Thread by @barandbench

#SupremeCourt bench led by Justice L Nageswara Rao to resume hearing a plea by Madras Bar Association challenging Sections 12 & 13 of the #Tribunal Reforms (Rationalisation and Conditions of Service) #Ordinance, 2021 (Ordinance) & Sections 184 and 186(2) of the Finance Act, 2017

Attorney General for India, KK Venugopal will pick up from where he left yesterday. AG had argued how the impugned laws were a result of the collective decision-making process of the Central government & why it does not warrant any executive interference
#supremecourt
#tribunal

A detailed account of yesterday's hearing:

#SupremeCourt #TribunalReforms

barandbench.com/news/litigatio…

Hearing commences

#SupremeCourt #tribunalreforms

AG: One is regarding TDSAT Chairperson Shiva Kirti Singh. Supreme Court order in January says he was to continue for 3 months till a new appointment is made. But since appointment is not made yet, Centre has written to CJI Ramana that search and selection committee be constituted

Justice Rao: He is the only member and the only tribunal. We will request CJI NV Ramana to constitute the committee at the earliest. Please let it continue

AG: Please direct so

Justice Rao: we have applications from lawyers practicing in TDSAT. The letter of May 31, 2021 by Ministry of Communications to Director of TDSAT is under challenge.

#supremecourt #tdsat

Justice Rao: The letter directs that the chairman of the tribunal to demit his office on 20.4.2021. Tribunal ordinance of 2021 has been cited saying that certain amendments have been made to Finance Act. 2017. in accordance with ordiance tenure cannot continue beyond 4 years

Justice Rao: Series of orders were passed Mr Singh to continue as chairman as TDSAT as he is the only member and no other member of the tribunal. As selection process for appointment for chairman has not yet been initiated, in interest of justice, we passed last order of Jan'21

Justice Rao: AG submits that CJI Ramana has been requested to constitute the search and selection committee and appoint chairman TDSAT. We have no doubt that selection process will be expedited

BREAKING: Justice Rao: Meanwhile in view of the extraordinary situation and letter dated May 31, 2021, we are of the view that Justice Shiva Kirti Singh will be continuing as chairman till fresh appointment is made. We request CJI to expedite the process of appointment

AG Venugopal resumes submissions on the primary issue of challenge by Madras Bar Association:
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AG: The issue here is four years or five years. question is suppose your judgment was not there, would it violate Article 14 of the Constitution or threaten the independence of judiciary. Answer is no, 4 or 5 years is subject to reappointment and till age of 67 or 70

AG: Please see Section 413 of the Companies Act which sets a 50 year age limit. (now reads Justice Sanjiv Khanna's judgment in Ashwani Kumar vs union of India)
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Attorney General's audio breaks

Justice Rao: We are badly missing physical court. We are not going back now but really waiting for it.

#courtroomexchange
#SupremeCourt #Virtualhearing

Justice Rao: Here what is being discussed is will orders passed by this court survive after a law has been passed?

#TribunalOrdinance
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Justice Bhat: We are dealing with an enacted law. How do you deal with an action when executive goes on enacting the law as if the Supreme Court judgment never existed?
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Justice Hemant Gupta: If you are enacting legislation then are you not nullifying the judgment of this court?

AG: I am sorry to say but your ordships can pass any number of orders but the parliament can say it is not in interest of the country and enact a law

Lordships*

Justice Bhat: is it your argument today that parliament then when in 2017 legislated it cured the defect as was existing in 2010. this did not bode well in Roger Mathew. On what basis you say selection committee bit is part of constitutional principle.

AG continues reading the Kalpana Mehta case

#SupremeCourt #TribunalsOrdinance

AG: Its upto the law maker to accept or not accept. If we don't accept it does not mean the law is unconstitutional.

Justice Rao: Marbury rule says court has the right to declaring what is law and parliament cannot overrule it. Then where will be finality to this?

Justice Rao: a mandamus was issued that certain appointments could continue. Now the latest amendment to Section 175 is a direct affront to the judgment passed by the court

AG: I don't see it that way, we were entitled to say 4 years or 50 years..

Justice Rao: there were orders passed in kudrat Sandhu for ITAT and CSTAT saying they should continue till 62 but now the amendment is contrary to our judgment since you have given retrospective effect. how do you deal with this?

AG: the question is like the question 4 or 5 years, your lordships have to decide objectively without referring to the mandamus.
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AG: In Sampath Kumar you had said 5 years period is not sufficient. Then in R Gandhi you said 7 or 5 years. Then in Roger Mathew was said in 3 years. Here you have said 5 years. Therefore..

Justice Bhat: your original act was 5 years.

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Justice Bhat: up to 5 years you have substituted with 4 years. So you have not done something new.

AG: Therefore there is no point of quarrel, right of reappointment is there.

Justice Bhat:each wing is interpreting the constitution. If the court says that law is violative of the constitution then it is. But when you say when parliament says which is an implementable order etc are you saying they will call which is a valid law. Frankly I don't think so

Justice Bhat: The question is who is an interpreter of the constitution. If you say that parliament takes a call through standing committees and courts cannot strike down a law then we go to the pre-Marbury days. sometime we read it down, uphold it or strike it down

Justice Rao: what happened to the National Tribunals commission, we directed for it around 6 months ago

AG: I have spoken to the cabinet secretary. officers to be part of it has been made a part of National task force

Justice Rao: atleast have a nodal agency in the ministry of Finance till the commission is set up

AG: it will be done at the earliest

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ASG Balbir Singh: AG has dealt with most of the points. I will only deal with 184(11) which has been made retrospective. finance act 2017 dealt with two situation and 184 was brought to deal with appointments and provision was created so that all appointments are in accordance

Singh: in Roger Mathew Section 184 constitutional validity was upheld. But rules were struck down. interim orders were as interim arrangements. intention of date applicable from 2017 was not visible in 2020 act.

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IMPORTANT OBSERVATION: Justice Rao: Centre is litigant and you have argued that point we have rejected it. How is it you have knocked down the basis of our order. Union of India losing a case will become a subject matter of legislation. Then this will become the order of the day

ASG Singh: we have brought in a primary legislation and not subordinate legislation.
#supremecourt

SC: When you are taking away an accrued or vested right then you must give reasons for it. Please deal with this issue
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ASG: It was held that subordinate legislation cannot be given retrospective effect. now if this is a mandamus then can legislation override it? first case where this question was dealt with is in Madan Mohan Pathak judgment

Justice Bhat: once there is a mandamus or judgment as regards to the rights of the parties you cannot take it away. You can bring a validating act but not this

Justice Rao: we will resume post lunch

Senior Adv Datar: I will take 30 minutes

Justice Rao: we cannot sit more than an hour

ASG Balbir Singh makes submissions

ASG reads the Virender Singh Hooda vs State of Haryana to highlight the point of vested right
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Singh: we are looking at interim orders qua which final rights were created. But those were just interim orders to address the situation at that point of time. The courts knew that Section 184's constitutional validity has been upheld then
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Senior Advocate CS Vaidyanathan: The provisos have to be read in a purposive manner

Justice Rao: we cannot take up your IA now else all IAs have to be taken up

Adv PB Suresh: applicant here is an NCLAT technical member. These people have no pension at all. They are totally out of it. in 2020 Madras Bar judgment you had indicated that terms and conditions for salary has to be in accordance with verdict

Justice Rao: we are only hearing submissions with regard to ordinance. No intervention applications.
#supremecourt