Summary
The Court invalidated specified provisions of the 2021 tribunal-reforms Ordinance affecting minimum appointment age, allowances, selection panels, appointment timing and four-year tenure. The majority held that the provisions impermissibly undermined judicial independence and prior binding rulings. The retrospective transitional proviso was upheld subject to protecting court-ordered appointments. Gupta J agreed on the invalidity of two-name panels and four-year terms but dissented on the other challenged features.
Issues
- Whether the challenged tribunal-service provisions infringed judicial independence, separation of powers and Article 14.
- Whether the Ordinance validly cured defects or merely reintroduced measures rejected in earlier rulings.
- How the retrospective transitional provision affected appointments made under interim court orders.
Provisions considered
- Section 184(1), first proviso and second proviso read with third proviso, Finance Act, 2017, as amended by the Tribunal Reforms Ordinance, 2021The majority invalidated the minimum age of 50 and the challenged allowance restrictions; the subsequently amended HRA rule already complied with the earlier judgment. (¶¶ Rao J: 46–51, 58, Bhat J: 20–38, 46, Gupta J (dissent): 30–46, 63)
- Section 184(7), Finance Act, 2017, as amended by the Tribunal Reforms Ordinance, 2021The two-name panel requirement was invalidated; the majority also invalidated the provision for decision preferably within three months, preserving the binding appointment direction. (¶¶ Rao J: 47, 52–54, 58, Bhat J: 43–46, Gupta J: 1, 47, 63–64)
- Section 184(11)(i), (ii) and proviso, Finance Act, 2017, as amended by the Tribunal Reforms Ordinance, 2021Four-year terms were invalidated. Retrospectivity of the transitional proviso was sustained subject to protection of appointments made under court orders. (¶¶ Rao J: 47, 55–58, Bhat J: 39–42, 46, Gupta J: 1, 54–64)
- Articles 14 and 50, Constitution of IndiaThe majority linked independent adjudication, secure tenure and appropriate conditions of service to equality and separation of the judiciary from the executive. (¶¶ Rao J: 22, 26–32, 39–44, 49–58, Bhat J: 12–19, 25–38)
Held
- Legislation may remove the basis of a judgment, including retrospectively, by curing the identified defect within constitutional limits. It cannot merely veto binding adjudication or re-enact the same unconstitutional arrangement. The majority applied judicial independence, separation of powers and Article 14 to the challenged measures. (¶¶ Rao J: 22, 26–32, 38–44, 49–58, Bhat J: 12–19)
- By majority, the minimum age of 50 was unconstitutional: it excluded otherwise qualified younger candidates without adequate justification and frustrated the previous ruling on advocates’ eligibility. The pending ITAT selection initiated in 2018 was to be finalised considering candidates aged 35–50 also eligible, without guaranteeing selection to any individual. (¶¶ Rao J: 48–49, Bhat J: 20–38)
- The majority invalidated the second proviso to Section 184(1), read with the third, concerning allowances and housing. The 30 June 2021 amendment to Rule 15, effective for HRA from 1 January 2021, complied with the earlier directions, so no further HRA direction was required. (¶¶ Rao J: 50–51, 58, Bhat J: 1, 46)
- The two-name panel requirement reintroduced the defect previously removed to restrict executive discretion. The majority also rejected dilution of the three-month appointment direction by the word preferably. Four-year tenure was unconstitutional; the earlier five-year term governed, subject to retirement at 70 for Chairpersons and 67 for Members. (¶¶ Rao J: 52–55, 58, Bhat J: 43–46, Gupta J: 1, 64)
- Retrospectivity of the Section 184(11) proviso was upheld, but could not curtail the protected tenures arising from court-ordered appointments during the intervening period. The relevant pre-Finance Act statutory rules continued to govern the protected CESTAT appointments; appointments after 4 April 2021 were governed by the Ordinance as modified by this decision. (¶¶ Rao J: 56–58, Bhat J: 39–42, 46)
- Gupta J agreed that the two-name panel and four-year terms were invalid but would have upheld the age and allowance provisos, the word preferably and application of the transitional proviso without the majority’s protection. Those positions were dissenting. The decision did not strike down the entire Ordinance. (¶¶ Gupta J: 1, 30–47, 54–64, Rao J: 58–60, Bhat J: 46)
Result
Writ petition disposed of; specified provisions struck down to the stated extent, with the majority’s transitional protection for court-ordered appointments. Gupta J partly dissented.