction of a Court and vesting it in a Tribunal, you cannot prescribe a qualification that is different from Constitutional provisions.

Khanna concludes.

Senior Counsel Mukul Rohatgi begins his submissions on behalf of three judicial members of CESTAT.

Rohatgi: Under the Rules of 1987, members of ITAT and CESTAT go up to 62 years.

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Rohatgi: All other Tribunals have a tenure and a cap where retired judges come. But for us it is 62 years.

But now Centre is saying the have framed 2020 Rules and they go back to appointments made in 2018 and therefore affecting the tenure.

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Rohatgi: There is an error coming because for all other Tribunals there is five years tenure but for ITAT and CESTAT it is five years or 62 years of age. As far as we (his clients) are concerned, it has to be 62.

Rohatgi: If a lawyer or a District Judge joins the Tribunal at 50 and after five years he is told that your tenure is over, he will lose out on everything. This will lead to absurdity.

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Rohatgi: Even the interim relief which directed for all apointments to go back to parent Acts also reiterates my case.

(Rohatgi now cites the example of appointment of Justice Manjula Chellur as the Chairman of the Appellate Tribunal for Electricity)

Rohatgi: I think they have something against the lawyers. What is the point of saying that a lawyer with 10 years experience can be appointed a Judge of the High Court but cannot be appointed to these Tribunals.

Ultimately this is how the Bar grows, but lawyers are excluded.

Rohatgi: Today Your Lordships have extended the tenure of Justice Manmohan Singh... He's one of the most renowned in the arena of IP.

He has disposed of so many cases.

But he was not sure if his tenure is getting over.

Rohtagi: Justice Cheema (NCLAT) the other day said that "I will give you a date if I have time"

This is how Tribunals are functioning.

Rohtagi: If Tribunalisation has to happen and jurisdiction is taken from Courts and vested in Tribunals then it should be done gracefully.

What's the point of Madras Bar Association judgements 1, 2 and 3 saying judicial member is a must and after five years they are told to go.

Rohatgi concludes.

Senior Advocate AS Chandhiok making a case of members of the NCLAT who are due to retire in the next thirty days.

Justice Rao indicates that the judgement on this case can be expected in two weeks so matter can be dealt with thereafter.

Senior Advocate CS Vaidyanathan made brief submissions on behalf of an applicant on the aspect of tenure of members being four years.

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Senior Advocate PS Narasimha is now addressing the Court, at the outset says he supports the submissions made before him..

Narasimha: 2020 Rules under no circumstances can be retrospective. They have to be prospective.

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(Narasimha is citing judgments and precedents to support his argument against retrospective effect of the 2020 Rules)

Narasimha: There are some core aspects... How can tenure be left to the lower administration to decide.

Sr. Advocate MS Ganesh making submissions on behalf of his client who had attempted to be appointed in the Railways Claims Tribunal.

Ganesh: According to Constitution if a person is qualified to be appointed to HC and to exclude such person from Tribunal is strange.

Ganesh: Can you justify the ineligibility of a candidate who satisfies the qualifications for being appointed as judge of HC?

There is open defiance by the bureaucracy of the decision of this Court

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Ganesh concludes.

Senior Advocate Gautam Misra argues in a transfer petition.

Misra is referring to the SC judgment in the RK Jain case of 1994 which appreciates the "invaluable and vital role" of the Bar in being capable of discharging judicial services.

Misra: RK Jain judgment was considered and relied on in the Rojer Mathew judgment.

Point is that executive would be bound by RK Jain judgment.

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Misra: If all these are considered, then there js no way Advocates can be excluded.

By bringing in the Rules through an executive action they have tried to take away the effect of legislative provisions which make lawyers eligible.

Misra concludes.

Senior Advocate S Guru Krishnakumar for intervenors argues that if the Court upholds the Rules, then okay but should the Rules be struck down then the matter considering IPAB should be considered separately.

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Advocate Rajiv Manglik now making submissions for an applicant.

Manglik: The executive is taking over the appointments at quasi Judicial bodies.

As regards AFT and it's appellate tribunal, sections 3(a) and (b) of the Act provided for eligibility. Now (c) is added.

Manglik: AFT has most of the litigation against secretary of Ministry of Defence.

There was a matter in Punjab & Haryana HC seeking to bring AFT's functioning under Ministry of Law.

Manglik: Ministry of Law had filed an affidavit saying AFT was not permitted to be brought under any other Ministry.

The SLP against the P&H HC is pending adjudication before the Supreme Court currently.

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Advocate Sanjeev Bhandari makes brief submissions.

Argues that there have been instances when tenure of members had been cut short by Courts when need arose.

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Senior Advocate V Chitambaresh arguing now.

Chitambaresh argues that the interim order which ordered for apointments to go back to parent Act was modified later to say that the appointments after 2017 Rules were struck down to be governed by the advertisment issued.

Senior Counsel C Nageswar Rao argues on behalf of applicants in relation to CESTAT.

His sole point is that the new Rules should be made applicable to his client also.

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Petitioners conclude their arguments.

Court to hear Attorney General on next Wednesday, September 23.

Hearing concludes for today.

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Hearings on Tribunal Appointments and challenge to Tribunal Rules 2020: LIVE UPDATES from Supreme Court

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