SC judgements touch policy decisions, must keep in mind separation of powers: AG to SC

PTI, May 4, 2022, 6:31 PM IST

New Delhi: Attorney General KK Venugopal Wednesday defended The Tribunals Reforms Act of 2021 in the Supreme Court and said that many times the top court through its judgements had waded “into the policy domain” and it should “keep in mind separation of powers”.

“Many of the Supreme Court judgements have gone beyond its judicial ambit. We have said it is a policy decision yet the court went ahead with its judgement. Often the court has been laying policy decisions and telling the legislature to pass such and such laws. There is a separation of powers and it should be kept in mind,” Venugopal told a bench of Justices DY Chandrachud, Surya Kant, and Bela M Trivedi.

The Attorney General was responding to the submission made by senior advocate Arvind Datar who said that despite the provisions of the Ordinance being struck down last year, the Centre has come out with an Act that has identical provisions which were struck down by a bench headed by Justice LN Rao.

He said that on July 14, last year the top court had by its 2:1 verdict upheld the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 but held as “unconstitutional” certain provisions related to terms of services of the chairperson, vice-chairperson and other members of tribunals.

“On July 14, last year provisions were struck down and on July 28, last year they came out with an Act which had identical provisions. There are judgements of this court which says that a law cannot be brought without removing the basis of the judgement”, Datar said.

The bench asked the Attorney General whether the Act would remain valid as it is similar to the Ordinance word to word whose provisions were struck down.

Venugopal said that he would need time to argue on the merit of the larger issue which is validity as he was not informed that the arguments will be made today.

The bench said that it would hear the arguments in July after the vacation on the validity of the law.

The bench then dealt with some applications relating to the appointments in the tribunals. It sought to know from the Centre reasons for not appointing a member to Telecom Disputes and Settlement Appellate Tribunal (TDSAT) despite his name being cleared by the selection committee.

The bench said, “the court must be apprised of the reasons which weighed with the government for not appointing the applicant in pursuant to the vacancy notified in May 2020…the relevant files may be produced before the court”.

Venugopal, appearing for the Centre, said that he will produce the relevant document and submitted a note which stated that names were pending with the Appointment Committee of the Cabinet.

Senior advocate Vikas Singh, who appeared for the member, said that despite the search cum selection committee headed by top court judge Justice LN Rao recommending his name, he was not appointed.

The top court noted that there was a vacancy for two members in 2020 but only one was appointed despite the recommendation for two applicants.

The bench told Venugopal, “We want to know why he was overlooked? As per the memorandum of the procedure after the recommendation, a report of the Intelligence Bureau (IB) is being taken into account. Now to avoid such a lengthy process we shortlist only those candidates who have been cleared by IB. So now every recommendation is IB cleared. Then too if a candidate is overlooked then there have to be some valid reasons”.

The top court was hearing an application filed by an applicant who has recently retired as an accountant member in the Income Tax Appellate Tribunal (ITAT) in which he has alleged that his non-selection for the post in TDSAT was completely illegal, unconstitutional, and arbitrary. Recently, the Centre has cleared the appointment of former Delhi High Court Chief Justice DN Patel as chairperson and also cleared the appointment of one member and there still exists a vacancy of one member.

On September 6 last year, the top court had termed the provisions in the new law on tribunals “replica” of those struck down earlier.

It had told the Centre that though the government has the power to take away the basis of a judgement by making new laws, they cannot be “directly contradictory” to its verdicts.

“The legislature can take away the basis of the judgement of the Supreme Court. But you cannot make an Act which is directly contradictory to the judgement of the Supreme Court,” it had said.

The law pertains to terms and conditions of service and tenure of members of various tribunals and revives some of the provisions struck down by a bench headed by Justice Rao last year on pleas including the one filed by Madras Bar Association.

The top court was critical of the fact that the law was cleared without any discussion in Parliament and had restored the provisions which were struck down and had said the “Act is virtually a replica of the provisions which have been struck down in Madras Bar Association cases- II and III”.

The top court had then sought a response from the Centre on a batch of petitions, including the one filed by Congress leader Jairam Ramesh challenging the Constitutional validity of various provisions of the Tribunal Reforms Act, 2021, which was passed during the last Monsoon Session of Parliament and received Presidential assent on August 13, 2021.